IN THE CASE OF:	   

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140011765 


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, in effect, addition of three compression fractures in the vertebrae/thoracic area to his unfitting conditions and an increase in his disability rating.

2.  The applicant states:

	a.  His 20-percent disability rating is incorrect.

	b.  The disability rating from the physical evaluation board (PEB) did not include three compression fractures in the vertebrae/thoracic area.

	c.  He had complained about pain in that area of his back for over a year and the fractures were discovered during his Department of Veterans Affairs (VA) physical examination conducted in August 2011 prior to his discharge.  The PEB refused to accept this new information although it was completed before he was discharged.
 
3.  The applicant provides:

* VA discharge physical
* DA Form 199 (PEB Proceedings)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)



CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard and the U.S. Navy, the applicant enlisted in the Regular Army on 6 February 2009 for 3 years and 8 weeks.  He completed his training and was awarded military occupational specialty 13F (fire support specialist).

2.  In November 2010, an MEB diagnosed him with mild diffuse degenerative disease of the cervical spine with myofascial components and chronic sprain and injury to right lateral ankle ligaments resulting in instability of the ankle.  The MEB found the following conditions medically acceptable:

* obstructive sleep apnea
* history of premature supraventricualr tachycardia, status post ablation with resolution of all symptoms
* chronic dyspepsia, status post Nissen fundoplication with negative recent upper gastrointestinal endoscopy
* history hypertension, controllable with medications
* chronic obstructive pulmonary disease, on medications
* degenerative disc disease

3.  The MEB recommended his referral to a PEB.  On 4 May 2011, he concurred with the MEB findings and recommendation.

4.  Item 30 (Continuation) of his DA Form 3947 states, "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards" and "I agree that this MEB accurately covers all my current medical conditions."

5.  On 3 June 2011, a PEB found him physically unfit due to cervical degenerative disease (condition manifested in 2009 at Fort Campbell due to chronic physical demands of military activities) and limitation of right ankle motion (condition manifested at Fort Campbell in 2009 after foot was stomped on during training exercise).  The PEB recommended a 20-percent disability rating and separation with severance pay.  On 10 June 2011, he concurred with the recommendation of the PEB and waived a formal hearing of his case.

6.  He provided a thoracic spine x-ray, dated 28 July 2011, in conjunction with his VA physical, which shows minimal T8, T9, and T10 compression fractures.

7.  He provided a VA Compensation and Pension physical examination performed by a contracted physician on 19 August 2011.  He was diagnosed with:

* bilateral flat feet with medial talar tilt, bilateral halllux valgus deformity, and hyperpronation
* prostate hyperplasia
* nasal septal deviation with bilateral subtotal obstruction
* allergic rhinitis with posterior pharyngeal lymphoid hyperplasia
* pseudofolliculitis barbae
* hypertension
* anterior fibular talar ligament partial disruption/posterior fibular talar impingement syndrome secondary to hyperpronation
* less than 20-percent height loss T8, T9, and T10 compression fractures with increased kyphosis (curvature of the spine) and dextroscoliosis (curvature of the spine to the right)
* cervical levoscoliosis (curvature of the spine to the left)
* chronic obstructive pulmonary disease
* chronic esophageal reflux secondary to hiatal hernia
* supraventricular tachycardia

8.  On 27 September 2011, he was honorably discharged by reason of disability with severance pay (non-combat related).

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

10.  Chapter 3 (Medical fitness standards for retention and separation, including retirement) of Army Regulation 40-501 (Standards of Medical Fitness) does not list compression fractures in the vertebrae/thoracic area as an unfitting medical condition or physical defect which may render a Soldier unfit for further medical service. 

11.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.


12.  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 requests the addition of three compression fractures in the vertebrae/thoracic area as an unfitting condition and an increase in his disability rating.

2.  Although "minimal T8, T9, and T10 compression fractures" were noted on his radiology report during the VA Compensation and Pension physical examination prior to his discharge date, it is a medically acceptable condition and is not considered "unfit."

3.  His MEB did not list three compression fractures in the vertebrae/thoracic area as a medical condition/defect and he agreed that the MEB accurately listed all of his current medical conditions.  There is no evidence to show he was given a physical profile for compression fractures.  He provided no evidence to show this condition rendered him unfit to perform his military duties.  Therefore, there is insufficient evidence with which to add this medical condition as an unfitting condition.

4.  The evidence shows the PEB found him physically unfit due to cervical degenerative disease and limitation of right ankle motion.   He concurred with the PEB findings and recommendation on 10 June 2011.

5.  There is insufficient evidence to show his unfitting conditions were improperly rated by the PEB in 2011.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

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.

ABCMR Record of Proceedings (cont)                                         AR20140011765



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ABCMR Record of Proceedings (cont)                                         AR20140011765



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