IN THE CASE OF:  

		BOARD DATE:  11 October 2012

		DOCKET NUMBER:  AR20120001469 


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 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.

2.  He states the MEB narrative summary in his recently-obtained file shows the doctor stated he had a lumbar myelogram with negative results.  The results were not negative.  The doctor made a glaring error and she obviously did not read the test results.  This had a huge impact on his MEB/physical evaluation board (PEB).  The objective findings would have shown the injury, which was sustained in the line of duty (LOD), was the fault of the individual who built the squat rack that collapsed on top of him.  Countless times in the file, the comment is made that the weights that struck his back "fell" from a squat rack.  This is a lie, not simply a misstatement or mistake.  The original doctor's notes clearly state the rack collapsed.  The LOD investigation supports this fact.  He states these errors and others have complicated his case with the Department of Veterans Affairs.

3.  He provides:

* Optional Form 275 (Medical Record Report), dated 1 July 1981, pertaining to his MEB
* two Standard Forms 519-A (Radiographic Report), dated 2 and 4 May 1981
* Revised PEB Proceedings (first page only), dated 10 September 1981
* Department of the Army message, subject:  LOD Determination, dated 18 August 1981
* Silas B. Hays Army Community Hospital Transfer Summary, dated 30 April 1981

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 on 4 November 1980.

3.  His record includes a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 April 1981, showing:

* on 17 March 1981, he "was allegedly lifting weights when barbell fell on his back"
* on 3 April 1981, he was admitted to Silas B. Hays Army Community Hospital, Fort Ord, CA, and diagnosed with "spondylolisthesis L5, S1"
* the injury was considered to have incurred in the LOD

4.  Item 30 (Details of Accident – Remarks) of the DA Form 2173 contains the following statement:

SM [service member] was alone in the weight lifting area of [Building] #322 at the time of accident.  SM was performing an exercise [with] weights that specifically calls for other people to be present, when the equipment broke and fell across his back.  SM also indicated he had a similar injury prior to his enlistment.

5.  On 26 May 1981, the Commander, 7th Infantry Division and Fort Ord, Fort Ord, CA, by authority of the Secretary of the Army, confirmed the LOD investigation had been reviewed for completeness and the injury was in the LOD.

6.  His record includes an MEB narrative summary, dated 1 July 1981.  The History section of this document shows, in part:

* he gave a history of multiple athletic injuries to his extremities and his back
* he experienced frequent low back pain during basic training which was exacerbated with exercise and cold weather
* in March 1981, while lifting weights at the Fort Irwin gym, he was struck in the lower back by a barbell that fell from a weight stand
* he noted immediate onset of pain in his lower back and was able to walk but only with difficulty
* upon evaluation at Silas B. Hayes Army Community Hospital, he was found to have decreased strength and sensation in the left lower extremity
* he underwent x-rays of the lumbosacral spine which showed a grade I spondylolisthesis, but no fractures or decreased joint space
* a bone scan was read as within normal limits
* he was treated with bed rest, which was questionably complied with, and physical therapy without improvement

7.  In the Hospital Course portion of the MEB narrative summary, the doctor stated "the patient underwent a metrizamide lumbar myelogram which showed no abnormalities."

8.  A DA Form 3947 (Medical Board Proceedings) shows an MEB found him medically unfit based on his diagnosis of chronic low back pain secondary to 
L5-S1 spondylolisthesis with spondylolysis on 10 July 1981.  The MEB found the condition existed prior to service and recommended his presentation to a PEB.  The MEB findings and recommendations were approved on 15 July 1981.

9.  A DA Form 199 (PEB Proceedings) shows a PEB convened on 26 August 1981.  The PEB found him unfit based on the MEB diagnosis, recommended a 
0-percent disability rating, and recommended his separation from the service with severance pay if otherwise qualified.  On 1 September 1981, he concurred with the PEB findings and recommendations and waived a formal hearing of his case.

10.  On 10 September 1981, the U.S. Army Physical Disability Agency revised the PEB findings by increasing his disability rating to 10 percent.  On 16 September 1981, he indicated he agreed with the revised findings.

11.  On 5 October 1981, he was honorably discharged with severance pay by reason of physical disability.

12.  He provides a radiographic report showing he underwent a metrizamide lumbar myelogram on 5 May 1981.  The examining physician noted "grade I spondylolisthesis, L5 on S1, without evidence of herniated nucleus."

13.  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.  

14.  Radiologyinfo.org, a website developed by the Radiological Society of North America and the American College of Radiology, provides the following information pertaining to myelography.

	a.  Myelography is an imaging examination that involves the introduction of a spinal needle into the spinal canal and the injection of contrast material (such as metrizamide) in the space around the spinal cord and nerve roots (the subarachnoid space) using a real-time form of x-ray called fluoroscopy.  When the contrast material is injected into the subarachnoid space, the radiologist is able to view and evaluate the status of the spinal cord, the nerve roots and the meninges (the membranes which surround and cover the spinal cord and nerve roots).

	b.  Myelography provides a very detailed picture (myelogram) of the spinal cord, nerve roots, subarachnoid space and spinal column.  Myelography is most commonly used to detect abnormalities affecting the spinal cord, the spinal canal, the spinal nerve roots and the blood vessels that supply the spinal cord.  Myelography can also be used to assess certain conditions when magnetic resonance imaging (MRI) cannot be performed, or in addition to MRI.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  An investigation found the injury he incurred on 17 March 1981 was in the LOD.  The investigation was reviewed by the proper authorities and approved.  The injury was attributed both to a barbell falling on his back and to equipment breaking.  No matter how the cause was attributed, it appears the end result was the same:  a barbell fell on his back.

3.  Considering that the record shows he was alone at the time of the injury, presumably many of the details available to the investigating officer came from the applicant himself.  Under those circumstances, it is reasonable to expect some ambiguity.  He provides no evidence and no explanation as to how any “error” has harmed him with his VA case.  Therefore, there is no basis for correcting his record to show a squat rack collapsed on top of him.

4.  His record shows he was diagnosed with "spondylolisthesis L5, S1" on or about 3 April 1981.  Approximately a month later, he underwent a metrizamide lumbar myelogram that confirmed the earlier diagnosis.  Although the applicant believes otherwise, the radiographic report he provides does not show any additional abnormalities.  The MEB narrative summary properly documents his spondylolisthesis and accurately reports that the myelogram did not reveal any additional abnormalities.

5.  In the absence of evidence showing the MEB narrative summary inaccurately documents his medical condition or the results of his metrizamide lumbar myelogram, there is no basis for correcting this document.

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 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)                                         AR20120001469



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001469



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1