IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20110019625 


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 change of his reason and authority for discharge.

2.  The applicant states:

* it was determined without any supporting evidence that his medical disqualification existed prior to service
* he was given no medical treatment
* his diagnosed osteomyelitis should be found to have been incurred in or aggravated by service
* the conclusions of the medical evaluation board (MEB) that his osteomyelitis was not incurred in or aggravated by service only 8 months after being medically examined for induction and 6 months after training was erroneous
* the presumption of soundness was not considered

3.  The applicant defers to counsel for submission of his evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of item 11(c) (Reason and Authority) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was medically disqualified due to a condition incurred in or aggravated by military service.  Counsel requests, in the alternative, 

correction to item 11(c) of the applicant's DD Form 214 to show he was medically disqualified due to a medical condition presumptively acquired in or aggravated by military service.  Counsel requests:

* the proper military component be ordered to pay compensation due as provided in "Subchapter 38 U.S. Code. et seq.," or any other monetary benefits compensation available for this kind of error or injustice
* the Army Board for Correction of Military Records (ABCMR) adjudicate that the failure to properly apply the relevant regulations to the applicant's rights constituted a clear and unmistakable error
* the ABCMR refer a copy of any favorable determination to the San Juan Regional Office of the Department of Veterans Affairs (VA)
* if possible, an expedited decision on the applicant's appeal

2.  Counsel states:

* the applicant received no further medical treatment at the U.S. Army Walson Hospital facilities after 30 July 1962
* the applicant was suffering from a swollen right knee and right tibia
* severe pain and fever were present for about 45 days before the applicant had surgery in a civilian hospital
* 2 days after he was discharged, the applicant had to be hospitalized for right leg surgery due to osteomyelitis
* the actions of the Walson Army Hospital medical staff and the medical board to refer the applicant for immediate separation instead of referring him for medical treatment constitutes an unintentional human rights violation
* after being interviewed and evaluated by a board-certified senior disability analyst, the applicant became aware that the conclusions reached by the medical board were unsupported by the medical evidence on record

3.   Counsel continues by stating:

* absent any notation of defect or infirmity in the applicant's January 1962 entrance examination, there is no evidence of record to support the conclusion that his chronic osteomyelitis was not incurred in or aggravated by service
* efforts made to obtain a copy of the applicant's induction medical examination have been to no avail
* the applicant was not present during the medical evaluation board (MEB) proceedings and his allegations or views were not requested or presented, which was a violation of his civil rights
* 
the applicant was 24 years old; ignorant of his substantive, civil, and constitutional rights; and trained not to question the authority and correctness of U.S. Army officers
* the applicant is 73 years old, severely ill due to chronic osteomyelitis, and cerebral and cerebella atrophy

4.  Counsel provides:

* DD Form 149 (Application for Correction of Military Records), dated 21 September 2011
* Index Sheet
* Arguments and Brief
* Exhibit List
* DD Form 214 for the period ending 10 September 1962
* X-Ray Report, dated 27 July 1962
* Walson Army Hospital Outpatient Narrative Summary
* Medical Board Proceedings, dated 10 August 1962
* Report of Medical Examination for Disability Evaluation, dated 7 March 1978
* VA Rating Decision, dated 26 February 2009
* Independent Medical Examiner Report from a Retired Orthopedic Surgeon, Board Certified Senior Disability Analyst
* Independent Medical Examiner's Credentials
* X-Ray Report of the applicant's right knee and leg, dated 12 April 2011
* Medical records from Ryder Memorial Hospital, dated 22 June 2011

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 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 was inducted into the Army of the United States on 4 January 1962.  His DD Form 47 (Record of Induction) shows he underwent a physical 

examination at the time of his induction; however, the results of the examination are not available for review.  Item 16a (List all defects and diseases claimed by the registrant and any defects or diseases which the registrant may have, and which are known to the Local Board) shows the entry "history of broken leg."

3.  On 27 July 1962, the applicant underwent an examination of his right tibia.  His radiographic report showed expansion of the proximal shaft of the right tibia.  In addition, there was bone sclerosis present in that area as well as multiple areas of radiolucency, which were probably the residuals of previous osteomyelitis.  However, without comparison studies activity cannot be excluded. Discoloration and hypertrophy of low upper one third secondary to untreated fracture 6 years to 7 years ago is cited as part of his pertinent clinical history, operations physical findings, and provision diagnosis.

4.  On 10 August 1962, the applicant underwent an examination at the Walson Army Hospital Orthopedic Clinic.  His Standard Form (SF) 502 (Clinical Record - Narrative Summary) shows he had a history of an old fractured right tibia at age 17.  At the time of the original injury he was not hospitalized.  He was sent to an outpatient department and an appointment was made to scrape the bone.  No treatment was received.  He saw another doctor 1 year prior to this current examination who advised him of the same treatment.  He was complaining of chronic aching and pain in the knee and tenderness if bruised.  He walked with a limp.

5.  The applicant's physical examination on 10 August 1962 showed there were three well-healed sinus tract scars present.  The area was swollen and warm to the touch.  There was no loss of range of motion of the knee.  His laboratory
x-ray showed the entire proximal shaft of the tibia had been involved in a hyperostatic process with lytic lesions scattered throughout.  His laboratory examination was essentially normal.  He was diagnosed with osteomyelitis, chronic, with extensive involvement of the proximal tibia.  Line of Duty (LOD):  No, Existed Prior to Service (EPTS).  It was recommended the applicant appear before an MEB for consideration for separation from active military service under the provisions of Army Regulation 635-40A and B.

6.  An MEB convened on 10 August 1962, to evaluate the applicant's fitness for further military service.  The board identified the applicant's medical condition as "osteomyelitis, chronic, with extensive involvement of the proximal tibia.  LOD:  No, EPTS."  The board found the applicant to be physically unfit for retention on active duty and that his unfitness was the result of a condition which was not incurred in or aggravated by any period of active duty. The MEB proceedings show the applicant was not present during the proceedings and he did not 

present any views in his own behalf.  The proceedings show his hospital outpatient records were available during the proceedings.

7.  The facts and circumstances surrounding the applicant's discharge are not available for review.  However, the available records show that on 4 September 1962, the applicant's commander was notified that the applicant was approved for discharge under the provisions of Army Regulation 635-40A.  As a result, he was honorably discharged on 10 September 1962.  Item 11c of his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-40A, paragraph 33, due to a medical disqualification that existed prior to service.  He completed 8 months and 7 days of total active service.

8.  Counsel submits a VA Form 21-2545 (Veterans Administration Report of Medical Examination for Disability Evaluation), dated 7 March 1978.  This document shows the applicant underwent a chest and right tibia examination for rating purposes.  The applicant's radiographic report shows he had "marked increase in bone density of the proximal tibia extending to its articular surface with the widening of the bone and irregularity in its medullary cavity, minimal degenerative changes observed at the intercondylar eminence of the tibial plateau and laterally with irregularities of bone cortex medially and posteriorly in its proximal end.  Changes could represent sequel from chronic osteomyelitis on previous fracture that could be probably at upper third of tibia near metaphysic.  There was an area of rarefaction of the bone cortex medially at upper third of tibia which should be followed closely if clinical findings merit it."

9.  Counsel submits a VA Rating Decision, dated 26 February 2009, that shows the applicant requested the VA reopen his previous claim of 28 October 2008 for service-connection for osteomyelitis, right tibia.  The VA determined the applicant's claim was denied because the evidence he submitted was not new and material.  The VA stated the rating decision of 30 March 1978 denied service-connection for osteomyelitis, right tibia because the evidence of record shows his condition existed prior to service and was not aggravated by service.

10.  Counsel submits an Independent Medical Examiner Report, dated 11 January 2011, submitted by a retired orthopedic surgeon retained by the applicant who provides the following diagnosis:

* Residuals osteomyelitis right upper tibia, status post-surgery
* Left leg discrepancy secondary to the above diagnosis
* Lumbar herniated nucleus pulposus and back pain
* Neuropsychiatric condition by history

11.  The Independent Medical Examiner states "he agrees the diagnosis of chronic osteomyelitis was probably the correct one when made back on 30 July 1962.  Nevertheless, such diagnosis requires confirmation according to the standard medical practice.  The diagnosis of long-bone osteomyelitis rests on the isolation of the pathogen(s) forms of the bone lesion, blood, or joint cultures.  Radiographic changes in early stage osteomyelitis are often difficult to interpret and last at least 2 weeks behind the evolution of infection.  The earliest radiographic changes are soft-tissue swelling, periosteal thickening or elevation of both and focal osteopenia.  These findings are subtle and may be missed.  The more diagnostic lytic changes are delayed and often associated with an indolent infection of several months duration."  The Independent Medical Examiner states that confirmation requires as mandatory:

* Blood culture
* CBC and differential clinical studies
* Urine analysis
* Sedimentation rate studies
* Bone biopsy or needle aspiration
* Tomogram of right leg
* Orthopedic evaluation for surgical indications
* Curettage, if needed

12.  He further states, if surgically indicated, the procedure must be:

* Saucerization
* Curettage
* At least 6 weeks with intravenous antibiotics determined by the culture taken during the curettage in order to eradicate the offending pathogen
* Close follow-up after surgery for a least 2 years

13.  The Independent Medical Examiner opined "the conclusion reached by the medical board at Walson Army Hospital, which found the onset of inception previous to January 1962 is not supported by the medical record at the time the conclusion was reached, absent any notation as to defect or infirmities noted at the entrance into service examination.  The observation made by the doctor in the course of a physical examination, informed [sic] in the Narrative Summary dated 10 August 1962, of three healed sinus tract scars is not sufficient to sustain a conclusion of the inception or origin of the conditions diagnosed as osteomyelitis. The observation of sinus scar by itself is not different from any other stab wounds [sic] scars.  Sinus is diagnosised only when there is drainage.  Absent the observation of the presence of drainage, the diagnosis of sinus is not warranted or is a dubious certainty, because the lack of objective evidence to support it."
14.  He further opined that "accepted medical principles required a thorough analysis of all material facts like the history, manifestation, clinical course as previously identified, and character of the particular injury or disease.  Inception
3 or 4 weeks before the symptoms appeared on 27 July 1962 is probable; 3 to 4 months before is almost certain.  Osteomyelitis, chronic with extensive involvement of the proximal tibia, was the diagnosis reached on 10 August 1962, a diagnosis made with only a plain x-ray, with no corroboration whatsoever.  The symptomatology presented during July, August, and September 1962 could also be an in service aggravation of the veteran [sic] medical condition due to possibly a ueterea [sic]temporary weakening during immunization, and/or to the strenuous activity during basic training, or any injury or trauma received to the right knee area during exercise, or foot ulcers developed.  The strenuous activity of the applicant's assigned duties is the most probable causation of the condition, or its aggravation.  Reaching a diagnosis of chronic osteomyelitis without confirmation in accordance to standard medical practice was tantamount to medical malpractice.  Referral of the applicant for discharge, but not for treatment is a human right [sic] violation.  The denial of his right to medical care and treatment in the event of sickness and disability in circumstances beyond his control was a flagrant violation."

15.  Counsel submits a copy of the Independent Medical Examiner's Curriculum and Credentials.  He also submits a Ryder Memorial Hospital Study Final Report, dated 17 February 2011.  The study shows "there is a heterogeneous density on the bone involving the proximal shaft and metaphysic of the tibia with area of sclerosis and lucency, associated periosteal reaction and ill-defined areas of cortical thinning suggesting changes of chronic osteomyelitis.  The appearance of a bone within a bone is suggested.  There is surrounding soft tissue swelling.  Severe degenerative changes of knee joint also noted particularly involving the lateral compartment of the femorotibial joint space.  Evaluation of effusion is limited due to obliquity."  The impression was findings involving the proximal third of the tibia are highly suggestive of chronic osteomyelitis.  Counsel submits Ryder Memorial Hospital, Inc. Emergency Department Records, dated 22 June 2011.

16.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for enlistment, induction, and appointment; and the medical fitness standards for retention and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a 
Soldier unfit for further military service.  It states that Soldiers with conditions listed in that chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a Physical Evaluation Board (PEB).

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) contains guidance on the Army's Physical Disability Evaluation System (PDES) and more specifically, provides for the separation of enlisted members for non-service aggravated EPTS conditions.  Army Regulation
635-40A and B, of the version of the regulation in effect at the time of the applicant’s discharge and the current version, require the Soldier to request the discharge and to waive an evaluation by a PEB.

18.  Army Regulation 635-40A, section XII, in effect at the time, provided for the evaluation and separation of members for physical disability that existed prior to entry on active service and not aggravated by the service.  It states that members may elect to apply to their immediate commanders for early separation provided a medical officer has determined they are physically or mentally unfit for retention on active duty or that such unfitness is the result of a condition that was not incurred or aggravated during any period of active service.

19.  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 line of duty."  If an EPTS condition is not aggravated by military service, the finding will be "not in line of duty."   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.

20.  The doctrine of laches is defined by Black's Law Dictionary as the neglect to assert a right or claim which, taken together with the passage of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The contentions made by the applicant and his counsel have been noted and the supporting evidence counsel submitted has been considered.

2.  Based on the available evidence, there appears to be no error or injustice in the actions taken by the Army.  The applicant's record shows he underwent an entrance physical examination and it was discovered that he had a history of a broken leg.  Months later be began to complain of aches and pains in his knee and he was seen at the orthopedic clinic.  His SF 502 shows he had a history of an old fracture to his right tibia at age 17 which went untreated.

3.  The applicant's condition was evaluated by an MEB and he was diagnosed with osteomyelitis, chronic, with extensive involvement of the proximal tibia, LOD: No, EPTS.

4.  The MEB found the applicant physically unfit for retention on active duty and determined his unfitness was the result of a condition that was not incurred or aggravated during any period of active duty service.

5.  The opinion of the Independent Medical Examiner retained by the applicant has been considered.  The applicant was diagnosed with chronic osteomyelitis and the medical examiner stated in his report that he agreed with the diagnosis.  However, he does not agree without confirmation that the applicant's condition existed prior to service.  The applicant's DD Form 47 and the medical evidence submitted by counsel supports the Army's conclusion that the applicant's condition existed prior to service.  Neither the applicant nor his counsel has provided sufficient evidence to the contrary.

6.  In accordance with the applicable regulations in effect at the time, members could elect to apply to their immediate commanders for early separation provided a medical officer had determined they were physically or mentally unfit for retention on active duty or that such unfitness was the result of a condition which was not incurred or aggravated during any period of active service.  The applicable regulation required the Soldier to request the discharge and to waive an evaluation by a PEB.

7.  Although the applicant's request for discharge is not on file, his record shows that on 4 September 1962, his commander was notified that he was approved for discharge under the provisions of Army Regulation 635-40A.  It is reasonable to believe that the applicant requested discharge and he waived an evaluation by a PEB.

8.  The available evidence suggests that the applicant was discharged in accordance with the applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The reason and authority shown on his DD Form 214 are proper and there is no basis for granting the requested relief.

9.  Further, to the extent some evidence may no longer be available, it is the applicant's near 50-year delay in coming to the ABCMR that has perhaps compromised a more thorough review of all aspects of his separation.  The doctrine of laches is therefore invoked.

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant and counsel's requested relief.

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)                                         AR20110019625



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ABCMR Record of Proceedings (cont)                                         AR20110019625



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