RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060013767 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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, in effect, that the status of his injury be changed from pre-existing to service related.

2.  The applicant states, in effect, that he did not have any injuries when he enlisted.  His injuries developed and became worse during his service in the Army from 2 May 2002 to 21 October 2005.  He states that the Department of Veterans Affairs (VA) has declared his injuries service related. 

3.  The applicant provides a copy of his MEB (Medical Evaluation Board) and PEB (Physical Evaluation Board), with attachments, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains a copy of a DA Form 2808 (Record of Medical Examination), dated 16 January 2002, which was prepared prior to his entrance on active duty, which shows that he was not medically qualified for enlistment on 16 January and 15 March 2002.  After an examination on 25 March 2002, he was medically qualified for enlistment with a 111111 physical profile.  His DA Form 2808 (Report of Medical Examination) indicates that he was diagnosed as having a left pectoral and a right inguinal hernia. 

2.  The applicant's record shows he enlisted in the Regular Army on 2 May 2002, and was trained in military occupational specialty (MOS), 31B, Military Police.  He was promoted to specialist (SPC/E-4) effective 1 December 2003.  

3.  On 11 August 2005, the applicant was given a physical examination.  Item 29 (Explanation of "YES" Answers), of his DD Form 2807-1, indicated that he had:  current pain in his feet, heels, Achilles tendons; current deformity on both heels; and several other ailments.  His DD Form 2808 diagnosed him as having Achilles tendonitis and he was found not qualified for service.  He was issued a physical profile of 113111.  

4.  The applicant was issued a permanent profile of 113111, on 16 September 2005, due to bilateral foot/Achilles deformity and chronic inflammation.  His APFT (Army Physical Fitness Test) consisted of the sit-ups and the alternate aerobic event of swimming.  

5.  On 8 September 2005, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having bilateral chronic Achilles tendonitis with Haglund deformities.  The MEB determined that he failed to meet retention standards in accordance with Army regulation 40-501.  His ailment was ruled to have been incurred while he was entitled to base pay, did not exist prior to service (EPTS), and was permanently aggravated by service.  The applicant indicated that he agreed with the MEB's findings and that he did not desire to continue on active duty.  The findings and recommendations were approved on 16 September 2005 and he was referred to a PEB.  The applicant concurred on 20 September 2005.  

6.  On 14 September 2005, the applicant's commander prepared a memorandum for the PEB, Fort Lewis, Washington.  The commander stated that the applicant was a 26 year old serving with the 463rd Military Police Company, Fort Leonard Wood, Missouri, as a 31B, military police.  His current profile was 113111 due to Achilles deformity and chronic inflammation which was determined to be a permanent condition with a rating of P3.  His assignment limitations included aerobic exercise at own pace and distance, and no APFT.  His functional activity limitations included not being able to move with a fighting load at least two miles or do 3-5 second rushes under direct or indirect fire.  The commander concluded that his medical condition prevented him from deploying, which was essential in today's Military Police Corps and Today's Army.

7.  On 26 September 2005, the applicant appeared before an informal PEB, at Fort Lewis, Washington.  He was diagnosed as having, "Chronic bilateral heel pain with onset in June 2003.  Imaging shows bilateral Haglund's deformities or calcaneal epiphyusitis, a developmental condition occurring between ages 9-14 and known to cause subsequent heel pain.  Examination verified prominent bumps of both heels at the calcaneo-achilles function.  Heel pain and profile prevents effective duty in PMOS (Primary MOS).  The present symptoms represented natural progression of a pre-existing condition without permanent service aggravation (emphasis added). The PEB found the applicant physically unfit and recommended that he be separated without disability benefits.  The PEB indicated that his separation was not based on a disability resulting from an injury received in line of duty as a direct result of armed conflict or caused by an instrument of war and incurring in LOD (Line of Duty) during a period of war as defined by law.  The applicant concurred with the results of the PEB and waived a formal hearing of his case on 28 September 2005.  

8.  The applicant served until he was released from active duty on 21 October 2005, under the provisions of Army Regulation 635-40, paragraph 4-24b(4), for disability, EPTS, PEB.  

9.  Item 28 (Narrative Reason for Separation), of his DD Form 214, shows the entry "Disability, Existed Prior to Service, Physical Evaluation Board (PEB)."

10.  The applicant provides a copy of his VA Rating Decision, dated 9 January 2006, which shows that he was granted a 10 percent service connected disability for Achilles tendonitis right foot and 10 percent for his left foot for a combined rating of 20 percent, effective 22 October 2005.

11.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

12.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical 
condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

13.  Paragraph 4-19b, of Army Regulation 635-40, states that a PEB may decide that a Soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a Soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

14.  Paragraph 4-24 of Army Regulation 635-40 pertains to the disposition of Soldiers by the US Army Human Resources Command (AHRC) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or 
reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(4) applies to separation for physical disability, existed prior to service, physical evaluation board (PEB).

15.  Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in the line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

16.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that he did not have any related injuries when he enlisted and that his injuries became worse during his service.

2.  The evidence shows that the applicant was found qualified for enlistment on 2 May 2002 with a 111111 physical profile after having failed entrance physical examinations on 16 January and 15 March 2002.  His enlistment examination indicated no qualifying defects or communicable diseases.  He was diagnosed as having a left pectoral and right inguinal hernia.

3.  The applicant was given a physical examination on 11 August 2005, approximately 3 1/2 years later, and was issued a physical profile of 113111.  He was diagnosed as having Achilles tendonitis.

4.  The applicant appeared before an MEB and was found not qualified for retention.  His condition was determined to have been incurred while entitled to base pay, to have existed prior to service, and was service aggravated.  He was referred to a PEB.

5.  The PEB found the applicant unfit for military duty in accordance with regulation after images showed bilateral Haglund's deformities or calcaneal epiphyusitis, a developmental condition occurring between ages 9-14 and known to cause subsequent heel pain.  Examination verified prominent bumps of both heels at the calcaneo-achilles function.  Heel pain and profile prevents effective duty in PMOS (Primary MOS).  The present symptoms represented natural progression of a pre-existing condition without permanent service aggravation (emphasis added).  He concurred with the results of the MEB and PEB.  He was discharged for disability, EPTS, PEB.

6.  The applicant's narrative reason for separation on his DD Form 214 is correct as currently constituted.  There is no evidence, and the applicant has provided none, to support a change in the status of his injury, which existed prior to service.

7.  The applicant has not provided any evidence to show that he was not properly rated for his disabilities.

8.  The applicant applied to VA after his release from active duty.  He was awarded a combined rating of 20 percent for his service-connected disability for Achilles tendonitis.

9.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service related conditions cause social or industrial impairment after a Soldier's discharge. 

10.  Any rating action by the VA does not necessarily demonstrate error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___tmr___  __rn____  ___J____  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 T. Meixell________
          CHAIRPERSON



INDEX

CASE ID
AR20060013767
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20051021
DISCHARGE AUTHORITY
AR . 635-40, PARAGRAPH . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.