IN THE CASE OF:	   

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130002007 


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 reconsideration of his earlier request for correction of his records to show he was found medically unfit for duty.

2.  The applicant states he refutes the findings of the medical evaluation board (MEB) and the physical evaluation board (PEB).  He believes these boards did not look at and did not focus on his entire medical record.  He further believes the boards should have reviewed his lumbar spine.  Such review would have revealed his L4-L5 degenerative discs disease in his lumbar spine and the same disease in his cervical spine.

3.  He further contends that when the boards looked at his medical records, they should have seen he had right and left shoulder pain, a deformed right toe, right ankle pain, acid reflux disease, hemorrhoids, headaches, tinea corporis and tinea cruris, bilateral pes planus, and stomach cramps.  He cannot find where the boards looked at all of his medical issues, even though all of this information is in his medical record.

4.  He states his injuries were a result of active service.  He refutes the findings of the PEB on 21 September 2000 stating that he could perform within the limits of his profile.  He argues that his duties as a fighting vehicle infantryman required him to perform as a dismounted squad leader.  His leadership required him to march and do daily physical training, sometimes running 4 miles for a physical training test as an infantryman.  His profile was not taken into consideration when they wrote a negative noncommissioned officer evaluation report (NCOER) for his not performing the tasks.
5.  His right ankle pain and bilateral pes planus has gotten worse.  He has been fitted with a prosthetics' ankle support orthotics foot brace arch support.  A doctor has advised him that he should consider surgery on his ankle.  He hopes to qualify for another medical evaluation in accordance with Department of Defense Directive (DODD) Number 1332.18 (Separation or Retirement for Physical Disability).  He argues that this directive provides for comprehensive counseling on the significance of the actions proposed and the related rights, entitlements, and benefits.  He contends that he did not receive this counseling.

6.  The applicant provides copies of:

* DODD Number 1332.18, dated 4 November 1996, certified current as of December 2003
* Non-Electronic Lower Limb Orthosis Evaluation Form, dated 6 December 2011 (four pages)
* Non-Electronic Lower/Upper Extremity Cast/Measure/Fit/Delivery Form, dated 6 December 2011 and 18 May 2012 (one page)
* Progress Notes, Department of Veterans Affairs (VA), dated                   13 November 2012 (two pages)
* Warranty and Validation of Receipt, Hanger Prosthetics and Orthotics, undated (two pages)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120006276, on 9 October 2012.

2.  The enclosures provided by the applicant are new evidence that require consideration by the Board.

3.  The original ROP stated the applicant enlisted in the Regular Army on 26 February 1986, for duty as a fighting vehicle Infantryman.  He attained the rank/grade of staff sergeant (SSG)/E-6.

	a.  In April 1996, he was diagnosed with mechanical lower back pain, given medications, and was issued a temporary physical profile.  X-rays were conducted a few days later and showed minimal narrowing of the L4-L5 disc space.  Otherwise, he was normal.

	b.  Between April 1996 and August 1998, he continued to be intermittently symptomatic with waxing and waning symptoms of lower back pain.  He continued to function and perform his duties.  He was also seen on numerous occasions by a chiropractor.  In August 1998, he was seen at the local troop medical clinic for back pain brought on by lifting heavy furniture and equipment.  He was again prescribed medication and asked to follow-up.

	c.  In September 1998, he was referred to physical therapy.  A magnetic resonance imagining (MRI) was conducted and showed his symptoms had largely resolved.  He was asymptomatic.

	d.  In January 1999, a magnetic resonance imaging of the lumbar spine revealed degenerative disc disease but no evidence of any disc herniation or herniated nucleus pulposis.  He was further seen in February 1999 at the orthopedic clinic and he was ultimately issued a permanent physical profile in July 1999.

	e.  On 23 July 1999, the applicant was issued a permanent physical profile for mechanical lower back pain.  Note: Limitations included no ruck marches, no running more than 2 miles, and no flutter kicks.

	f.  On 30 August 1999 (Note: Original ROP indicated date as 2000), he was notified that based on a review of his record of service, including his performance and future potential by Headquarters, Department of the Army (HQDA), a bar to reenlistment was imposed against him under the Qualitative Management Program (QMP).  He was also advised of his options and rights.  Note: the QMP was based on three NCOERs with periods ending in September 1991, June 1994, and May 1998.

	g.  On 24 May 2000, the applicant received an NCOER reporting that he had been working as a range control sergeant for the past 2 years.  He was working outside his military occupational specialty (MOS) due to medical profile limitations.  His physical profile did not hinder him from performing his duties.  He had an imposed bar to reenlistment which prevented reclassification.

	h.  His final diagnosis and chief complaint was that of chronic mechanical lower back pain which did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He was recommended for entry into the physical disability evaluation system (PDES).  Note:  See Narrative summary, MEB, dated 19 July 2000.

	i.  On 13 September 2000, an MEB determined he had a medically-unacceptable condition of chronic mechanical lower back pain.  The MEB recommended his referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

	j.  On 21 September 2000, an informal PEB found him fit for duty within the limitations of his profile.  The PEB noted that the applicant's medical problem did not preclude him from the performance of his current duties.

	k.  The applicant appealed the findings of the PEB.  He did not indicate that the MEB/PEB did not list/consider all of his medical conditions.

	l.  On 2 October 2000, the PEB responded to the applicant's rebuttal stating the applicant did not provide any new objective medical information or performance data that justified a change to the informal PEB decision  The rebuttal centered on the issue of fitness.  Because there is no definitive policy defining fitness, the Physical Disability System must rely on senior military and civilian officials to consider all aspects of each Soldier's case and to use reasonable judgment in applying the guidelines provided in the various regulations, directives, and instructions.  In this case, the commander indicated that the applicant performed satisfactorily in his present position and that his physical profile allowed him an alternate Army physical fitness test andf was not otherwise unduly restrictive.  The PEB therefore believed the evidence indicated he could perform the preponderance of his responsibilities within the limits of his profile without creating an unreasonable risk to his health or to the health of others.

	m.  On 5 October 2000 the PEB Liaison Officer (PEBLO) counseled him regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  An official of the U.S. Army Physical Disability Agency approved the PEB on behalf of the Secretary of the Army.

	n.  As a result of the imposed bar to reenlistment, he was honorably discharged on 11 November 2000 by reason of completion of his required active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 14 years, 8 months, and 16 days of active service during this period.

4.  The original ROP determined that:

	a.  The PEB evaluated the objective medical and personnel evidence of record and considered the physical requirements for reasonable performance of duties required by his grade and military specialty and found him fit for duty within the limitations of his profile.  The PEB noted that his medical problem did not preclude him from the performance of his current duties.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and found him physically fit.

	b.  The applicant's rebuttal did not provide any new objective medical information or performance data that justified a change to the informal PEB decision.  His appeal was denied and the PEB's findings and recommendation were affirmed.

	c.  The evidence failed to show his low back pain had rendered him physically unfit or unable to perform the duties as required by his grade or military specialty.  His commander certified that he was performing satisfactorily in his position at the time and his physical profile did not prohibit an alternate event of the Army physical fitness test.

	d.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There was no apparent an error or injustice in his case.  He did not submit substantiating evidence or an argument that would show an error or injustice occurred in his case or that would justify a change to the PEB findings and recommendation.  In view of the circumstances in this case, the Board denied his request for relief.

5.  The applicant has submitted with this request for reconsideration a copy of DODD 1332.18.  He refers to paragraph 3.13 in this directive and argues that he did not receive the due processing this paragraph requires.  The directive states that service members referred for physical disability evaluation shall be afforded, at appropriate stages of processing, comprehensive counseling on the significance of the actions proposed and the related rights, entitlements, and benefits.

6.  The applicant has submitted patient information forms, evaluation forms, and fitting and delivery forms from Hanger Prosthetics and Orthotics, Inc, dated in 2011 and 2012.  These documents indicate that he had been evaluated and fitted for a brace to aide him with walking.

7.  The applicant has provided progress notes from the VA dated 13 November 2012 stating that he was having a lot of pain in his right foot.  The examination found his right foot to be swollen and painful when walking.  He wore an ankle support.  The applicant was informed about having foot surgery that would probably involve joint fusion.  He was also informed about the possibility of the foot being amputated and being fitted for a prosthesis.  The physician suggested he think about these options because there was nothing more he could do the applicant.  He needed to digest the information and make a decision about what he wanted to do.
8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

9.  Army Regulation 635-40 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.  

10.  Army Regulation 635-40 states the Narrative Summary to the MEB is the heart of the disability evaluation system.  In describing a Soldier’s conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.  

11.  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% and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20% of service and a disability rating at less than 30%.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was found medically unfit for duty because the MEB and PEB did not look at and did not focus on his entire medical record.  He believes the boards should have reviewed his lumbar spine, right and left shoulder pain, deformed right toe, right ankle pain, acid reflux disease, hemorrhoids, headaches, tinea corporis and tinea cruris, bilateral pes planus, and stomach cramps.  He contends that all of this information is in his medical record; but cannot find where the boards looked at it.

2.  The governing regulation states Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.

3.  The evidence shows the applicant agreed with the findings of the MEB, which diagnosed him only with chronic mechanical low back pain.  It is presumed the applicant was advised of all appeal procedures.  As he did appeal the findings of the PEB, it is presumed he was also advised that he could appeal the fact that the MEB did not list any other conditions as diagnoses.  

4.  The applicant further contends that he was not provided comprehensive counseling concerning the significance of the proposed actions and related rights, entitlements, and benefits.  However, the original ROP clearly states that throughout the disability process he was counseled by the PEBLO and informed of his rights at each step of the process.  This appears to be valid because he was aware of how to appeal the PEB’s findings.  The applicant has not provided any documentary evidence or convincing argument to refute this portion of the ROP.

5.  The available evidence clearly shows that the PEB considered the physical requirements for reasonable performance of duties required by his grade and military specialty and found him fit for duty within the limitations of his profile.  The PEB noted that his medical problem did not preclude him from the performance of his military duties at the time, even though he was not working in his primary MOS.

6.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and found him physically fit.  There is no documentary evidence indicating that the PEB failed to consider his entire medical record.

7.  The evidence clearly indicates that the applicant's medical conditions have worsened over time; however, his subsequent diagnosis by the VA does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

8.  The applicant's physical disability evaluation appears to have been conducted in accordance with law and regulations.  There does not appear to be an error or an injustice in his case.  The argument and documentation he has provided with this case does not support his belief and allegation that either the MEB or PEB failed to consider all relevant medical data.

9.  The applicant contends that his profile was not taken into consideration regarding his NCOERs wherein he was evaluated for not performing his tasks.  It is noted that two of his NCOERs used as a basis for his bar to reenlistment were written prior to his 1996 medical diagnosis of lower back pain.  Furthermore, it was his responsibility to review the Narrative Summary and other documents concerning his MEB/PEB.  There is no evidence any condition other than lower back pain was a problem at the time.

10.  In view of the circumstances in this case, the applicant's 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 the overall merits of this case are 


insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120006276, dated 9 October 2012.



      _______ _   _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)                                         AR20130002007



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ABCMR Record of Proceedings (cont)                                         AR20130002007



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