IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090013430 


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, reconsideration of an earlier request to correct his retirement orders to show that his disability resulted from a combat-related injury as defined by law.

2.  The applicant states, in effect, that there is additional evidence or argument that was not considered by the Board when it denied his original application.

3.  The applicant provides a copy of instructions on parachute landing falls (PLF) and a copy of his Department of Veterans Affairs (VA) Rating Decision, dated 17 July 2009, in support of his reconsideration request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090000537, on 28 May 2009.

2.  The applicant's new argument, instructions on the proper procedures for a PLF, and the VA Rating Decision are new evidence that warrant's the Board's reconsideration of his initial request.

3.  With prior service in the Regular Army (RA) and the U.S Army Reserve (USAR), the applicant entered active duty through the Active Guard Reserve 
(AGR) program on 12 April 1998.  His military occupational specialty (MOS) throughout his military career was 75C (Personnel Management Specialist) which was later re-designated to MOS 42A (Human Resources Specialist).

4.  The applicant completed the Basic Airborne Course on 8 June 1990 and he was awarded the Parachutist Badge.  The applicant submitted evidence to support his completion of Airborne School and copies of his DA Forms 1307 (Individual Jump Record) with his initial application to the ABCMR.  A review of his individual jump records shows he completed 41 airborne jumps during the period from 9 September 1991 to 16 August 2005.  There are no documents to show that the applicant was injured during any of his airborne jumps.

5.  On 16 August 2007, the applicant received a permanent physical profile for bilateral plantar fasciitis and low back pain.  His profile shows that his 
P-U-L-H-E-S factors were rated P (physical capacity or stamina) "1," U (upper extremities) "1", L (lower extremities) "3," H (hearing) "1," E (eyes) "1," and S (psychiatric) "1," with "1" being a high level of medical fitness, "2" a medical condition or physical defect that requires some activity limitations, "3" shows a Soldier has one or more medical conditions that may require significant duty performance limitations, and "4" means a Soldier has a medical condition or limitation that severely limits his duty performance.  The profiling officer and approving authority stated that the applicant required a Medical Evaluation Board (MEBD)/Physical Evaluation Board (PEB).  This profile shows the applicant could not complete any event of the Army Physical Fitness Test and that his medical conditions prevented him from deployment operations.

6.  During the medical examination required for the MEBD, the applicant stated he had neck pain, low back pain, and bilateral foot pain.  The examining physician noted the following history of the applicant's physical condition:

	a.  with respect to his neck, the applicant had been involved in two car accidents in the early 1990s and in 2005.  He had isolated neck pain with pinching sensation;

	b.  with respect to the low back pain, the applicant reported insidious onset starting after he began jumping.  He had tightness around his lumbar spine and on an average, his low back pain was rated a 2 out of 10 and with prolonged lifting his pain could escalate to a 7 out of 10.  His pain had been treated with medications and he had a physical profile in the past, but he had no formal treatment; and


	c.  with respect to his feet, the applicant experienced pain on and off since the 1990s.  He had been diagnosed with bilateral planter fasciitis and his pain was well controlled until 2006.  He then went on complete rest, refraining from any kind of running or jumping; however, he continued to have significant bilateral foot pain.

7.  The attending physician indicated the applicant was determined to meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) at that time and did not have any disqualifying findings within his physical examination except that associated with the intractable pain with his feet.  However, the applicant had not received complete treatment and desired to be considered for possible surgical intervention for his bilateral planter fasciitis.  The physician further recommended placing the applicant on a temporary profile for his foot condition and a permanent profile for his cervical spine condition.

8.  In the clinical recommendation, dated 20 August 2008, the attending physician recommended the applicant be prescribed a trial of physical therapy for both his cervical and lumbar spine and that he (the applicant) would make an excellent candidate for physical therapy.  The attending physician also recommended referral to an orthopedic foot and ankle surgeon in consideration for surgery to his planter fasciitis.  Once the surgery had been performed, if he continued to have activity limiting pain that would interfere with his MOS, an MEBD should evaluate him; however, the physician did not recommend an MEBD at that time.

9.  On 21 August 2008, the initial physician directed MEBD shows that after consideration of all clinical records, laboratory findings, and physical evaluations it found the following medical conditions/defects:  cervical spine pain, low back pain, and bilateral planter fasciitis.

10.  The MEBD shows that the approximate date of origin for all conditions/
defects was in 1990, that all were incurred while entitled to base pay, that none existed prior to service, and that the low back pain and bilateral plantar fasciitis were permanently aggravated by service.  The MEBD did not determine if the cervical spine pain was aggravated by service.  The applicant indicated in item 12 of his DA Form 3947 (MEBD Proceedings) that he did not present views on his own behalf.  The applicant further indicated he did desire to continue on active duty and that continuance on active duty under the provisions of Army Regulation 635-40 was not medically contraindicated.  The MEBD recommended that the applicant be referred to a physical evaluation board (PEB) and that he be returned to duty with limitations.

11.  On 25 August 2008, the appropriate authority approved the findings and recommendations of the MEBD.

12.  On 28 August 2008, the applicant concurred with the MEBD's findings and recommendations and waived a formal hearing.  He provided no rebuttal statements to the MEBD's findings nor did he request representation by counsel.  The applicant's MEBD was referred to the PEB.

13.  On 2 October 2008, an informal PEB convened and determined that the applicant was physically unfit due to the following conditions.

	a.  Chronic cervical spine pain due to cervical strain sustained during two motor vehicle accidents with multi-level degenerative disc disease with some cervical arthritic changes consisting of osteophytes.  This condition was found unfitting for it prohibits a Soldier from wearing a helmet.  Under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) he was granted a 10 percent disability rating for codes 5299 and 5243 (chronic cervical spine pain).

	b.  Bilateral plantar fasciitis manifested by bilateral foot pain in the area of the proximal attachment to the plantar fascia to the heel and in the arch of the foot.  This condition limited the applicant's ability to carry weight in excess of 25 pounds, prohibited running, and half of the functional activities required of all Soldiers to include the Army Physical Fitness Test.  Under the VASRD, he was granted a 20 percent disability rating for codes 5399 and 5310 (bilateral planter fasciitis).

14.  The PEB found that the applicant's functional limitations in maintaining the appropriate level of mobility and flexibility, caused by the aforementioned impairments, made him medically unfit and prevented the applicant from reasonable performance of his military duties required of his grade and specialty.  The PEB also considered his low back pain but noted he had normal non-painful range of motion and the symptoms did not restrict his job performance.  The PEB did not find this condition unfitting; therefore, it was not ratable. 

15.  The PEB found the applicant physically unfit and recommended a combined rating of 30 percent and that his disposition be permanent disability retirement.  Item 10a of the DA Form 199 shows that the applicant's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law.  In addition, item 10c shows that the applicant's disability did not result from a combat-related injury as defined in
Title 26, U.S. Code, section 104.

16.  After counseling by the appointed PEB Liaison Officer (PEBLO), the applicant indicated that he did not concur with the PEB’s findings and recommendation and indicated that he desired a formal hearing of his case.  He also requested an appointed counsel represent him.  Accordingly, a formal hearing of his case was scheduled for 29 October 2008.

17.  After meeting with his appointed counsel, the applicant withdrew his demand for a formal PEB hearing and indicated that his request was based upon the PEB’s decision to rate his bilateral planter fasciitis at 20 percent (right foot at 10 percent and left foot at 10 percent) and chronic cervical spine due to cervical strain at 10 percent for a combined rating of 30 percent.

18.  On 19 November 2008, the U.S. Army Physical Disability Agency (USAPDA) acting under the direction of the Secretary of the Army approved the PEB.

19.  On 11 December 2008, by memorandum, the applicant withdrew his continuance on active duty request and indicated that on 1 February 2009 he would obtain 20 years of creditable active service.  Therefore, he requested medical retirement effective 1 March 2009.

20.  Accordingly, on 13 January 2009, the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, published Orders C-01-990021, releasing the applicant from his assignment and duty effective 17 March 2009 and placing him on the retired list in the rank/grade of sergeant first class (SFC)/E-7 effective 18 March 2009.  These orders also stated the applicant’s disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 nor was the disability based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war nor incurred in the line of duty during a war period as defined by law. 

21.  On 17 March 2009, the applicant was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was honorably retired in accordance with Army Regulation 635-40, paragraph 4-24b(1), by reason of permanent disability.

22.  In support of his reconsideration request, the applicant provided information papers on the execution of a military parachute landing which is a safety technique devised to reduce the incidence of injury for those deploying a parachute.  The PLF shows the five points of contact are the balls of the feet, the calf muscle, the thigh muscle, the buttocks, and the push-up muscle.  Throughout the article, the applicant consistently highlighted the first point of contact or the balls of one's feet when executing a PLF.

23.  The second document submitted with his reconsideration request as evidence to show that his injuries were incurred under the guidance of combat-related special compensation is a VA Rating Decision, dated 15 July 2009.  The VA determined that the following conditions were related to his military service; therefore, service-connected disability was granted effective 18 March 2009 with a combined rating of 40 percent. 

	a.  degenerative disc disease cervical spine, rated 10 percent;

	b.  chronic plantar fasciitis, left foot rated 10 percent;

	c.  chronic plantar fasciitis, right foot rated 10 percent; and

	d.  adjustment disorder with depressed mood, rated 10 percent

24.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty determinations for Soldier's who die or sustain certain injuries, diseases, or illnesses.  The approving authority is the General Court-Martial Convening Authority (GCMCA) or Commander, USAHRC.  The unit commander initiates the informal DA Form 2173 (Statement of Medical Examination and Duty Status) and after appropriate input by the medical treatment facility physician forwards it through command channels to the appropriate appointing authority.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part that MEBDs are 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 MEBD determines the Soldier does not meet Army retention standards, the MEBD will recommend referral to a PEB.

26.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P1.2.3. states that MEBDs shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral to a PEB.

27.  Title 10, U.S. Code, section 1201, provides for the permanent retirement of Soldiers who incur a physical disability in the line of duty while serving on active duty over 30 days.  However, the disability must have been the proximate result of performance of military training or specialty training duties.

28.  Title 26, U.S. Code, section 104 states that for purposes of this subsection, the term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

29.  Title 38, U.S. Code, sections 1110 and 1131, 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.

30.  Army Regulation 635-40 provides that a disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in and of itself renders the member physically unfit and the injury was incurred during one of the periods of war as defined by law.

31.  Army Regulation 635-40 further states the phrase “instrumentality of war” refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends that his retirement orders should be corrected to show his disability resulted from a combat-related injury as defined by law.

2.  A review of the available evidence shows that the applicant's service-connected physically unfitting conditions were properly rated in accordance with the VASRD and U.S. Army regulatory guidance.  He was found physically unfit for continued military service due to his bilateral plantar fasciitis and chronic cervical spine pain due to cervical strain sustained during two motor vehicle accidents.

3.  The MEBD recommended that the applicant be referred to a PEB and that the applicant be returned to duty with limitations.  The PEB convened and found the applicant physically unfit and recommended a combined rating of 30 percent and that his disposition be permanent disability retirement.  After consulting with counsel, he concurred with this recommendation.  The PEB also determined that the applicant’s disability was not combat-related. 

4.  The PEB’s decision was not arbitrary or capricious.  The PEB utilized all the medical evidence, to include medical evaluation tests as determined by the military medical physicians, as relevant termination appears to be proper and equitable.  The PEB determined that the applicant’s disabling conditions were those of bilateral planter fasciitis and chronic cervical (upper back) spine pain, neither of which was related to his airborne jumps.  The PEB noted that the symptoms of his low back pain, which was related to his airborne jumps, did not restrict his job performance and therefore was not found to be unfitting.

5.  The applicant’s separation was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law and, the disability did not result from a combat related injury as defined in Title 26, U.S. Code, section 104.  There is no evidence or indication that the applicant’s disabling conditions resulted from military training or as a result of jumping.

6.  The fact that the VA, in its discretion, has awarded the applicant a higher 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 as the disability improves or deteriorates. 

7.  The applicant has not submitted any evidence or argument that would show an error or injustice occurred in the processing of his medical separation and subsequent permanent 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 to amend the decision of the ABCMR set forth in Docket Number AR20090000537, dated 28 May 2009.



      ___________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)                                         AR20090013430



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ABCMR Record of Proceedings (cont)                                         AR20090013430



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