IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20090020672 


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, correction of his record to show he was given disability ratings for back pain, arthritis in a toe, his hips, and migraine headaches.

2.  The applicant states:

	a.  A Physical Evaluation Board (PEB) did not give his back [pain] a rating, despite a Medical Evaluation Board (MEB) physician's finding that it was an unfitting condition.

	b.  He has been seeing a chiropractor since August 2008 and a pain physician since March 2009.  His back has only gotten worse.  The Department of Veterans Affairs (VA) rated his back and hips; the Army should have also.

	c.  He went through the MEB process while he was in the Army.  Before considering going through the appeal process his legal counsel told him not to bother because of his military occupational specialty (MOS).  She told him the board would determine that since he could sit at a computer and be an imagery analyst his injuries were not significant, except his feet, which were rated at 20 percent (%) disabling.  His MOS had nothing to do with his feet, back, and hip injuries caused by his service in the U.S. Army; however, being a Soldier did.

	d.  He could no longer perform his duties as a Soldier, such as standing for over 5 minutes, place an OTV [outer tactical vest] on his back, run, crawl, or go to the field/deploy without migraine headaches.
	e.  The entire medical board process is utterly dishonorable and disgusting.  The Army will rate his back and hips, and it will rate his feet higher.  He looks forward to sitting across from [the Army Board for Correction of Military Records (ABCMR)], along with his legal counsel, presenting his case and telling [the ABCMR] exactly how he feels about the Army medical system.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), VA Rating Decision, PEB Proceedings, and medical records documenting medical treatment he received at Georgetown University Hospital on 12 January 2010.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no requests, statements, or provides any documents in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program (DEP) on 29 December 2005.  He was discharged from the USAR DEP on 24 January 2006 and he enlisted in the Regular Army (RA) on 25 January 2006 for a period of 4 years.  He was trained in and awarded MOS 96D (Imagery Analyst) that was subsequently converted to MOS 35G.

2.  After completion of training, he was assigned to Fort Hood, TX.  With the exception of service in Iraq from 21 January 2007 to 7 November 2007, he was assigned to Fort Hood until he was discharged.

3.  The applicant's record includes a DD Form 2808 (Report of Medical Examination) completed prior to his enlistment.  Item 74a shows he was not qualified for service.  Item 76 (Significant or Disqualifying Defects) shows the medical condition/diagnosis "migraines" and further shows he received a waiver to enlist with this disqualifying condition on 27 December 2005.

4.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period ending 5 November 2008 shows the applicant's rater gave him a rating of "Excellence" for physical fitness and military bearing.  The form shows he scored 300 points (the maximum score) on the Army Physical Fitness Test (APFT) on 16 May 2008 and he earned the Physical Fitness Badge.  His rater gave him ratings of "Success" in all other rated areas.  His senior rater rated his overall performance as successful and his potential for promotion and/or service in positions of greater responsibility as superior.

5.  A DA Form 3947 (MEB Proceedings), dated 21 November 2008, shows an MEB found the applicant had bilateral refractory plantar fasciitis with subsequent back pain which was medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The MEB also found the applicant had the following conditions, which were determined to be medically acceptable:  lumbago, bilateral hip pain, mild 1st metatarsophalangeal joint arthritis, refractive error-myopia, migraines, and motion sickness.  The applicant agreed with the MEB's findings and certified that the MEB accurately covered all of his medical conditions.

6.  A second DA Form 3947, dated 31 March 2009, shows an MEB found the applicant had chronic bilateral plantar fasciitis and chronic low back pain which were medically unacceptable in accordance with Army Regulation 40-501.  The MEB also found the applicant had the following conditions, which were determined to be medically acceptable:  right 1st metatarsophalangeal joint osteoarthritis, bilateral hip pain, refractive error-myopia, migraines, and motion sickness.  The applicant again agreed with the MEB's findings and certified that the MEB accurately covered all of his medical conditions.

7.  An MEB Addendum, signed by a physician assistant and an MEB physician, dated 30 March 2009, shows the following results of radiologic studies:

* 1 December 2006 and 19 November 2007 - thoracic spine x-rays were normal
* 16 November 2007 - bilateral feet-arches well preserved.  No radiographic evidence of plantar fasciitis
* 29 November 2007 - right toes.  1st distal phalanx fracture and mild 1st [metatarsophalangeal] joint osteoarthritis
* 3 January 2008 - MRI of lumbar spine was normal
* 17 September 2008 - bilateral hip x-rays were interpreted as normal
* 17 September 2008 - sacroiliac joint films were normal, with no evidence of ankylosing spondylitis [inflammation of the joints between the spinal bones and the joints between the spine and pelvis]
* 4 November 2008 - bilateral hip MRIs showed no bony pathology.  There were labral cysts noted, but no distinct labral tears

8.  The MEB Addendum includes the following statements: 

Currently the Soldier is unable to do his APFT, wear field gear (to include body armor and rucksack), or perform in his MOS.  His bilateral foot pain and back pain limit his duties and impact his ability to play with his children due to his intolerance of prolonged standing and any weight bearing or lifting.
Prognosis for further military service is extremely poor based on his inability to perform all common warrior tasks and the requirements of his MOS.  He is not worldwide deployable.

9.  A DA Form 199 (PEB Proceedings) in his record shows a PEB convened on 17 April 2009 for a second informal reconsideration of the applicant's condition.  The PEB found him unfit for bilateral plantar fasciitis, recommended a combined disability rating of 20%, and separation with severance pay if otherwise qualified.

10.  The PEB reconsidered an MEB diagnosis of chronic low back pain and found it not unfitting.  The PEB noted the applicant was an imagery analyst and his back pain had not interfered with the performance of his duties.

11.  The PEB reconsidered the MEB diagnoses of right 1st metatarsophalangeal arthritis, bilateral hip pain, myopia, and migraines.  The PEB also found these diagnoses not unfitting in that they met retention standards, they were not unfitting independently or in combination with any other conditions, and that they were not a significant limitation on the applicant's ability to perform in his primary MOS.

12.  The applicant's service medical records are not available to the Board for review.

13.  On 1 May 2009, the applicant acknowledged he had been advised of the PEB's findings and recommendations and that he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  He indicated that he did not concur with the PEB proceedings, demanded a formal hearing with personal appearance, and requested representation by counsel.

14.  On 14 May 2009, the applicant withdrew his request for a formal hearing and concurred with the PEB's findings and recommendations.

15.  On 27 July 2009, the applicant was honorably discharged for disability with severance pay.  He completed 3 years, 6 months, and 3 days of total active service.

16.  The VA Rating Decision provided by the applicant shows he was granted service-connection for the following conditions with the percentages shown:

* lumbar spine strain (claimed as lower back pain) - 40%
* cervical spine strain (claimed as cervical spine pain) - 20% 


* right hip strain (claimed as bilateral hip pain) - 10%
* left hip strain (claimed as bilateral hip pain) - 10%
* migraine headache - 0%
* gastroesophageal reflux disease - 0%
* bilateral plantar fasciitis with right foot 1st metatarophalangeal joint degenerative joint disease and distorted great toe nail (also claimed as right great toe ingrown toenail and pes planus) - 0%

17.  During the processing of this case, on 27 May 2010, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official reviewed the records and found no evidence of error or injustice.  The advisory official recommended denial of the applicant's request and provided the following summary of the MEB/PEB process leading to the applicant's discharge.

	a.  A 21 November 2008 MEB listed bilateral plantar fasciitis with subsequent back pain as not meeting the medical retention standards relating to the feet.  The remaining listed conditions of lumbago (back pain), hip pain, metatarsophalangeal joint arthritis, refractive error myopia, migraines, and motion sickness were all found to meet medical retention standards.  The applicant's chief complaint was foot pain which had started in basic training and worsened in March 2007.  On 31 March 2009, an MEB addendum changed the lumbago to chronic low back pain which did not meet medical retention standards.  The hip pain still met medical retention standards.  The physical exam of 30 March 2009 regarding his back showed that range of motion was minimally limited by pain and there was observed to be no difficulty in sitting, rising from a seated position, or rising from a lying supine position.  The Soldier was observed to be able to tie his boots while seated "with very good forward flexion."  The applicant expressed minimal tenderness and all physical testing was negative.  There were no neurological deficits related to his back.  All x-rays and MRIs of the spine were normal.  His hips had full active range of motion without tenderness to palpation.  He complained of some hip pain and orthopedic remarked that he may eventually be a good candidate for diagnostic hip arthroscopy, but not at the present time.  The applicant's physical profile limited lifting to 25 pounds and restricted several military/functional activities based on his feet and back pain.  The applicant's commander noted that the applicant worked a full day in his assigned MOS as an imagery analyst and that he performed his duties well.  The applicant's latest NCOER, [for the period ending] 5 November 2008, indicated superior duty performance with no deficit regarding his physical fitness for duty.  The applicant concurred with the MEB's findings.


	b.  On 15 January 2009, a PEB found the applicant fit for duty.  The applicant nonconcurred which caused the PEB to reconsider their finding on 3 February 2009.  This reconsidered finding resulted in a 20% disability rating for his plantar fasciitis [and a recommendation for] separation with severance pay.  The PEB specifically noted that the applicant's back pain was not unfitting.  The applicant nonconcurred and requested a formal hearing.  Additional medical information supplied to the PEB resulted in the PEB returning the case to the medical treatment facility for additional information.  This resulted in the 31 March 2009 MEB addendum and another reconsidered PEB finding on 17 April 2009.  This new PEB finding confirmed the 20% rating for the applicant's painful feet and specifically addressed the applicant's back pain and why it was not unfitting.  Since the applicant's condition was not unfitting, it was not compensable in the military disability system.  The applicant initially nonconcurred with the latest PEB's reconsidered findings, but on 14 May 2009, he concurred with the findings and waived his right to a formal hearing.

	c.  The applicant's petition for correction provided no evidence of any error in the PEB's findings of fit for duty of his back and hips.  The fact that the VA subsequently rated the applicant for these conditions is not evidence of any PEB error.  Based on the applicant's performance data, the PEB's initial findings of fit for duty may, in fact, be the most supportable finding.  Simply having a listed condition that may cause some pain or limit some military duties does not require that a Soldier be found unfit for all listed conditions.  The PEB fully considered the applicant's back and hip complaints, but did not find that they resulted in any significant hindrance in the performance of his assigned duties.  

	d.  The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  

18.  On 1 June 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

19.  On 11 June 2010, the applicant responded to the advisory opinion, stating, in effect, that rating a Soldier's fitness based on the ability to perform the duties of his or her MOS is unfair because doing so fails to account for the numerous other activities required of Soldiers on a daily basis.  His comments include the following:

	a.  He reiterated his claim that he could not put any weight on his back, preventing wear of an OTV, and states, in effect, that the diagnostic battery administered by an Army physician resulted in an inadequate assessment of his back pain.

	b.  Regarding his NCOER and commander's assessment, he tried his best to work through the pain and took a lot of 800 milligram ibuprofens to try and be a Soldier.  He never complained, hence, his positive NCOER and commander's remarks.  His company commander was not familiar with him and filled the form out in a matter of seconds.  His commander could not have cared less and put no effort into it whatsoever.  However, the commander was preparing to deploy and the applicant was certainly not going to ask him to do it over.

	c.  Regarding his back, he first started to experience severe pain in November 2006 and immediately made an appointment to see a doctor.  For two and a half straight years, 9 1/2  months of which he was deployed, he experienced severe back pain while standing, running, or wearing his OTV.  He dealt with it by taking ibuprofen, flexerall (sic), vicodin, and percoset (sic) the doctors gave him.  He began to see a physical therapist in April 2008 and a chiropractor in August 2008.  The pain was and is legitimate and severe.  How this was deemed fitting is incomprehensible to him.

	d.  After he initially nonconcurred with the PEB's findings, he traveled to San Antonio, TX, only to be told he had to have his hips reevaluated and that he would have to travel down to San Antonio, again at his own expense, at a later date.  The PEB decided his hip pain was significant enough to be scrutinized more closely or else they would have let him proceed with the board.  The orthopedist who evaluated his hip pain decided he was a candidate for surgery based on his MRI.  He was diagnosed with labral cysts in both hips.  The orthopedist said he could not perform the surgery because he (the applicant) was in the MEB process.  The orthopedist told him unless [the condition] was life threatening, he was not authorized to perform the surgery.  This by no means meant he was not in pain or that he did not have a serious medical problem.  The advisory opinion states the surgery was to be performed at a later date, insinuating his hip pain was somehow not serious or not an unfitting medical condition.  That absolutely was not the case.  The orthopedist wanted to perform the surgery, as did he, so they could hopefully improve his condition, but the orthopedist was not authorized to do so.

	e.  On 14 May 2009, he concurred with the PEB's findings and waived his right to a formal hearing.  The reason he decided not to appear before the board in San Antonio was twofold.  

		(1)  His legal counsel advised him the principal reason he was found fit for his back, hips, and migraines was his MOS.  It was not that he did not have legitimate medical problems; rather, it was because he was an imagery analyst and his job did not require him to perform a lot of physical labor.  His legal counsel had represented many Soldiers at formal hearings and she was very knowledgeable about the process.  She said if he could perform his MOS, then the board considered him fit, and hence, unless he was coming down to the board in a wheelchair, do not bother.  She did not tell him not to come, just that the odds were against him.

		(2)  He had already incurred the costs of driving over 6 hours round trip down to San Antonio, paying for meals, lodging, and other expenses out of pocket.  For an E-5 with five kids, that was a lot to ask.  He decided not to waste his time with the formal board because the PEB had already found his hips, toe, migraines, and reflux fitting.  At this point he did not see how he was going to change their minds.  It was an incredible injustice.

	f.  The injustice is that the PEB does not consider if one can be a Soldier or not.  They consider whether one can do their MOS or not.  He contends that Soldiers spend most of their time on activities outside of their MOS, such as running, prolonged and excessive standing, rucking, low-crawling for training purposes, and, his personal favorite, painting rocks.  While in Iraq, he spent most of his time performing various duties in full "battle-rattle," in excruciating pain in his lower back, hips, and feet.  He did his MOS, but Soldiering came first.  His MOS was not physically demanding, but ability to perform the MOS is irrelevant if a Soldier has medical problems that make Soldiering impossible.

	g.  His migraines started in the Army and have gotten worse.  He notes the VA decided they were service-connected.  On 12 January 2010, he was taken to the emergency room with a complex migraine that rendered him unable to speak for about 5 minutes.  He claims his migraines started in Iraq, and states he told the doctors who performed his MEB/PEB physical examinations that he had no records of his visits to clinics while deployed and neither did the Army medical system.  He was given medication while deployed (which he believes was Imitrex) that he continued to take when he returned to the United States.  He states he never had the need to see a doctor in the United States because the medication was sufficient for his monthly migraines.  He did disclose that he had migraines to the doctors who performed his physicals.  As far as he knows, one cannot serve in the armed services with migraines, which leads him to question how the condition could be found fitting.

	h.  Problems he had with his feet, toe, back, hips, and his migraines were all service-connected.  Each should have been rated by the PEB.  It is an injustice that he was "thrown out" with a 20% rating for plantar fasciitis.

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

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

22.  Army Regulation 635-40 provides that Soldiers who non-concur with the recommendation of an informal PEB are entitled to appear before a formal PEB.  If a Soldier non-concurs with the recommendation of a formal PEB, he or she may submit a rebuttal.  If consideration of the rebuttal does affect the outcome of the formal PEB, the rebuttal and the case file are forwarded to the PDA for review. 

23.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD).  A rating can range from 0 to 100%, rising in increments of 10%.  The PEB, under the authority of the USAPDA, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness.

	a.  Chapter 3 of this regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Many of the conditions listed in this chapter fall below retention standards only if the condition has precluded or prevented successful performance of duty.

	b.  Chapter 3 states performance of duty despite an impairment would be considered presumptive evidence of physical fitness and that a Soldier will not be referred to an MEB or a PEB because of impairment that were known to exist at the time of acceptance in the Army and that have remained essentially the same in degree of severity and have not interfered with successful performance of duty.

24.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered 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.

25.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for disability ratings for back pain, arthritis in a toe, his hips, and migraine headaches.

3.  The evidence of record does not show and the applicant has not provided evidence showing that the process that led to his discharge for disability failed to follow the rules and guidelines established in law and regulations.  In fact, the advisory opinion from the USAPDA shows his case was reviewed three times by a PEB.

4.  The evidence of record shows he chose to forego the appeal process available to him when he withdrew his request for an appearance before a formal PEB and concurred with the recommendation of an informal PEB.

5.  There are discrepancies in the applicant's account of the facts and circumstances worth noting.

	a.  He claims his migraines started in the Army.  The evidence of record shows he was diagnosed with migraines prior to enlisting and granted a waiver to enlist with this condition.

	b.  While in Iraq, he claims he endured "excruciating" pain in his lower back, hips, and feet.  While this may have been the case, the fact that he received the maximum score on the APFT after his return from Iraq casts doubt on the degree of pain he was actually experiencing.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

7.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20090020672



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ABCMR Record of Proceedings (cont)                                         AR20090020672



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