IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140008718 


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 correction of DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 11 August 2009, to show in:

* item 8b (Disability Description), his chronic low back pain with right L5 
     radiculitis occurred as a result of falling to the ground from an Apache
     helicopter
* item 10 (If Retired Because of Disability, the Board Makes the 
     Recommended Finding That), his retirement was based on disability from
     an injury or disease received in the line of duty (LOD) as a direct result of 
     armed conflict or caused by an instrumentality of war and incurred in the 
     LOD during a war period as defined by law

2.  The applicant states:

	a.  On line 10a of his PEB proceedings, it states that his injury was not caused by an instrumentality of war or hazardous condition.  This is inaccurate and he has been trying to correct this error with the U.S. Army Human Resources Command (HRC) for combat-related special compensation (CRSC) and with the Department of Veterans Affairs (VA).  He has now been directed to have it corrected by the Army Review Boards Agency (ARBA).  HRC is only connecting his shoulder injury as CRSC at 10% because of this.  He has been trying to get it corrected for the last 4 years and contacted his Senator's office because the HRC CRSC personnel were not willing to help him fix it.

	 b.  On his PEB proceedings, the VA Schedule for Rating Disabilities (VASRD) listed his VA Code 5241 disability description with an incorrect description.  It stated that although the initial incident occurred when falling off his Apache attack helicopter while he was preflight checking the aircraft in Germany, that his medical record had listed an injury from picking up a laundry basket (emphasis added).  However, the laundry basket was subsequent to the initial injury and he did not notice this when he signed the DA Form 199.  When he noticed the error, he got a signed memorandum from the doctor and hospital commander who treated him after the helicopter fall.  The memorandum stated the original injury was from the helicopter fall and that the surgeries and ultimate back fusion between his L2-5 was due to that. 

	c.  In addition, the hip fracture that was discovered during the medical evaluation board (MEB)/PEB occurred from the fall and he has had surgery on both of his hips since he retired.  There is no way that picking up a laundry basket would have led to a spinal fusion on three levels and a fractured femoral neck on his right hip.  However, apparently the PEB took one encounter in his medical records and determined that they would not award the instrumentality of war and hazardous condition reasoning in the PEB proceedings.

	d.  He has more than a dozen encounters [in his medical records], all of which stated and linked the helicopter fall during mobilization as the reason for his back and hip pain.  He also has a letter from his prior officer in charge (OIC) that states he was removed from flight status and placed in a rear detachment because of the fall from the helicopter.  He asks that the PEB description be corrected to reflect the helicopter fall and item 10a of the DA Form 199 be corrected to reflect LOD instrumentality of war incurring in the LOD.

3.  The applicant provides DA Form 199, a medical report, a letter, and two memoranda,

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.  Having had prior enlisted service, the applicant was appointed as a Reserve warrant office one (WO1) on 13 March 2003 with a concurrent call to active duty. On 11 November 2005, he was promoted to the rank of chief warrant officer two (CW2) in the Regular Army (RA).  He was honorably discharged on 7 December 2005 in the rank of CW2.

3.  On 8 December 2005, he was appointed as a RA second lieutenant in the Aviation (AV) Branch.  He attended and successfully completed the AV Basic Officer Leader Course from 1 January to 24 February 2006 at Fort Rucker, AL.

4.  He was subsequently assigned to the 2nd Battalion, 159th Aviation Regiment, Germany, as a Platoon Leader.

5.  His record contains a DA Form 67-9 (Officer Evaluation Report (OER)) he received for the rating period 25 February 2006 through 24 February 2007 while performing his duties as a Platoon Leader.  This OER shows he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings and passed the Army Physical Fitness Test (APFT) on 15 May 2006.

6.  He was subsequently assigned to B Detachment, 39th Finance Battalion, Germany, as the Rear Detachment Commander.

7.  He received an OER for the rating period 25 February through 8 June 2007 while performing his duties as the Rear Detachment Commander.  This OER shows he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings and passed the APFT on 27 April 2007.

8.  On 8 June 2007, he was promoted to the rank of first lieutenant.  He was subsequently assigned to B Detachment, 106th Financial Management Company, Germany, as the Rear Detachment Commander.

9.  He received two OERs while performing his duties as the Rear Detachment Commander, B Detachment, 106th Financial Management Company, for the following rating periods:

* 9 June 2007 through 14 February 2008, wherein it shows he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings and passed the APFT on 5 November 2007
* 15 April through 6 November 2008, wherein it shows he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings and passed the APFT on 13 March 2008

10.  On 17 November 2008, he was assigned to the Student Training Support Brigade, Fort Jackson, SC.

11.  On 30 January 2009, he was promoted to the rank of captain (CPT) in the Finance (FI) Branch.

12.  He attended and successfully completed the Financial Management Captains Career Course from 5 January to 21 May 2009 at Fort Jackson, SC.

13.  His record contains a DA Form 3349 (Physical Profile), dated 13 July 2009, wherein it shows he was given a permanent profile of "3" on that date at Moncrief Army Community Hospital (MACH) for chronic lower back, right hip, and right shoulder pain in the PULHES categories of U (upper extremities) and L (lower extremities).  This profile showed, in part, he was unable to take the APFT, carry or fire a weapon, and recommended for an MEB.

14.  The applicant provides and his record contains an outpatient medical report, dated 14 July 2009, wherein the treating physician stated the report was based on evaluations he performed on 13 and 15 May 2009, and 23 June 2009.  He stated, in part:

	a.  The applicant's chief complaints were of chronic lower back, right hip, and right shoulder pain.  In March 2006, he fell off an Apache helicopter, grabbed a handle, and fell to the ground landing on his back.  In May 2006, he was treated at a civilian hospital and a nucleoplasty (outpatient procedure to decompress contained herniated discs) was performed on him resulting in minimal improvement.  He was told he had a decrease in lumbar disk space and in July 2006 he had subsequent surgery using pedicle screws and dynamic fixation from L3-5 bilaterally.  A few months later, he continued to have pain and a computed tomography (CT) mylegram was performed.  In April 2008, his back pain had not improved and he had further surgery to remove the pedicle screws.

	b.  He now complains of constant lower back pain radiating to the right hip and thigh and associated with numbness in the right thigh.  He described flare-ups with any lifting, sitting, or standing for prolonged periods.

	c.  In 2008, he continued to have right hip pain without specific trauma and a bone scan showed a stress injury.  He described a constant dull ache in his right hip with flareups with the same activities that caused his back pain.
	d.  In January 2009, he was involved in a combatives exercise in which another Soldier grabbed him from behind and pulled on his right arm.  He suffered a right sternoclavicular sprain.  His pain did not improve and he now has right shoulder pain that was constant.  He had flare ups when attempting to perform pushups.

	e.  He was diagnosed with chronic lower back pain with right L5 radiculitis due to multilevel degenerative disc disease (DDD), chronic right hip pain due to trochanteric bursitis and benign femoral neck cystic lesion, and chronic right shoulder pain due to sternoclavicular joint sprain, all of which were medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 

15.  He subsequently underwent an MEB that found that he had been diagnosed with chronic back pain due to DDD, chronic right hip pain, and chronic right shoulder pain which were medically unacceptable and recommended his  referral to a PEB.  The MEB is not available for review with this case.

16.  On 11 August 2009, an informal PEB convened and after consideration of clinical records, laboratory findings, and medical records confirmed his three unfitting disabilities.  The PEB found his conditions prevented him from performing the duties required of his grade and specialty and the DD Form 199 shows, in part, he was rated as follows under:

	a.  VASRD Code 5242 for chronic low back pain with right L5 radiculitis.  Onset of low back pain occurred in March 2006.  Officer reports falling to the ground from an Apache helicopter and landing on his back; however, 27 March 2006 medical record noted "back pain after lifting a laundry basket; sudden onset" and 5 April 2006 medical record noted "back pain for one week, originally hurt while bending down to pick up a clothing basket."  …Rated for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees…  The recommended disability percentage was 20%.

	b.  VASRD Codes 5099 and 5003 for chronic right hip pain.  Onset of right hip pain occurred in 2008 without trauma.  Bone scan in May 2009 showed right femoral neck compression side stress fracture.  Range of motion (ROM) study of the hips, dated 26 May 2009, showed right active flexion to 100 degrees and active abduction to 28 degrees…  The recommended disability percentage was 10%.

	c.  VASRD Codes 5099 and 5003 for chronic right shoulder pain.  Onset of right shoulder pain occurred during combative training in January 2009.  ROM study, dated 26 May 2009, documents active flexion to 175 degrees, abduction 175 degrees, internal rotation 75 degrees, and external rotation 90 degrees…  This recommended disability percentage was 10%.

   d.  Item 10a of the DA Form 199 stated the PEB found the Soldier's retirement was not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  Item 10c of this form stated disability did result from a combat-related injury as defined by Title 26, U.S. Code.

   e.  The PEB found he was physically unfit due to these conditions and recommended he be permanently retired by reason of disability with a combined rating of 40%.  The PEB also found several other conditions did meet retention standards.

   f.  On 12 August 2009, after being counseled on the findings and recommendations of the PEB and on his rights and options he concurred with the PEB and waived his right to a formal hearing.

17.  On 31 August 2009, he was honorably retired from active duty in the rank of CPT by reason of permanent disability and he was placed on the Permanent Disability Retirement List (PDRL).

18.  The applicant's medical records are not available for review with this case.

19.  In a letter, dated 10 December 2009, the Department of Veterans Affairs (VA) notified him that he was granted service-connected disability effective 1 September 2009 as follows for:

* DDD lumbar spine status post fusion and hardware removal with scarring - rated at 20%
* right shoulder strain - rated at 10%
* left hip disorder associated with small synovial herniation within proximal anterior aspect of the femoral head-neck junction - rated at 10%
* lytic lesion right femoral head - rated at 10%
* tinnitus, left ear - rated at 10%
* bilateral pes planus - rated at 0%
* bunions, left foot - rated at 0%
* bunions, right foot - rated at 0%



20.  This letter also stated he was denied service-connected disability for right
L-5 radiculitis as it was not related to his military service.

21.  In January 2010, he submitted a CRSC claim for: 

* DDD lumbar spine status post fusion and hardware removal with scarring
* right shoulder strain
* lytic lesion right femoral head
* left hip disorder 

22.  In his claim, he indicated his conditions were combat-related based on hazardous service while assigned to the 2nd Battalion, 159th Aviation Regiment. He stated he was rated at 50% disabled by the VA and the injuries were incurred while training for deployment to Iraq when he slipped from an Apache helicopter injuring his back and hips.  Subsequently, this led to three surgeries, an MOS Medical Retention Board (MMRB), MEB, PEB, and permanent disability retirement.  He also marked the block to indicate the VA did not ever document that these conditions caused secondary disabilities.

23.  The applicant provides a letter, dated 12 January 2010, wherein Major (MAJ) BD stated, in part, the applicant fell while working on an aircraft on 20 March 2006 and he was seen at the Army health clinic for back pain on 21 March 2006.  He was primarily treated by Dr. KB while at the health clinic; however, he (MAJ BD), as the clinic commander and family practice physician occasionally took care of the applicant and interacted with Dr. KB regarding his care.

24.  On 24 February 2010, by a letter, HRC officials notified the applicant that:

	a.  Based on the documentation he provided, CRSC was granted at 10% for a right shoulder condition as documentation verified the disability as combat-related.

	b.  CRSC was denied for DDD, left spine; left hip disorder; and tinnitus, left ear as there was no evidence in his claim to show a combat-related event caused each condition.

25.  On 4 April 2014, after he resubmitted a claim for CRSC, by letter, HRC officials notified the applicant that based on the documentation he provided:



	a.  CRSC was previously granted at 10% for right shoulder strain as the condition was awarded due to the evidence on his PEB documentation.

	b.  CRSC was denied for the previously considered conditions of DDD lumbar spine status post fusion and hardware removal with scarring, left hip disorder associated with small synovial herniation with proximal anterior aspect of the femoral head-neck junction, and lytic lesion right femoral head as no new evidence was provided to show a combat-related event caused the conditions.

26.  The applicant provides a memorandum, dated 21 April 2014, wherein MAJ JEA stated, in part, he worked with the applicant in the 2nd Battalion, 159th Aviation Regiment S-4 shop.  After the applicant slipped and fell from an Apache helicopter during preflight operations while preparing for deployment to Iraq, he was seen at the Army medical center for this incident that occurred approximately in March 2006.  He was determined not to be physically capable of deploying and he was then sent to work in the S-4 shop.

27.  The applicant provides a letter from HRC, undated, stating that after reviewing all documentation in support of his claim they were unable to overturn the previous adjudications.  The disapproval was final and he could appeal by submitting an application to the ABCMR.

28.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

29.  Department of Defense Instruction 1332.38, subject:  Physical Disability Evaluation, states a physical disability evaluation shall include a determination and supporting documentation on whether the member's physical disability compensation is excluded from Federal gross income under 26 USC 104.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred a direct result of armed conflict, while engaged in hazardous service, under conditions simulating war, or caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DD Form 199, dated 11 August 2009, should be corrected to show his chronic low back pain occurred as a result of falling to the ground from an Apache helicopter and his retirement was based on disability from an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law.

2.  The evidence of record shows that on 11 August 2009, an informal PEB found his condition of chronic low back pain with right L5 radiculitis was unfitting.  It was rated under VASRD Code 5242 and the DA Form 199, stated the onset of low back pain occurred in March 2006.  Officer reports falling to the ground from an Apache helicopter and landing on his back; however, a 27 March 2006 medical record noted "back pain after lifting a laundry basket; sudden onset" and a 5 April 2006 medical record noted "back pain for one week, originally hurt while bending down to pick up a clothing basket."

3.  The applicant's contention is noted; however, although he provides statements of support that confirm he fell from a helicopter in March 2006, he does not provide any medical documentation from that period that supports this contention.  In addition, the PEB had his medical records for review and confirmed his medical records showed he was initially treated for the onset of low back pain in March 2006 after bending down and lifting a laundry basket. 

4.  Item 10a of the DA Form 199 properly shows his retirement was not based on disability from an injury caused by an injury received in the LOD during a period of war as none of his disabilities were incurred in a war zone.  In addition, it does show that disability did result from a combat-related injury as his medical records confirmed his right shoulder injury was incurred during combative training in January 2009.

4.  Without conclusive evidence to establish a direct, causal relationship of the applicant's conditions chronic low back pain to war or the simulation of war, regrettably, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140008718





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ABCMR Record of Proceedings (cont)                                         AR20140008718



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