BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010069 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant previously submitted an application for correction of the narrative reason and authority for discharge.  The applicant has since died.  The widow of the now former service member (FSM) requests reconsideration of his case.  She defers her request for reconsideration and evidence to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the FSM's earlier request to change the reason and authority for his discharge.

2.  Counsel states, in effect:

* he provides the background of the FSM's discharge, which resulted from a medical evaluation board (MEB) finding the FSM's medical condition of osteomyelitis (infection/inflammation of the bone or bone marrow) existed prior to service (EPTS) and was not service-aggravated
* in reaching their decision, the MEB clearly violated the presumption of soundness principle found in Title 38 of U.S. Code (USC), section 1111, as interpreted in the U.S. Court of Appeals, Federal Circuit case of Wagner v. Principi
* the FSM died on 16 July 2013 from complications of osteomyelitis
* the FSM's widow is now pursuing the FSM's earlier claim and is unable to afford the cost of filing an appeal in Federal Court
* he believes the main issue is identifying the inception date of the osteomyelitis, discovered 7 months after the FSM's induction in the Army of the United States
* he requests the Board consult with a medical expert so that modern medical techniques can be applied for greater certainty in identifying the medical condition's onset date

3.  Counsel provides a letter from the Army Board for Correction of Military Records (ABCMR) and a copy of the FSM's death certificate. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the ABCMR in Docket Number AR20110019625, on 19 July 2012.  

2.  The applicant's request does not meet the criteria for reconsideration.  Army Regulation 15-185 (ABCMR) states if the ABCMR receives the request for reconsideration within 1 year of the ABCMR’s original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence that was not in the record at the time of the ABCMR’s prior consideration.

	a.  The Board adjudicated the FSM's case on 19 July 2012.  The FSM's first request for reconsideration was received by the ABCMR on 23 August 2013, which was clearly not within 1 year of the original decision.  As such, his request was administratively closed and returned without action.  

	b.  Counsel argues that the letter of notification to the FSM was dated 25 July 2012, and he received the letter on 1 August 2012.  Counsel adds that the restrictive interpretation to the disposition regarding time limits to appeal the decision could perpetuate error or injustice and thus deprive the FSM's widow a full and fair opportunity to be heard.  Additionally, counsel provides a copy of the FSM's death certificate (the FSM died on 16 July 2013), which is considered new evidence.  Counsel also cites a U.S. Federal Court of Appeals case to further bolster his argument, made in the initial application, that the presumption of soundness principle was not properly applied.  

	c.  In view of the circumstances of this case and as a one-time exception to policy, this application for reconsideration warrants consideration by the Board. 

3.  The FSM was inducted into the Army of the United States on 4 January 1962.  His DD Form 47 (Record of Induction) shows he underwent a physical examination at the time of his induction; however, the results of this examination are not available for review.  Item 16a (List all defects and diseases claimed by the registrant and any defects or diseases which the registrant may have, and which are known to the Local Board), of DD Form 47 shows the entry "history of broken leg."

4.  He completed basic combat training (BCT) at Fort Dix, NJ.  There is no indication in his record, however, that he ever completed advanced individual training (AIT) to obtain a military occupational specialty.  Instead, he is shown as having been assigned to the Special Troops Battalion within the U.S. Army Garrison at Fort Dix, performing duties as a 550.00 (Supply Handler).  
Item 15 (Assignment Limitations) of his DA Form 20 (Enlisted Qualification Record) shows "No Military Training, Awaiting Medical Board."

5.  His record is void of any service medical documentation.  All medical information was provided by counsel in the initial application.

6.  On 27 July 1962, the FSM underwent an examination of his right tibia.  His Standard Form 519A (Radiographic Report) showed:

	a.  Expansion of the proximal shaft of the right tibia. 

	b.  Bone sclerosis was present in that area as well as multiple areas of radiolucency (almost entirely transparent to radiation), which were probably residuals of previous osteomyelitis.  The report stated, however, without comparison studies, activity could not be excluded.  (The reference to "activity," and within what timeframe, are not more clearly defined).

	c.  Dislocation and hypertrophy of bone, upper one third secondary to untreated fracture 6 or 7 years ago, were noted as part of the pertinent clinical history, operations, physical findings, and provisional diagnosis.

7.  On 10 August 1962, the FSM underwent an examination at the Walson Army Hospital Orthopedic Clinic, Fort Dix.  

	a.  His Standard Form (SF) 502 (Clinical Record - Narrative Summary) shows he had a history of an old fractured right tibia incurred at age 17. 

* at the time of the original injury, he was not hospitalized
* he was sent to an outpatient department and an appointment was made to scrape the bone; no treatment, however, was received
* he saw another doctor one year prior to this current examination [which would have been about four months prior to his induction] who advised him of the same treatment [bone scrape]
* prior to this examination on 10 August he had been complaining of chronic aching, pain in the knee, and tenderness if bruised; he walked with a limp

	b.  The FSM's 10 August 1962 physical examination further showed the presence of three well-healed sinus tract scars (pathological passages through which infection may drain).  The area was swollen and warm to the touch.  There was no loss of range of motion of the knee.  

	c.  His laboratory X-ray showed the entire proximal shaft of the tibia had been involved in a "hyperostatic [sic] process with lytic lesions" (destruction to an area of bone due to a disease process) scattered throughout.  

	d.  His laboratory examination was essentially normal.  He was diagnosed with osteomyelitis, chronic, with extensive involvement of the proximal tibia.  Line of Duty (LOD):  No, EPTS.  

	e.  The FSM's case was referred to an MEB to consider whether he should be separated from active military service under the provisions of Army Regulation 635-40A and B (Personnel Separations - Physical Evaluation for Retention, Separation, or Retirement for Physical Disability).

8.  On 10 August 1962, an MEB convened to evaluate the FSM's fitness for further military service.  The file submitted by counsel contains the first page of the DA Form 8-118 (Medical Board Proceedings).  The DA Form 8-118 shows in:

* Item 14 (Military Occupational Specialties) the FSM was a "Trainee"
* Item 16 the FSM was not present during proceedings, and item 17 shows the FSM did not present any views in his own behalf
* Item 18 the patient was "medically unfit" for further military service in accordance with current medical fitness standards 
* Item 19 (the patient had the following medical conditions and/or physical defects), the board identified:

* the medical condition as "osteomyelitis, chronic, with extensive involvement of the proximal tibia,  LOD:  No, EPTS"
* the FSM was physically unfit for retention on active duty
* his unfitness was the result of a condition that was not incurred in or aggravated by any period of active duty  

9.  His record contains a 1st indorsement from Headquarters, U.S. Army Training Center, Infantry, Fort Dix, dated 4 September 1962, subject:  Discharge under the provisions of Army Regulation 635-40A.  In this document the FSM's commander was notified the FSM's discharge had been approved.

10.  The FSM was honorably discharged under the provisions of paragraph 33 (Separation for Physical Disability which Existed Prior to Entry on Active Service), Army Regulation 635-40A, due to medical disqualification existed prior to service.  He completed 8 months and 7 days of total creditable active service.

11.  Counsel provides the FSM's death certificate which essentially identifies the cause of death as cardiorespiratory failure.  While difficult to read, it appears to cite contributing factors to the FSM's death as:

* right tibia deformity
* pulmonary emphysema
* severe Alzheimer's disease

12.  Title 38, USC, section 1111 states every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  

13.  U.S. Court of Appeals, Federal Circuit, Wagner - Claimant/Appellant v. Principi - Respondent/Appellee, decided 1 June 2004, essentially states in pertinent part:

* the case involved a claim for disability benefits for a right knee disorder
* the appellant had been on active duty four years (1964 to 1968) and filed a claim with the Department of Veterans Affairs in 1995
* medical records showed a knee injury existing prior to service, but also contained two instances showing aggravation while in service
* the court found the government has the burden to rebut the presumption of soundness with clear and unmistakable evidence showing the disability was both pre-existing and not aggravated by service
* the government may show lack of aggravation by establishing no increase in disability during service, or that any increase occurring is the result of the normal progression of the condition
* if the pre-existing condition is noted upon entry into service, a claim cannot be made for service-connection; but the appellant can file a claim where he or she can prove service-connected aggravation

14.  Army Regulation 40-504 (Medical Service - Standards of Fitness and Unfitness for Retention on Active Duty), in effect at the time, established standards of fitness or unfitness for retention on active duty.  It states Soldiers with medical conditions which cast doubt on their fitness for duty will be referred to a medical board.  The medical board will determine the member's fitness or unfitness and, if eligible, recommend appearance before a physical evaluation board (PEB).  

15.  Army Regulation 40-212 (Medical Service - Hospitalization and Disposition of Patients) prescribes procedures for medical boards.  

	a.  It states medical boards will generally evaluate cases of a problematic or controversial nature, and any which are required by regulation.  Situations which require consideration include patients whose medical fitness for return to duty is problematic.

	b.  All individuals recommended as medically unfit for further service will be given the opportunity to be processed for continuance on active duty as outlined in Army Regulation 616-41 (Continuance of Partially Disabled Personnel on Active Duty).

	c.  The regulation states medical board proceedings will be recorded on a DA 
Form 8-118.  

	d.  Patients who disagree with the medical board findings will be afforded the opportunity to submit pertinent statements or evidence for consideration by the approving authority.

16.  Army Regulation 635-40A, in effect at the time, implements those provisions of Title 10, USC relating to eligibility and processing for physical disability benefits.  Paragraph 33 outlines procedures for Soldiers ordered to active military service in excess of 30 days and who are determined to be unfit for further retention on active duty by a medical board.  These Soldiers may request discharge or elect to appear before a PEB.  

17.  Army Regulation 635-40B prescribes administrative procedures for the implementation of Army Regulation 635-40A.  Section XII (Evaluation and Separation of Members for Physical Disability which Existed Prior to Entry on Active Service and Not Aggravated by the Service) outlines procedures for the expeditious discharge of certain members of the Army, including trainees, who are unfit for retention on active duty by reason of physical disqualification.  

* Soldiers may elect to apply to their immediate commanding officer for early separation
* if a Soldier applies for early separation, his case will be considered by a MEB and, provided the board's findings are approved, he will be separated for physical disability under honorable conditions without entitlement to any form of disability retirement or severance pay from the Army
* this section is not applicable to any Soldier who demands consideration of his case by a PEB after being determined unfit by a MEB 

18.  The Mayo Clinic website defines osteomyelitis as a bone infection.  The germ can enter the bone in three possible ways:

* via the bloodstream from infections in other parts of the body, resulting from, for example, pneumonia or urinary tract infection
* through severe puncture wounds can carry germs deep inside the body and, if it occurs near a bone, it can spread to the bone
* by direct contamination can occur with a compound fracture where the bone is exposed through the skin

19.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The FSM has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  As to the contention the MEB did not properly apply the presumption of soundness, the case cited by counsel shows there are two questions to answer: First, was the pre-existing condition noted upon entry into the service, and second, if noted, was the condition aggravated while on active duty.

2.  Regarding the condition's identification at point of entry:

* the FSM's DD Form 47 showed the entry "history of broken leg"  
* the FSM had a medical issue that was identified early while still in BCT
* he was held back from attending AIT pending a medical evaluation
* the medical history he provided gave substantial support to the conclusion his symptoms of leg pain pre-existed his entry on active duty
* the presence of three well-healed sinus tract scars strongly suggested an earlier infection which drained through these sinus tracts 
* the scars were well-healed indicating the infection drainage had taken place at a much earlier point

3.  Given the foregoing, the preponderance of evidence supports the conclusion his leg pain was identified at time of entry on active duty, and the leg pain, subsequently diagnosed as chronic osteomyelitis, existed prior to his term of active service.

4.  As to whether his condition was aggravated while on active duty, in the cited case the service member/plaintiff had two documented instances of aggravation over a four-year period.  There is no such evidence in this case.  In the absence of evidence to the contrary, administrative correctness and regularity must be presumed.  There is, therefore, no basis upon which to conclude the FSM's condition was aggravated while on active duty.

5.  Counsel asserts an evaluation by modern medical authority would lead to the conclusion the onset of the FSM's osteomyelitis occurred after he entered active duty.  For a valid evaluation to be made, however, original source data must be examined.  The extent of the medical records available from the time of the MEB, as provided by counsel, are an SF 519A radiographic report and an SF 502 narrative summary.  Both of the documents are assessments.  The sources for these documents (the FSM's physical examination at the time and his X-rays) are no longer available for review.  

6.  The physicians who had access to the FSM for a physical examination as well as the opportunity to review medical records concluded the FSM's medical condition was not aggravated during his term of service.  Additionally, they found the FSM's condition was chronic in nature, was an EPTS condition, and its presence made him unfit for further military service.  

7.  Counsel asserts the medical condition which resulted in the FSM's discharge, osteomyelitis, contributed to his death.  The death certificate shows cause of death was cardiorespiratory failure, to which a deformed right tibia, pulmonary emphysema, and severe Alzheimer's disease were cited as contributing factors.  

8.  While the death certificate does not explicitly identify osteomyelitis as either a primary or contributing cause of death, the seriousness and deleterious effects of osteomyelitis are not at issue.  Rather, the question is whether an error or injustice occurred in processing of his discharge for medical disqualification because of an EPTS condition.  On that question, it appears the FSM's rights were fully protected and his discharge was processed as prescribed by the applicable regulations.  

9.  The MEB was conducted under the provisions of both Army Regulation 
40-504 and Army Regulation 635-40A.  Based upon the medical information available to the board, the MEB found the FSM to be physically unfit for further military service due to a condition which was neither incurred nor aggravated while in service.  Within both regulations, the FSM was conferred the right to contest the results by requesting a PEB.  Counsel offers no evidence the FSM was not afforded the opportunity to present his case to a PEB.  

10.  As outlined in Army Regulation 635-40 A and B, Soldiers were permitted to waive evaluation by a PEB and apply for immediate discharge.  While his application is not available in the record, the fact his commander received notice of the approval of his discharge suggests the FSM waived his right to appear before a PEB and requested immediate discharge.  In view of the foregoing, there is insufficient evidence upon which to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20110019625, dated 19 July 2012.


      _______ _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)                                         AR20140010069



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