IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090013056 


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 that his discharge for medical disqualification be revoked; that he be reinstated into the Puerto Rico Army National Guard (PRARNG), and that he be processed through the disability evaluation system (DES) for a determination of what benefits he is entitled to receive.

2.  The applicant states that the medical condition which formed the basis for his discharge was approved as service connected by the Department of Veterans Affairs (VA) as a result of an injury he incurred while serving in Operation Desert Storm.  As such, the PRARNG failed to follow the applicable Army regulations which require that Soldiers with service related disabilities be referred to a medical evaluation board (MEB) and physical evaluation board (PEB).

3.  The applicant provides excerpts from his military records and excerpts from his VA medical records.

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's military records show that he enlisted in the PRARNG on 3 February 1989.  He was awarded the military occupational specialty of ammunition specialist and promoted to pay grade E-4.

3.  On 7 January 1991 the applicant entered active duty in support of Operation Desert Storm.  He was deployed to Germany during his mobilization.  On 28 June 1991, the applicant was honorably released from active duty.

4.  Medical records provided by the applicant show that he was evaluated on either 12 January or 12 June 1991 (the exact date is not discernable) because his lower back was injured.  He was treated for low back pain.  The pain was not caused by vertebral or disc abnormality but was specifically noted to be on the right, was paravertebral, was caused by lifting, and was treated with muscle relaxers.  The notes document that there was no radiculopathy.  He submits three other records showing follow-up medical treatment for back pain which started while lifting boxes.  These documents are undated and do not identify the individual being treated.  On 8 May 1991, the applicant was given a periodic physical examination in which he reported having occasional back pain for
2 months.

5.  On 29 November 1999, the VA granted the applicant a 20 percent disability rating for discogenic disease, bilateral L4-L5, left S1 radiculopathy, low back syndrome.  On 26 December 2001, the VA increased its disability rating for this condition to 60 percent retroactive to 29 November 1999.

6.  On 29 May 2002, the applicant's battalion commander requested that the applicant go before a Medical Duty Review Board (MDRB).

7.  On 30 July 2002, the MDRB determined the applicant was medically disqualified due to chronic lower back pain and recommended that the applicant be separated.

8.  Accordingly, on 20 July 2002 the applicant was honorably discharged from the PRARNG and as a Reserve of the Army due to his being medically unfit for retention.

9.  In the processing of this case an advisory opinion was obtained from the NGB.  The NGB recommended disapproval of the applicant's request.  The NGB stated that there is no evidence showing the applicant was injured while serving in the PRARNG and there is no record of a line of duty investigation being approved on the applicant for any injury.  Since there is no evidence that the applicant was injured in line of duty, he was not entitled to be considered under the DES.

10.  The applicant was provided the advisory opinion and responded by stating that if his injury was not incurred in line of duty the VA would not have awarded him a disability rating.  The applicant also submits documents which support his contention that he was injured while on active duty.

11.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations), paragraph 41-8 states, in pertinent part, that if an existing prior to service (EPTS) condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in 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. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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.

13.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

14.  Army Regulation 635-40, paragraph 4-19b, 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.  

15.  Title 10, U. S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.  

16.  Title 38, U. S. Code permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  A VA determination of service connection does not indicate that the condition was considered to have been incurred in line of duty for military purposes.

17.  Many of the problems in the spine are caused because of the process of degeneration of the intervertebral disc.  Everything you do during the day - once you stand upright - begins to test the spine's ability to support your body weight.  Over time, these repeated daily stresses and minor injuries can add up and begin to affect the discs in your spine.  Minor injuries to the disc may occur and not cause pain at the time of the injury.  However, as they add up, the disc eventually begins to suffer from the wear and tear - it begins to degenerate.  With degenerative disc disease, the main problem lies within one or more of the intervertebral discs.  There is a disc between each of the vertebra in your spine.  The intervertebral discs are designed to absorb pressure and keep the spine flexible by acting as cushions during body movement.  The discs are similar to shock absorbers.  Without the cushion effect of the discs, the vertebrae in your spine would not be able to absorb stresses, or provide the movement needed to bend and twist.  Bones cannot sustain high stress repeatedly without being damaged.  Much of the mechanical stress of everyday movements is transferred to the discs.  A healthy intervertebral disc has a great deal of water in the nucleus pulposus - the center portion of the disc.  The water content gives the nucleus a spongy quality and allows it to absorb spinal stress.  Excessive pressure or injuries to the disc can cause the injury to the annulus - the outer ring of tough ligament material that holds the vertebrae together.  Generally, the annulus is the first portion of the disc that seems to be injured.  Small tears show up as in the ligament material of the annulus.  These tears heal by scar tissue.  The scar tissue is not as strong as normal ligament tissue.  Over time, as more scar tissue forms, the annulus becomes weaker.  Eventually this can lead to damage of the nucleus pulposus.  The nucleus begins to lose its water content due to the damage - it begins to dry up.  Because of water loss, the discs lose some of their ability to act as a cushion.  This can lead to even more stress on the annulus and still more tears as the cycle repeats itself.  As the nucleus loses its water content it collapses, allowing the two vertebrae above and below to move closer to one another.  This results in a narrowing of the disc space between the two vertebrae.  As this shift occurs, the facet joints located at the back of the spine are forced to shift.  This shift changes the way the facet joints work together and can cause problems in the facet joints as well.  University of Maryland Spine Program, A Patient's Guide to Degenerative Disc Disease.
DISCUSSION AND CONCLUSIONS:

1.  The applicant was determined to be medically unfit due to back pain.  However, the documents the applicant provided are limited and they describe him being treated for a mild muscle strain that was acute in origin.  This is a common injury that is self limited and commonly treated with rest, heat, and muscle relaxers.  With these documents, a connection between the episode of muscle strain while on active duty and the discogenic disease that developed years later cannot be established.

2.  Unlike individuals in the Regular Army who are on duty 24 hours a day, 7 days a week, 365 days a year, a reservist not on extended active duty only enters on a duty status during weekend drills and short periods of active duty, such as annual training and when mobilized.  Therefore, for a reservist the term EPTS indicates that the medical condition was not incurred during a weekend drill or a period of active duty.  The fact that it occurred while the individual was a member of the reserves is not germane.

3.  While the symptoms of a condition may manifest during a weekend drill or short period of active duty, such an occurrence does not establish that it was incurred in line of duty.  If it is determined that it was the progression of a preexisting condition, the condition is not considered to have been incurred in line of duty and, therefore, the individual cannot be considered under the DES.

4.  In the applicant's case the only military documents submitted show that he had a muscle strain, and there is no apparent connection between this episode of muscle strain and the discogenic disease that developed years later.

5.  If the applicant believed that he should have been processed under the DES he should have challenged his administrative separation.  His complete medical records would have been available for review if he had done so.  At this late date the only medical records available to review are those provided by the applicant, and those records are inconclusive.

6.  The fact that the VA granted the applicant disability compensation for his back has no bearing on the appropriateness of the action taken by the Army

7.  In view of the foregoing, there is insufficient evidence in which to grant 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.




      _______ _   __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)                                         AR20090013056



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013056



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1