IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140017068 


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:

	a.  correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 22 March 2011:

		(1)  by deleting the entry:

Soldier reported onset September 2004 after jump in airborne school but Soldier seen 22 July 2004 for back pain following weight lifting some two-weeks earlier (AHLTA [Armed Forces Health Longitudinal Technology Application]) which is why the PEB concluded (10A/C-No) [references item 10 of DA Form 199].

		(2)  showing his injury was sustained by a blunt trauma airborne jump and was a direct result of hazardous duty and a simulation of war; and

	b.  approval for continuation on active duty (COAD) and retroactive credit for 20 years of active Federal service (AFS).

2.  The applicant states, in effect:

	a.  He requests correction of the results of his PEB and finding his injury was consistent with the airborne injury, and this injury was a direct result of hazardous duty and a simulation of war as defined by the Combat-Related Special Compensation (CRSC) Program.

	b.  He believes there is an error in the description section of the PEB because it states he reported the onset of his lower back pain in September 2004 after a jump in airborne school, but he was seen on 22 July 2004 for back pain following weight lifting some 2 weeks earlier.  He contends this is why the PEB concluded his retirement was not based on disability from 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 period of war as defined by law, and his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104, and for purposes of Title 10, U.S. Code, section 10216(g).  This information does not reflect the truth.

	c.  There is an error in the chronological medical events, but the PEB only conducted a snapshot in time of one event and did not capture the entire history of the medical event.

3.  The applicant provides:

* COAD request, dated 29 June 2011
* email from the PEB counselor, dated 6 July 2011
* DD Form 689 (Individual Sick Slip), dated 5 November 2003
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 2 December 2003
* Quarters Authorization, dated 22 July 2004
* magnetic resonance imaging (MRI) findings, dated 17 November 2006, 21 November 2006, and 10 November 2008
* nerve damage report, dated 28 April 2009
* physical medicine report, dated 2 September 2010
* Oxford Journals (London, England) Occupational Medicine, Volume 49, article titled, "Military Parachuting Injuries:  A Literature Review"
* Optional Form 275 (Medical Evaluation Board (MEB) Summary), dated 4 September 2014
* DA Form 199

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 24 March 1989.  He was discharged from the USAR DEP on 12 April 1989 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 13 April 1989.  On 17 December 1995, he was honorably released from active duty and transferred to a USAR troop program unit.

2.  Records show he completed airborne training in October 2003.

3.  He provided an incomplete DD Form 689, dated 5 November 2003.  It cannot be determined whether the slip is for an illness or injury since this section is blank.  The remarks section pertains to physical training instructions.

4.  He provided a DA Form 2173, dated 2 December 2003, which states he jumped out of an airplane in airborne school in October 2003 and landed, injuring his left knee, right shoulder, and head.

5.  He provided a 6th Medical Operations Squadron, MacDill Air Force Base, Emergency Nursing Record, dated July 2004, which shows he was treated for back pain after lifting weights.

6.  He was promoted to sergeant first class effective 1 November 2004.

7.  He entered active duty on 23 March 2005.

8.  His complete MEB Proceedings are not available for review.  However, his MEB Summary, dated 4 September 2014, shows:

	a.  The applicant's chief complaint was lower back pain for over 7 years.  He was referred to the MEB for back pain by the unit surgeon.

	b.  The applicant reported his history as follows:

		(1)  He volunteered to join the Army in March 1989.  For the first 16 years of his military career he was a human resources technician and because of his desire to improve himself, he decided to "step outside the office" and show his desire to expand his horizons.

		(2)  He successfully underwent selection for airborne training and he attended the airborne school in September 2004.  Unfortunately, the wind shifted unexpectedly during his last night jump and he landed with a hard impact.  He experienced immediate lower back pain.  He was able to finish the maneuver despite the pain and graduated the next day.  A few days later he was seen for his back pain and conservative treatment was offered.

		(3)  Over the next several years, he continued to perform all of his primary military occupational specialty (MOS) duties as well as his common military duties despite back pain.  He successfully deployed for a year, scored "excellent" in his Army Physical Fitness Tests, and had "excellent" evaluations regarding his Army responsibilities.  In August 2010 during a field exercise, he injured his back while lifting heavy tent parts.

		(4)  He was eventually evaluated by the Physical Medicine Clinic and in September 2010 an MRI revealed "[m]oderately advanced degenerative disc disease involving L4-L5 and L5-S1 levels, with broad-based disc bulges noted at both of these levels.  There is a posterior central extrusion containing an annular tear at L4-L5 level."  Based on the x-ray finding and 7 years of non-disabling discomfort, he was given a permanent physical profile rating of 3 and referred to the MEB process.

	c.  The physician noted the applicant's medical record review appeared to be consistent with his story.

	d.  He was diagnosed with lower back pain secondary to degenerative disc disease with herniation.  The following diagnoses met retention standards:

* obstructive sleep apnea
* hypertension
* migraine headaches
* hyperlipidemia
* allergic rhinitis

9.  On 22 March 2011, a PEB found him physically unfit due to intervertebral disc syndrome.

	a.  Item 8 (The board considered the member's condition described in the records.  Each disability is listed below in descending order of significance.) of his DA Form 199 shows the disability description for the condition of intervertebral disc syndrome states:

DA Form 3947 (MEB Proceedings) lists low back pain secondary to degenerative disc disease with herniation.  This is not a battle injury and it was not caused by an instrumentality of war, and did not occur in a theater of combat (10A/C/D-No).  Soldier reported onset September 2004 after jump in airborne school but Soldier seen 22 July 2004 for back pain following weight lifting some two weeks earlier (AHLTA) which is why the PEB concluded (10A/C-No).

	b.  The PEB recommended his permanent retirement with a 40-percent disability rating.

	c.  Item 10 (If retired because of disability, the board makes the recommended finding that), subparagraph A, of his DA Form 199 states his retirement is 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 incurred in the LOD during a period of war as defined by law.

	d.  Item 10, subparagraph C, of his DA Form 199 states the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104, and for purposes of Title 10, U.S. Code, section 10216(g).

10.  On 29 March 2011, the applicant concurred with the PEB findings and waived a formal hearing.

11.  On 27 April 2011, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB findings.

12.  His records contain a memorandum from the USAPDA, dated 27 April 2011, which states the applicant's request for COAD was denied by the U.S. Army Human Resources Command.

13.  On 1 December 2011, he retired by reason of permanent disability.  He completed 16 years, 4 months, and 9 days of total active service.

14.  In a request for reevaluation of his PEB results, dated 15 September 2014, the applicant stated:

	a.  He was given the PEB results in May 2011 and he was "directed" by the PEB advisor that he had only 10 days to review the document, sign it, and return it.  Most importantly, he was informed that he must seek advice from another PEB advisor, but that advisor was on temporary duty and was not available within his allowable 10-day time limit.

	b.  His agenda is to show the fabrications of the PEB findings, the PEB's lack of adept investigation, and how this has wrongfully tainted the views of his PEB.  He served on "active duty" from March 1989 to December 2011 (17 years AFS and 4 years of Reserve duty).

	c.  He should have been awarded full credit for his 20-year AFS obligation.

	d.  The PEB documentation stated the evidence they gathered from the "DA Form 3947 list [sic] low back pain secondary to degenerative disc disease with herniation.  This is not a battle injury and it was not caused by an instrumentality of war, and did not occur in a theater of combat (10A/C/D-No)" subsequently denied him COAD.

	e.  The PEB disability description section stated, "Soldier reported onset September 2004 after jump in airborne school but Soldier seen 22 July 2004 for back pain following weight lifting some two weeks earlier (AHLTA) which is why the PEB concluded (10A/C-No)."  This information does not reflect the correct path to the reason(s) why the MEB medical doctor justifiably found with consistent evidence (narrative summary) that he was unfit due to an airborne injury incurred as a result of performing hazardous duty.  This currently incorrect information depicts a non-logical sequence of chronological medical events and does not reflect the true sequence of medical events as illustrated in his medical records that serves as a direct reflection of this blunt trauma parachute landing injury.

	f.  A Standard Form 600 (Chronological Record of Medical Care), dated 7 October 2003, shows he was physically qualified for airborne duty.  There is no documentation before that date that shows any type of back pain.

	g.  According to a medical report, dated 3 November 2003, he came in for a head/brain computed tomography.  This report states, "33 yo [year old] AD [active duty] male s/p [status post] Airborne jump 5 days ago."  According to the medical report, he sustained a blunt trauma airborne jump injury on 29 October 2003.

	h.  Since he was injured in October 2003, his injuries would be manifesting more so by September 2004.  His initial blunt trauma airborne injuries from 29 October 2003 were left knee, right shoulder, and head injuries.  His onset blunt trauma airborne injuries started becoming more prevalent once the shock began to wear off from the initial blunt trauma airborne injury that occurred on 29 October 2003.

	i.  As he returned to his normal daily activities, he began noticing subtle changes in his back.  In November 2006, he went to the doctor for an MRI of his lumbar spine.  A doctor stated that according to medical records, his back pain is progressively getting worse, which all stemmed from the 29 October 2003 blunt trauma airborne injury.  He had another MRI of his lumbar spine in October 2008.  In April 2009, he was seen for back pain radiating to his legs.  In September 2010, he was again seen for an unenhanced MRI of his lumbar spine.

	j.  It is a known fact that airborne injuries cause back injury, back contusions, back strains, and even back fractures.  There is documentation showing severe landings due to parachute mishaps may cause fractures.  There is not enough documented evidence showing severe landings due to parachute mishaps do not cause severe degenerative disc disease.

	k.  Service connection may be granted for a disability if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service.  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.

15.  Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or caused by an instrumentality of war.

16.  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.  Paragraph 6-7 of Army Regulation 635-40 states that to be considered for COAD, a Soldier must be:  (1) determined unfit by the Physical Disability Evaluation System for a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence; (2) basically stable or have a disability that is of slow progression according to accepted medical principles (it must not be deleterious to the Soldier's health or prejudicial to the best interest of the Soldier or the Army; for example, the disability must not pose a risk to the health or safety of other Soldiers); (3) physically capable of performing useful duty in MOS for which currently qualified; and (4) eligible under one or more of the criteria listed:

	a.  have 15 but less than 20 years of AFS;

	b.  be qualified in a critical skill or shortage MOS (such qualification must be confirmed in writing by the applicable personnel office and attached to the request); or

	c.  the disability resulted from combat or terrorism.

17.  Army Regulation 635-40 also states a Soldier may not be retained or separated solely to increase retirement or separation benefits.

18.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states eligible members are those retirees who have 20 years of service for retired pay computation – or 20 years of service creditable for Reserve retired pay at age 60 – and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the Department of Veterans Affairs (VA) and rated at least 10-percent disabling.  CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's MEB summary shows he was diagnosed with lower back pain secondary to degenerative disc disease with herniation.  The PEB noted this medical condition was not a battle injury, it was not caused by an instrumentality of war, and did not occur in a theater of combat.

2.  The PEB determined his disability (intervertebral disc syndrome) did not result from a combat-related injury.  He concurred with the PEB findings on 29 March 2011.

3.  He now contends an entry in the disability description section of his DA Form 199 is in error and should be deleted because it depicts a non-logical sequence of chronological medical events.

4.  He also requests correction of his DA Form 199 to show the PEB found his injury was sustained by a blunt-trauma airborne jump injury and was a direct result of hazardous duty and a simulation of war.

5.  The medical evidence of record shows:

	a.  In October 2003 while in airborne school, the applicant jumped out of an airplane and landed, injuring his left knee, right shoulder, and head.

	b.  In July 2004, he injured his back while lifting weights.

	c.  Despite back pain, he continued to perform all of his primary MOS duties as well as his common military duties.  He successfully deployed for a year, scored "excellent" in his Army Physical Fitness Tests, and had "excellent" evaluations with regard to his Army responsibilities.

	d.  In August 2010 during a field exercise, he injured his back while lifting heavy tent parts.

	e.  He was evaluated by the Physical Medicine Clinic and in September 2010 an MRI revealed "[m]oderately advanced degenerative disc disease involving 
L4-L5 and L5-S1 levels, with broad-based disc bulges noted at both of these levels.  There is a posterior central extrusion containing an annular tear at L4-L5 level."  Based on the x-ray finding and 7 years of non-disabling discomfort, he was given a permanent physical profile rating of 3 and referred to the MEB process.

6.  His DA Form 199 shows in:

	a.  the disability description section, "Soldier reported onset September 2004 after jump in airborne school but Soldier seen 22 July 2004 for back pain following weight lifting some two-weeks earlier (AHLTA) which is why the PEB concluded (10A/C-No)";

	b.  item 10A, his retirement is 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 incurred in the LOD during a period of war as defined by law; and

	c.  item 10C, the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104, and for purposes of Title 10, U.S. Code, section 10216(g).

7.  There is no evidence of record and the applicant provided no evidence that shows the entry, "Soldier reported onset September 2004 after jump in airborne school but Soldier seen 22 July 2004 for back pain following weight lifting some two-weeks earlier (AHLTA) which is why the PEB concluded (10A/C-No)," on his DA Form 199 is in error.  The evidence shows he reported the onset of his disability in September 2004 which, in fact, was well after his airborne school jump in October 2003.  The medical evidence shows he was seen for back pain in July 2004 following a weight lifting incident.

8.  There is no evidence showing his medical condition was combat-related or incurred under conditions simulating war.

9.  His remaining contentions were carefully considered.  However, there is no evidence in the available records and the applicant has not provided sufficient evidence showing his disability (intervertebral disc syndrome) was incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or caused by an instrumentality of war.  Therefore, there is insufficient evidence with which to amend his DA Form 199.

10.  The applicant contends his request for COAD was erroneously denied and he should be retroactively credited with 20 years of AFS.  However, the governing regulation clearly states a Soldier may not be retained or separated solely to increase retirement or separation benefits.  He was properly retired by reason of permanent disability effective 1 December 2011 and credited with 16 years, 4 months, and 9 days of total active service.

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)                                         AR20140017068



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ABCMR Record of Proceedings (cont)                                         AR20140017068



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