BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090013199 


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 physical disability retirement.

2.  The applicant states:

* his medical conditions were considered pre-existing and not aggravated by service
* he was separated from the service without disability benefits
* he suffers from mental and physical disabilities that have been recognized by the Department of Veterans Affairs (VA)
* his disabilities have been rated at least 90 percent service-connected

3.  The applicant provides:

* Physical Evaluation Board (PEB) Proceedings, dated 10 April 2002
* VA Request for and Consent to Release of Information from Individual's Records, dated 2 March 2009
* VA Rating Decision, dated 12 February 2008
* a Medical Report from Hancock Regional Hospital dated, 31 March 2007
* self-authored Memorandum for Record, dated 23 January 2007
* VA Rating Decision, dated 25 July 2006
* Physiotherapy Associates Ergonomic Worksheet dated, 11 July 2006
* his Civilian Performance Rating and Performance Plan
* VA Self-Administered Pain Assessment and Pain Clinic Patient Questionnaire, dated 5 June 2006
* information from several internet websites pertaining to Chiari Malformation
* doctor's visit receipts
* VA Rating Decision, dated 18 November 2004 and VA Decision Notification 
* Hospital Progress Notes
* Medical History and X-ray Findings
* Articles pertaining to the Chiari Malformation and Fibromyalgia
* Columbus Pain Center consultation, dated 2 April 2002
* Arnold Chiari Malformation Type 1 Survey of Symptoms
* a memorandum from his Battalion Physician Assistant, dated 25 February 2002
* his appeal to the Medical Evaluation Board Proceedings (MEB), dated 25 February 2002
* copies of his Army medical records
* VA Compensation Evaluation dated 19 September 2001
* an Application for a Review By the Physical Disability Board of Review (PDBR)
* Notification from the PDRB, dated 15 July 2009

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.  On 23 June 1992, the applicant enlisted in the Regular Army (RA) for 3 years. He completed his training and was awarded Military Occupational Specialty (MOS) 71D (Legal Specialist).

3.  He was honorably released from active duty on 22 June 1995 upon completion of his required service.

4.  The applicant again enlisted in the RA for 3 years on 30 December 1998.  He completed training in MOS 63T (Bradley Fighting Vehicle (BFV) Mechanic).

5.  On 29 November 2001, he was placed on a permanent physical profile as a result of "S/P Occipiro-Cervical Fusion."

6.  An MEB convened on 11 February 2002 to determine whether the applicant should be referred to a PEB for consideration based on his medical conditions/defects.

7.  The MEB found that the applicant's conditions included severely restricted range of cervical motion secondary to fusion for instability at the craniocervical junction and right hip pain secondary to the site of his bone graft harvest.  The MEB also found that the approximate date of origin of his conditions was in the year 2002 and at the time of the MEB proceedings, his pain criteria was slight/frequent.

8.  The MEB found that his conditions/defects were incurred in the line of duty and that they did not exist prior to service.  The MEB based its narrative summary of the applicant's conditions on physical examination performed by attending physicians on 11 October 2001, 4 February 2002, and 1 March 2002.  The MEB recommended that he be referred to a PEB for consideration.  The applicant disagreed with the findings and recommendation of the MEB and he indicated that he was submitting an appeal of the board's decision.

9.  On 25 February 2002, the applicant submitted an appeal to the MEB findings and recommendation requesting that his pain rating be changed from slight to moderate.  His MEB proceedings were changed to show his pain criteria as moderate/constant and the proceedings were approved on 1 March 2002.

10.  On 4 March 2002, an informal PEB convened to determine the applicant's fitness for retention on active duty.

11.  The PEB found that the applicant's conditions/defects existed prior to service and were not service aggravated.  The PEB noted that during the proceedings all of the available medical records and sworn testimony provided by the applicant were considered and, based on the review, the PEB found that his medical and physical impairments prevented reasonable performance of duties required by his grade and military specialty.  The PEB stated that despite the entries on the DA Form 3947 (MEB Proceedings), there is compelling evidence to support a finding that his conditions existed prior to service and were not permanently 


aggravated by service.  The PEB recommended separation from the service without disability benefits.  The applicant non-concurred with the findings and recommendation and demanded a formal hearing with a personal appearance.

12.  A formal PEB convened on 10 April 2002 and the applicant did appear.  The formal PEB's findings and recommendation mirrored the informal PEB's findings and recommendation.   The applicant non-concurred; however, he opted not to submit a statement of rebuttal.

13.  On 15 April 2002, U.S. Army Physical Disability Agency (USAPDA) notified the applicant that his disagreement with the PEB's findings had been noted.  He was told that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The applicant was told he may be eligible for medical care through the VA.

14.  On 18 July 2002, the applicant was honorably discharged, with severance pay, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), due to disability that existed prior to service (EPTS).

15.  The applicant's VA Rating Decisions show that since his discharge from the Army, the VA has awarded him the following service-connected disability ratings:

* 50 percent for Depressive Disorder associated with Type 1 Arnold-Chiari Malformation, Status Post Occipito-Cervical Fusion with Bilateral Upper Extremity Radiculopathy, Left Ulnar Neuropathy and Mild Left Carpal Tunnel Syndrome (Secondary)
* 40 percent for Fibromyalgia (Incurred)
* 40 percent for Type 1 Arnold-Chiari Malformation, Status Post Occipito-Cervical Fusion with Bilateral Upper Extremity Radiculopathy, Left Ulnar Neuropathy and Mild Left Carpal Tunnel Syndrome (Aggravated)
* 10 percent Scar, Occipito-Cerfical Region, Residual, Cervical Fusion (Incurred)
* 10 percent Chronic Right Ankle Sprains, with Limited and Painful Motion (Incurred)
* 0 percent Scar, Right Iliac Crest, Bone Graft Harvest Site for Cervical Surgery (Incurred)
* 0 percent Chronic Low Back Pain Associated with Type 1 Arnold-Chiari Malformation, Status Post Occipito-Cerfical Fusion with Bilateral Upper Extremity Radiculopathy, Left Ulnar Neuropathy and Mild Left Carpal Tunnel Syndrome (Secondary)

16.  His VA Combined Evaluation for Compensation was:

* 70 percent from 19 July 2002
* 80 percent from 9 November 2005
* 90 percent from 3 January 2007

17.  The information he submitted from an internet website explains Chiari malformation (CM).  This website states that CM includes a complex group of disorders characterized by herniation of the cerebellum through the large opening in the base of the skull (foramen magnum) into the spinal canal.  The herniated tissue blocks the circulation of cerebrospinal fluid in the brain and can lead to the formation of a cavity within the spinal cord.  There are three main types of CM.  CM1, the simplest and most prevalent form, is generally considered to be a congenital malformation, although acquired cases are recognized.  It is rarely apparent at birth.  CM2 and CM3 are more severe congenital malformations that are apparent at birth and associated with complex defects of the brain and spinal cord.

18.  In an advisory opinion dated 10 November 2009, the USAPDA recommended denial of the applicant's request.  The advisory official reiterated the facts and circumstances regarding the applicant's case and stated that Department of Defense Instruction (DODI) 1332.38 and Army Regulation 635-40, paragraphs 3-3b and 3-3c, generally recognized risks associated with treating preexisting conditions and that they shall not be considered service-aggravated.  The official stated that the PEB specifically noted the MEB's findings and recommendation, but found that the preponderance of the medical evidence supported that the congenital condition of Type 1 Arnold-Chiari Malformation did not have an "approximate date of origin" in "2001" nor was it "incurred" while entitled to basic pay.  It is obvious that the MEB used the date of symptom onset to support their choice of the date of origin which is incorrect.  The diagnosis of Type 1 Arnold-Chiari Malformation is typically made in early adulthood and often becomes symptomatic with headaches and neck pain (as most common symptoms) as part of the natural progression without any intervening causes.

19.  The advisory official further stated that after the applicant's separation the VA decided to compensate the applicant for the two conditions listed on the MEB based on their interpretation of what "service-connected" means (essentially, when diagnosed).  The VA also compensated the applicant for other conditions not listed on the MEB, but which the VA was of the opinion that they had begun while in the military.  The VA compensates based on a condition being present and are not required to find that such condition interfered with an individual's job performance or caused an individual to be unfit for duty.  Even if these other 

conditions had been listed on the MEB they would not have been found unfitting. The mere presence of a diagnosis does not result in an unfit finding.  Conditions must be found to be unfitting to be compensable in the military disability system.

20.  The applicant was provided a copy of the advisory opinion on 18 December 2009 for information and to allow the applicant the opportunity to submit comments or a rebuttal.  The applicant did not respond.

21.  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.  An MEB is 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines that the Soldier does not meet retention standards the board will recommend referral of the Soldier to a PEB.

22.  Army Regulation 635-40, chapter 3-3 also lists conditions existing before active military service.  It states, according to accepted military 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.  Examples of these conditions are as follows:

* Scars
* Fibrosis of the lungs
* Atrophy following disease of the central or peripheral nervous system
* Healed fractures
* Absent, displaced, or resected organs
* Supernumerary parts
* Congenital malformations and hereditary conditions
* Similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.




23.  Paragraph 3-3(1)b of Army Regulation 635-40 states that standard in-service medical and surgical treatment reducing the effect of the disease or other conditions incurred prior to entry into military service does not constitute service aggravation unless the treatment was required to relieve disability that had been aggravated by military service.

24.  Army Regulation 40-501, chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

25.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.








DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been carefully considered.

2.  However, he has not shown error or injustice in the decision made by the Army.  The medical evidence of record supports the determination that his conditions were properly diagnosed and rated at the time of his discharge.

3.  The evidence he submitted shows that his condition is generally considered to be a congenital malformation.  Army Regulation 635-40 states that according to accepted medical principles, his diagnosis of congenital malformations (Chiari malformation) leads to the conclusion that it must have existed or have started before he entered the military service.  Standard in-service medical and surgical treatment reducing the effects of conditions incurred prior to entry into military service does not constitute service aggravation.  It appears that what the Army did in his case was correct.

4.  The fact that the VA, in its discretion, has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish error or injustice in the decision made by the Army.  The foregoing conclusions are supported by the opinion from the USAPDA.

5.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

6.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090013199



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013199



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1