IN THE CASE OF:	  

		BOARD DATE:	       19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017269 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, disability retirement. 

2.  The applicant states that he was refused an MRI (magnetic resonance imaging) before his discharge and that his “diagnosis” was not specific.  He states that within 6 months of his discharge he received a CAT (computerized axial tomography) Scan and an MRI that defined his medical condition.

3.  The applicant provides page one and two of his 16 December 1991 Medical Evaluation Board (MEB) proceedings, page one of his 7 January 1992 Physical Evaluation Board (PEB) proceedings, a copy of a 12 November 1992 CAT Scan report, and a copy of a December 1992 MRI lumbar spine report.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  Records available to the Board indicate the applicant initially entered military service in 1979 serving in a variety of capacities with the Regular Army, United States Army Reserve, and Army National Guard.  By 13 September 1989, when he enlisted in the Regular Army and entered active duty, he had accumulated approximately 10 years of active and inactive military service. 

3.  Upon his return to active military service in 1989 the applicant was assigned to a maintenance company in Germany.  On 1 November 1991 he underwent a physical examination for the purpose of an MEB.  The evaluation and attached medical treatment form noted the applicant had a long history of low back pain stemming from heavy lifting in April 1990. 

4.  The MEB proceedings, dated 16 December 1991, provided by the applicant, indicated a diagnosis of “chronic midscapular posterior back pain” originating in April 1990, which was incurred while entitled to base pay, existed prior to service, and was permanently aggravated by his military service.  The MEB recommended referral to a PEB.  The narrative medical summary normally associated with MEB proceedings was not available to the Board.  On
18 December 1991 the applicant concurred with the findings and recommendation of the MEB.

5.  An informal PEB, convened on 7 January 1992, found that the applicant’s activity limitations, resulting from “subjective midscapular pain, right side without objective findings” precluded adequate performance of normal duties associated with his office, grade, rank, and rating and as such he was found unfit for continued military service.  The PEB rated his condition at 0 percent under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Codes 5021-5003.  The PEB noted the determination was based on the MEB's diagnosis and narrative summary.  The PEB recommended the applicant be separated with severance pay, if otherwise eligible.  That portion of the PEB which would have showed the applicant’s concurrence or nonconcurrence with the findings and recommendation of the PEB was not available to the Board.

6.  On 13 July 1992 the applicant was discharged by reason of physical disability and received $17,026.80 in disability severance pay.

7.  According to documents provided by the applicant, he underwent a CAT Scan on 12 November 1992 which showed an impression of “calcified or ossified epidural mass, posteriorly, at the level of T5 with mild compression of the cord.”  The report noted that an MRI may be helpful for further evaluation if clinically indicated.

8.  A 6 December 1992 MRI of the lumbar spine showed an impression of “hypointense posterior epidural lesion at the T5-6 level” and “degenerative disc disease of the lumbar spine.”

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the policies and procedures for evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 3-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

10.  Army Regulation 635-40 states:

   a.  the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61 these ratings are assigned from the VASRD.  Special guidance concerning Army use of the VASRD, as well as modifications and exceptions to it as prescribed by Department of Defense (DOD) Directive 1332.18, are set forth in appendix B of this regulation.
   
   b.  After establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier’s medical condition at time of rating. The VASRD, as modified by appendix B of this regulation, is used in deriving percentage ratings.
   
   c.  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 reasonably may be expected to perform because of their office, grade, rank, or rating.

11.  Appendix B of Army Regulation 635-40 states:

	a.  The VASRD codes appearing opposite the listed ratable disabilities are numbers for showing the basis of the evaluation assigned and for statistical analysis.  Great care must be used in the selection of the applicable code and in its citation on the rating sheet.  The written diagnosis entered on the rating form should include any description considered necessary to indicate the extent of severity or etiology of the condition.  In the selection of codes, injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined.  When disease conditions exist, preference must be given to the code assigned to the disease itself.  If the rating is determined on the basis of residual conditions, the code appropriate to the residual condition will be added.  Thus, atrophic rheumatoid arthritis rated as ankylosis of the lumbar spine would be coded “5002–5287.”  In this way the exact source of each rating can be easily identified.  In the citation of disabilities on rating sheets, the diagnostic terminology may be any combination of the medical examiner’s or VASRD terminology that accurately reflects the degree of disability.  Hyphenated codes are used when the VASRD provides that a listed condition is to be rated as some other code, for example, myocardial infraction rated as arteriosclerotic heart disease (7006–7005) or nephrolithiasis rated as hydronephrosis (7508–7509), when the VASRD provides a minimum rating and the unfitting disability is being rated on residuals, for example, multiple sclerosis rated with very diffuse residuals, rated by analogy (8018–8105), when an unlisted condition is rated by analogy, for example, spondylolisthesis rated as lumbrosacral strain (5299–5295).

	b.  Occasionally a medical condition which causes or contributes to unfitness for military service is of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD.

12.  The VASRD notes that code 5021 denotes myositis (a general term for inflammation of the muscles) and that code 5003 denotes arthritis, degenerative (hypertrophic or osteoarthritis).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should have been medically retired because his MEB/PEB failed to determine that his low back pain was the result of degenerative disc disease.  The absence of the applicant’s medical records and complete disability processing documents makes it impossible to determine the entire medical issues which contributed to the finding of unfitness for the applicant.  However, based on the limited documents which are available, it appears that the applicant’s low back pain, regardless of the source of that condition, is what contributed to the limitations in his activity which precluded adequate performance of normal duties associated with his office, grade, rank and rating, and as such resulted in a finding of unfitness by the PEB.

2.  The fact the applicant may have subsequently been diagnosed with degenerative disc disease is not evidence of any error or injustice in his Army disability rating.  

3.  The applicant would have had the opportunity to challenge any of the findings and recommendation being made by the MEB or PEB.  There is no evidence, and the applicant provided none, to show that he challenged any of the findings and recommendation of the MEB and PEB.  It appears the applicant was in agreement and accepted the findings and recommendations, to include the recommendation that he be separated with a 0 percent disability rating and with severance pay. 

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

5.  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

___X_____  ___X_____  ___X_____  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.



      _________XXX_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080017269



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ABCMR Record of Proceedings (cont)                                         AR20080017269



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