IN THE CASE OF:	  

		BOARD DATE:	    25 March 2010

		DOCKET NUMBER:  AR20090011821 


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, a medical retirement.

2.  The applicant states he should have been given a disability rating and disability benefits.  He contends the surgery that he had for a pilonidal cyst on his tailbone was not done correctly, the tissue and muscle were removed that left his tailbone protruding directly on the skin, the problem was caused by military surgeons, and he should be compensated.

3.  The applicant provides medical evaluation board (MEBD) and physical evaluation board (PEB) findings; medical documents; administrative documents, Department of Veterans Affairs (VA) documentation; and a letter, dated 14 July 2009, from a Member of Congress in support of his application.

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.  The applicant enlisted in the Regular Army on 17 September 2001.  He trained as a military policeman and served in Iraq.

3.  In July 2003, the applicant had surgery to remove a pilonidal cyst.

4.  On 12 May 2004, an MEBD diagnosed the applicant with tailbone pain secondary to pilonidal cyst surgery.  The MEBD narrative states, in pertinent part, the applicant reported he had problems with cysts and pain in his tailbone region off and on for a few years.  The MEBD recommended referral to a PEB.

5.  On 8 June 2004, an informal PEB diagnosed the applicant with painful scar over the coccyx (pilonidal cyst), status post surgical correction, very tender on palpation markedly limiting ability to function in his primary military occupational specialty.  The PEB determined this condition existed prior to enlistment without permanent service aggravation.  The applicant's unfitting condition was found to be neither service incurred nor permanently aggravated by military service.  His impairment originated while not entitled to basic pay and had increased only to the extent of its accepted normal and natural progress; therefore, there is no permanent service aggravation.  The PEB found the applicant physically unfit and recommended a rating of 0 percent and separation without disability benefits.  On 14 June 2004, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing.

6.  On 14 June 2004, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendation.

7.  On 31 August 2004, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), for disability, existed prior to service (EPTS), PEB.

8.  In support of his claim, the applicant provided VA documentation which shows service connection was granted for post-traumatic stress disorder (30 percent); gastroesophageal reflux disease, to include irritable bowel syndrome (10 percent); scar, status post-pilonidal cyst (10 percent); tinnitus (10 percent); bilateral hearing loss (0 percent); hypertension (0 percent); and scar, left forefinger (0 percent).

9.  In the processing of this case, an advisory opinion was obtained from the Legal Advisor, USAPDA.  The opinion recommended no change to the applicant's military records.  The opinion states that the applicant requests his military records be changed to reflect disability compensation for the scar that resulted from surgery on his pilonidal cyst and that he claims the scar was the result of medical malpractice and therefore should be compensated.  The opinion points out that on 8 June 2004 an informal PEB found the applicant's pilonidal cyst had existed prior to service and that its condition had worsened as a result of the natural progression of the EPTS condition, not because of service aggravation.  Since the condition was found not to have been incurred or permanently aggravated while the applicant was entitled to basic pay, the condition was not compensable.  On 14 June 2004, after being counseled on his rights, the applicant concurred with the PEB findings and waived his right to a formal hearing.

10.  The advisory opinion states that medical treatment or surgery to correct an EPTS condition is not compensable unless there are unexpected adverse effects over and above known hazards that are directly attributable to the treatment or surgery provided [the opinion cites paragraph 3-3c of Army Regulation 635-40 and paragraph E3.P4.5.6 of DOD Instruction (DODI) 1332.39].  Painful scar tissue or scars are a known hazard of any surgery and are not considered an unexpected adverse effect (medical malpractice).  Absent such results, the EPTS condition was not compensable.  If further consideration of the issue of possible medical malpractice is required the Board should request an opinion from The Surgeon General.

11.  The USAPDA Legal Advisor states the applicant has not provided any evidence of error in the findings or processing of his military disability case.  A subsequent VA rating of 10 percent for his surgical scarring is not evidence of PEB error.

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal; however, he did not respond within the given time frame.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

15.  Army Regulation 635-40, appendix B, paragraph 10, states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.

16.  Paragraph 3-3c of Army Regulation 635-40 states that unexpected adverse effects over and above known hazards directly attributable to the treatment, anesthetic, or operation performed or administered for a disease or medical condition existing before entry on active duty may be considered service aggravation.

17.  Paragraph E3.P4.5.6 (Treatment of Preexisting Conditions) of DODI 1332.38 (Physical Disability Evaluation) states that generally-recognized risks associated with treating pre-existing conditions shall not be considered service aggravation.

18.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been given a disability rating and disability benefits was noted.  However, in accordance with the governing regulations, medical treatment or surgery to correct an EPTS condition is not compensable unless there are unexpected adverse effects over and above known hazards that are directly attributable to treatment or surgery provided.  Painful scar tissue or scars are a known hazard of any surgery and are not considered an unexpected adverse effect (medical malpractice).  Absent such results, the applicant's EPTS condition was not compensable.

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

3.  There is insufficient evidence to show the applicant's PEB findings were incorrect, that the applicant's pilonidal cyst condition did not exist prior to his service in the Army, that his pilonidal cyst condition was permanently aggravated by his Army service, and that the recommendation for separation without benefits was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant's request for a medical retirement.

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.



      __________X___________
                 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)                                         AR20090011821



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ABCMR Record of Proceedings (cont)                                         AR20090011821



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