IN THE CASE OF:
BOARD DATE: 30 November 2010
DOCKET NUMBER: AR20100013546
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 correction of his DA Form 199 (Physical Evaluation Board Proceedings) dated 18 December 1978 to show that his spondylolysis was aggravated while entitled to basic pay.
2. The applicant states his DA Form 199 is incorrect and it contradicts item 20g (Aggravated by Active Duty) on his DA Form 3947 (Medical Board Proceedings).
3. The applicant provides copies of the following documents:
* DA Form 3947
* VA Form 21-4148 (Department of Veterans Affairs Statement in Support of Claim)
* DA Form 199
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Army on 8 December 1977 and he completed training as a petroleum supply specialist.
3. A Medical Evaluation Board (MEB) convened on 5 December 1978. He was diagnosed with congenital spondylolysis for L-5 on the right with weakness of the low back, demonstrated by persistent and recurrent symptoms of low back pain on routine daily activities. In item 20g on the DA Form 3947 he received, the MEB indicated that his condition was aggravated by active duty.
4. A Physical Evaluation Board (PEB) convened on 18 December 1978. He was diagnosed with low back pain secondary to spondylolysis of L5 with characteristic pain on motion, which existed prior to service (EPTS). The PEB determined his level of impairment in accordance with the VA Schedule for Rating Disabilities had not increased from that which existed prior to his entry on active duty; therefore, there was no service aggravation. On the DA Form 199 he received, the PEB indicated that his condition was not incurred in the line of duty (LOD) and was not incurred or aggravated while entitled to basic pay. The PEB found him physically unfit and recommended he be separated from military service without entitlement to benefits. The applicant concurred with the PEB's findings on 26 October 1978.
5. On 2 February 1978, the applicant was honorably discharged, due to disability, other.
6. Army Regulation 600-8-4 (Line of Duty Policy, Procedures and Investigations), chapter 4, paragraph 4-8(e) states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in the LOD. If an EPTS condition is not aggravated by military service, the finding will be not in the LOD, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been considered. However, although the MEB determined his condition was not aggravated by active duty (while also indicating he had low back pain on routine daily activities), in the expert opinion of the PEB that provided their reviews, his disqualifying condition was not incurred or aggravated while entitled to basic pay.
2. There is no evidence in the available record, nor has he submitted any evidence that shows the findings of the PEB were incorrect. As previously stated, he concurred with the PEB's findings on 26 October 1978.
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) AR20100013546
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100013546
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | AR20140003753
The applicant provides: * Standard Form 88 (Report of Medical Examination), dated 4 August 1980 * Optional Form 275 (Medical Record Report), dated 30 April 1981, pertaining to Silas B. Hays Army Community Hospital Transfer Summary * 2 Standard Forms 519-A (Radiographic Report), dated 2 and 4 May 1981 * Optional Form 275, dated 1 July 1981, pertaining to his MEB * U.S. Army Physical Disability Agency (USPDA) Form 18 (Revised PEB Proceedings) (first page only), dated 10 September 1981 * DA...
ARMY | BCMR | CY2012 | 20120021047
The applicant states: I believe the narrative discharge of "disability existed prior to service," item 28 of his DD Form 214 (Certificate of Release from Active Duty)) is incorrect because of the lack of evidence and the presence of contradicting evidence at the time of the rating from the Physical Evaluation Board (PEB). Studies have shown that 5-10 percent of patients seeing a spine specialist for low back pain will have either a spondylolysis or isthmic spondylolisthesis. The PEB did...
ARMY | BCMR | CY2012 | 20120011255
Application for correction of military records (with supporting documents provided, if any). Furthermore, a VA rating is not evidence of error in a PDES rating. ABCMR Record of Proceedings (cont) AR20120011255 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120011255 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1
ARMY | BCMR | CY2012 | 20120001469
The applicant requests correction of a medical evaluation board (MEB) narrative summary to show the results of a lumbar myelogram were not negative and to show a squat rack collapsed on top of him. The evidence of record does not support the applicant's request for correction of the MEB narrative summary in his record, nor does it support correction of his record to show a squat rack collapsed on top of him. Considering that the record shows he was alone at the time of the injury,...
AF | PDBR | CY2011 | PD2011-00440
After a C&P examination was completed and the examiner noted that, at least as likely as not (50/50 probability), the bilateral knee pain resulted from the injury that occurred while the CI was on drill status in March 2003, the VA service-connected the condition and did not consider the condition to have EPTS. The right and left knee pain conditions are not considered to have EPTS and the disability ratings should be rated based on the limitations present at the time of separation. After...
AF | PDBR | CY2013 | PD-2013-01577
The right foot and back conditions, characterized by the MEB as “continued pain status post (s/p) excision of nonunion fragment right 5th metatarsal” and “low back pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at...
ARMY | BCMR | CY2014 | 20140017068
The applicant requests: a. correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 22 March 2011: (1) by deleting the entry: Soldier reported onset September 2004 after jump in airborne school but Soldier seen 22 July 2004 for back pain following weight lifting some two-weeks earlier (AHLTA [Armed Forces Health Longitudinal Technology Application]) which is why the PEB concluded (10A/C-No) [references item 10 of DA Form 199]. (2) showing his injury was sustained...
ARMY | BCMR | CY2012 | 20120021545
The applicant provides copies of his: * Medical Evaluation Board (MEB) proceedings * Physical Evaluation Board (PEB) proceedings * VA rating decision CONSIDERATION OF EVIDENCE: 1. The evidence of record shows the PEB considered the applicant's entire case file, including the LOD finding and his MEB proceedings. Records show that after the applicant's PEB findings and recommendations were approved, and the PEBLO provided the applicant information about applying for VA compensation.
ARMY | BCMR | CY2007 | 20070016602C080213
There are no service medical records to confirm this injury. The applicant stated in his appeal that he injured his back while on active duty about 1984. Given the above discussions, voiding the applicants transfer to the Retired Reserve would necessitate changing his records to show he was discharged from the ARNG and as a Reserve of the Army.
AF | PDBR | CY2012 | PD 2012 00508
Chronic Neck Pain Condition: The PEB determined this condition was unfitting but was also EPTS and not aggravated by service. Both prior service and service disability ratings are determined IAW the VASRD §4.3 (reasonable doubt) standard and the final disability percent rating is determined by deducting the prior service rating from the service rating. The C&P examination used to determine the 30% disability rating was based on an exam completed more than a year prior to separation and the...