IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090013365 


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 her physical evaluation board (PEB) findings be corrected to show she was found unfit under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5289 and 5288, that her disability rating be corrected to show 50 percent, and that she be medically retired due to her increased disability rating.

2.  The applicant states that the PEB failed to adequately evaluate, document, and properly diagnose her disabling conditions resulting in her discharge with severance pay rather than a 50-percent disability rating with medical retirement benefits.

3.  The applicant submits a petition by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's PEB findings be corrected to show that her combined disability rating is over 50 percent and that she qualifies to be medically retired.  Specifically, the following VASRD codes should be assigned:

* 5289 - spine, ankylosis of lumbar, favorable - 40 percent
* 5288 - spine, ankylosis of dorsal, favorable - 20 percent

2.  Counsel states that the formal PEB failed to adequately evaluate and document the applicant's physical disability.  Therefore, an erroneous determination of the applicant's disabling conditions resulted in the PEB arbitrarily recommending a 20-percent disability rating.  Counsel states the PEB did not assign the correct VASRD codes based on the applicant's permanently disabling condition of favorable ankylosis of the lumbar and dorsal spinal segments.  In failing to assign the correct codes, the PEB did not correctly assess the applicant's degree of disability.  Instead of recommending a 50-percent disability rating, the PEB assigned a rating below 30 percent preventing the applicant from retiring with medical benefits.

3.  Counsel explains the medical evaluation board (MEBD) did not describe the applicant's disqualifying condition and did not state that the portion of the disability that existed prior to service (EPTS) was subtracted.  Therefore, the PEB's findings and recommendation must be in error since the PEB is limited to reviewing what the MEBD refers to it.  Counsel continues by outlining the error made by the PEB, why they are errors, and how they adversely affected the applicant's disability rating.

4.  Counsel provides the following documents:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 1 December 1987;

	b.  DA Form 3947 (MEBD Proceedings), dated 12 June 1987, with a Standard Form 88 (Report of Medical Examination) and Standard Form 502 (Narrative Summary (Clinical Resume));

	c.  Addendum to Medical Board Proceedings, dated 9 July 1987;

	d.  DA Form 199 (PEB Proceedings), convened on 11 August 1987;

	e.  DA Form 199, convened on 26 October 1987;

	f.  Chart Review, dated 19 June 2009, conducted by a medical doctor associated with the Indiana Back Center;

	g.  Department of Veterans Affairs Rating Decision, dated 26 October 2005;

	h.  DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Student Contract), dated and signed by the applicant on 31 August 1978, to include DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 7 September 1978;

	i.  two Standard Forms 93 (Report of Medical History), dated 8 June 1979 and 23 July 1984;

	j.  Appointment memorandum as a Reserve commissioned officer of the Army in the rank of second lieutenant, dated 15 May 1980;

	k.  Appointment memorandum as a Reserve commissioned officer of the Army in the rank of first lieutenant, dated 1 June 1984;

	l.  Orders A-06-005903, dated 4 June 1998, issued by the U.S. Army Reserve Components Personnel and Administration Center;

	m.  multiple extracts from the applicant's military medical and dental records;

	n.  multiple extracts from the applicant's official military personnel file;

	o.  VASRD, dated 10 March 1976;

	p.  DOD Directive 1332.18, dated 25 February 1986;

	q.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 13 December 1985;

	r.  Army Regulation 15-185 (Army Board for Correction of Military Records), dated 31 March 2006;

	s.  Audit Report Number 92-100 (Medical Disability Discharge Procedures) Office of the Inspector General, DOD, dated 8 June 1992; and

	t.  sworn affidavit of applicant, dated 20 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.  The applicant entered the U.S. Army Reserve (USAR) as a cadet in an ROTC status.  In the process of applying for admittance to the USAR ROTC, the applicant completed the initial entry physical examination requirements.  A Standard Form 88, dated 8 June 1979, shows in item 38 (Spine, Other Musculoskeletal) that her clinical evaluation was abnormal.  The applicant's accompanying Standard Form 93 shows she answered "yes" to the condition, "bone, joint or other deformity."  In addition, she wrote on her medical history report that she had surgery "for scoliosis, 30 June 1975, Walter Reed Army Hospital."

3.  On 15 July 1979, a medical doctor at the Regional Military Medical Center, Fort Bragg, NC found the applicant medically qualified for Advanced ROTC and an appointment as a commissioned officer.  In addition, the doctor noted by hand that the applicant had scoliosis with spine fusion, Harrington rod, an EPTS condition.  The doctor also noted that chest x-rays confirmed a Harrington rod was present in her back.

4.  The applicant graduated and received an appointment as a Reserve Commissioned Officer of the Army on 15 May 1980.  She delayed her entry onto active duty to attend an advanced degree program in podiatric medicine.

5.  On 1 June 1984, the applicant was appointed a first lieutenant in the Army Reserve in the Medical Service Corps within the area of concentration 68L (Podiatrist).

6.  On 23 July 1984, the applicant had a medical evaluation to determine her fitness for duty.  The examining doctor recommended physical limitations to include no jumping in excess of 3 feet, no sit-ups, no rappelling, and no "slide for life," noting her "L3" temporary physical profile.  He noted in his medical report that she had a spinal fusion with a Harrington rod instrumentation with dislocated hooks for scoliosis, spina bifida occulta at L5, and dislocation and subluxating of her right patella.  He concluded she was qualified for retention on active duty.

7.  On 5 September 1984, the applicant received a temporary physical profile of 3 for her lower extremities.  The doctor recommended a permanent physical profile restricting her to no jumping from heights greater than 3 feet, no "slide for life," no rappelling, and no sit-ups.  Her temporary physical profile was valid for 60 days.

8.  She entered active duty as an obligated commissioned officer on 24 September 1984 for a 3-year period.  Based on her advanced schooling and professional degree, she received an appointment to the rank of captain.

9.  Excerpts from the applicant's medical records show she had additional temporary physical profiles due to the aforementioned diagnosis.  In time, she experienced significant lower back and abdominal pain, undergoing abdominal laparoscopic surgery.

10.  On 11 May 1987, the applicant had surgery to remove the Harrington rod and the upper and lower hooks from her spine.  The surgeon noted in his medical reports that he saw solid fusion mass from T4 to L4 for presumed idiopathic scoliosis.

11.  On 12 June 1987, an MEBD convened and referred the applicant to a PEB.  The diagnostic findings were:

* no VASRD code assigned - status post-posterior spinal fusion and Harrington rod instrumentation from T4-L4 for idiopathic scoliosis determined to be EPTS; did not occur while entitled to base pay and was permanently aggravated by service

* VASRD code 6259 - pelvic pain with etiology undetermined, date of approximate origin 1986, occurred while entitled to base pay, not EPTS, and no determination of permanent aggravation by service was noted

12.  The applicant acknowledged she did not want to continue on active duty under the provisions of Army Regulation 635-40.  She further acknowledged that she had been informed of the approved MEBD findings and recommendations.  She initialed the MEBD indicating she agreed with the MEBD findings and recommendations.

13.  On 9 July 1987, an addendum to the MEBD shows the applicant returned from 6 weeks of convalescent leave after her surgery with recurrent right leg pain, abdominal pain, and low back pain.  The prognosis for resolution of these symptoms was unknown requiring further follow-up.  The addendum was approved on 15 July 1987 and the applicant concurred on 16 July 1987.

14.  On 11 August 1987, an informal PEB convened finding the applicant's medical limitation prevented her from performing the duties required of her grade and specialty (podiatrist), determining she was physically unfit due to residual back pain and associated pelvic pain, status post-surgical spinal fusion.  She was rated under the VASRD and given a 10-percent disability rating for codes 5299-5295.  The informal PEB shows in item 8 (Disability Description) the entry "present 10, less EPTS undetermined = net 10" for MEBD diagnoses 1 and 2.  The informal PEB recommended a 10-percent disability rating and recommended separation with severance pay, noting the applicant requested retention beyond the expiration of her term of service to complete the MEBD and PEB processing.

15.  On 3 September 1987, the applicant did not concur with the informal PEB's findings and recommendations, demanding a formal PEB hearing with a personal appearance.  She also requested counsel to represent her in the proceedings.

16.  On 23 October 1987, a second addendum to the MEBD shows the applicant had associated pelvic and back pain with symptoms of muscle spasms.  On 27 October 1987, the addendum was approved and the applicant concurred on 2 November 1987.

17.  On 26 October 1987, the formal PEB convened and reviewed the medical evidence of record, presentation by the applicant's counsel, her testimony and witness, with one item of additional medical information and one exhibit, concluding the applicant's medical condition prevented satisfactory performance of duty as a podiatrist in the grade of O-3.  The formal PEB recommended separation with severance pay, if entitled, for:

* VA code 5299-5295 residual back pain and associated pelvic pain, status post-spinal fusion (surgical) with the entry, "present 20 percent, less EPTS undetermined = net 20 percent" for MEBD diagnoses 1 and 2
* VA code 7299-7200 for temporomandibular joint syndrome was found to be below the minimum rating criteria

18.  The applicant was present for the formal hearing, to include the PEB announcement of its recommendations, which increased her disability rating to 20 percent based on additional evidence showing she had associated muscle spasms.  She acknowledged that her appointed counsel had advised her of her rights and she agreed with the formal PEB's recommendations.

19.  Orders D222-17, dated 12 November 1987, issued by the U.S. Army Military Personnel Center discharged the applicant from the USAR effective 1 December 1987, to include terminating her Reserve of the Army and Army of the United States appointments.  These orders further stated she was authorized disability severance pay in the grade of captain/O-3 based on 3 years, 6 months, and 26 days of active service.

20.  Accordingly, the applicant was discharged on1 December 1987 and provided a DD Form 214 showing she was discharged under the provisions of Army Regulation 635-40 for physical disability and entitled to severance pay.  Her DD Form 214 shows she had 3 years, 4 months, and 25 days of net active service with 4 years, 1 month, and 8 days of prior inactive service.

21.  In support of her application, she submitted her VA Rating Decision, dated 26 October 2005, which shows the VA awarded her service-connected compensation for her lumbar spine (40 percent) and dorsal spine (30 percent).  In this decision, her initial VA application of 13 January 1988 denying her service-connected disability for scoliosis status post-posterior spinal fusion of T4-L4 and removal of the Harrington rod for the lumbar spine was determined to be in error.  The VA decision states the applicant was asymptomatic at the time she entered active duty service in 1984.  However, she experienced radicular pain and symptoms in 1987 leading to surgical removal of the Harrington rod and scoliosis status post-posterior spinal fusion of T4-L4.  The scoliosis was an EPTS condition; however, it was aggravated and permanently worsened by her active duty service.

22.  Records provided by the VA indicate the applicant received VA disability compensation for medical conditions determined to be related to her military service.

23.  The applicant provided a sworn affidavit, dated 20 July 2009.  In her affidavit, she states her husband of 18 years, a retired member of the Army, abandoned her and her three minor children in 2004.  On 14 January 2008, the divorce decree was filed in South Carolina Family Court.  Upon her divorce, she lost her entitlement to military medical benefits.  On advice from counsel, she went to the local military post legal office which advised her to review and compare her VA Rating Decision to her medical discharge paperwork.  She was then advised to file an application with the ABCMR if she found an error or discrepancy.  With the assistance of counsel and an independent medical consultation, she determined a discrepancy exists.

24.  In the processing of this application, the U.S. Army Physical Disability Agency provided an advisory opinion stating the applicant had not provided clear and convincing evidence the PEB did not properly rate her in 1987.  The applicant's medical records contained evidence that she had a congenital condition of spina bifida occulta and progressive idiopathic scoliosis as a child.  In 1975, she had back surgery inserting a Harrington rod.  She entered active duty in 1984.  However, she soon experienced back pain and the Harrington rod was removed in 1987 resulting in the "immediate resolution of the upper back pain."  X-rays revealed a solid fusion from T4 to L4.  Physical examinations noted she did have some ability to flex her spine and she had range of motion limits.  The PEB did not rate her back fusion as it was an EPTS condition and was not aggravated by military service beyond the natural progress of the scoliosis and back fusion at age 14.

25.  The advisory opinion continued by stating the formal PEB held on 25 October 1987 concurred with the informal PEB's findings of unfitness for residual back and associated pelvic pain increasing her disability rating to 20 percent based upon the new evidence, muscle spasms.  The VASRD code is analogous for back pain 5299-5295.  The formal PEB affirmed the EPTS condition of spinal fusion was not separately ratable due to it being a non-aggravated EPTS condition.  The opinion concluded by stating the formal PEB's findings were supported by a preponderance of evidence; were not in violation of any statute, directive, or regulation in effect in 1987; and were not arbitrary and capricious.

26.  The applicant provided a response to the advisory opinion on 10 January 2010.  In her response, she states that she was found fit for duty when she entered the service with a Harrington rod surgically placed on her spine.  As the Army accepted her with an EPTS condition, it cannot now state she was unfit and should not have been allowed to enter the Army based on the Harrington rod resulting from the spinal scoliosis.  She performed her military duties until encountering severe pain, disrupting her ability to work.  She states that her EPTS condition was "permanently aggravated by service" as shown on her MEBD.

27.  She continues by saying that the Board should be aware that a Soldier would not be referred to an MEBD or PEB because of impairments that were known to exist at the time of acceptance into the Army and that have remained essentially the same in degree of severity and have not interfered with successful performance of duty.  She states that her condition worsened while on active duty beyond the natural progression of scoliosis.  Additionally, the applicant requests that the Board not consider the suppositions purported by the author of the USAPDA advisory opinion.

28.  References:

	a.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System providing for the retention, retirement, or separation of a Soldier who is determined to be unfit to perform the duties of her office, grade, rank or rating because of physical disability.

		(1)  The VA code numbers appearing opposite the listed ratable disabilities are numbers for showing the basis of the evaluation assigned and for statistical analysis.  They are a guide for evaluating disabilities resulting from all types of diseases and injuries encountered because of or incident to military service.

		(2)  The percentage ratings of the VASRD represent the average loss in earnings capacity resulting from disease or injury.

		(3)  When an unlisted disease, injury, or residual condition is encountered requiring rating by analogy, the first two digits of the diagnostic code number will be selected from that part of the schedule most closely identifying the part or system of the body involved; the last two digits will be "99" for all unlisted conditions.

		(4)  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, and whether the particular condition was noted at the time of entrance into the active service or is determined upon the evidence of record to have existed at the time of entrance.

		(5)  VASRD Code 52XX-5295 (rating involving joint motion) states, in pertinent part, that ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found.  Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion.  Contrariwise, joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.

	b.  Army Regulation 635-40, appendix B (Army Application of the VASRD), 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.

		(1)  VASRD Code 5003 (arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis) provides that a Soldier will be found unfit for a variety of diagnosed conditions where are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.

		(2)  A maximum 20-percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.

	c.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.

	d.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred during or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, contends the Army erred in its MEBD and PEB findings and her record should be corrected to show her disabilities as:

* VASRD code 5289 - spine, ankylosis of lumbar, favorable - 40 percent
* VASRD code 5288 - spine, ankylosis of, dorsal, favorable - 20 percent
Concluding her record should show an overall disability rating of 50 percent resulting in her meeting the criteria for medical retirement from the Armed Forces.

2.  Notwithstanding her EPTS condition, the applicant was found fit for entrance into the Army Reserve when she was a cadet.  Upon her entrance onto active duty four years later, she received a medical examination to determine if she still met the physical fitness criteria for continued service.  The applicant was found medically fit for duty and was provided a temporary physical profile of 3 for her lower extremities.

3.  The applicant had lower back and pelvic pain severe enough that it interfered with her ability to perform her military duties, to include field training and physical fitness tests.  Based on this pain, the military doctors determined the Harrington rod was causing the pain and surgically removed it and related components from her back.  However, her pain persisted after a lengthy convalescence, resulting in further medical examinations leading to the MEBD.

4.  The MEBD properly evaluated her for pain based on the residual effects.  Therefore, an MEBD determined that she was unfit for continued service and referred her to an informal PEB.  The Harrington rod was an EPTS condition and 


so was not ratable in accordance with applicable laws and regulations.  Accordingly, both an informal and formal PEB hearing rendered decisions finding her unfit for duty based on residual back pain and associated pelvic pain.

5.  It is noted that the applicant was represented by counsel at a formal PEB and concurred with the formal PEB's findings and recommendation.

6.  The PEB's decision was not arbitrary or capricious.  The PEB utilized all the medical evidence, to include medical evaluation tests.   Considering all the facts and evidence of this case, there is no basis to increase the applicant's rating to a level that would merit medical retirement.

7.  The fact that the VA, in its discretion, has awarded the applicant a higher and different disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish that an error was made in the rating assigned by the Department of the Army.  The VA considers medical evaluation and subsequent ratings based on the fact that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the veteran concerned.  In addition, the VA can change its rating throughout the veteran's lifetime as the disability improves or deteriorates.

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)                                         AR20090013365



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ABCMR Record of Proceedings (cont)                                         AR20090013365



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