IN THE CASE OF:	  

		BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120016435 


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, in effect, the following medical conditions be added to his unfitting conditions and his disability rating be increased to at least 30% 
(a medical retirement):

* severe dry eyes
* blepharospam
* migraines
* wrist problems
* elbow problems
* feet problems 
* fibromyalgia
* pelvic floor neuromuscular dysfunction
* sleep disorder
* nonarticular rheumatism
* mild hypothyroids
* plica syndrome (both knees)
* progressive polyathraligia
* plantar fasciitis
* chronic foot and ankle pain 
* cartilage problems
* carpal tunnel (both wrists)
* degenerative joint disease
* mid back strain
* diabetes
2.  The applicant states:

* he was not given the correct disability rating 
* the requested chronic illnesses affect his daily life and family
* there are many things he cannot do that he was able to do before
* over the years his conditions have become more severe
* he has severe dry eyes, blepharospam, and migraines
* he is taking medication for all his conditions
* his chronic illnesses were diagnosed by military doctors
* he believes he was a diabetic when he got out of the Army because he was diagnosed with this condition shortly thereafter  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service medical records
* Physical Evaluation Board (PEB) proceedings
* Addendum to medical board 
* Department of Veterans Affairs (VA) documentation 

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.  After having had prior service, the applicant enlisted in the Regular Army on 
4 August 1999 and was awarded military occupational specialty 88N (traffic management coordinator).  

3.  In 2001, a Medical Evaluation Board (MEB) diagnosed him with:

* chronic bilateral ankle pain/sinus tarsi pain, idiopathic
* right knee pain, chondromalacia, left knee post-op scarring/inflammation
* right elbow epicondylitis
* DeQuervains disease, right wrist
* scrotal pain, unclear etiology 

4.  The MEB recommended referral to a PEB.  On 20 August 2001, the applicant agreed with the findings and recommendations.  

5.  On 14 September 2001, a PEB found him physically unfit due to chronic bilateral ankle pain, bilateral knee pain, and scrotal pain.  The disability description states the Soldier currently is not using any pain medications according to the electronic medical record (CHCS/Pharmacy).  Physical exam of the ankles shows tenderness but otherwise within normal limits.  X-rays, MRI and other tests are not contributory.  Physical exam of the left knee shows a well healed scar (from partial vastus lateralis rupture repair) and some tenderness, otherwise no other physical findings.  Right knee is also tender to palpation.  
X-rays of the knees are normal.  The scrotal pain occurs 2 to 3 times per day and last 1 to 2 seconds.  Physical exam is within normal limits.  Rated for pain in accordance with U.S. Army Physical Disability Agency pain policy.  

6.  The PEB found MEB diagnoses 3 and 4 (right elbow epicondylitis and DeQuervains disease of the right wrist) not unfitting and not ratable.  Pain in the elbow and wrists have resolved with a steroid injection and have not recurred.

7.  The PEB recommended a combined 0% disability rating and separation from the service with severance pay.  It appears he did not concur with the PEB findings and demanded a formal hearing. 

8.  He provided an addendum to his medical board which indicates he was seen as an outpatient at the Rheumatology Clinic on 22 October 2001 for progressive polyarthralgia, musculoskeletal pain.  He was diagnosed with:

* non-articular rheumatism
* possible mild hypothyroidism
* possible primary sleep disorder

9.  On 14 November 2001, a formal PEB found him physically unfit due to chronic bilateral ankle pain, bilateral keen pain, and scrotal pain.  The disability description states the Soldier currently takes Ellavil and Darvocet for pain.  He has also been prescribed Ambien, Vioxx, and Tylenol-3 in the past and also been administered steroid injections, with minimal short-term relief.  A physical exam of the ankles shows tenderness but otherwise within normal limits.  X-rays, an MRI and other tests are not contributory.  A physical exam of the left knee shows a well healed scar (from partial vastus lateralis rupture repair) and some tenderness, otherwise no other physical findings.  The right knee is also tender to palpation.  X-rays of the knees are normal.  The scrotal pain occurs 2 to 3 times per day and last 1 to 2 seconds.  His physical exam is within normal limits.  Rated for pain in accordance with Physical Disability Agency pain policy.  

10.  The formal PEB found MEB diagnoses 3 and 4 (right elbow epicondylitis and DeQuervains disease of the right wrist) not unfitting and not ratable.  Pain in the elbow and wrists have resolved with a steroid injection and have not recurred.

11.  The formal PEB recommended a combined 10% disability rating and separation from the service with severance pay.  On 15 November 2001, he concurred with the PEB findings and recommendations.  

12.  On 16 November 2001, the U.S. Army Physical Disability Agency approved the PEB's findings.

13.  On 5 February 2002, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability, severance pay.

14.  He provided VA documentation which shows he was granted service connection for:

* fibromyalgia (40 percent)
* degenerative joint disease, status post left knee tendon repair (10 percent)
* degenerative joint disease, right knee (10 percent)
* left carpal tunnel (previously rated as tendonitis, left wrist) (10 percent)
* right carpal tunnel (previously rated as tendonitis, right wrist) (10 percent)
* mid back strain, T10-L1,2 (0 percent)
* right ankle strain (0 percent)  
* combined rating of 60 percent

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.


17.  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.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that severe dry eyes, blepharospam, migraines, wrist problems, elbow problems, feet problems, fibromyalgia, pelvic floor nermuscular dysfunction, sleep disorder, nonarticular rheumatism, mild hypothyroids, plica syndrome (both knees), progressive polyathraligia, plantar fasciitis, chronic foot and ankle pain, cartilage problems, carpal tunnel (both wrists), degenerative joint disease, mid back strain, and diabetes be added to his unfitting conditions.  However, the evidence shows the PEB found him physically unfit due to ankle, knee, and scrotal pain.  He provides no evidence to show the other above-mentioned conditions rendered him unfit to perform his military duties.  Since his right elbow epicondylitis and DeQuervains disease of the right wrist were found to be not unfitting and not ratable, there is insufficient evidence on which to add elbow and wrist problems as unfitting conditions.  

2.  His MEB did not list severe dry eyes, blepharospam, migraines, feet problems, fibromyalgia, pelvic floor nermuscular dysfunction, sleep disorder, nonarticular rheumatism, mild hypothyroids, plica syndrome (both knees), progressive polyathraligia, plantar fasciitis, cartilage problems, carpal tunnel (both wrists), degenerative joint disease, mid back strain, and diabetes and it appears he agreed that the MEB accurately listed all of his current medical conditions.  Therefore, there is insufficient evidence on which to find that these conditions were unfitting.   

3.  The evidence shows he concurred with the PEB findings and recommendation on 15 November 2001.  

4.  There is insufficient evidence to show his unfitting conditions were improperly rated by the PEB in 2001.  Therefore, there is no basis for granting the applicant's request to increase 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)                                         AR20120016435



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ABCMR Record of Proceedings (cont)                                         AR20120016435



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