IN THE CASE OF:	  

		BOARD DATE:	    4 June 2014

		DOCKET NUMBER:  AR20130016870 


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 correction of his 1997 physical evaluation board (PEB) rating to show a higher rating, and a subsequent medical retirement.

2.  The applicant states:

	a.  He received an improper rating for his injuries of the spine (lower back), knees (right and left), shoulder (right and left), Achilles (right and left) and ankles. He has statements provided by Army officers who were the primary physicians treating his injuries.  Additional proof is also available from his medical/physical evaluation paperwork requesting an examination for injuries suffered while on active duty.  Since his 1997 discharge, the 2008 National Defense Authorization Act (NDAA) made changes related to the disability rating.   

	b.  The regulation states that a retirement physical examination is mandatory and should be scheduled in advance of retirement.  He was medically retired in 1997 but he was not fully aware of the entitlements and regulations that governed his rights as a veteran.  He was granted a 10 percent (%) disability rating by the PEB.  The military medical records and the medical board narrative summary (NARSUM) prove this rating was incorrect.  The medical facts are present in his medical records for review: L3 para spondylolysis, L3-L4 grade I spondylolisthesis, fracture of the body of L3, and L3-L4 disc bulge with mild neuroforaminal stenosis and moderate canal stenosis (nerve damage).   


	c.  It must be noted that Captain (CPT) TTO stated on the medical evaluation board (MEB) proceedings, dated 10 April 1997, that his spinal fracture was improperly diagnosed as purely soft tissue at the time he was improperly sent back to duty.  CPT TTO also noted on the MEB that because he was returned to full duty and continued his Army Physical Training conditioning, this caused his pain and condition to get worse.  It must also be noted that Major WRS documented for the record that the medical board was not started at William Beaumont Army Medical Center, Fort Bliss, TX and that he was inappropriately transferred from Fort Sam Houston, TX to Fort Bliss after his medical board had started.  He also listed other significant medical problems on his medical board summary but they were completely ignored during his disability processing.  Specifically, he had a medically-documented torn meniscus in both his left and right knees.  He was never given a proper medical exit or separation physical.  

	d.  His medical records clearly document numerous injuries that were completely ignored by the PEB.  Therefore, he requests a review of the preponderance of the evidence provided from his medical records and a reversal of the 10% disability rating.  All injuries should be rated properly to include spine, bilateral knee, bilateral shoulders, bilateral ankles, and bilateral Achilles tendons. The misdiagnosis that is substantiated by CPT/Dr. TTO is the primary reason his military career was cut short and the reason he was not afforded the opportunity to serve his full 20 years.  

3.  The applicant provides:

* Magnetic Resonance Imaging (MRI) Study of the right shoulder, left shoulder, left knee, and right knee, dated 19 July 2013
* Congressional correspondence
* Multiple service medical records, consults, and treatment records
* MEB NARSUM
* Medical Board Summary
* DA Forms 3349 (Physical Profile) 
* Consultation Notice
* DA Form 3947 (MEB Proceedings)
* Line of Duty determination
* DA Form 199 (PEB Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

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.  The applicant's records show he enlisted in the Regular Army on 22 January 1992 and he held military occupational specialty (MOS) 91E (Dental Specialist).  On 8 February 1996, he was reassigned to Fort Sam Houston, TX, for training in MOS 91P (Radiology Specialist).  

3.  In April 1996, at Fort Sam Houston, TX while driving on a highway, he was injured after his vehicle was hit from behind by another car.  He was seen multiple times by military physicians in an effort to alleviate his pain.  

4.  In early April 1997, he complained primarily of lower back pain.  He indicated that he had a bilateral fracture in his lower back.  He added that he could not perform to military standards or perform his duties.  He also indicated that he had a car accident in April 1996 and while continuing to do Army physical conditioning, his pain got worse.  He added that he also has a torn meniscus in the right knee and avulsed lateral meniscus in the left knee and that he had an MRI done for both.

5.  On 4 April 1997, he was issued a permanent physical profile for bilateral pars interarticulars fracture L3.  The profile applied the functional limitations of walking at own pace and conducting stretching exercises.  He was recommended for an MEB. 

6.  On 10 April 1997, at Brooke Army Medical Center, Fort Sam Houston, he underwent a thorough physical examination.  His NARSUM shows:  

	a.  His chief complaint was that of low back pain.  He had no history of low back pain until he was involved in a motor vehicle accident in April 1996.  This low back pain was diagnosed as purely soft tissue at the time and he was sent back to duty.  He was treated with physical therapy and non-steroidal anti-inflammatory medications and was sent back to duty a few months after that.  This did not relieve the pain and as he continued his Army physical training conditioning, the pain got worse.  He denied any loss of bowel or bladder function or any loss of sensation or weakness in both lower extremities.  However, he does have pain with standing for a long time and when wearing lead aprons which is part of his job, and trouble sleeping due to night pain.  He localized the pain at the lumbosacral junction more on the left side.  He was evaluated and found to have bilateral L3-L4 grade I spondylolisthesis.  He also had bilateral L3 spondylolysis.  His MRI, dated 6 March 1997, confirmed what was found on his plain films.  

	b.  For the purpose of clarity, the staff of the ABCMR adds the following definitions from the Army Institute of Health:  Spondylolysis is a specific defect in the connection between vertebrae and the bones that make up the spinal column.  This defect can lead to small stress fractures (breaks) in the vertebrae that can weaken the bones so much that one slips out of place, a condition called spondylolisthesis.  Spondylolysis is a very common cause of low back pain.

	c.  On examination, his C4-T1 nerve root is +5/5 bilaterally and sensation is normal to light touch and pinprick bilaterally.  Bilateral radial arteries are +2/2.  There are no lesions or skin defects in bilateral upper extremities.  His abdomen is also without scars.  Bilateral lower extremities show hips, knees, and ankles have full range of motion without pain.  His L3-S3 nerve root is +5/5 bilaterally and his L3-S1 dermatome is intact to light touch and pinprick.  Bilateral dorsalis pedis and posterior tibialis pulses are +2/2.  His skin is intact and without deformity in bilateral lower extremities.  There is a diffuse tenderness to palpation throughout his lower back.  There are no hairy patches or defects in his lower extremities.  He has a nonantalgic gait.  Straight leg raise is negative bilaterally and there are no tension signs.  

	d.  His present condition is that he is unable to complete the Army Physical Fitness Test.  He could not do push-ups or sit-ups and he was unable to run or jog.  He can walk 100 yards without his back irritating him.  He is also unable to lift weights heavier than 20 pounds.  His last physical fitness test was passed in February 1997.  He takes Motrin approximately 3 times a week with some, but not total, relief of pain.  His diagnosis is L3 pars spondylolysis and L3-4 grade I spondylolisthesis.  

	e.  He failed conservative treatment and he was unable to complete the vigorous requirements of an active duty Soldier.  His condition was determined to have failed retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39(a)(3).  At present he does not require surgery and he does not desire such.  His prognosis is poor for ability to perform the stressful functions of a Soldier.  

7.  On 22 April 1997, at Fort Sam Houston, TX, 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 L3 pars spondylolysis and L3-4 grade I spondylolisthesis.  The MEB recommended his referral to a PEB.  He was counseled and on 23 April 1997, he agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.  The MEB proceedings were approved on 23 April 1997.

8.  In May 1997, he was reassigned to William Beaumont Army Medical Center, Fort Bliss, TX.

9.  On 26 June 1997, he was issued a Consultation Note related to his chief complaint of low back pain.  The note states he had a history of 1 year of back pain.  It added: 

	a.  The pain is located on the lumbar spine with occasional involvement in his lower extremities to a very minor extent.  He is currently undergoing an MEB that began at Brooke Army Medical Center, Fort Sam Houston, by Dr. V and Dr. O, and his MEB appears to be complete.  He has a permanent profile which limits his walking, wearing a helmet, carrying a rifle, or marching.  He is not to lift over 20 pounds.  The only change that he (the physician, MAJ WRS) would make to this profile is to avoid repeated bending.  This is a very restrictive profile as it stands and entirely appropriate for his diagnosis of spondylolisthesis.

	b.  Based on his MEB, he had L3 pars spondylolysis and L3-4 grade I spondylolisthesis.  If the findings on his radiograph are consistent with this report, he (the physician) will not dictate or write an addendum.  He would update his profile to include no bending and follow up on an as-needed basis at the troop medical clinic.  His MEB was not started at William Beaumont Army Medical Center, Fort Bliss, and it appears that he was inappropriately transferred on a permanent change of station after his MEB had started.    

10.  On 8 July 1997, an informal PEB convened at Fort Lewis, WA: 

	a.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to chronic low back pain following a motor vehicle accident in April 1996, with x-ray and MRI evidence of L3 pars spondylolysis and L3-4 grade I spondylolisthesis, fracture of the body of L3, L3-L6 disc bulge with mild neuroforaminal stenosis and moderate canal stenosis.  

	b.  Audit trail in his health records clearly indicates no back complaints prior to April 1996 and then ever-increasing pain made worse by physical training resulting in a physical profile precluding the Army Physical Fitness Test.  Past medical history includes back injury in 1991 prior to enlistment with no sequel. There is no evidence of spasms or radiculopathy. 

	c.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5285/5295, and granted a 10% disability rating.  The PEB noted/stated in the absence of an approved line-of-duty determination concerning the circumstances surrounding this disability, this case has been processed as if a favorable determination has been made and since the disability rating is less than 30 percent and he had less than 20 years of service, he would be separated with severance pay. 

	d.  The PEB recommended his separation with entitlement to severance pay, if otherwise qualified.  

11.  On 22 July 1997, the applicant was counseled by a PEB Liaison Officer who explained to him his rights, the Physical Disability Evaluation System (PDES) process, the MEB process and how to appeal, the PEB adjudication, the difference between informal and formal PEB, and the role of the U.S. Army Physical Disability Agency (USAPDA).  His counseling culminated in his concurrence with the findings and recommendation and waiving his right to formal hearing of his case.  

12.  He was honorably discharged (not retired) on 9 October 1997 under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  His DD Form 214 shows he completed 5 years, 8 months, and 18 days of active service.

13.  He provides multiple post-service MRI medical studies, all dated 19 July 2013, and related to his right shoulder, left shoulder, left knee, and right knee.

14.  Title 10, U.S. Code chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB
* receive a permanent medical profile, P3 or P4, and are referred by an MOS/Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, 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.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  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.

15.  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.  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.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Paragraph 3-39 (Spine, scapulae, ribs, and sacroiliac joints) applies in this case.  Sub-paragraph 3-39(a)(3) applies to congenital anomalies that warrant referral to an MEB: Spondylolys or Spondylolisthesis with more than mild symptoms resulting in repeated outpatient visits, or repeated hospitalization; or significant assignment limitations.

17.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  

18.  VASRD Code 5285 pertains to the spine.  A rating of 10% is assigned to cases in accordance with definite limited motion or muscle spasm, for demonstrable deformity of the vertebral body.  The next level of rating is 60%, for a vertebral fracture without cord involvement and abnormal mobility requiring a neck brace.

19.  VASRD Code 5295 pertains to lumbosacral strain.  A rating of 10% is assigned for lumbosacral strain with characteristic pain on motion.  The next level of rating is 20%, with muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in standing position.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a back injury.  He was seen by various medical specialists and recommended for entry into the PDES due to L3 pars spondylolysis and L3-4 grade I spondylolisthesis.  He underwent an MEB which 

recommended referral to a PEB.  The PEB found his back condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended the applicant's separation with entitlement to severance pay.  He was counseled and concurred with the findings and recommendation.  

2.  With respect to his arguments:

	a.  Contrary to his contention that he retired in 1997, he was not retired as he contends.  Since his disability rating was less than 30%, he was discharged with entitlement to separation pay.  Also contrary to his contention that he was not given a retirement physical, the thorough MEB examination was his physical.

	b.  Although his MEB started at Fort Sam Houston, TX, it appears he was there in a student status.  Additionally, upon transfer to Fort Bliss, TX, the medical physician reviewed the MEB and indicated it was almost complete.  He neither added an addendum nor found any additional conditions that failed retention standards.  The PEB would have convened at Fort Lewis, WA, regardless of whether the MEB originated at Fort Sam Houston or at Fort Bliss.  Geography did not change his condition that failed retention standards.   

	c.  The 2008 NDAA provides for specific changes and enhancements to the disability processing of recovering service members as defined by the NDAA.  It created timelines and case load standards in order to ensure uniformity and equitable attention to the needs of all service members processing through the DES.  However, the changes in the 2008 NDAA did not change the applicant's rating in 1997.  

	d.  A key element of the Army's disability system is the Soldier's condition at the time of separation.  His disability rating was not intended to be a prediction of his future medical condition.  The July 2013 medical documents he provides are not relevant to his condition at the time of discharge in 1997. 

	e.  He concurred with the PEB findings and he acknowledged he had received a full explanation of the results of the PEB and his legal rights.  The fact that he later developed new medical issues does not invalidate the PEB determination.

	f.  His contention that his conditions may have worsened with time is noted.  However, disabilities that worsen after a Soldier is separated are treated by and compensated for by the VA.  

	g.  None of the conditions he contends he now has were diagnosed during his military service or, if they were diagnosed, they were not determined to be unfitting.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  All available medical evidence at the time shows his only complaint was lower back pain.

	h.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, 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.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  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.

3.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his condition 10% disabling.  There is no evidence of record that shows he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

4.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  Aside from his dissatisfaction, he has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, he is not entitled to 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)                                         AR20130016870



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ABCMR Record of Proceedings (cont)                                         AR20130016870



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