IN THE CASE OF:	  

		BOARD DATE:	      22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005760 


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 correction of her military records to show her spinal disability (scoliosis) was aggravated by military service resulting in spinal surgery to stabilize her spine.

2.  The applicant states the non-elective surgery to stop the progression of movement of her spine was clearly aggravated by the rigorous physical activity and the requirements of military service.  She states that with her severely deformed scoliosis (a lateral curvature of the spine), she should have been found unfit for military service.  She states she had severely deformed scoliosis which caused her to lead a sedentary life with limited physical activities.  She states a grave injustice was done to her in the decision rendered by the U.S. Army Physical Review Council (USAPRC) to modify the physical evaluation board (PEB) recommendation; that she should be given a 40 percent and a 20 percent disability rating; and a determination that her medical condition was aggravated military service.

3.  The applicant provides copies of her DD Form 214 (Report of Separation from Active Duty) with an effective date of 3 January 1975, her discharge orders, a letter from USAPRC, her PEB, her medical evaluation board (MEBD) proceedings, cites from current regulations, a history of her assignments, medical evaluations and recommendations, a statement of her life after her discharge, and a personal reference.



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.  A Standard Form 88 (Report of Medical Examination), dated 20 March 1969, documents her medical examination for enlistment.  In item 74 (Summary of Defects and Diagnoses) the examiner noted the applicant had scoliosis that was idiopathic and stable and that it caused no pain or limitations of any sort.

3.  On 27 June 1969, the applicant enlisted in the Women's Army Corps (WAC) for a period of 3 years.  She completed basic training and advanced individual training and was awarded the military occupational specialty 71B (Clerk).  She reenlisted on 29 June 1970 for a period of 4 years.

4.  A Standard Form 600 (Chronological Record of Medical Care) notes that on 7 May 1973, the applicant presented herself for evaluation and possible straightening of the curvature of her spine.  The examiner noted the applicant's growth status was finished.  The examiner stated her curve measurements at 
T-10 to L-3 with the apex at L-1 revealed a standing curve of 70 degrees and supine curve of 60 degrees with 50 degrees of correction on lateral bending.  The examiner noted that if the applicant consented to the correction of the curve to her spine it would be maintained to the maximal correction obtained and a spinal fusion with the Harrington instrumentation would be performed from approximately T-10 to the sacrum.  The examiner noted that the problems of the procedures and methods and complications had been discussed with the applicant.

5.  A Standard Form 502 (Narrative Summary [NARSUM]) documents the applicant's treatment from 5 April 1973 to 3 August 1973 at Fitzsimmons Army Medical Center, Denver, CO.  The NARSUM noted the applicant was first notified of her scoliosis at age 17 by her family physician.  The NARSUM documents the applicant's back surgery on 13 June 1973 where a fusion from T10 to the sacrum was performed with Harrington instrumentation.  Ribs 11 and 12 on the left were removed and iliac grafts taken from both the left and right iliac crests.  The applicant ambulated with a cane and was transferred to Fort Benning, GA with 60 days convalescent leave.  The final diagnosis was idiopathic (arising spontaneously or from an obscure or unknown cause) left thoracolumbar scoliosis.  The NARSUM contains no evidence that the applicant's scoliosis was aggravated by her military service.

6.  On 16 September 1974, an MEBD referred the applicant to a PEB for the following medical conditions:

	a.  scoliosis, thoracolumbar, fixed curves from T-5 to S-1, compensated such that the head is aligned over the pelvis;

	b.  pulmonary embolus, resolved;

	c.  osteomyelitis (an infectious and usually painful inflammatory disease of bone that is often of bacterial origin and may result in death of bone tissue), left femur, presently quiescent (pin tract infection);

	d.  limitation of motion, right hip with flexion possible only to 90 degrees; and

	e.  atrophy, moderate, right thigh, loss of 1-1/2 inches in circumference, secondary to disuse and immobilization.

7.  The NARSUM stated the applicant's condition was fairly stabilized at the present, but further progression of the curve is possible in the future.

8.  On 18 September 1974, an addendum to the applicant's MEBD, dated 16 September 1974, was submitted.  The addendum stated the applicant complained of tenderness and pain over the distal medial thigh at the site of the previous pin track.  It was determined that redness and edematous over her distal medial thigh represented a re-infection of the pin track and she was started on cloxacillin.

9.  The applicant did not desire to remain on active duty.  On 26 September 1974, the findings and recommendations of the MEBD were approved.  On 27 September 1974, the applicant acknowledged that she had been informed of the approved findings and recommendations of the MEBD and that she agreed with the MEBD's actions.

10.  On 11 October 1974, an informal PEB found the applicant unfit for duty under the following Veterans' Administration Schedule for Rating Disabilities codes and conditions:

	a.  5289 - spine, ankylosis of, lumbar, favorable (MEBD diagnosis 1, non-symptomatic (NS)).  The PEB determined the condition was incurred or aggravated in the line duty and recommended a 40-percent disability rating;

	b.  5288 - spine, ankylosis of, dorsal, favorable (MEBD diagnosis 1, NS).  The PEB determined the condition was incurred or aggravated in the line duty and recommended a 20-percent disability rating; and

	c.  5000 - osteomyelitis, femur, left, with evidence of active infection within the past 5 years (MEBD diagnosis 3, NS, addendum).  The PEB determined the condition was incurred or aggravated in the line duty and recommended a 20percent disability rating.

11.  MEBD diagnoses 2, 4, and 5 were considered by the PEB and deemed to be below rating criteria.

12.  The PEB found the applicant physically unfit and recommended a combined rating of 60 percent and that the applicant be placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 60 percent and a reexamination in March 1976.

13.  On 16 October 1974, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of her case.

14.  On 25 October 1974, the applicant's case was reviewed by the USAPRC.  The USAPRC made the following modifications to her case:

	a.  added to the diagnosis of spine, ankylosis of, lumbar, favorable "as an expected outcome of elective surgery performed to alleviate severe scoliosis that existed prior to service.  Not considered service aggravation in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 1-8.2c(2) applies";

	b.  added to the diagnosis of spine, ankylosis of, dorsal, favorable "Army Regulation 635-40, paragraph 1-8.2c(2) applies";

	c.  changed entries under "Incurred or Aggravated" from Yes to No;

	d.  deleted the recommended disability percentages for both of the disabilities for the spine; and

	e.  changed the findings to show a combined rating of 20 percent and recommended that the applicant be separated from the service with severance pay.

15.  The USAPRC determined that the progression of the curvature of the applicant's spine was a natural progression of her condition and was not aggravated by her service.  The USAPRC also determined the ankylosis of her lumbar spine and dorsal spine were the expected results of the surgery to stop the progression of her condition.  The USAPRC stated the expected results of surgery upon a condition existing prior to service will be considered "not service aggravated."  The USAPRC stated that her osteomyelitis was an unexpected result of her treatment and was therefore considered to be "service aggravated."

16.  On 12 November 1974, the applicant did not concur with the findings of the USAPRC and submitted a written rebuttal.  The applicant stated she experienced a pulled muscle in her back while in Japan and because of this incident she was referred to the orthopedic clinic.  The doctor questioned the fact that she did not have a profile for her scoliosis.  She stated that after a thorough examination, the doctor advised her she should be sent back to the States for surgery as soon as possible and that her only other alternative without the surgery was a life expectancy of about 15 to 20 years.  She stated that had she not been frightened and pressured by military doctors that treated her, she would not have consented to surgery.  The applicant included letters from two doctors with her rebuttal.

17.  On 9 December 1974, the Army Physical Disability Appeal Board carefully and impartially considered all pertinent evidence of record, the findings and recommendations of the MEBD, the PEB, and the USAPRC, and the applicant's rebuttal.  The board found that the findings and recommendations of the PEB as modified by the USAPRC were supported by the evidence of record, were correct in fact and were in accordance with Department of the Army policies pertaining to physical fitness and/or physical disability separation or retirement.

18.  On 3 January 1975, the applicant was discharged by reason of disability with severance pay.  She had completed 1 year and 1 day of active service that was characterized as honorable.

19.  Scoliosis is a curving of the spine.  The spine curves away from the middle or sideways.  Curves of 40 degrees or greater usually require surgery because curves this large have a high risk of getting worse even after bone growth stops.  Surgery involves correcting the curve (although not all the way) and fusing the bones in the curve together.  The bones are held in place with one or two metal rods held down with hooks and screws until the bone heals together.  Sometimes surgery is done through a cut in the back, on the abdomen, or beneath the ribs.  A brace may be required to stabilize the spine after surgery.  The limitations imposed by the treatments are often emotionally difficult and may threaten self-image, especially in teenagers.  Emotional support is important for adjustment to the limitations of treatment.  [Taken from Medline Plus, a service of the U.S. National Library of Medicine and the National Institutes of Health.]

20.  Paragraph 2-36c (Spine and Sacroiliac Joints) of Army Regulation 40-501 (Standards of Physical Fitness), in effect at the time of the applicant's enlistment, stated that deviation or curvature of the spine from normal alignment, structure, or function (scoliosis, kyphosis, or lordosis was disqualifying for enlistment if:  (1) mobility and weight-bearing power is poor, (2) more than moderate restriction of normal physical activities is required, (3) of such a nature as to prevent the individual from following a physical active vocation in civilian life, (4) of a degree which will interfere with the wearing of a uniform or military equipment, or (5) symptomatic associated with positive physical finding(s) and demonstrable by x-ray.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, stated in paragraph 1-8.2b that standard in-service medical and surgical treatment having the effect of ameliorating (to make better or more tolerable) disease or other conditions incurred before entry into military service (including postoperative scars and absent or poorly functioning parts or organs) do not constitute aggravation unless the treatment was required to relieve disability which had been aggravated by military service.  Paragraph 1-8.2c(2) of this regulation stated that "not service aggravated" is the appropriate determination when the ill effect resulting from the administration or treatment of a medical condition that existed prior to service (EPTS) were the expected results of the administration or performance of treatment, anesthetic, or operation.

22.  Army Regulation 635-40 provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the movement of her spine and subsequent surgery was clearly aggravated by the rigorous physical activity and requirements of military service.  She also contends that a person with her medical condition (scoliosis) was unfit for military service.

2.  The applicant received a medical examination for the purpose of enlistment 3 months prior to her enlistment.  The examiner noted that she had scoliosis that caused no pain or limitations of any sort.  Therefore, in accordance with the provisions of Army Regulation 40-501, in effect at the time, she was eligible for enlistment in the WAC.

3.  The first record of documented medical treatment available is over 4 years after the applicant's enlistment.  These medical records describe her condition and the corrective surgery that was performed.  The examiner noted that the problems of the procedures and methods and complications had been discussed with the applicant.  However, none of the records attribute the further curvature of her spine to the rigors of the military service.

4.  Hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and are not to be assigned a disability rating unless service-aggravated complications are clearly documented.

5.  There is no medical evidence showing the applicant's scoliosis was other than the natural progression of the condition.  The applicant was able to perform her duties for over 4 years after the date of her enlistment.

6.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

7.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

8.  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 that requirement.



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)                                         AR20090005760



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ABCMR Record of Proceedings (cont)                                         AR20090005760



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