IN THE CASE OF:	  

		BOARD DATE:	    17 December 2013

		DOCKET NUMBER:  AR20130014960 


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, through a court remand, voidance of his discharge of 30 October 2002 and retirement by reason of completion of 20 years of active service.

2.  The court action, dated 18 August 2013, remanded the case to the Army Board for Correction of Military Records (ABCMR) for the limited purpose of allowing the applicant an opportunity to provide a rebuttal to the U.S. Army Physical Disability Agency (USAPDA) advisory opinion (AO) obtained in his case and for the Board to address the issues raised by the applicant related to the opinion.

3.  The applicant defers his comments and argument to counsel.  The applicant attached new evidence which was not included in the administrative record.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests voidance of the applicant's discharge of 30 October 2002 and his retirement by reason of completion of 20 years of active service.

2.  Counsel states, in effect, the applicant's separation was unlawful because the applicant was undergoing a medical evaluation board (MEB).  He contends the Board must grant relief in this case because there is sufficient evidence to show the applicant was undergoing an MEB and was unlawfully withdrawn from the process and separated.  He further states the Board must approve the applicant's case because there was no authority to withdraw the applicant from the MEB process once it had begun as the MEB was to determine if the applicant's condition fell below retention standards.  The AO confirms the initiation of an MEB means "the Medical Treatment Facility (MTF) gains control and the case is assigned to have a physician complete a medical examination and narrative summary [NARSUM] for inclusion in the MEB."  The applicant does not agree with the statement that Army Regulation 40-400 (Patient Administration) is the controlling regulation when the MEB is initiated.

3.  Counsel states the applicant does not agree with the statement in the AO indicating the physician who initiates MEB action has the authority to withdraw the referral and it does not cite any regulatory authority.  Furthermore, a Court of Appeals found it unfathomable.  He states that Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) clearly separates the referring/treating physician from the MEB process and outlines the procedures to be followed.   Therefore, the applicant's MEB processing was improperly halted and warrants relief, especially since the governing regulation provides that an MEB is mandatory if a Soldier does not meet retention standards and will be initiated by the physical evaluation board (PEB) liaison officer (PEBLO).

4.  Counsel states the applicant asserts the Army deviated from the MEB procedures specified in the regulations.  Counsel provides quotations from various paragraphs of Army Regulation 635-40 and Army Regulation 40-400 and supplies his interpretation of these paragraphs.  (Counsel quotes paragraphs from Army Regulation 40-400.  Some of the quotations are from the current version of Army Regulation 40-400; the same quotations are not found in the version of Army Regulation 40-400, dated 12 March 2001.)  Counsel did not specify the date or version of the regulations he relied on.  Counsel concludes that Dr. C____ is the physician referred to in Army Regulation 635-40, paragraph 4-11a, which addresses physicians who prepare cases for the MEB and PEB.  Counsel asserts the cited regulatory provisions separate the referring/treating physician from the MEB process and limits their duties.  Counsel further asserts that Dr. C____ was the treating physician and could not serve on the MEB.

5.  Counsel states the two AO's contradict each other in that one opinion (Office of the Surgeon General) states the referring physician was the physician for the MEB in the legacy system and the other AO (USAPDA) states the physician who initiates the MEB is "often" not the physician at the MTF who is responsible for completing the MEB.  Counsel asserts Dr. C____ was clearly not an MEB physician and Dr. L____ was.  He further states the AO erroneously states that the members of the MEB are not normally selected until the exam and narrative summary is completed which is incorrect because the NARSUM is the most important product of the MEB; it is the heart of the disability evaluation system and cannot be completed prior to convening the MEB responsible for preparing it.

6.  Counsel further asserts that the procedure followed in the applicant's case was wrong.  Counsel asserts that Dr. C____ initiated the MEB.  Dr. L____ conducted a medical evaluation as the initial process of the MEB and additional medical assessments were recommended and scheduled for the months of August and September.  The applicant also underwent additional treatments during that time frame, which proves the Army was wrong.  Counsel asserts that Dr. C____ had no control over the process, and his intervention along with that of Dr. S____ was unlawful.  Additionally, the AO presumes, without any basis in fact, that Dr. C____'s statement that the applicant's medical issues are stable in his 30 October 2002 termination of his previous referral was an indication that it was now his medical opinion that the applicant's condition had stabilized so that it now met medical retention standards.  However, there is no evidence to support that presumption.  If such were the case, the doctor would have documented the findings in acceptable medical Army nomenclature supporting that determination.  However, he gave in to the demands of the applicant's chain of command and carefully avoided employing language that could come back to haunt him professionally.

7.  Counsel provides additional rebuttal to Dr. C____'s declaration.  Counsel states, in effect, the treating/referring physician never stated he found the applicant fit for retention or separation or that he examined the applicant before terminating the MEB.  Even if he had, termination of the MEB would still have been unlawful.  Dr. C____ indicated he reconsidered applicant's case on 28 July 2002 and concluded the MEB could be terminated because he had no new medical issues, had declined surgery, and could limit his activities as a civilian.  Counsel provides a timeline of events.  He states that any reasonable person would conclude that the doctor received a call from the applicant's command on 30 October 2002 pressuring him to terminate the MEB, which amounts to unlawful command influence.  Furthermore, the MEB process was stopped without any documentation explaining how such a conclusion was reached.

8.  Additionally, the AO has not shown the applicant's condition was stable and that he was fit for duty, yet disputes the medical evidence that shows otherwise.  In fact, the evidence shows his condition worsened from the time he was referred to an MEB until his discharge, which is supported by the findings of the Department of Veterans Affairs (VA) and other medical documentation.

9.  In closing, counsel states the applicant was unlawfully separated and his records should be corrected to show he completed 20 years of service and was properly retired.  There is no evidence in the records that the applicant's condition had improved and met medical retention standards.  In fact, his condition deteriorated prior to and after discharge.

10.  Counsel asserts the Board is required to identify the evidence in the records that demonstrates the applicant's condition improved so that he met medical retention standards.  The Board must justify reasons to accept Dr. C____'s opinion.

11.  Counsel provides:

* a 16-page legal brief
* a 2008 VA Rating Decision
* a performance statement from the applicant's commander
* an MEB notification
* two DA Forms 31 (Request and Authority for Leave)
* eight medical-related documents
* a 2003 letter from a psychiatrist stating he diagnosed the applicant as having chronic/mixed anxiety/depression
* the referring physician's statement
* various medical documents related to a magnetic resonance image (MRI) dated in 2011
* a spreadsheet listing medical documents in the administrative record

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 ABCMR in Docket Number AR2003083381, dated 21 August 2003, and reconsidered in Docket Number AR20060014254, dated 27 February 2007.  A third application, Docket Number AR20130001613, administratively closed a request for reconsideration of Docket Number AR2003083381, dated 21 August 2003.  Docket Number AR20120013993, dated 25 June 2013, was considered as a court remand.

2.  The applicant enlisted in the Regular Army on 6 November 1984, was trained as an indirect fire infantryman, and remained on active duty through a series of continuous reenlistments.  He was promoted to pay grade E-7 on 1 March 1996.

3.  On 24 March 2000, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully using marijuana.  He did not demand trial by court-martial and he elected not to appeal the NJP.


4.  The applicant underwent an MRI of the lumbar spine on 26 April 2000.  The MRI was ordered by the Darnell Army Community Hospital Neurosurgery Clinic.  The conclusion section identified the following conditions:

* moderate midline disc protrusion at L5-S1
* small midline disc protrusion at L4-5
* bilateral lateral recess stenoses (narrowing) at L4-5

5.  On 25 August 2000, the applicant received a change-of-rater noncommissioned officer evaluation report (NCOER) that contained negative ratings and comments related to his use of marijuana and the NJP.

6.  The applicant appeared before an administrative separation board on 25 and 26 October 2000 to determine if he should be separated prior to his expiration of term of service (ETS) under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – commission of a serious offense (use of marijuana).  The board found the allegation of wrongfully using marijuana was not supported by the preponderance of the evidence and recommended his retention in the service.

7.  On 20 April 2001, the applicant was notified that after a comprehensive review of his official records, the Calendar Year 2001 Master Sergeant Promotion Selection Board recommended denial of his continued service under the Qualitative Management Program (QMP) based on the NJP and his NCOER.  He had completed 16 years, 5 months, and 15 days of active service.

8.  The applicant submitted his appeal of the bar to reenlistment under the QMP through his chain of command on 11 May 2001; however, his chain of command did not support his request.  Commanders at all levels recommended disapproval.  His appeal was denied by a Department of the Army Standby Advisory Board at the U.S. Army Enlisted Records and Evaluation Center on 28 December 2001 and he was advised that he would be discharged 90 days after receiving pre-separation counseling or on his ETS date if he had 120 days or less to his ETS.  He had an indefinite ETS; therefore, his separation date should have been no later than 30 April 2002.

9.  The applicant experienced and was evaluated and treated for a pleural effusion (accumulation of watery fluid) which occurred in Fall 2001.  The applicant had follow-up evaluations for this condition in 2002.

10.  An MRI of his lumbar spine conducted on 1 February 2002 indicated degenerative disc disease.  The report stated, "There is moderate loss of disc space height at L5-S1.  The disc is desiccated at this level.  Minimal loss in height is seen at L4-5.  The remaining discs show normal height and signal."  Disc bulges were noted at L4-L5 and L5-S1.  Comments on the report indicated foraminal (passage) narrowing was present.  Additionally, the report stated there was "probable impingement upon both traversing L5 nerve roots."  The medical impression section stated, "Degenerative disc disease of the lumbar spine that is worse at L4-5 and L5-S1 as described."  The report did not state the applicant had "disc herniation."

11.  A medical record indicates that on 4 March 2002, the applicant met with Dr. C____ for an appointment to follow up on an MRI.  Dr. C____ was the brigade surgeon, and was a primary care physician.  The note indicated the applicant had a history of disc disease.  Dr. C____ referred the applicant for a neurosurgery consult.  The applicant was to follow up with Dr. C____ after the neurosurgery consult.

12.  The applicant presented to the Neurosurgery Clinic for evaluation.  Dr. P____, the neurosurgeon, examined the applicant.  He noted that the MRI did not indicate foraminal impingement.  Dr. P____ noted there was marginal clinical evidence of "probable L/S radiculopathy [disease of the spinal nerve roots]."  Dr. P____ ordered a nerve study to confirm his observations and the reported clinical symptoms.  The note indicated Dr. P____ requested a nerve study of the right and left leg L4, L5, and S1 nerve roots.  The note also indicated that part of the plan was to decide on a foramenectomy of the applicant's spine at the L5 and S1 level.

13.  On 14 May 2002, Dr. J____ conducted the nerve study.  Dr. J____ concluded the results of the study were within normal limits.

14.  On 3 June 2002, Dr. C____ completed a DD Form 689 (Individual Sick Slip) indicating an MEB was initiated.  A medical note from Dr. C____, dated 3 June 2002, indicates the applicant was seen by the Neurosurgery Clinic and his nerve study was within normal limits.  The note indicated the applicant was not a surgical candidate.

15.  A memorandum for the PEBLO, dated 28 June 2002, indicates Dr. C____ stated the applicant had a disc herniation.  The memorandum indicated the location of the herniation was "L4-L5" and "L5-S1."  (This document appears to be the document Dr. C____ referred to in paragraph 2 of his declaration.)  The memorandum indicated the applicant was seen by the Neurosurgery Clinic in May 2002, Physical Therapy Clinic in April 2002, and Physical Medicine Clinic in June 2002.  The record of the May 2002 neurosurgery evaluation is not in the administrative records.  A permanent physical profile of "L3" with duty restrictions was signed by three physicians on 28 June 2002.  The document in the records does not reflect the unit commander's action.

16.  On 3 July 2002, the PEBLO at the Medical Department Activity at Fort Hood, Texas, dispatched a memorandum to the applicant's commander informing him that the applicant was undergoing physical disability processing.

17.  A Radiological Examination Report of an MRI conducted on 3 July 2002 stated, "degenerative spondylosis and discopathy at L5-S1."  The report did not state the applicant had a disc herniation.

18.  The applicant's records contain medical examinations and laboratory results which began in early July 2002 in furtherance of the MEB process.  The applicant completed a DD Form 2807-1 (Report of Medical History) on 8 July 2002.  Dr. L____ examined the applicant on 8 July 2002.  Blood samples were collected on 8 and 9 July 2002 at the request of Dr. L____.

19.  The applicant provided an unsigned statement purporting to have been accomplished by Captain (CPT) K____, dated 17 July 2002.  The statement indicated the applicant had only recently rejoined the unit and referenced the permanent physical profile.  It also stated the applicant was not performing his normal duties due to the ongoing MEB/PEB and a permanent physical profile.

20.  According to his declaration, Dr. C____ reviewed applicant's recent medical evaluations on 28 July 2002 and determined the MEB could be terminated.  Dr. S____ did not concur with termination of the MEB until an additional assessment by the Pulmonary Clinic could be accomplished.  Dr. C____ requested the applicant's evaluation by the Pulmonary Clinic.

21.  The applicant was seen by the Pulmonary Clinic on 29 July 2002.  The records indicate this evaluation was at the request of Dr. C____.  (The reason for the request indicated the applicant was undergoing an MEB for degenerative disc disease.  The reason provided by Dr. C____ in the request did not mention a herniated disc.)  The Pulmonary Clinic requested a repeat chest x-ray for the applicant.  The Pulmonary Clinic also requested a surgical consultation for the applicant.  The Pulmonary Clinic did not indicate any new treatment was required and no duty restrictions were imposed.

22.  The surgery consultation requested by the Pulmonary Clinic took place on 29 July 2002.  (The surgical consultation sheet indicated the MEB was for degenerative disc disease and did not mention a disc herniation.)  The surgical consultation record indicated the pleural issue had resolved.  No surgical intervention for the pleural effusion was recommended.

23.  The Radiological Examination Report for the 29 July 2002 examination indicated the effusion had resolved.  The records indicate Dr. L____ requested the x-ray.

24.  The records indicate that Dr. L____ signed page 3 of the DD Form 2807-1 on 31 July 2002.

25.  On 12 August 2002, the applicant cancelled a scheduled appointment with Dr. C____.

26.  Dr. C____ participated in a training exercise from early September through 29 October 2002.  Upon his return, he reviewed the results of the Pulmonary Clinic examination in July 2002.

27.  On 6 September 2002, the applicant presented for a colonoscopy.  The report indicates the colonoscopy was an elective outpatient procedure.  The DD Form 2807-1 indicates that Dr. L____ ordered a follow-up colonoscopy because the applicant's last colonoscopy was in 1999.

28.  On 30 October 2002, Dr. C____ dispatched a memorandum to the PEBLO requesting termination of MEB actions pertaining to the applicant because his medical issues were stable and could be followed by the VA once he left the military.  He indicated that he had discussed the case with the Deputy Commander for Clinical Services (DCCS) and the DCCS had approved his request.  Dr. S____ reviewed, approved, and signed the memorandum.  The PEBLO notified the applicant's commander the same day that the MEB was terminated and the applicant was honorably discharged on 30 October 2002 (the same day) under the provisions of Army Regulation 635-200, paragraph 19-12, due to his non-retention on active duty.  He had completed 17 years, 11 months, and 25 days of active service and was paid $31,982.92 in involuntary severance pay benefits.

29.  The applicant provided medical records indicating he continued to receive treatment and evaluations for his lower back issues.  These records reflect evaluations and MRI studies in 2005 through 2013.

30.  On 12 March 2003, the VA notified the applicant that he had been awarded a 20-percent service-connected disability rating for his back condition, a 20-percent service-connected disability rating for his left shoulder condition, and a 
10-percent service-connected disability rating for tinnitus, for a combined disability rating of 40 percent.

31.  In the processing of this case, a staff AO was obtained from the USAPDA.  The AO was provided to the applicant for comment and he did not respond; however, the court remanded the case to the Board in order to have the applicant's counsel respond to the opinion.  The AO provided the following:

	a.  The initiation of an MEB is the responsibility of a Soldier's commander or physician.

	b.  The referral of an MEB in accordance with either paragraph 4-9 or 4-10 of Army Regulation 635-40 are the same; there is no difference except for who might have initiated the MEB.  It should be noted that those paragraphs are really not the controlling guidance regarding the initiation of an MEB.  The paragraphs noted in Army Regulation 635-40 are merely a re-issuing of the actual medical regulations that control the initiation of MEB's.  The controlling guidance for when an MEB is to be initiated is found in paragraph 7-1 of Army Regulation 40-400 and paragraphs 3-3 and 3-4 of Army Regulation 40-501 (Standards of Medical Fitness).  (Note the citation of Army Regulation 40-3 (Medical, Dental, and Veterinary Care), chapters 7 and 8, found within paragraph 4-10 in the 1996 version of Army Regulation 635-40 – the version in effect in 2002 – is now Army Regulation 40-400.)

	c.  No, it is not possible for a physician to initiate an MEB without referring a case to an MEB.  If a physician initiates an MEB he or she should have made a determination that at least one condition does not meet medical retention standards in accordance with Army Regulation 40-501, chapter 3.  The initiation of an MEB merely means a starting date is established for record-keeping purposes and the MTF now gains control and the case is assigned to have a physician complete a medical examination and NARSUM for inclusion in the MEB.  The physician who initiates the MEB is often not the physician at the MTF who is responsible for completing the MEB.

	d.  In the applicant's case, an MEB was initiated by Dr. C____ and was referred to an MEB.

	e.  Inasmuch as Dr. C____ initiated the MEB, he had the authority to withdraw his referral.  The members of the MEB (physicians who review the completed physical examination and NARSUM, which is the heart of the MEB and which are attached to the DA Form 3947 (Medical Evaluation Board Proceedings)), are not normally selected until the examination and NARSUM are completed.  Based upon the case file records provided, it does not appear that any such NARSUM was ever completed.  An MEB is not an active board per se; it is composed of two physicians who are chosen after the examination and NARSUM are completed and who individually review the written contents of the MEB and either concur or non-concur with its contents (Army Regulation 40-400, chapter 7, prescribes MEB procedures and contents).

	f.  Based on the assumption that the process was administratively correct unless clear evidence to the contrary is found, it would appear that Dr. C____'s use of the phrase "his medical issues are stable" in his 30 October 2002 termination of his previous referral was an indication that it was his medical opinion that the applicant's condition had stabilized and now met medical retention standards in accordance with Army Regulation 40-501, chapter 3.  If so, the applicant would no longer be eligible for an MEB and was required to be separated in accordance with his previous separation orders.  Physicians who initiate an MEB based on their expert medical opinions have the same authority to withdraw such initiation when their medical opinions change.

32.  A review of the applicant's NCOER's shows the applicant received four NCOER's for performing duties as an emergency operations NCO, mortar section leader, Family Readiness NCO-in-charge, and assistant operations sergeant during the period August 2000 to July 2002.  He passed his Army Physical Fitness Test in three of the four reports and had a physical profile during his last NCOER.  In all of the reports he received "Excellent," "Success," "Among the Best," and "Fully Capable" ratings.

33.  The documents submitted by the applicant's counsel consist of:

* a VA Rating Decision, dated 29 September 2008, which increases the applicant's disability ratings
* a performance statement from the applicant's commander addressed to the PEB indicating the applicant could not perform the duties normally expected of mortar platoon sergeant
* an MEB notification, dated 28 June 2002
* two DA Forms 31 requesting leave for the period 30 October to 6 November 2002
* a medical records supplement related to drawing blood, dated 27 November 2002
* a letter from a Medical Center in Lebanon, Missouri, dated 23 August 1999, indicating the applicant was receiving treatment for chronic lower back pain
* a disclosure and consent form related to an epidural steroid injection, date illegible
* a list of examinations conducted from March to October 2002
* a TRICARE Request for Authorization of Initial 8 Visits or Diagnostic Evaluation for the period 12 November 2002 to 12 March 2003 which relates to outpatient treatment by civilian providers for evaluation of an adjustment disorder
* a Standard Form 600 (Chronological Record of Medical Care) from a pain control clinic, dated 27 November 2002, indicating the applicant received an injection and his prescriptions were updated
* a letter from a civilian psychiatrist, dated 20 December 2003, indicating he diagnosed the applicant as having –

* Axis I – major depressive episode anxiety disorder due to disc herniation with osteophyte formation (bone spur) at L4/L5
* Axis II – none
* Axis III – disc disorder, intervetebral, lumbar 722.93 (CD-9-CM Code)

* a copy of the letter obtained by the District Court from the referring physician
* a letter and photographs of an MRI conducted on the applicant in 2013
* a letter from an orthopedic physician, dated 5 December 2005, regarding treatment of his lower back pain
* the results of an MRI conducted on 2 July 2013 related to his thoracic spine
* the results of an MRI conducted on 12 April 2007 related to his left knee
* the results of an MRI conducted on 16 April 2008 related to his lumbar spine
* the results of an MRI conducted on 16 February 2009 related to his lumbar spine

34.  The statement from the referring physician, Dr. C____, states the applicant presented in August 2001 with a pulmonary effusion which resolved and for which the cause was never determined.  In January 2002, the applicant contacted him by telephone and requested a review of his records with a view toward referral to an MEB.  He initiated an MEB for the applicant in March 2002 at the applicant's request after he explained that he was unable to do his job and he preferred to resolve his issues through medical retirement instead of sitting around and waiting for retirement for 2 years.  In March 2002, the applicant saw a neurosurgeon for evaluation of the disc protrusion in his back.  Dr. C____ states the applicant saw him at the medical clinic in June 2002 and informed him that he needed something to prove to his unit that he was undergoing an MEB.  It was at this time that he discovered that the applicant's paperwork for initiation of an MEB had been misplaced.  Accordingly, he gave the applicant a sick slip stating that an MEB had been initiated and he again initiated the MEB process on 27 June 2002.

35.  Dr. C____ states the applicant's unit and officials at the Total Army Personnel Command contacted him on 28 July 2002 and informed him that the applicant was recommended for separation under the QMP, which was the first time he had heard anything of that nature.  On the same day, he considered the applicant's case and his medical condition and determined the MEB should be terminated.  However, after consulting with the DCCS, his recommendation to terminate the MEB process was denied.  The DCCS determined the applicant should be evaluated by the Pulmonary Clinic at least one more time before such a decision was made.  At Dr. C____'s request, the applicant was evaluated by the Pulmonary Clinic on 29 July 2002 and the evaluating physician prescribed no new treatment and imposed no work limitations on him.  Dr. C____ also states that when he returned from a training exercise on 30 October 2002, he reviewed the applicant's case and discussed the results with the DCCS.  They both agreed the MEB process should be terminated because the applicant had declined surgery and was not experiencing the continual debilitating pain that he had described initially.  Additionally, in the applicant's several visits to the clinic, he did not appear to be in great discomfort and he was able to perform his assigned duties.  The applicant's pulmonary effusion had resolved and both the Rheumatology and Pulmonary Clinics examined the applicant and determined that he had no physical limitations.  Further, the applicant had raised no new issues in the past 6 months.

36.  Army Regulation 635-40, dated 1 September 1990 and in effect at the time, stated that disability compensation was not an entitlement acquired by reason of a service-incurred illness or injury; rather, it was provided to Soldiers whose service was interrupted and who could no longer continue to reasonably perform their duties because of a physical disability incurred or aggravated in service.  This regulation also provided that when a Soldier was being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties commensurate with his or her rank or grade until the Soldier was scheduled for separation or retirement created a presumption that the Soldier was fit.  If a question arose regarding a Soldier's ability to perform his or her duties because of a physical disability, the Soldier's commander, Department of the Army Headquarters, or the physician could refer the Soldier for medical evaluation (paragraphs 4-6, 4-7, and 4-8).  The MTF commander conducts a medical examination.  If it appears the Soldier is not medically qualified to perform his or her assigned duties, the MTF commander will refer the Soldier to an MEB in accordance with paragraph 4-9.  MEB's are convened to document a Soldier's medical status and duty limitations insofar as the duties are affected by the Soldier's status.

37.  Army Regulation 635-40 states the NARSUM 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.  The history of the Soldier's illness, objective findings on examination, results of X-rays and laboratory tests, reports of consultations, response to therapy, and subjective conclusions with rationale must be addressed.  The NARSUM should include the date of the physical examination conducted for purposes of a physical disability evaluation.

38.  Army Regulation 635-40 specifies that the USAPDA, under the operational control of the Commanding General, U.S. Army Human Resources Command, will operate the Army Physical Disability Evaluation System (PDES) and is responsible for developing the policies, procedures, and programs of the system.

39.  Title 38, U.S. Code, chapter 11, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

40.  There is a distinct difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Department of Defense Disability Evaluation System only rates those maladies that caused a premature conclusion to the service member's military career.  The VA may provide a rating on all service-connected disabilities.  The VA may even initially assign a higher rating based on all VA-rated conditions.  The VA's ratings fluctuate within a period of time depending on the changes in the disability.

41.  Army Regulation 40-501, chapter 7, effective 28 March 2002 and in effect at the time, provided a system for classifying individuals according to functional abilities.  Paragraph 7-3d (Physical Profile Serial System) states, "Four numerical designations are assigned for evaluating the individual's functional capacity in each of the six factors….The numerical designator is not an automatic indicator of deployability, assignment restrictions, or referral to an MEB/PEB.  Likewise, the conditions listed in chapter 3, rather than the numerical designator of the profile, will be the determinant for MEB processing."  Permanent physical profiles may be amended at any time if clinically indicated (paragraph 17-4a(3)).  The physical profile in controversial or equivocal cases may be verified or revised by the hospital commander or command surgeon (paragraph 17-8e).  If the Soldier does not meet retention standards, the Soldier should be referred to an MEB (paragraph 7-8a).  In preparing the DA Form 3349, block 1 is for recording the medical condition or defect in nontechnical language.

42.  Army Regulation 40-400, chapter 7 (Military Personnel Physical Disability Processing), effective 12 March 2001 and in effect at the time, paragraph 7-1, stated that MEB's are convened to document a Soldier's medical status and duty limitations insofar as the duty is affected by the member's medical status.  MTF commanders; the Surgeon General; Commander, U.S. Army Medical Command (MEDCOM); and Commander, 18th MEDCOM, are authorized to appoint MEB's (paragraph 7-2).  It is essential that the MEB thoroughly evaluate and report all abnormalities and their impact on fitness for duty (paragraph 7-5 b (1)).  Paragraph 7-7 (MEB Proceedings) stated, "MEB's operate informally and may assemble to discuss and evaluate the patient's case."  Clinical, heath, and other records, as appropriate, are reviewed.  MEB proceedings will be recorded on a DA Form 3947 (paragraph 7-8a).  A complete, current report of the medical examination will be included in the NARSUM completed by the physician and recorded on a Standard Form 502 (Clinical Record – Narrative Summary) (paragraph 7-8 a(4)).  Paragraph 7-9 provides detailed instructions for completion of the DA Form 3947.  Paragraph 7-12 provides that the appointing authority is also the approving authority for MEB proceedings.  He or she will not participate in the proceedings, either as a member, witness, consultant, or in any capacity.

43.  Army Regulation 635-200, paragraph 1-33 (Disposition Through Medical Channels), in effect at the time, stated that except for separation under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.

44.  Army Regulation 635-200, chapter 19 (Qualitative Management Program), provides policies and procedures for the separation of enlisted personnel under the QMP.  It provides that NCO's whose performance, conduct, and/or potential for advancement do not meet Army standards as determined by the approved recommendations of Department of the Army Headquarters centralized selection boards responsible for QMP screening will be denied continued service.  Soldiers with a minimum of 17 years and 9 months of active Federal service at the time of notification of the QMP selection who choose not to appeal will be retained to 
20-year retirement eligibility upon request.  Regular Army Soldiers whose appeals are denied and who have 18 years of active Federal service on the designated date of separation will be retained to attain 20-year retirement eligibility upon request.

45.  Army Regulation 40-400 does not provide a detailed discussion of the duties of the appointing authority.  The AO from the Office of the Surgeon General indicated the DCCS was the MEB convening authority.

DISCUSSION AND CONCLUSIONS:

1.  The referral of a Soldier to an MEB is essentially an informal process that involves the evaluation of a Soldier's condition when a physician believes the Soldier may have one or more conditions that does not meet medical retention standards.  In the applicant's case, he had a pulmonary effusion that eventually resolved itself but no explanation of how it occurred could be found, and he had a long-standing complaint of back problems.

2.  It appears the applicant was able to persuade his primary care physician, Dr. C____, to enter him into the PDES to make a determination as to whether he should be medically separated.  The applicant began undergoing a series of evaluations and treatments related to MEB processing.  The referring physician also initiated a permanent physical profile.  The permanent physical profile does not appear to have been completed properly.  It only lists a diagnosis as the condition in block 1.  It does not list lower back pain as the medical condition requiring the profile.  Secondly, it erroneously states the applicant had a herniated disc.  This was shown on numerous MRI's to be untrue.  Subsequently, several months later the referring physician reviewed the applicant's case with the updated test results and made a determination that his condition met medical retention standards and he no longer warranted evaluation by an MEB.  He withdrew his referral to the MEB, which is authorized according to the proponent of the PDES.

3.  While the referring physician had the authority to withdraw his referral, he did not have the authority to stop the applicant's medical examinations and processing under the MEB by himself.  The DCCS was required to actually stop the examinations and MEB.  The DCCS concurred with terminating the MEB only after obtaining another evaluation of the applicant's pulmonary condition and determining that no further processing was warranted.  Once Dr. C____ received additional evaluations of the applicant, he determined the applicant met medical retention standards and withdrew his referral.  However, the appointing authority, Dr. S____, used his discretion under the regulation to determine that the examination process should continue until further pulmonary evaluations were completed.  The records do not reflect that Dr. S____ required further evaluations of applicant's spinal issues.  Once the pulmonary evaluation was completed, Dr. S____ no longer deemed the MEB process necessary.  This decision was within the authority and discretion of Dr. S____.   This decision was communicated to the PEBLO who then informed the applicant's commander that the MEB was terminated.

4.  A NARSUM is not prepared until all evaluations are completed and it does not appear that a NARSUM was ever completed in this case.  Army Regulation 
40-400, paragraph 7-1, indicates that MEB's have 30 days to complete processing.  The 30-day time limit begins the date the medical officer completes the NARSUM.  Paragraph 7-8 states that "MEB proceedings will be recorded on a DA Form 3947."  Once a NARSUM is completed, two physicians are selected who have expertise in the area related to the Soldier's condition to informally make a determination as to whether the Soldier has an unfitting condition that warrants consideration by a PEB.  MEB's are not conducted until a NARSUM has been properly completed for consideration.  (While not included in the administrative records, a DA Form 3947 is available on the Army publishing website which is available to the public.  The continuation section of block 24 indicates the DA Form 3349 is a separate document from the NARSUM.)  The NARSUM provides all of the necessary background for the MEB members to make a recommendation as to the disposition of a case.

5.  Counsel asserted there was a conspiracy between the referring physician and the applicant's chain of command.  However, there is no evidence in this case to suggest the decision to terminate MEB processing of the applicant was anything other than a medical assessment of the applicant's condition by competent medical authorities on the ground at the time.  The applicant had longstanding lower back pain that was successfully conservatively managed.  The records indicate a neurosurgeon evaluated the applicant in April 2002 at the request of Dr. C____.  The neurosurgeon indicated there was "probable" S1 radiculopathy, but there was "marginal" clinical evidence.  The neurosurgeon ordered a nerve study of both legs in the L4, L5, and S1 (nerve) routes.  The nerve study indicated his nerve function was within normal limits.  The records show the neurosurgeon did not find any surgical lesions or find that the applicant was a candidate for surgery.  Furthermore, Dr. C____ had the opportunity to observe the applicant during several medical appointments.  Dr. C____ stated the applicant did not appear to be in great discomfort.

6.  Counsel's contention that neither the referring physician nor the DCCS had the authority to terminate the MEB process has been noted and lacks merit.  The referring physician had the authority to withdraw his referral after reviewing the updated results of the applicant's tests and treatments and determining that the applicant's condition was stable and did not warrant referral to an MEB.  Likewise, the DCCS was responsible for overseeing the overall MEB process and, as such, had the authority to terminate the process if he also believed the applicant's condition did not warrant referral to an MEB.  To the DCCS's credit, he did not accept the referring physicians' initial recommendation to terminate the MEB process until he had the applicant re-evaluated by the Pulmonary Clinic.  The requirement for further evaluation indicates the decision to terminate the MEB was not arbitrary and capricious; rather, it was based on current medical information at the time.  The records do not indicate that any physicians were appointed to an MEB or that an MEB convened.  Essentially, the appointing authority determined it was not necessary to appoint physicians and convene an MEB after further medical evaluation was conducted.

7.  Counsel contended that the referring physician's and DCCS's intervention into the case was unlawful.  He contended that the referring physician gave in to the demands of the applicant's command because he did not provide an explanation as to why he did so and he did not provide any medical explanation or diagnosis as to why the applicant no longer warranted referral to the PDES, especially given the evidence showing that his condition worsened as evidence by the findings of the VA.  His contentions lacks merit.  The referring physician was not prohibited from changing his diagnosis after reviewing the applicant's records or withdrawing his referral after he learned the applicant's condition was no longer as he had originally judged it to be.  The DCCS was responsible for the administration of the MEB process and, as such, all of the physicians involved in the process were under his supervision.  The DCCS had the authority to appoint physicians and to convene an MEB if a Soldier required evaluation because he or she might not meet medical standards or if the DCCS believed an MEB was necessary.  It necessarily follows that the DCCS has the authority to NOT appoint physicians to an MEB if he finds no basis for the MEB.  Accordingly, he was within his scope of authority to terminate the process after the evaluations indicated the applicant's condition no longer warranted continued processing and convening an MEB.  

8.  In regard to counsel's assertion that the referring physician gave in to the demands of the applicant's command to terminate the MEB processing, he has provided no more than conjecture to support his accusation.  Furthermore, the referring physician did not have the authority to stop the process by himself.  While he had the authority to withdraw his referral, the DCCS was the authority at the time and he did not take action to stop the applicant's processing until he had additional evidence to support such an action.  The applicant underwent exhaustive medical evaluations by numerous physicians and numerous MRI studies of his spine.  His medical issues were carefully studied and evaluated by many different medical specialists.  The applicant does not allege that these evaluations were improper or the test results were erroneous.

9.  Army Regulation 635-40 provides that if it appears the Soldier is not medically qualified to perform his or her duties, the MTF commander will refer the Soldier to an MEB in accordance with paragraph 4-9.  Therefore, it is reasonable that if a determination is made by competent medical authorities during processing (examinations and treatments) that the original diagnosis had changed or that the Soldier's condition was such that processing through the PDES was not necessary, the appropriate authority could stop any further processing.  This appears to have occurred in this case.

10.  Counsel's contention that the USAPDA AO is incorrect has also been noted and lacks merit.  USAPDA is the proponent of Army Regulation 635-40 and there is no evidence to suggest, other than counsel's conjecture, that the information provided by USAPDA in its AO is incorrect.

11.  In addition, counsel's contention that the findings and ratings made by the VA serve to show the applicant should have been processed under the PDES to completion and retired accordingly has been noted and appears to lack merit.  The Army's determination of a Soldier's physical fitness or unfitness is a finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  The VA may provide a rating on all service-connected disabilities, not just those that render a Soldier unable to perform the duties of his or her grade, rank, or rating.

12.  The military conducted numerous MRI's on the applicant's spine.  These MRI's failed to show a herniated disc.  The applicant had a bulging disc with intact annulus (no herniation).  The applicant had degenerative disc disease and osteoarthritis; both conditions are associated with aging.  The neurosurgeon noted there was "marginal" evidence of radiculopathy.  The nerve studies were within normal limits.  Dr. C____ observed the applicant in several visits and the applicant did not appear to be in great discomfort.  The military medical records indicate he had long-standing lower back pain which had been successfully conservatively managed until the QMP recommended his non-retention.  Despite the unsigned July 2002 statement from CPT K____ indicating the applicant's duties were restricted, the applicant's recent NCOER's indicated the applicant was performing his assigned duties.  CPT K____ noted the applicant had only recently returned to the unit for duty purposes.  The applicant's post-service medical evaluations indicate that his lower back issues may have progressed over time.  However, they do not indicate that the physician's determinations that he met medical retention standards in 2002 were erroneous.  No post-service medical records close in time to applicant's discharge indicate any evaluation of the applicant's spine that casts doubt on the Army's conclusions.

13.  Accordingly, there appears to be no basis to grant his request to be retired by reason of length of service or permanent disability.

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.
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ABCMR Record of Proceedings (cont)                                         AR20130014960



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