IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130005832 


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:

	a.  correction of her DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) to show her chronic back pain did not exist prior to service vice existed prior to service. 

	b.  correction of her DA Form 199 Physical Evaluation Board (PEB) Proceedings) to show she was being treated for chronic back pain without muscle spasms. 

	c.  correction of her narrative summary (NARSUM) to show her knee injury should have been a disqualifying condition.  

2.  The applicant states she did not have back pain until after entering the military, as shown on her medical records and NARSUM.  Her back pain began after road marching and lifting heavy loads.  She was being treated at physical therapy for chronic back pain and spasms.  Her right knee condition was incurred during physical training and her surgery was delayed.  She was diagnosed with complete ACL [Anterior Cruciate Ligament] and Meniscus tear.  Pain continued after surgery with some atrophy.  She still has knee pain today.  She was separated from the Army in May 2003 by means of an MEB.  At that time, she found errors with her case; however, she was told that if she chose to do an appeal she would have to remain there for an extra extended amount of time.  At that time she felt like she did not have a choice because her husband had permanent change of station orders without her and all of her belongings were shipped as well, including her car.  Her chain of command was not very helpful during her MEB process, nor was her PEB Liaison Officer (PEBLO).  So, when it was time to sign her DA Form 199, she chose to disagree and waive a hearing.  Ever since that point, she was always under the impression that there was nothing more that she could do about it, until recently she just found this website. She knows that some years have passed since her MEB, but she hopes that maybe someone could take time to review this for her. 

	a.  On the DA Form 3947, she had two conditions listed: chronic back pain and scoliosis.  The scoliosis itself did meet retention standards at the time.  The chronic back did not meet retention standards.  The DA Form 3947 was marked incorrectly, her back pain did not exist prior to service.  She was not diagnosed with the scoliosis until her entrance into the military.  The back pain did not start until after her entrance into the military.  This is supported by her military health records and her NARSUM.  However, on this form it was checked as existing prior to service which is wrong.  Another error she noticed was that her knee injury, which was sustained during physical training (PT), was mentioned in her NARSUM but was never considered.  She had a right knee ACL and Meniscus tear, which was supported by her military health records, and NARSUM and a line of duty was included.

	b.  The DA Form 199 states her condition (back pain) was not service incurred or permanently aggravated by service, which was incorrect according to her NARSUM, DA Form 3947, and military health records.  This shows that her pain did not start until after coming into the military, specifically, after frequent road marches and lifting heavy loads.

3.  The applicant provides: 

* DA Form 199, dated 18 March 2003
* NARSUM
* DA Form 3947
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Operative Report
* DA Form 5893-R (PEBLO Counseling Checklist/Statement)
* Service medical records

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.  None of the applicant's medical records are filed in her service records.  All records - except her enlistment physical - are provided by the applicant.  

3.  She underwent an enlistment physical at the Tampa Military Entrance Processing Station (MEPS) on 17 February 1999.  Her Standard Form 88 (Report of Medical Examination) noted the presence of a previous spine or other musculoskeletal condition (curvature) with the entry "15 degrees, lumbar." 

4.  She enlisted in the Regular Army on 24 August 1999 and she held military occupational specialty 91W (Health Care Specialist).  She was assigned to the 325th Forward Support Battalion, 25th Infantry Division, Schofield Barracks, HI. 

5.  She provides her medical records and a NARSUM, dated 13 February 2003.  A review of these medical records and her NARSUM, shows: 

	a.  Her health records reveal she first sought medical attention for her back pain in September 1999.  She stated that she does not remember any specific trauma to her back, but had no back problems while playing soccer in high school. She states the pain started almost immediately on entrance in the U.S. Army.  At the time of her evaluation at the MEPS in February 1999 scoliosis was noted but waived (initial curvature measured 12%).  The patient states that the pain is mostly mid-thoracic to lower back without radiation and has not significantly changed since her initial visit.  The patient was treated with rest and NSAIDs [Non-Steroidal Anti-Inflammatory Drugs] which gave temporary relief and allowed her to finish basic training and advanced individual training.  

	b.  She arrived at Schofield Barracks in February 2000.  She was then seen for back pain in March 2000, diagnosed with musculoskeletal injury, and referred to the Orthopedic Clinic for evaluation of scoliosis.  At this time the orthopedic evaluation recommended no surgery and she was given NSAIDs and physical therapy.  She was then seen off and on for back pain, which included physical therapy/restriction through March 2001.  She was seen in March 2001 and sent for another scoliosis survey (April 2001) which revealed primary thoracic scoliosis of 18 degrees and compensatory curve of 19 degrees.  The decision at this point was to initiate a P2 profile (which was not completed); however, she was allowed to use this incomplete profile for unknown reasons.  This profile allowed this patient to wear a Kevlar/LBE [Load-Bearing Equipment] and rucksack as tolerated, along with an alternate walk PT test.  

	c.  She injured her knee within two months of this profile while playing football (January 2001).  Further follow-ups showed an ACL tear by MRl [Magnetic Resonance Imaging] on 24 August 2001.  This required surgery to repair which was completed on 7 January 2002.  She was on a restrictive profile through February 2002.  In March 2002, she was seen for back pain, referred to physical therapy for back pain, and treated conservatively.  Since that time the patient has been seen 2 times for upper back pain and currently denies any knee pain.  Repeated back/scoliosis survey showed a levoscoliosis of 23 degrees.  In September 2002, a review of profiles noted her profile to be incomplete and on review of symptoms and ability to perform her mission as a 91W a P3 profile was initiated.  She has a history of right knee pain and ACL tear, infertility, chronic upper back pain as above, and scoliosis.  Past surgical history: ACL repair.  Hospitalizations: ACL repair, Medication: Indocin. NKDA.  

	d.  Examination of her back, spine, revealed: mild T-7 paraspinal tenderness, no CVA [Costovertebral Angle] tenderness; no SI [Sacroiliac] Joint tenderness; ROM [Range of Motion]: Back Active: decreased secondary to pain.  Anterior flexion 90 degrees mild limitations due to pain; Exterior 20 degrees significant limitation due to pain; Rotation 30 degrees, Ieft and right; Lateral 35 degrees bilateral; Passive: No significant difference from active; Waddle 0/5; Negative straight leg raise at 90 degrees.

	e.  Examination of her lower extremities revealed normal equal DTR [Deep Tendon Reflexes] bilateral 2+; bilateral knee: negative drawer, negative McMurray, negative Lehman's, 5/5 strength in lower extremities bilateral; Normal ROM ankle, knee and all phalanges (surgical scar right knee); Normal sensory bilateral in lower extremities; and Babinski downward.  

	f.  Her diagnosis was that of chronic mid and upper back pain, non-surgical; and scoliosis (meets retention standards).  She was under a permanent (P-3) physical profile to only do the selected activities.  Her prognosis is for limited improvement with continuation of above profile and medication.  It is unlikely that she would be able to improve enough to down grade P3 to P2 in the foreseeable future.  She fails retention standards criteria in Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41(e)(1).  The military physician recommended her case be referred to the PEB for adjudication. 

6.  On 4 March 2003, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic mid and upper back pain, non-surgical, with an approximate origination date of September 1999.  This condition failed retention standards of chapter 3, Army Regulation 40-501.  Item 13 (Diagnosis) shows an "X" is placed under the:

* Yes, for "Incurred While Entitled to Base Pay"
* Yes, for "Existed Prior to Service" block
* Yes, for "Permanently Aggravated by Service" block

7.  The MEB also listed a second condition of scoliosis but this condition is shown as "meets retention standards."  The MEB recommended her referral to a PEB.  She was counseled and agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty.  The MEB Proceedings were approved on 5 March 2003. 

8.  On 18 March 2003, an informal PEB convened and found the applicant's condition prevented her from performing the duties required of her grade and MOS and determined that she was physically unfit due to chronic thoracolumbar pain, onset in basic training, pain is secondary to levoscoliosis of 23 degrees which was present at the time of her enlistment and had followed a normal progression for this condition without permanent service aggravation (diagnoses 1 and 2).  The PEB noted:

	a.  There were no muscular spasms; functional range of motion without radiculopathy.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299/5255, coded as analogous lumbosacral strain.  This unfitting condition was found to be neither service-incurred nor permanently aggravated by military service.  Her impairment originated while entitled to basic pay and had increased only to the extent of its accepted normal and natural progression and therefore no permanent service aggravation.  

	b.  Since her condition was not service incurred or permanently aggravated, she was ineligible for disability compensation and was therefore separated without disability benefits.  Her final disposition was "Separated from the service without disability benefits."  

9.  Throughout the disability process, she was counseled by a PEBLO and informed of her rights at each step of the process.  Her counseling culminated on 20 March 2003 when she was counseled by a PEBLO regarding her medical condition, the findings of the MEB, the PEB process, and her rights under the law.  Subsequent to this counseling, the applicant elected not to concur with the PEB's findings and recommendations but waived her right to a formal hearing and elected not to submit a written appeal.  

10.  On 18 May 2003, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 due to disability that existed prior to service, PEB.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed 3 years, 8 months, and 25 days of active service. Item 26 (Separation Code) shows the entry "JFM" and item 28 (Narrative Reason for Separation) shows the entry "disability, EPTS, PEB."

11.  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 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.

12.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which existed prior to service or occurred in the line of duty and not due to the Soldier's misconduct.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

13.  Army Regulation 635-40 states, in pertinent part, that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JFM" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends:

* her MEB should not have listed her chronic back pain as a condition that existed prior to service
* her PEB should have found her scoliosis as disqualifying
* her knee injury should have also been found disqualifying

2.  When the applicant enlisted, she underwent an enlistment physical that detected the presence of a spine or other musculoskeletal condition - levoscoliosis that was present at the time (15 degrees).  During basic training, she suffered some pain that was secondary to levoscoliosis.  Nevertheless, she completed training and went on to serve in Hawaii.  

3.  The MEB (i.e., the DA Form 3947) indicated her chronic thoracolumbar back pain persisted and her curvature naturally progressed to 23 degrees and this condition failed retention standards but her scoliosis did not fail retention standards.  

4.  However, the PEB (i.e., the DA Form 199) indicated that her scoliosis, along with her back pain that was secondary to her scoliosis (i.e., diagnoses 1 and 2),  prevented her from performing the duties required of her grade and MOS and that it had followed a normal progression for this condition without permanent service aggravation.  The PEB noted that there was no muscular spasms; there was functional range of motion without radiculopathy.  She was rated under VASRD codes 5299/5255, coded as analogous lumbosacral strain.  The PEB determined this unfitting condition was found to be neither service-incurred nor permanently aggravated by military service.  Even though her back pain originated while entitled to basic pay, it had increased only to the extent of the scoliosis’s accepted normal and natural progression and therefore no permanent service aggravation.  

5.  According to accepted medical principles, the manifestation of a congenital or hereditary condition from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.  Since her condition was not service incurred or permanently aggravated, she was ineligible for disability compensation and was therefore separated without disability benefits.

6.  As for her knee injury: 

	a.  Her knee injury was never found to be unfitting.  There is no evidence to show she was ever given a permanent profile for her knee.  An injury does not equate to a finding of "unfit."  In order for a condition to be compensable, the condition was must first be diagnosed to have occurred while the member is entitled to basic pay, must also be determined to be unfitting, and medical officials must determine the degree of unfitness.  There was no evidence of this condition being disabling at the time of her separation.  

	b.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  

7.  In view of the foregoing evidence, there is insufficient evidence to grant her the 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)                                         AR20130005832



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ABCMR Record of Proceedings (cont)                                         AR20130005832



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