RECORD OF PROCEEDINGS


	IN THE CASE OF:      
	 

	BOARD DATE:           23 November 2005                   
	DOCKET NUMBER:   AR20050001075


	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Patrick H. McGann Jr.

Member

Mr. Larry J. Olson

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests incapacitation pay (essentially, workers compensation for Reservists who are disabled while performing duty) for the time she was unable to work her job as a technician at her Army National Guard (ARNG) unit.

2.  The applicant states that she was “out of work or unable to work” from 13 February to October 2000.

3.  In a letter to the Board dated 25 October 2004, the applicant adds that she injured her neck while performing active duty in Belize, Central America.  She then chronicles the events which occurred after that incident, to include the numerous different diagnoses she was given for her pain, and the dates she was given disability statements after her return to duty.
 
4.  The applicant provides a comprehensive assortment of documents, including medical treatment records, her line of duty investigation, her medical evaluation board and physical evaluation board, Leave and Earnings Statements showing that she has received incapacitation pay, and her Federal employment status while disabled.  She also includes documents which show that she was paid Workmen’s Compensation, although she was later denied benefits under workmen’s compensation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant, a member of the ARNG serving in pay grade E-5, had surgery on her spine, which included C4-5 anterior cervical discectomy and fusion, on 10 November 1998.  This was not a service related condition.

2.  On 11 July 1999, a Medical Military Occupational Specialty Review Board (MMRB) determined that the applicant was fit for full duty without physical profile restrictions.

3.  The applicant was performing active duty for training from 28 January to 13 February 2000.

4.  On 13 February 2000, the applicant went on sick call complaining of neck, spine and arm pain.  She reported that her pain started when she jerked her head to the left while backing up a truck.  In another evaluation on the same day, she reported that she injured her neck while lifting heavy boxes.

5.  On 15 February 2000, the applicant made a statement concerning her injury.  In that statement she said that her pain started when she jerked her head to the left while backing up a truck.

6.  On 24 March 2000, a physician stated that there was “No evidence of a herniated disc or any nerve root compression whatsoever.”  That physician then signed a release returning the applicant to normal duty.

7.  On 6 April 2000, the applicant was evaluated by a neurological surgeon who stated that “I do not believe that [the applicant] has a cervical disc abnormality that would require surgical treatment.  I do feel that she may be developing some type of arthritis since she has pain in all of her joints and she may have picked up some tropical disease in Belize or Central America.”

8.  On 27 April 2000 the applicant was again examined.  During this visit the history of her current pain was detailed.  This history was that the applicant had a myelogram on 16 March 2000 which was normal; and she had been seen by two neurosurgeons who found nothing neurologically wrong with her and returned her to work.  The examiner concluded that the applicant had neck pain of undetermined cause and opined that she may have fibromyalgia.  

9.  On 1 March 2000 a formal line of duty investigation was concluded on the applicant’s disabilities.  Initially, the finding was not in line of duty not due to own misconduct, EPTS (existing prior to service), no aggravation for her cervical disc disease, and in line of duty for her acute neck muscle spasm.

10.  Upon appeal, the finding for her cervical disc disease was changed to in line of duty, EPTS, aggravation.

11.  In nine separate physician statements, the applicant was determined to be unable to return to work between 13 February and October 2000.

12.  On 17 January 2001, the applicant was denied Workmen’s Compensation.  In that denial it was stated that “medical evidence received from your physician dated April 10, 2000 stated your complaint was pain over the left side of your neck radiating into the left shoulder and down the left arm but in conclusion he fails to make a diagnosis stating that claimant may have picked up a tropical disease.”

13.  On 7 June 2002, a Medical Evaluation Board (MEB) convened and determined that the applicant was medically disqualified for retention due to cervical spondylosis.

14.  On 18 June 2002, an informal Physical Evaluation Board (PEB) determined that the applicant was physically unfit due to chronic neck pain due to cervical spondylosis, pain rated as slight and constant.  The PEB recommended that the applicant be discharged with severance pay, rated 10 percent disabled.

15.  Accordingly, on 6 August 2002, the applicant was honorably discharged from the ARNG and as a Reserve of the Army.

16.  On 11 August 2003. the Office of Equal Opportunity, National Guard Bureau (NGB), responded to an Equal Opportunity Complaint filed by the applicant.  The applicant had charged discrimination based on her race/color in the hospital she was sent to for treatment, in the termination of her medical treatment and incapacitation pay, and in the treatment she received by the office processing line of duty investigations.  The Office of Equal Opportunity determined that there was no discrimination in any of the three complaints.  The applicant was sent to the nearest medical treatment facility, which was standard policy.  As for the applicant’s complaints about the termination of her incapacitation pay, the applicant’s incapacitation pay was properly terminated when a physician stated that she could return to her normal military duties.  

17.  Army Regulation 135-381 and title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to reservists who are disabled in line of duty as a direct result of the performance of their duties.  To receive continuation of pay, referred to as incapacitation pay, reservists must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income.  If the reservist continues to work at his or her civilian job, the amount of money earned is deducted from the incapacitation pay.  Entitlement to incapacitation pay is limited to 6 months unless the Secretary of the Army finds that it is clearly in the interest of fairness and equity to extend the incapacitation pay.  Only in the most meritorious cases will incapacitation pay be extended past the 6-month limitation.

18.  Cervical spondylosis is a disorder caused by abnormal wear on the cartilage and bones of the neck (cervical vertebrae) with degeneration and mineral deposits in the cushions between the vertebrae (cervical disks).  Cervical spondylosis results from chronic degeneration of the cervical spine including the cushions between the neck vertebrae (cervical disks) and joints between the bones of the cervical spine. There may be abnormal growths or "spurs" on the vertebrae (the bones of the spine).  These accumulated changes caused by degeneration can gradually compress one or more of the nerve roots.  This can lead to increasing pain in the neck and arm, weakness, and changes in sensation.  In advanced cases, the spinal cord becomes involved.  This can affect not just the arms, but the legs as well.  A previous neck injury (which may have occurred several years prior) can predispose to spondylosis, but the major risk factor is aging.  By age 60, 70% of women and 85% of men show changes consistent with cervical spondylosis on X-ray (MEDLINE PLUS).

19.  A series of Comptroller General decisions have clarified eligibility for, and duration of incapacitation pay for Army National Guard/USAR soldiers disabled due to injury or disease incurred in the line of duty. These include:

	a.  36 CG 692 which ruled that entitlement to disability pay stops, upon finding by a service medical officer, that the member is able to perform his military duty; and

	b.  37 CG 558 which ruled that the member's right to disability payment should be decided on the basis of whether or not he is returned to a duty status and without regard to the amount or degree of restricted or limited duty he performs after his return.

20.  In the processing of this case an advisory opinion was obtained from the NGB.  The NGB chronicles the events surrounding the applicant’s case.  The NGB concludes that since the Human Resources Command, Alexandria, Virginia, overturned the NGB and made the entire finding of the applicant’s condition in line of duty, their office “sees no reason why [the applicant] should not be paid for the entire period of [incapacitation pay].”

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant was paid incapacitation pay up to the date she was returned to duty by competent medical authority.  The termination of incapacitation pay at that point was accomplished in accordance with Army regulation, Comptroller General Decisions, and law.

2.  However, the applicant was given disability statements subsequent to her medical release to return to duty.  These statements have been examined carefully to determine whether the applicant’s earlier return to a duty status was in error.  In this regard, none of these statements were made in conjunction with a definitive diagnosis.  Since no specific diagnosis was made at the time these statements were issued, these disability statements are not of the weight to override the applicant’s return to duty when the physician determined that there was no evidence of a herniated disc or any nerve root compression whatsoever.  

3.  Also, while the applicant’s acute neck muscle spasm was determined to have been incurred in line of duty, and her cervical disc disease was determined to be service aggravated, there is no indication that these conditions caused the pain which she contends disabled her from performing her duties.  The physicians treating her were unable to determine exactly what was causing her pain.  

4.  In addition, it is noted that the applicant submitted a Workmen’s’ Compensation claim for her disability.  

5.  The NGB advisory opinion has been carefully considered.  However, since the NGB did not address the applicant’s return to duty on 24 March 2000, and did not address the absence or a diagnosis for the applicant’s pain, the advisory opinion does not contain sufficient fact to overcome a presumption of regularity.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jns___  ___phm _  ____ljo__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





		_________John N. Slone________
		        CHAIRPERSON





INDEX

CASE ID
AR20050001075
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051123
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.