IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110011447 


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 military service records to show he sustained a service-connected spinal injury.

2.  The applicant states, in effect, he was involved in a high-velocity accident and retired from active duty based on permanent disability on 12 November 1971 with a 50% disability rating.

	a.  He states his medical records show that medical personnel were unable to take x-rays at the time due to limitations of the portable technique examining the lower cervical spine.  Consequently, his spinal injury was not evaluated in its entirety and, as a result, he received treatment for a different injury.

	b.  The Philadelphia Naval Shipyard (PNSY) Dispensary later determined he had fractured vertebrae that had healed and had to have been caused by a high-velocity accident.  In 1990, he underwent a Magnetic Resonance Imaging (MRI) scan that showed the compressed fractured vertebrae and two herniated discs.

	c.  He thought the injury had been evaluated as part of his permanent disability retirement, but it was not.  Consequently, he applied for disability benefits through the Department of Veterans Affairs (VA).

	d.  He was on Department of Labor's (DOL's) worker's compensation for his back from 1984 to March 2009 for acute lumbar sprain.  He continues to be unable to work due to his injuries.

	e.  He has been told he had to have received the initial back injury in the accident that occurred during his military service in 1971.

3.  The applicant provides copies of four medical documents and four letters related to his VA and DOL disability claims.

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 enlisted in the Regular Army for a period of 2 years on
28 September 1970.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant sustained a fracture of the right femur at 0300 hours, 19 February 1971, when the vehicle he was traveling in hit a telephone pole.  On 12 October 1971, it was determined that his injury was incurred in line of duty.

4.  A Standard Form (SF) 88 (Report of Medical Examination), dated 13 July 1971, completed for the purpose of the applicant's Medical Evaluation Board (MEB) shows in the Clinical Evaluation section that the physician evaluated the applicant's lower extremities as abnormal and his spine, other musculoskeletal [groups] as normal.

5.  On 26 July 1971, an MEB was conducted by the Valley Forge General Hospital (VFGH) in Phoenixville, Pennsylvania, based on consideration of clinical records, laboratory findings, and physical examinations.

	a.  An SF 502 (Narrative Summary - Clinical Record), dated 14 July 1971, shows "X-rays from the outside hospital and x-rays taken [at VFGH] at the time of admission showed a comminuted oblique fracture of the proximal third of the 


right femur, which was in good alignment on films taken in traction."  It provides details of the applicant's injuries.  There is no indication of a back or spinal injury and the applicant did not report any back pain when interviewed by members of the MEB.

	b.  The MEB found the applicant was diagnosed as having the following medically unfitting conditions that were accidentally incurred in an automobile accident on 19 February 1971:

* malunion of fracture, right tarsal joint and metatarsals, secondary to fractures
* shortening, right leg, secondary to fracture
* contracture, extensor tendon of right great toe, secondary to injury
* neuropraxia, right infraorbital nerve, secondary to injury
* scars, well healed, neck and right foot

	c.  The MEB determined the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), recommended his entry into the Physical Disability Evaluation System, and referred him to a PEB.

	d.  The applicant indicated with his signature that he was informed of the approved findings and recommendations of the MEB on 28 July 1971.

6.  On 23 September 1971, an informal PEB convened at VFGH in Phoenixville, Pennsylvania and considered the applicant's:

* foot injury, other, bilateral; right, moderately severe; left, moderate
* femur, impairment of, right with 1½ inches of shortening and slight loss of knee flexion; requiring built up shoe; rated "malunion with moderate knee disability"
* bilateral factor
* scars, disfiguring, face and neck, moderate

7.  The PEB found the applicant physically unfit and recommended a combined rating of 50% with his permanent retirement from the service.

8.  On 27 September 1971, the applicant indicated with his signature that he was advised of the findings and recommendations of the PEB; that he received a full explanation of the results of the findings and recommendations; that he concurred; and he waived a formal hearing of his case.


9.  Department of the Army, Letter Orders Number D11-224, dated 5 November 1971, directed the permanent disability retirement of the applicant with a disability rating of 50%, effective 12 November 1971, and his placement on the Permanent Disability Retired List on 13 November 1971.

10.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty on 28 September 1970 and he was honorably retired from active duty on 12 November 1971, under the provisions of Title 10, U.S. Code, section 1201 (Regulars and members on active duty for more than 30 days:  retirement), based on permanent disability.  He completed 1 year, 1 month, and 15 days of total active Federal service for basic pay.

11.  In support of his request, the applicant provides the following documents:

	a.  A continuation page of an undated SF 519-A (Radiographic Report) pertaining to the applicant.  The physician entered, "The skull films show no evidence of fracture.  The cervical spine was not evaluated in its entirety, but due to the limitations of the portable technique examining the lower cervical spine. The AP [anteroposterior (from front-to-back)] films show no significant findings.  IMP [Impression]:  Multiple facial fractures on the right side."

	b.  An SF 78-110 (United States Civil Service Commission - Certificate of Medical Examination), dated 17 October 1971, completed for the purpose of the applicant's appointment to an apprentice mechanical trade position.  It shows the position required, in part, light, moderate, and heavy lifting; light, moderate, and heavy carrying; prolonged walking and standing; and repeated bending.

	 	(1)  Item 5 (Do you have any medical disorder or physical impairment which would interfere in any way with the full performance of the duties shown below?) shows the applicant placed a checkmark in the "No" block.

	 	(2)  In the Examining Physician section, item 4 (Other Findings):

		(a)  block k (Back - special consideration for positions involving heavy lifting and other strenuous duties), shows the physician entered [what appears to read] "NML" [Normal]; and

		(b)  in the "Conclusions" section, the physician checked the block for "Limiting conditions as follows:" and noted the applicant's service in the U.S. Army for 17 months and 50% VA disability.  There is no entry that refers to a back or spinal injury.

	c.  An SF 519-A pertaining to the applicant completed by a physician at the PNSY Dispensary, on 3 October 1978.  The physician entered, in part, "Injured low back, 20 September [1978] and again today" and "compression fx [fracture] L5 body, but appears old - correlates with history, negative otherwise."

	d.  A VA Center, Philadelphia, Pennsylvania, letter, dated 15 January 1980, that requested medical information from the PNSY Dispensary based on the applicant's application for disability benefits showing treatment at the facility in February 1979 for a lower back condition.

   e.  A VA Summary of Hospitalization, dated 12 February 1980, that shows the applicant was seen at the PNSY Clinic on 30 March 1979.  He claimed to have injured his back lifting a manhole cover; a chiropractor had previously told him he had a "crushed vertebrae"; and he was evaluated by his personal physician for a back injury.  He was diagnosed with a moderate lumbar sacral strain.

	f.  Two pages of a multi-page letter from the applicant's orthopedic doctor to the DOL, dated 5 January 1990, that shows the applicant has a history of an injury to his back that occurred on 18 June 1984.  He had a medical work-up that showed what appeared to be an old compression fracture of L5, and a Computed Tomography (CT) scan performed in March 1984 appeared to show a herniated disc at the L5-S1 level.  He noted the applicant had a previous injury in 1971 in which he sustained a femur fracture and was treated with traction.

	g.  One page of a multi-page letter from the applicant's orthopedic doctor to the DOL, dated 4 April 1994, that shows the applicant was injured at work in 1984, has had back problems since, and he has not been able to work.

	h.  A DOL letter to the applicant, dated 15 February 1995, that denied his request for a proposed back surgery.  A "referee examination" was scheduled because of two opposing medical opinions on the need for the applicant's proposed back surgery.  That physician's report noted that the applicant has had a compression fracture of L5 that pre-existed the accident in question [18 June 1984] and, as a result, he has developed some degenerative arthritis in the spinal segment; however, there does not appear to be any evidence of spinal instability. 

12. The U.S. legislation that applies to this case is:

   a.  Title 10, U.S. Code, section 1201, that provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

   b.  Title 38, U.S. Code, sections 1110 and 1131, that permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same 
impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military service records should be corrected to show that he sustained a service-connected spinal injury was carefully considered.

2.  Records show the applicant received medical treatment for the injuries he sustained on 19 February 1971.  There is no evidence he was treated for a back or spinal injury.  In fact, the extensive medical evaluation of the applicant during the course of his MEB and PEB proceedings, that included x-rays at two hospitals and interviews with the applicant, revealed no evidence of a complaint or diagnosis of a back or spinal injury.

3.  The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the entire physical disability evaluation process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Thus, the applicant's PEB proceedings are presumed proper and equitable.  


4.  The evidence of record shows the applicant was permanently retired from the Army based on physical disability on 12 November 1971.

	a.  He applied for employment in a position that required heavy lifting and carrying, prolonged walking and standing, and repeated bending.  When he applied for the position he denied any medical or physical impairment which would interfere with the performance of these duties.

	b.  The applicant injured his back lifting a manhole cover on 20 September 1978 and/or 3 October 1978, and he was diagnosed with a moderate lumbar sacral strain.  Then, on 18 June 1984, he injured his back, again.

5.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair(s) the individual's industrial or social functioning.

6.  Therefore, in view of all of the foregoing, there is no basis for correcting the applicant's records to show he was diagnosed with a back or spinal injury, or adjustment of his disability rating.

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)                                         AR20110011447



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ABCMR Record of Proceedings (cont)                                         AR20110011447



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