MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 18 November 2003
         DOCKET NUMBER: AR2003087750


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  records
         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by showing that he was placed on the retired list, rated at least 30 percent disabled.

APPLICANT STATES: In effect, that that there were errors in his Medical Evaluation Board (MEB). Those errors were the statement that he ran the 2-mile portion of the Physical Training (PT) test in 14 minutes; the lack of rating for arthritis in his right ankle; and the lack of rating for his somatic disorder. He adds that if his somatic disorder would have been considered, the physicians would have discovered that he also had a bi-polar disorder. He also explains that the arthritis in his right ankle was due to his breaking his ankle in a parachute jump. The applicant contends that, if all of his disabilities were rated, he would have been rated at least 30 percent disabled. The applicant then voices some complaints he has with the Department of Veterans Affairs (VA).

In support of his request he submits documents showing that he broke his ankle while on active duty in 1982; his physical profile showing that he was assigned a permanent “4” designator (the most severe limitation code in a four digit field) in the lower extremity portion of the profile due to pes planus; a medical record sheet dated 26 January 1987 which stated that the applicant exhibited symptoms which would be consistent with somatoform disorder; and the MEB in which the broken ankle he sustained in a parachute jump in 1982 was mentioned and the history of the problems he had with his ankle since that date was outlined.

In that examination the physician stated, “Both ankles dorsiflexed to 10° . . . when knee extended and foot held in neutral position. When standing, the patient’s feet pronate. The ankles and feet are not swollen. There is normal subtalar motion bilateral. There are no calluses upon the feet. Circumferential measurements at the calf level is identical bilateral. There is no decrease in sensation at the feet.”

The physician opined that, “There is objective evidence for an undisplaced fracture of the distal fibula and previous tearing of the ligament between the distal tibia and fibula. Objectively by x-ray, the fracture has healed, and the bone scan is not consistent with arthritis between the distal tibia and fibula or reflex sympathetic dystrophy. Furthermore, this is not the area of his complaints, which are in the medial aspect of his ankle and the mid foot. In these areas no abnormalities are found on x-ray or bone scan. On physical exam, he has pes planus with a mildly contracted tendo-achilles. I cannot explain the cold sensitivity.”





The applicant also submits his formal Physical Evaluation Board (PEB) Proceedings, his rebuttal to the findings and recommendation of the PEB, and the final action taken on the PEB’s findings and recommendation by the Physical Disability Agency. The applicant’s appeal was on the PEB’s use of the word “mild” when describing the contraction of his tendo achilles. He contended that the word “severe” should be substituted for “mild.”

The applicant submits statements from soldiers who served with him attesting to his disability.

The applicant also submits a copy of his VA rating decision in which he was awarded a 20 percent disability for residuals, right ankle fracture postoperative, and bilateral pes planus.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's two previous considerations of the case on 20 August 2002 and 13 February 2003 (AR2002071508 and AR2002078012).

The applicant’s contentions have previously been considered by the Board. However, he submits new argument in support of his contentions that requires Board consideration.

Army Regulation 635-40, which governs the processing of soldiers under the Disability Evaluation System, Chapter 3, Policies, paragraph 3–1, Standards of unfitness because of physical disability, states the following:

The mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

Objectives of standards. To ensure all soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualifications standards have been established in AR 40–501,
chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases. These guidelines are used to refer soldiers to a MEB. The major objective of these standards is to achieve uniform disposition of cases arising under the law. These retention standards and guidelines should not be interpreted to mean that




possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army. The fact that the soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

Considering the overall effect of disabilities. The overall effect of all disabilities present in a soldier whose physical fitness is under evaluation must be considered. The effect will be considered both from the standpoint of how the disabilities affect the soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments. A soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.

Evaluating the soldier’s fitness to perform duties. All relevant evidence must be considered in evaluating the fitness of a soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made. For example, when a referral for physical evaluation immediately follows acute, grave illness or injury, the medical evaluation may have the greater weight. This is particularly true if medical evidence establishes the fact that continued service would be harmful to the soldier’s health or would prejudice the best interests of the Army. A soldier may be referred for physical evaluation under other circumstances. If so, evaluations of the performance of duty by supervisors (letters, efficiency reports, or personal testimony) may provide better evidence than a clinical estimate by the soldier’s physician describing the physical ability to perform the duties of the office, grade, rank, or rating. Thus, if the evidence establishes the fact that the soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral for physical evaluation, the soldier might be considered fit for duty. This is true even though medical evidence indicates the soldier’s physical disability to perform such duties may be questionable. However, inadequate duty performance should not be considered as evidence of physical unfitness unless a cause and effect relationship exists between the inadequate duty performance and the presence of physical disabilities.




Deciding the soldier’s unfitness to perform duties. Initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service. Once a soldier has been enlisted, inducted, or commissioned, the fact that the soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the soldier is unfit because of physical disability as described above. Likewise, a lack of special skills in demand, inability to meet physical standards established for specialized duty such as flying, or transfer between components or branches within the Army, does not, in itself, establish eligibility for disability separation or retirement. Although the ability of a soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

Somatoform is a pain disorder which is persistent and is present at one or more sites. Psychological factors are thought to play a role in this condition.

Pain is one of the most common reasons that people seek medical attention. In pain disorder, the suffering is so severe that it impairs a person's ability to function. Furthermore, the pain itself is thought to be related to psychological factors, such as stress or unconscious conflict. Individuals with this illness may have other medical problems, though these fail to account fully for the pain.

Unfortunately, pain that is "psychological" in nature is often stigmatized both by medical professionals and the general public. A poor understanding of the connections between mind and body can lead to the misperception that if pain has a psychological cause it isn't "real" and should be able to be controlled without medical or mental health treatment.

The primary symptom of pain disorder is chronic pain for several months that limits a person's social, occupational, or recreational abilities.

Some patients may resent the idea that their pain has a psychological component and may refuse treatment by a mental health professional. Nevertheless, many chronic pain syndromes, including those with a definitive physical source, can be effectively treated with antidepressants.







Supportive measures such as hot and cold packs, physical therapy, distraction techniques, and massage can also be helpful. Prescription and non-prescription pain medications are usually not effective and can make matters worse due to potentially serious side effects. (MEDLINEplus)

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s ankle and foot were thoroughly examined by the physician conducting the MEB physical examination. Neither x-rays, bone scans nor physical range of motion tests showed any physical deformity or any other problem, other than pes planus. To the contrary, the area in which the applicant reported having pain was not the area which would have been effected from residuals of a broken ankle. As such, all indications are that the applicant’s ankle met medical fitness standards and, therefore, was properly not considered by the PEB.

2. The applicant has submitted documentation which shows that he was exhibiting symptoms of somatoform disorder while on active duty. However, there is no record of him being treated for this condition after that diagnosis. As such, it must be presumed that the condition was of a mild severity. The fact that a person has a medical condition does not mandate that the condition be rated by a PEB. The condition must be considered medically disqualifying and physically unfitting. The applicant has not submitted any evidence which would indicate that his somatoform disorder was either medically disqualifying or physically unfitting. As such, all indications are that this condition was properly not considered by the PEB.

3. In order for the Board to recommend approval of the applicant’s request, he must submit documentation to show that either the MEB physical examination diagnosis was incorrect (which would require clinical evidence), or he would have to submit documentation to show that he was medically disqualified and physically unfit due to somatoform disorder.

4. The applicant’s contention that his MEB erroneously stated that he ran the 2 mile portion of his PT test in 14 minutes has no bearing on this case. Likewise, he has not submitted any documentation which would show that he suffered from bi-polar disorder while he was on active duty.





5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___mdm_ ___jns___ ___bje __ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003087750
SUFFIX
RECON
DATE BOARDED	20031118
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.