RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050015848


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Eric Andersen                 |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. Richard Murphy                |     |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 request that he be medically retired from the Army with a
disability rating of 30 percent and with entitlement to disability retired
pay retroactive to his August 2005 separation date.

2.  The applicant differed to counsel to make his arguments.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant suffers from debilitating chronic back
pain and a neurogenic retentive bladder which requires constant voiding.
He notes his formal PEB (Physical Evaluation Board) concluded his chronic
back pain was secondary to his surgical intervention of a preexisting
medical condition (a tethered spinal cord) and that no ruling was made on
his neurogenic bladder condition.

2.  Counsel argued that the Medical Evaluation Board (MEB), without any
clinical testing, incorrectly identified his neurogenic bladder as merely
“difficulty voiding” and that the formal PEB did not have any information
concerning his bladder condition and refused to allow time for clinical
testing.  He states his urodynamic test was scheduled for 5 May 2005 and
his attending physician requested delay of his 3 May 2005 hearing date.
However, counsel states the president of the formal PEB was more interested
in moving cases along than ascertaining the physical condition of the
applicant.

3.  He notes the applicant’s bladder test was completed on 5 May 2005 and
the results published on 12 July 2005.  However, he states the Physical
Disability Agency had already ruled on his case on 6 July 2005 without the
neurogenic bladder evidence.  He argues there was no analysis of the
applicant’s neurogenic bladder conditions.

4.  Counsel notes that the MEB concluded the applicant’s chronic back pain
were directly caused by service aggravating conditions and that the service
aggravation conclusion was ignored by the formal PEB.

5.  Counsel concludes that the applicant’s neurogenic bladder is clearly an
unfitting condition that is not definitively EPTS (existed prior to
service) and should be rated, as should the applicant’s chronic low back
pain.

6.  In support of the application counsel and the applicant provides copies
of
his disability processing documents, extracts from his military personnel
file, a
17 May 2005 memorandum from counsel arguing that the applicant’s chronic
back pain should be rated at 10 percent, a copy of information concerning
the scheduling of urodynamic test on 5 May 2005, a 2 May 2005 request to
extend the applicant’s medical board proceedings, a 12 July 2005 letter
concerning the applicant’s urologic condition, and a 20 October 2004 letter
from the applicant’s Army National Guard commander noting that since May
2003 the applicant has been unable to perform his duties as unit supply NCO
(noncommissioned officer).

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant served an initial
period of active duty between 1995 and 1999.  In July 1999, following his
release from active duty, he became a member of the Army National Guard.
In March 2002 he returned to active duty as an Active Guard Reserve (AGR)
Soldier.

2.  A 7 January 2005 MEB summary notes the applicant’s chief complaints as
pain lower right back involving both legs, chronic depression and panic
disorder, testicular pain/epididymitis, chronic headaches, tinnitus,
erectile dysfunction, difficulty urinating and occasional bedwetting.  The
summary noted these were all the conditions the applicant reported on his
intake form.

3.  The applicant reported first having significant back pain in May 2003
while doing physical training.  Therapy and medication failed to improve
the pain and a subsequent MRI (magnetic resonance imaging) revealed
tethering of the spinal cord.  The applicant underwent surgery on 18 July
2003.  The summary indicated that while the applicant’s pain has improved
he continued to have significant debilitating pain.

4.  Regarding difficulty with urination, the summary noted the applicant
described being unable to empty his bladder at times.  It indicated that a
previous neurology note stated the applicant described being unable to void
while standing but being able to void while seated and that two urology
tests done in 2004 revealed 0 milliliter residual and 20 milliliter
residual.

5.  The MEB noted the following diagnoses; chronic low back pain (MEB
diagnosis 1), headaches (2), erectile dysfunction and difficulty voiding
(3), scrotal pain (4), tinnitus (5), and hyperlipidemia (6); depressive
disorder (7) and Pain disorder (8).  Regarding medical diagnosis 1, the
evaluating physician stated that since the tethered spinal cord is a
congenital condition, in the absence of prior surgery causing adhesions,
etc, this condition is EPTS and permanently aggravated by service.  The
physician noted that MEB diagnosis 2 through 6 were all medically
acceptable and referred the applicant to a Physical Evaluation Board.  A
permanent physical profile, issued following the MEB evaluation, made no
reference to the applicant’s urinary situation as part of his limiting
physical profile.

6.  The applicant did not agree with the findings and recommendation of the
MEB and submitted an appeal.  In his appeal the applicant asked that
information regarding his urology tests done in 2004 be changed to show
that one of the rests was done post operatively which revealed the 20
milliliter residual and that it was after the surgery that he first
complained of not being able to empty his bladder normally and first
reported urinary incontinence.  He indicated there was no mention of
urinary incontinence and that condition was one of his more troubling.  He
also noted that he had difficulty voiding while either standing or sitting.

7.  On 14 February 2005 the applicant’s appeal was considered and the
original findings and recommendation of the MEB were confirmed.

8.  On 1 March 2005 the applicant underwent an informal PEB.  The informal
PEB concluded that the applicant’s chronic low back pain, associated with
panic attacks and symptom of depression (MEB diagnosis 1, 7-8) first
manifested in May 2003 while the applicant was doing physical training and
that following a laminectomy and intradural sectioning of a tethered spinal
cord in July 2003 he continued to suffer from ongoing back pain.  The
informal PEB recommended separation with a 10 percent disability rating.
MEB diagnosis 2 through 6, which included the applicant’s difficulty
voiding, were determined to be medically acceptable.

9.  The applicant nonconcurred with the informal PEB and demanded a formal
hearing.

10.  The applicant’s formal PEB was held on 3 May 2005 and concluded that
the applicant’s back pain was post surgery as a result of an EPTS condition
and that it was not permanent service aggravation.  The formal PEB also
noted the applicant’s concerns with urinary voiding dysfunction.  The PEB
noted there was sufficient evidence to substantiate an EPTS condition which
now rendered the applicant unfit but that the condition was not permanently
aggravated by his military service but was the result of natural
progression.  The formal PEB recommended separation without benefits and
continued to note that MEB diagnosis 2 through 6 were all medically
acceptable conditions.

11.  An undated statement from a Urologic Center in Philadelphia noted the
applicant was scheduled for an urodynamic test on 5 May 2005.  A 2 May 2005
memorandum from a Naval physician noted the applicant had undergone a
partial workup for voiding difficulties from several urologists and that it
was believed the applicant suffered from neurogenic bladder.  The physician
noted this conclusion was supported by residual urine volumes on
ultrasound, but required urodynamic testing for confirmation and was having
trouble scheduling such testing.  She recommended that the applicant’s
medical board proceedings be extended to allow for completion of the
testing.

12.  On 6 July 2005 the United States Army Physical Disability Agency noted
the applicant’s disagreement with the findings and recommendation of his
formal PEB and noted that his entire case had been reviewed.  The Physical
Disability Agency concluded the applicant’s case was properly adjudicated
and that the findings and recommendation were supported by substantial
evidence and therefore affirmed.

13.  A 12 July 2005 statement from a civilian physician noted the applicant
had seen the physician on 17 March 2005 complaining of urologic symptoms.
The physician noted the applicant’s physical examination, from a
genitourinary standpoint, was completely normal, and that his urinalysis at
that time was normal under microscopic exam.  An ultrasound of his bladder,
after voiding, revealed a residual of 143cc.  He noted the applicant’s
urodynamics done on
5 May 2005 revealed a large post void residual with some sensation of
filling and decreased bladder contractility.  The physician stated his
diagnosis at this point was a neurogenic bladder that fails to empty, but
he saw no evidence the surgery caused the pathologic condition, nor was he
able to identify the condition with its etiology.

14.  On 5 August 2005 the applicant was discharged by reason of physical
disability which was determined to have existed prior to service.

15.  A performance evaluation report, rendered on the applicant for the
period December 2002 through November 2003 noted the applicant had a
physical profile but that he maintained his military bearing at all times
and was rated successful in the area of physical fitness and military
bearing.  His rater rated his overall potential for promotion and/or
service in positions of greater responsibility as among the best.  His
senior rater recommended he be promoted ahead of his peers.  There was no
mention of his inability to perform any of his military duties as a result
of any medical conditions.  The report was written in February 2004.


16.  The muscles and nerves of the urinary system work together to hold
urine in the bladder and then release it at the appropriate time. Nerves
carry messages from the bladder to the brain and from the brain to the
muscles of the bladder telling them either to tighten or release. In a
neurogenic bladder, the nerves that are supposed to carry these messages do
not work properly.

17.  Army Regulation 635-40, paragraph B-10, provides that hereditary,
congenital, and other EPTS conditions frequently become unfitting through
natural progression and should not be assigned a disability rating unless
service aggravated complications are clearly documented or unless a Soldier
has been permitted to continue on active duty after such a condition, known
to be progressive, was diagnosed or should have been diagnosed.

18.  Army Regulation 635-40 also notes that when an EPTS condition becomes
symptomatic under the stress of active duty the condition may be unfitting
but has not been aggravated by active duty unless it has been permanently
worsened over and above natural progression.

19.  Army Regulation 635-40, paragraph 3-1, states that the mere presence
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 reasonable may be expected to perform because of
his or her office, grade, rank, or rating.  The fact that a 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.

20.  Army Regulation 635-40, Chapter 4, provides that a medical evaluation
board will make a decision as to the service member's medical qualification
for retention on active duty on the basis of criteria set forth in Army
Regulation 40-501, Chapter 3.  The service member will not be told that he
or she is medically or physically unfit for further military service; that
he or she will be discharged or retired from the service because of
physical disability; or that a given percentage of disability appears
proper.  Individuals who are determined by an MEB not to meet retention
standards will be referred to a physical evaluation board (PEB).  Only a
PEB, established to evaluate all cases of physical disability equitably for
the member and the Government, may determine that an individual is unfit by
reason of physical disability and assign a disability rating.



DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no new medical evidence which shows that his
back pain was aggravated by his military service and as such warranted a
disability rating.  The evidence shows that applicant indicated that he
first experienced pain in May 2003 during physical training.  However, he
continued to perform his duties as outlined in the performance evaluation
report rendered for the period ending in November 2003.  One could argue
that the rigors of military service merely brought to the surface the
applicant’s preexisting tethered spinal cord.

2.  The fact that he underwent surgery for that condition while in the
military is not evidence which would warrant a finding that his back pain
was aggravated by his military service.  Rather, the surgery was an attempt
to rectify his spinal cord condition in the hopes of permitting him to
continue his military service.  When the surgery failed to achieve the
desired results the appropriate disposition was separation.  Although the
MEB summary may have indicated the applicant’s chronic back pain was
permanently aggravated by service is noted, however, the final
determination in that arena rests with the PEB, not the MEB.

3.  The Army has an obligation to release individuals whose medical
conditions might further aggravate the condition and/or ultimately
jeopardize the health of the individual, if permitted to remain under the
rigors of a military environment.  Such was the applicant’s case.

4.  The applicant’s urinary concerns were well documented throughout his
disability processing.  The fact that a diagnostic name was ultimately
given to that condition does not mean that it was an unfitting condition or
that it warranted a disability rating.  The applicant’s urinary condition,
regardless of the diagnostic name associated with the condition, was
determined not to be unfitting and he has presented no additional medical
evidence which shows otherwise.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

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





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___EA __  __RL____  ___RM __  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.





                                  ______Eric Andersen________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015848                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060914                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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