IN THE CASE OF:	   

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140015698 


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, that his retirement orders be corrected to show the entry "yes" on the lead lines "Disability is based on injury or disease received in [line of duty] LOD as a direct result of Armed Conflict or caused by an instrumentality of war incurred in the LOD during a war period as defined by law" and that his "Disability resulted from a combat related injury as defined in [Title 26, U.S. Code, Section 104] 26 USC 104."
 
2.  The applicant states, in effect, that the Physical Evaluation Board (PEB) made a determination that his disability was not based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war incurred in the LOD during a war period as defined by law and that his disability did not result from a combat related injury as defined in 26 USC 104.  He goes on to state that at the time of his PEB he submitted only the documents requested by his counsel and has since discovered documents that prove his injury was incurred in the line of duty during a combat mission. 

3.  The applicant provides a list of documents submitted with his application on page 6 of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a heavy wheeled vehicle mechanic in the United States Army Reserve in the pay grade of E-6 when he was ordered to active duty in support of Operation Enduring Freedom on 6 November 2002.

2.  He deployed to Kuwait/Iraq on 21 November 2002, and on 3 April 2003, he went on sick call complaining of a lower back injury.  His sick slip indicates that he was putting a ribbon bridge part in place with another Soldier when they started taking direct fire and mortar rounds.  The other Soldier dropped the piece being lifted and he was left holding all of the weight.  He complained of pain and pressure in his lower back and heard a popping noise.  He was placed on quarters for 3 days and light duty for 10 days.

3.  On 24 August 2003, a DA Form 2173 (Statement of Medical Examination and Duty Status) was completed and his injury was found to be in the line of duty.

4.  On 25 March 2004, the applicant went on sick call at Fort Eustis, VA for lumbago the day after he had caught a heavy load.  

5.  On 21 January 2010, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter).

6.  On 28 November 2012, a medical evaluation board (MEB) was conducted at Fort Lee, VA which diagnosed the applicant as having a medically unfitting condition of degenerative disc disease (DDD), lumbar spine, and recommended that he be referred to a PEB. 

7.  The applicant did not concur with the findings of the MEB and contended that the MEB failed to address his radicular symptoms.  His appeal was referred back to the MEB and the findings were amended to show his diagnosis as DDD, lumbar spine with radicular symptoms.

8.  The applicant was evaluated under the Integrated Disability Evaluation System and on 13 November 2013, the Department of Veterans Affairs (VA) granted the applicant a combined disability rating of 30% for DDD, L5-S1 with central disc herniation and radiculopathy left/lower extremity associated with DDD.  The VA deemed his disability as service connected, Gulf War incurred static disability with central disc herniation.

9.  On 26 November 2013, an informal PEB convened in the National Capital Region and determined that he should be granted a combined service-connected disability rating of 30% based on his diagnosed conditions.  The PEB found that his disability was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or cause by an instrumentality of war and incurred in the line of duty during a period of war and that the disability did not result from a combat related injury under the provisions of 26 USC 104 or 10 USC 10216. 

10.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  He also elected not to request reconsideration of his VA ratings.

11.  On 18 April 2014, he was retired by reason of permanent disability with a 30% disability rating.  His retirement orders indicate "NO" responses to the lead lines:

* Disability is based on injury or disease received in LOD as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period defined by law, and 
* Disability resulted from a combat related injury as defined in 26 USC 104

12.  A review of his official records shows that the applicant has been a mechanic both in civilian life and in the military for at least 24 years.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  It provides, in pertinent part, that the PEB makes a determination that a disease or injury was the result of armed conflict or instrumentality of war when a direct causal relationship exists between the armed conflict or the incident or operations and the disability.

14.  DDD is not really a disease but a term used to describe the normal changes in an individual’s spinal discs as they age.  Spinal discs are soft compressible discs that separate the interlocking bones (vertebrae) that make up the spine.  The discs act as shock absorbers for the spine, allowing it to flex, bend, and twist.  Degenerative disc disease can take place throughout the spine, but it most often occurs in the disc in the lower back (lumbar region) and the neck (cervical region).  DDD is a disease of aging.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the PEB did not consider the fact that he was injured in Kuwait in 2003 as a result of enemy action has been noted and appears to lack merit.

2.  The available evidence shows that the PEB and VA both considered that the applicant was injured in Kuwait in 2003 at the time they made their determinations. 

3.  However, the applicant was retired by reason of DDD that appears to have progressed over the years and there is insufficient evidence to determine with any degree of certainty when his disease was actually incurred or began to materialize. 

4.  It is also noted that the applicant’s occupation as a mechanic for over 24 years would likely have had an adverse effect on his condition over the years.  In any event, determining the actual cause and effective date of DDD is tenuous at best.

5.  Therefore, in the absence of more definitive evidence, it appears that the determinations made by the VA and PEB that his disease was not incurred in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period defined by law, and that his disability did not result from a combat related injury as defined in 26 USC 104 were correct and that there is an insufficient basis to grant his request.
 
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)                                         AR20140015698





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ABCMR Record of Proceedings (cont)                                         AR20140015698



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