IN THE CASE OF:  	  

		BOARD DATE:  5 May 2015	  

		DOCKET NUMBER:  AR20140016389 


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, a review of his 2000 medical separation from the Army to show a higher rating and a subsequent medical retirement.  

2.  The applicant states the rating given by the physical evaluation board (PEB) does not equate to the seriousness of the injuries he sustained while on active duty.  The rating was only for his back when it should have included a rating for the loss or removal of his kidney.  He adds: 

	a.  He requests a review and increase of the decision(s) of the PEB's finding on 9 December 1999 in which he was given a 20 percent disability rating and medical discharge (16 February 2000) rather than a higher disability rating and a permanent medical retirement for injuries he received in the line of duty.  The reasons why he believes the PEB should have granted him a higher disability rating and placed on permanent medical retirement is because the rating does not equate to the seriousness of the injuries he received while performing his last Airborne operation on 16 December 1996, nor does it reflect his other disabilities that are a result of the landing of said Airborne operation.  

	b.  The landing from the Airborne operation is what caused his chronic lower back (L5-S1) pain, herniated disc, degenerative disc disease, and the removal of his right kidney.  The specific cause of the injuries is from landing directly on his right canteen (with metal cup) on the drop zone's Flight Landing Strip (FLS), which is as hard as concrete so aircraft can land on and take off from the drop zone.  This injury caused, and still causes, him an excruciating amount of pain on a daily basis and is getting worse as time goes by.  Due to the severity of his injuries, he was put on a permanent T-3 physical profile with a PULHES of  "1-1-1-3-1-1" and the limitations of "No crawling, stooping, running, jumping, marching or standing for long periods."  The Board should also notice that the profile stipulates in blocks 3, 5, and 7 that he was unable to perform any of the actions listed.  He would like to point out that this issue went undiagnosed and untreated for a couple of years.  The doctors he saw either didn't believe he was injured as bad as he was or they thought it was his kidney causing his pain.  It wasn't until his kidney was removed that they started taking his back pain claims seriously and sent him to get x-rays and a MRI.  

	c.  The landing also injured the right side of his urinary tract causing hydronephrosis.  This was actually found by accident when he was going through a bone scan for his lower back pain.  The diagnosis was that the canteen smashed his ureter causing scar tissue to grow and prevent urine from leaving his kidney.  He went through several surgeries (stint placement) to try to open the ureter, however, none worked.  Therefore, the Army decided the best course of action was the removal of his right kidney.  This took place in January of 1999 at Fort Gordon, GA, and has left him with a large, painful scar on his right flank.  The PEB did not take the kidney removal into consideration at the time of his review, nor was it part of his disability rating.  He still does not understand how they could do this as the loss of an organ is a major disability.  However, after reading Army Regulation (AR) 40-501 (Standards of Medical Fitness) he found that this should have been part of the PEB's review and determination.

	d.  Secondary to all of that, he was also battling depression, which had gone undiagnosed and untreated until November of 1997 when he was finally prescribed antidepressants.  The depression was an issue that he dealt with throughout the entire PEB process and still deals with to this day.  Again, the PEB did not take this into consideration at the time of his review, nor was it part of his disability rating.  However, after reading AR 40-501 this should have been part of the PEB's review and determination.  Also, at the time of the PEB the Judge Advocate officer assigned to his case stated that he would not get an increase above 20 percent due to age (he was 27 at the time).  He stated that he was too young for the board to even consider an increase to his rating and grant a medical retirement.  His age should never have been a factor in any of this as his injuries left him permanently disabled.  Although this may not mean anything, it should be noted that his current disability rating from the Department of Veterans Affairs (VA) is 70 percent which is around where he thought the PEB would rate him.

	e.  As the Board will find from the statements above and from reviewing his medical records, he is the victim of a huge injustice by the original PEB as he was not given a rating equivalent to the severity of his back injury, no rating for the removal of his right kidney, nor the depression that resulted from his injuries. It is for those reasons that he feels a higher disability rating and permanent medical retirement needs to be granted. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Multiple in-service Chronological Records of Medical Care
* DA Form 3947 (MEB Proceedings)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 502 (Narrative Summary (NARSUM))
* DA Form 199 (PEB Proceedings), informal and formal
* Separation memorandum

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 9 March 1993 and he held military occupational specialty (MOS) 92A (Automated Logistical Specialist).  He was assigned to Headquarters and Headquarters Company, Division Artillery, Fort Bragg, NC.  He reenlisted on 10 September 1996. 

3.  In or around June 1996, he developed pain during a unit run.  His injury was determined to be in line of duty.  Additionally, on or about 13 December 1996, he had a parachuting incident when he had a bad landing.  He landed on his canteen and his right flank and subsequently sought care for right low back pain. 

4.  On 1 May 1997, he complained of prolonged low back pain.  His narrative summary (NARSUM) shows he reported to the troop medical clinic for evaluation of his low back pain.  
	a.  This low back pain developed several months earlier in December 1996 when he had an airborne operation and landed on a canteen.  This is when his pain began.  He had had extensive physical evaluations, therapy, non-steroidal non-inflammatory drug analgesics, etc.  All this did not produce any improvement.   He had persistent tenderness to palpation over the lumbosacral paraspinal muscles.  His low back pain was not confined strictly to that area but also radiates down his lower extremities.  X-rays of low back were normal and bone scan was normal in terms of spine and sacroiliac joints.  He had a hydronephrotic condition noticed in the bone scan which is worked up and he finds it very difficult to do physical training. 

	b.  His condition was determined to have failed retention standards in accordance with chapter 3 of AR 40-501, paragraph 3-41e(2).  His diagnosis is that of low back pain that is recalcitrant to medical therapy.

5.  On 14 May 1997, a medical evaluation board (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 conditions of low back pain that is recalcitrant to medical therapy.  The MEB recommended his referral to a PEB.  He was counseled on 2 July 1997, agreed with the MEB's findings and recommendation, and indicated he did not desire to continue on active duty.  The MEB proceedings were approved.

6.  On 20 May 1997, he was issued a permanent physical profile for chronic low back pain.  His profile listed the assignment limitations of no crawling, stooping, running, marching, or standing for long periods.  

7.  He continued his medical evaluations, therapy, and examinations until March 1999 when he was examined at Fort Leonard Wood, MO for continued chronic side and low back pain.  He underwent a physician-directed MEB secondary to medical conditions mandating permanent L3 profile in his PULHES.  An MRI, dated 10 March 1999, revealed degenerative disc disease at L5-S1 with moderate sizes broad-based lateral herniated nucleus pulposus.  Otherwise, unremarkable MRI for lumbar spine.  His diagnosis is as follows: 

* Chronic low back pain with herniated nucleus pulposus at L5-S1 level
* Right L5-S1 radiculopathy
* Persistent right flank pain
* Hypertriglyceridemia 

8.  His updated NARSUM shows he failed to meet retention standards in accordance with AR 40-501 and he should be referred to a PEB for further adjudication.  
9.  On 15 November 1999, another MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the below medically-unacceptable conditions.  The MEB recommended his referral to a PEB.  

Condition
Met retention standards 
Did not meet retention standards 
1.  Chronic low back pain with herniated nucleus pulposis 

X
2.  Right L5-S1 radiculopathy

X
3.  Persistent right flank pain

X
4.  Hypertriglyceridemia
X

5.  Left hamstring injury
X

6.  S/P meniscus repair
X

10.  On 16 November 1999, his commander rendered a commander's performance statement.  He stated the applicant was no longer able to perform all physical requirements of a 92A under field conditions.  He is required to frequently lift 50 pounds and carries 500 feet.  His physical limitations were restrictive.  He had been on profiles since his arrival to the unit in June 1997 which prohibited him from taking the Army physical fitness test.  He should be referred to the disability system. 

11.  On 9 December 1999, 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 intervertebral disc syndrome with right L5-S1 radiculopathy manifested by depressed ankle reflex and electromyography studies, MRI.  His functional limitations in maintaining the appropriate level of mobility, caused by the above impairment, made him medically unfit.  

	b.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 5293, and granted a 20 percent disability rating.  The PEB also considered his other condition but since they did not fail retention and/or were not unfitting, they were not ratable.  The PEB recommended his separation with entitlement to severance pay, if otherwise qualified. 

12.  On 17 December 1999, the applicant was counseled by a PEB Liaison Officer who explained to him his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, the difference between an informal and formal PEB, and the role of the U.S. Army Physical Disability Agency (USAPDA). He elected not to concur with the PEB's findings and recommendation, waived his right to formal hearing, and submitted a written appeal.  

13.  On 23 December 1999, the USAPDA advised him that he would appear before a formal hearing at Madigan Medical Center on 21 January 2000.  He was also informed of his rights to counsel, witnesses, etc.   

14.  On 14 January 2000, he submitted a consultation report in relation to right flank pain.  The report states: 

	a.  This is in relation to the applicant's status post back injury during an airborne jump in 1996.  He was subsequently seen by his doctor for right ureteral obstruction.  According to the record this was thought to be due to scar tissue around the ureter, possibly from the jump.  He underwent right endopyelotomies x2 with continued obstruction and decreasing function of the kidney and because of the low function of the kidney in January 1999 he underwent a right simple nephrectomy.  He continues to complain of right flank pain right in the incision of approximately 4/10 occasionally increasing to 10/10.   Nothing specific brings this on and it will be a sudden onset of increased pain and will gradually resolve. 

	b.  The pain has not been helped with conservative treatment.  He also complains about right inguinal pain and to the right anterior thigh.   He does have a history of a herniated nucleus' pulposi at L5-Sl and the pain was always thought to be part of that.  

15.  On 19 January 2000, after consulting with his counsel, and after having been counseled by his PEBLO he concurred with the PEB's findings and recommendation and waived his right to formal hearing of his case.  He noted that despite this agreement, he still felt the PEB should have rated him higher for the loss of his kidney and the pain in his herniated disc.  He also noted that he understood that without objective medical evidence, beyond pain, the PEB is unlikely to change its initial rating.

16.  He was honorably discharged on 16 February 2000 under the provisions of paragraph 4-24e(3) of AR 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 6 years, 11 months, and 8 days of active service. 

17.  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 Physical Disability Evaluation System (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 AR 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 AR 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.

18.  AR 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.

19. AR 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.  

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.

21.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a back injury during a unit run and later during a bad parachute landing.  He continued to experience pain and discomfort.  He was seen by various medical specialists and recommended for entry into the PDES due to chronic low back pain.  He underwent an MEB which recommended his referral to a PEB.  

2.  However, he continued to have discomfort and chronic pain with the side and his low back.  He subsequently underwent a physician-directed MEB secondary to medical conditions mandating permanent L3 profile in his PULHES.  The updated MEB diagnosed him with three physical conditions that did not meet retention standards, listed below.  He was not diagnosed with any behavioral health conditions.  Likewise, his kidney condition was not found to have failed retention standards. 

* Chronic low back pain with herniated nucleus pulposis
* Right L5-S1 radiculopathy
* Persistent right flank pain

3.  The MEB referred him to a PEB.  The informal PEB determined that he was physically unfit due to intervertebral disc syndrome with right L5-S1 radiculopathy manifested by depressed ankle reflex and electromyography studies, MRI.  His functional limitations in maintaining the appropriate level of mobility, caused by the above impairment, made him medically unfit.  He was rated under VASRD Code 5293 and granted a 20 percent disability rating. 

4.  The PEB also considered his other condition but since they did not fail retention and/or were not unfitting, they were not ratable.  The informal PEB recommended his separation with entitlement to severance pay, if otherwise qualified.  He did not concur and submitted a rebuttal.  Although not available for review, it appears his rebuttal was considered but found it lacked objective medical evidence, beyond pain.  He ultimately concurred with the PEB's findings and recommendation and waived his right to formal hearing of his case.  He was discharged by reason of disability on 16 February 2000. 

5.  The reason for the applicant's entry into the PDES was pain (low back, L5-S1, and right flank pain).  The injury originated during a unit run and was made worse during a bad parachute jump.  This is the only condition that failed retention standards and was found unfitting.  His disability rating was not intended to be a prediction of his future medical condition.  The fact that he may have later developed new medical issues does not invalidate the PEB determination.

6.  The applicant may have had his kidney removed but he was still able to function in his former grade and military specialty.  According to his medical records at the time he received treatment for this condition and it resolved then.  Since it resolved, it no longer failed retention standards and/or was found unfitting.  Conditions that are not unfitting are not ratable or compensable.  Likewise, conditions that are not unfitting are neither assigned a VASRD Code nor a rating.  A key element of the Army's disability system is the Soldier's condition at the time of separation.  His contention that this or any other condition may have worsened with time is noted but rejected.  Conditions that worsen after a Soldier is separated may be treated by and are compensated for by the VA.

7.  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

8.  There is no evidence in his records and he provides none that show he suffered from and was diagnosed by competent medical authorities with any mental or behavioral health conditions, including depression.  His contention that he suffered from a possible behavioral health condition (depression) is not supported by any evidence.  

9.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

10.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation (emphasis added).  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.  VA decisions are not within the purview of this Board.  

11.  The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated his condition 20 percent disabling.  There is no evidence that 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.

12.  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)                                         AR20140016389



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ABCMR Record of Proceedings (cont)                                         AR20140016389



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