BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110010081 


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 records to show an increase in his Physical Evaluation Board (PEB) disability rating.

2.  The applicant states due to injuries he received in an accident he was not able to fulfill his duties as a 63C (Track Vehicle Mechanic).  He was in pain and not totally aware of his rights when initialing his discharge.  He received a rating for chronic lumbar pain, left talar neck avulsion fracture, chondromalacia of the right knee, and broken ribs.  However, the consultation report from the other orthopedic doctor (Fort Carson Orthopedic Clinic) was not included in the Medical Evaluation Board (MEB) Proceedings, thus negating the fact that a contusion existed on his lumbosacral spine.  This omission prevented him from receiving a fair rating of that condition resulting in a biased and one-sided opinion.

3.  The applicant provides:

* DA Form 285 (Accident Report), dated 15 June 1979
* Standard Form (SF) 88 (Report of Medical Examination), dated 8 May 1980
* MEB Proceedings, typed 22 May 1980
* DA Form 199 (Physical Evaluation Board Proceedings), dated 18 July 1980
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 15 August 1980

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's records show he enlisted in the Regular Army on 1 June 1978.

3.  On 8 May 1980, he was examined by an MEB.  The MEB diagnosed him with the following:

	a.  Chronic lumbar pain without objective physical findings nor corroborating roentgen graphic changes;

	b.  Left talar neck avulsion fracture with persistent swelling and pain;

	c.  Chondromalacia of the right knee; and

	d.  Status post multiple rib fractures on the left
 
4.  A Medical Record Report attached to the MEB proceedings indicates the applicant was seen by another orthopedist in the Orthopedic Clinic at Fort Carson who felt that the patient had a contusion of the lumbosacral spine.  There was no evidence of neurovascular involvement confirmed by the examiner.  No recommendation for a permanent profile was made.  

5.  The examiner stated the physical examination with regard to the back reveals that the patient walks with a normal gait, and with alternating stepping in place, the back relaxes and contracts symmetrically.  The patient has no evidence of spasms and can forward flex to approximately 3 inches of the floor.  He hyperextends 20 degrees with some back discomfort and laterally side bends 
30 degrees left and right.  Rotation of the back is full at about 35 degrees.


6.  The MEB concluded his medical condition precluded many of the activities required by his MOS and indicated that item 38, chronic lumbar pain, was a disqualifying defect.  However, the MEB also indicated the applicant was qualified for retention.

7.  On 18 July 1980, an informal PEB convened to evaluate his case.  The proceedings show the applicant had functional limitations in maintaining back strength and agility caused by his physical impairments which made him unfit to perform the duties required of a specialist four (SP4)/E-4 in MOS 63C.  The PEB recommended his separation with severance pay and assigned a combined
20 percent (%) disability rating percentage under the Veterans Administration Schedule for Rating Disabilities (VASRD) as follows:

* Code 5003 for chondromalacia of right knee and ectopic calcification -10%
* Codes 5010/5003 for post traumatic arthritis of left ankle with X-ray changes and limitation of motion - 10%
* Code 5295 for subjective low back pain without objective findings - 0%

8.  The applicant indicated he did not wish to continue on active duty and, on 
24 August 1980, he concurred with the PEB findings and waived a formal hearing.

9.  On 15 August 1980, he was honorably discharged by reason of physical disability with severance pay.

10.  In the processing of this case, on 17 August 2011, an advisory opinion was obtained from the U.S. Army Physical Disability Agency, Washington, D.C.  The advisory official stated the applicant's MEB contained a full medical evaluation for his back and indicated that his complaints of back pain where not supported by any physical findings.  He had full reflexes, strength, no spasms, a normal gait, and he could forward flex within 3 inches of the floor.  There was no tenderness to light palpation, but he did have some tenderness in the mid-lumbar spine to percussion.  The applicant concurred with the MEB findings and recommendation.  Further, an informal PEB found him unfit for all three conditions listed on his MEB.  The applicant concurred with the PEB's findings and waived his right to a formal hearing.  The advisory official finally stated the PEB's findings were supported by the preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation and recommended no change to the applicant's military records.


11.  On 6 September 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

13.  Army Regulation 40-501(Standards of Medical Fitness) 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 VASRD.

14.  The VASRD states that in every instance where the schedule does not provide a 0% evaluation for a diagnostic code, a 0% evaluation shall be assigned when the requirements for a compensable evaluation are not met.  Further, it prescribes assignment of a 0% rating for chronic low back pain of unknown etiology (mechanical low back pain).

 DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show an increase in his PEB disability rating.

2.  He attests that all of his medical conditions, specifically a contusion of his lumbosacral spine, were not considered and he was in too much pain to understand his rights during the medical proceedings.  However, the evidence shows the condition in question was addressed in the both his MEB and PEB proceedings and the examiner found no evidence to confirm such contusion; however, the applicant was awarded a 0% disability rating for subjective low back pain without objective findings in accordance with the VASRD.  

3.  He agreed with this recommendation and the PEB found his medical conditions prevented him from performing his duties and determined that he was 


physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay.

4.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.

5.  In view of the foregoing, his request should be denied

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)                                         AR20110010081



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ABCMR Record of Proceedings (cont)                                         AR20110010081



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