IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130004649 


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:

The applicant defers her request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired on 12 May 2011 by reason of permanent disability with a disability rating of 30 percent or higher vice discharged with severance pay.

2.  Counsel states:

	a.  The applicant entered active duty on 17 November 2009 and she was medically discharged on 12 May 2011.  By 30 November 2009 during basic combat training (BCT) at Fort Jackson, SC, she was directed by her drill sergeant to perform severe and significant physical training exercises resulting in a tearing sensation.  A medical diagnosis of a "stress fracture of shaft of femur" was made on 2 December 2009.  By 16 February 2012 (should read 2010), she was again seen for related complications and diagnosed with "joint pain, localized in the hip" and placed on crutches.  By 22 March 2010, she was diagnosed with "pelvic fracture stress."

	b.  From 30 March through 1 December 2010, she continued to be seen for related medical complications and was diagnosed throughout this period with "stress fracture of the pelvis," "hip joint pain," "cervicalgia [cervical pain]," "joint pain," and "hip and lower back pain."  By 1 December 2010, she was given a permanent physical profile rating of 3 for the lower extremities and was placed on tramadol for pain management.

	c.  On 10 December 2010, she underwent a magnetic resonance imaging (MRI) of the lumbar spine which found "mild diffuse bulging of the posterior annulus (ring), combined with interfacetal joint degenerative changes and ligamentation flavum thickening, producing reduction in the cross-sectional diameter of the spinal canal at the disc space level of L4-L5."  As a result, by 11 January 2011 she was treated with cervical and scapular retraction and continued with the principle diagnosis of cervicalgia.

	d.  On 5 January 2011, she underwent an MRI of the cervical spine which revealed "moderated diffuse bulging of the posterior disc annulus effacing the anterior CSF [cerebral spinal fluid] space."

	e.  On 19 January 2011, she underwent a medical evaluation board (MEB) in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  Her narrative summary (NARSUM) prepared in conjunction with the MEB noted:

* bone scan of 17 February 2010 showed stress reaction compression, side of neck and left hip
* MRI of lumbar vertebrae on 19 November 2010 showed mild to moderate interfacetal joint degeneration changes from L3/4 through L5-S1, mild diffuse bulging of posterior disc annulus which produces reduction in the cross sectional diameter of the spinal canal at the disc space level
* x-ray of the pelvis on 16 February 2010, showed stress reaction compression, side of neck and right/left hip
* MRI of cervical vertebrae on 13 January 2010, moderate disc bulge at
C5-C6
* physical examination – appeared to be in considerable pain
* supra-normal range of motion of the trunk and hips
* continuous pain from documented stress fractures/bony stress reactions and from chronic cervical and lumbar vertebral pain
* prognosis – no improvement in her condition can be expected under present conditions
* diagnosis – fails to meet retention standards for:  (1) stress fractures/stress reactions at multiple sites and (2) chronic pain in lumbar and cervical vertebrae disk with bulging at both levels
* conclusion – service member fails to meet retention criteria in accordance with Army Regulation 40-501, paragraph 3-41 (General and Miscellaneous Conditions and Defects)
* recommendation – refer to the physical evaluation board (PEB) for adjudication

	f.  On 25 March 2011, the PEB convened and awarded the applicant a disability rating of 10 percent for "degenerative arthritis of the cervical spine" but incorrectly determined the MEB diagnosis of "multiple orthopedic stress reactions" was not ratable as it was not an unfitting condition for the purported reason that such conditions were temporary and the mere presence of a condition does not constitute a physical disability in accordance with Department of Defense Instruction (DODI) 1332.38.E2.1.25 (Physical Disability).

	g.  The MEB concluded the applicant's orthopedic complications of disk bulging at both levels and stress fractures/stress reactions at multiple sites rendered a prognosis of no expected improvement in her condition.  Thus, the decision by the PEB is not supported by the MEB.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-11, states the NARSUM to the MEB is the heart of the disability evaluation system.  Further, her 1 December 2010 lower extremities physical profile rating of 3 recorded her medical condition as permanent.

	h.  Army Regulation 635-40, paragraph 3-41e, stipulates that:  (1) if the condition(s) (individually or in combination) result in interference with the satisfactory performance of duty or (2) the individual's health or well-being would be compromised if he or she were to remain in the military service, the service member's medical condition is an unfitting medical condition and the case is referable to an MEB.

	i.  Clearly, the applicant's multiple orthopedic stress reactions combined with her multiple orthopedic stress reactions/stress fractures was a medical condition that in combination interfered with her satisfactory performance of duty and that her health and well-being would have been compromised by this condition alone if she were to remain on active duty.

	j.  DODI 1332.38.E3.P3.2 (General Criteria for Making Unfitness Determinations) stipulates that a service member shall be considered unfit when the evidence establishes that the member is unable to reasonably perform the duties of his or her office, grade, rank or rating due to physical disability.  Paragraph E3.P3.2.2 stipulates that when making a determination of a member's ability to perform his/her duties, the following criteria may be included in the assessment:  (1) the medical condition(s) represents a decided medical risk to the health of the member were the member to continue on active duty or (2) the medical condition(s) imposes an unreasonable requirement on the military to maintain or protect the member.

	k.  Clearly, the medical condition of multiple stress reactions was a decided medical risk to the applicant and would have imposed an unreasonable requirement on the Army to protect her from further harm if she were to remain on active duty.

	l.  Army Regulation 635-40, paragraph 3-5, specifically provides that a medically-unfitting condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way to reasonably fulfill the purpose of his or her employment on active duty.

	m.  Clearly, common and medical logic would conclude, as did the NARSUM, that the applicant was not capable of worldwide deployment due to her multiple stress fractures and was not able to perform the duties of her grade, rank, or rating or her duties and responsibilities as a young Soldier.

	n.  On 1 December 2010, the applicant was assigned a P3 physical profile for multiple stress fractures and chronic neck and back pain.  Army Regulation 
40-501, table 7-1 (Physical Profile Functional Capacity Guide), stipulates that a P3 physical profile represents a medical determination that the medical condition of the lower extremities is a defect or impairment that requires significant restriction of use.  Clearly, when a medical condition is such to require significant restriction of use, it is a medical condition which is medically unfitting.

	o.  Title 38, Code of Federal Regulations (CFR) (Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)), section 4.40, specifies that disability of the musculoskeletal system is measured by functional loss and that functional loss may be due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.

	p.  The group muscle strength measurements performed on the applicant in November 2010 recorded "diffuse LBP [low back pain] with some radiation up the spine," "guarding going from standing to seated position," "pain in iliopsoas (spinal column muscle) on left when doing active movements," and "bulging disk at L4-L5."

	q.  In discussing the issue of the applicant's pain, the NARSUM described her present condition as "in continuous pain from documented stress fractures/bony stress reactions, and from chronic cervical and lumbar vertebral pain.  She cannot remain in any one position for more than 10 minutes, and cannot walk more than 1 mile without being stopped by the pain."

	r.  Army Regulation 635-40 provides that a service member will be awarded a permanent disability rating if the disability and compensable rating will remain unchanged during the following 5-year period.  The MEB NARSUM concluded there would be "no improvement" in her medical condition.  Thus, her orthopedic injuries and disability should be rated as permanent.

	s.  The MEB NARSUM concluded that she was found to have mild to moderate interfacetal joint degeneration changes to L3-L4 through L5-S1, stress reaction compression side of the neck and right and left hip, moderate disk bulging of the C5-C6, and continuous chronic pain from stress fractures/bony stress reactions at multiple sites of the spine.

	t.  VASRD code 5287 (Ankylosis of the Cervical Spine) provides that a disability rating of 30 to 40 percent should be awarded for ankylosis (stiffening or fixation of a joint as the result of a disease process).  VASRD code 5295 (Lumbrosacral Strain) provides that a disability rating of 20 to 40 percent should be awarded with narrowing or irregularity of joint spaces.  Thus, the combined "joint degeneration changes from L3-L4 through L5-S1," "stress reaction compression of the neck," and "moderate disk bulge at C5-C6," should be rated at no less than 30 percent.  Therefore, the applicant's records should be corrected to show she retired on 12 May 2011 by reason of permanent disability with a disability rating of no less than 30 percent.

3.  Counsel provides the following documents on behalf of the applicant:

* DD Form 214
* 24 pages of Standard Forms 600 (Chronological Record of Medical Care), dated between 30 November 2009 and 11 January 2011
* Standard Form 527 (Group Muscle Strength, Joint Range of Motion (ROM) Girth and Length Measurements), dated 2 October and 29 November 2010
* two DA Forms 3349 (Physical Profile), dated 1 December 2010 and 11 January 2011
* two Text Notes, dated 10 December 2010 and 7 February 2011
* MEB NARSUM, dated 19 January 2011
* DA Form 3947 (MEB Proceedings), dated 20 January 2011
* DD Form 2807 (Report of Medical History), dated 26 January 2011
* Consultation Report, dated 28 February 2011
* DA Form 199 (PEB Proceedings), dated 25 March 2011
* Physical Disability Information Report, dated 8 April 2011
* Medication Profile, undated



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 November 2009.  She was assigned to Fort Jackson, SC, for BCT.

2.  Counsel provides numerous Standard Forms 600 which show the applicant was seen at the 20th Medical Group Troop Medical Clinic (TMC), Shaw Air Force Base, SC, for a complaint of mid-femur tenderness and an evaluation was requested for a stress reaction.  The examining physician stated:

	a.  On 30 November 2009, views of the femur showed no evidence of inflammatory or neoplastic change, the femur appeared normal for its age, and there was minimal stress reaction mid-shaft posterior cortex of the left femur.

	b.  On 2 December 2009, a bone scan showed she had a stress fracture of the shaft of the femur.  She was prescribed medication, provided crutches, and released to duty with duty limitations in compliance with her temporary physical profile.  This DA Form 3349 is not available for review with this case.

3.  On 16 February 2010, she was seen for the issuance of prescription medication, a complaint of thigh and groin pain for the past 4 weeks, and concern about fluid on the knees.  The examining physician stated the applicant was in her last week of BCT, had no systemic symptoms, no cardiovascular symptoms, and no musculoskeletal symptoms.  A motor examination demonstrated no dysfunction, her balance was normal, and she had a mild antalgic gait (limp).  She stated she did not come in earlier as she had not wanted to miss training.  She was released to duty with duty limitations.

4.  On 22 February 2010, she was seen for a complaint of pain in the left groin.  The examining physician stated her hips did not show a full range of motion, pain was elicited by hip motion, her left hip was tender on palpation, and limping was observed in her gait and stance.  She was placed on 30 days of convalescent leave.

5.  On 22 March 2010, she was seen at the 20th Medical Group TMC upon her return from convalescent leave.  The examining physician found the views of the pelvis showed the bony structures about the pelvis to be normal with no evidence of arthritic, inflammatory, or neoplastic change.  The sacroiliac and hip joints appeared normal as well.  There was a question with the stress fracture and she was referred to the Physical Therapy Clinic.  She was diagnosed with a pelvic stress fracture, released with work/duty limitations, and the examining physician noted she was cleared to go to Officer Candidate School (OCS) with follow-up treatment as needed.

6.  She was treated at the Physical Therapy Clinic, Fort Jackson, SC, from 30 March through 18 May 2010.  On 18 May 2010, the attending physical therapist noted the applicant walked into the clinic with a normal gait at a moderate pace; she had no palpable deformities; she was able to heel walk, toe walk, and deep squat without difficulty or increased pain.  The impression was the left pelvic stress fracture was resolving and she was cleared to take the Army Physical Fitness Test (APFT) in 2 to 3 weeks.

7.  The applicant subsequently completed BCT and she was assigned to the 3rd Battalion, 11th School Brigade, Fort Benning, GA, for OCS on 8 June 2010.

8.  On 19 July 2010, she was seen at the Fort Benning TMC for a complaint of intermittent left lower back and side pain and a possible kidney stone.  The applicant stated her pain started 4 days prior and began on the left side while breathing, coughing, and walking.  The examining physician stated the applicant appeared uncomfortable, awake, and alert.  There was tenderness of the left chest at the rib.  Her lungs and cardiovascular system were found to be normal and there were no abnormalities of the abdomen on palpation.  Her lower back exhibited tenderness on palpation of the left and right paraspinal region, there was muscle spasm of the lower back in the left paraspinal region, and the lower back did not exhibit any swelling.

9.  On 29 July 2010, she was seen at the Fort Benning Physical Therapy Clinic for a complaint of left side hip/groin pain after gradual onset with running.  She stated she had a left pelvic stress fracture during BCT and she had completed a walk-to-run progression prior to beginning OCS.  Running significantly increased after beginning OCS and she had been recycled from week 5 and would restart in week 1.  The examining physical therapist noted she appeared in no acute distress, her knee motion was normal, she completed a full squat with minimal increase in pain, and had increased pain with side lateral hops.  Her hips had a full range of motion with increased pain at the end range flexion.  The physical therapy goal was to resume work activities within 6 weeks with a low-impact home exercise program and pool exercise twice a week.  She was given a temporary physical profile for no running, marching, or jumping for 2 weeks.  This DA Form 3349  is not available for review with this case.

10.  On 15 September 2010, she was seen at the Fort Benning TMC for a profile follow-up visit.  The examining physician stated:

	a.  The applicant was in OCS in a holdover status and was previously diagnosed with a pelvic stress fracture.  She now complained of neck pain for the past 7 days, a headache when her neck hurt, and a hamstring pain for the past 10 days.  She stated she was awaiting reassignment to advanced individual training (AIT) and she wanted to be placed on convalescent leave prior to AIT.

	b.  He found there were no systemic symptoms, she was not fatigued, she had no cardiovascular symptoms and no chest pains, no back pain, no radiating LBP and it did not worsen at night, no localized joint swelling, no limb pain, and no limb swelling.  There were no neurological symptoms and no numbness of the legs or buttocks.  Palpation of the neck revealed abnormalities with pain at C4 and C5.  Her cervical spine showed tenderness on palpation and motion was abnormal with loss of rotation to the right compared to the left.  Her cervical spine extension was normal, did not show laxity, and showed no weakness.

	c.  He found she had cervicalgia and joint pain localized in the hip.  She stated she was in a motor vehicle accident 5 years prior and this may have been the possible source of the pain.  She was placed in quarters for 72 hours.  He requested her evaluation for possible osteoarthritis/malalignment and ordered an x-ray to rule out osteoarthritis.

11.  She was subsequently released from OCS and she was assigned to the Unmanned Aerial Vehicle (UAV) Student Detachment, Fort Huachuca, AZ, for AIT on 12 October 2010.

12.  On 1 December 2010, she was given a physical profile rating of P3 in the lower extremities for multiple stress fractures and chronic neck and back pain.  The profile stated she could not complete the APFT or an alternate APFT and did need an MEB.

13.  On 24 January 2011, an MEB convened at Fort Bliss, TX, and diagnosed her with the unfitting conditions of stress fractures/stress reactions at multiple sites and chronic pain in lumbar and cervical vertebrae with disc bulging at both levels.  The MEB also found the conditions of hyperlipidemia (elevated lipids), hypertension, and snapping hip syndrome did meet retention standards.  The MEB recommended her referral to a PEB.

14.  On 25 January 2011 after being counseled as to the findings and recommendations of the MEB and her rights and options, the applicant agreed with the MEB findings and recommendations.

15.  The MEB NARSUM, in part, stated the applicant's range of motion of the cervical vertebrae was normal but extreme flexion did cause some discomfort down the spine between the spine and the scapula.  She was in continuous pain from documented stress fractures/bony stress reactions and from chronic cervical and lumbar vertebral pain.  Her condition appeared to be stable and no improvement in her condition could be expected under the present conditions.  She stated she felt she was not accomplishing the mission for which she joined the Army and believed it would be in the best interest of the Army if she were discharged.  She was diagnosed with stress fractures/stress reactions at multiple sites and chronic pain in lumbar and cervical vertebrae with disk bulging at both levels.  The case was referred to a PEB for adjudication.

16.  On 25 March 2011, an informal PEB convened at Fort Lewis, WA.  The PEB proceedings stated:

	a.  The PEB confirmed her unfitting disability of degenerative arthritis of the cervical spine and stated neck pain developed in the setting of BCT.  Imaging showed minimal spondylosis at C5, no acute findings, with disc bulge at that level.  Lumbar strain was found not to be independently unfitting.  Examination was notable for tenderness over the cervical vertebrae.  The condition was unfitting as the applicant cannot take the APFT, move with a combat load, or perform functional activities.  The PEB found the applicant's condition caused her to be physically unfit for further service and that her condition had stabilized.  She was rated under VASRD code 5242 and assigned a 10-percent disability rating for satisfactory evidence of painful motion that included considerations of functional loss.

	b.  The condition listed by the MEB of multiple orthopedic stress reactions at multiple sites was considered and, although the medical treatment facility determined the condition failed to meet retention standards, it was found to be not unfitting and, therefore, not ratable.  The Soldier developed multiple lower extremity stress reactions in the setting of BCT in November 2009, to include the left inferior pubic ramus, left femoral shaft, and both tibias.  By August 2010, bone scans of the pelvis and hips were normal.  Although symptomatic for the applicant, these conditions are temporary, respond to limited activity and conservative treatment, and are not unfitting within the confines of a properly-tailored profile.  The Physical Disability Evaluation System (PDES) is a performance-based system and the mere presence of a condition does not constitute a physical disability in accordance with DODI 1332.E2.1.25.

	c.  The PEB recommended the applicant's separation with severance pay.

17.  On 28 March 2011 after being counseled as to the findings and recommendations of the PEB and her rights and options, the applicant concurred with the PEB findings and waived her right to a formal hearing of her case.

18.  She was honorably discharged from active duty by reason of disability with severance pay in the amount of $11,496.60 on 12 May 2011.  She completed 1 year, 5 months, and 26 days of creditable active service.

19.  Army Regulation 635-40 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 office, grade, rank, or rating.  It 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.

20.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) does not list stress fractures/reactions as a medical condition that renders a Soldier unfit for further military service.

21.  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.

22.  DODI 1332.38.E2.1.25 defines physical disability as any impairment due to disease or injury, regardless of degree, that reduces or prevents an individual's actual or presumed ability to engage in gainful employment or normal activity.  A medical impairment or physical defect standing alone does not constitute a physical disability.  To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member's ability to perform his or her duties.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant should have been retired by reason of permanent disability on 12 May 2011 with a disability rating of 30 percent or higher vice discharged with severance pay as her condition of multiple stress reactions should have been found unfitting.

2.  The evidence of record confirms the applicant received a physical profile rating of P3 for the lower extremities on 1 December 2010 based on her multiple stress fractures and chronic neck and back pain.  However, as stress fractures are temporary conditions and not considered to be permanently unfitting, she should have received a physical profile rating of P3 only for her chronic neck and back pain.  Further, the MEB NARSUM stated only that no improvement in her condition could be expected under the present conditions, not that there would never be improvement.  Army Regulation 40-501 does not list stress fractures/reactions as a medical condition that renders a Soldier unfit for further military service and the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

3.  Based on the governing regulations, the PEB correctly found that although the MEB stated her stress fractures failed retention standards, this was in error as those conditions were temporary.  The PEB determined they were not independently unfitting and confirmed only the unfitting disability of degenerative arthritis of the cervical spine.  Based on the finding of minimal spondylosis at C5 and that her condition had stabilized, the PEB properly rated her under VASRD code 5242 with a disability rating of 10 percent and recommended her discharge with entitlement to severance pay.

4.  Since this rating was less than 30 percent, by law she was only entitled to severance pay.

5.  The evidence of record confirms her physical disability evaluation was conducted in accordance with law and regulations and she was properly rated at 10 percent for degenerative arthritis of the cervical spine.  The evidence of record does not show and the applicant has not provided any conclusive evidence that shows she should have been given a higher rating at that time.

6.  In view of the forgoing, there is no basis to grant the requested relief in this case.



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)                                         AR20130004649



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ABCMR Record of Proceedings (cont)                                         AR20130004649



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