IN THE CASE OF:	  

		BOARD DATE:	    1 October 2015

		DOCKET NUMBER:  AR20140020001 

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 reconsideration of her previous request for correction of her:

	a.  DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) to show the following entries:

* chronic back pain was incurred while entitled to basic pay and did not exist prior to service
* right knee pain

	b.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show chronic back pain with muscle spasms.

2.  The applicant states, in effect, the evidence previously submitted shows unmistakable errors with her MEB.  Since her discharge the Department of Veterans Affairs (VA) awarded her a 20 percent service-connected disability rating for right knee pain due to surgery.  She currently has a claim and an appeal with the VA to establish a service-connected disability rating for her back pain.  In addition, she was diagnosed with major depression and anxiety which she states began when she was in the service.

3.  The applicant provides two DA Forms 2173 (Statement of Medical Examination and Duty Status), her post service medical records, and two letters of support.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130005832, on 14 November 2013.

2.  In the original findings the ABCMR found that her MEB determined that her chronic mid and upper back pain (nonsurgical) failed to meet retention standards and referred her to a PEB for further evaluation.  The PEB found that her scoliosis, along with her back pain that was secondary to her scoliosis, prevented her from performing the duties required of her grade and military occupational specialty (MOS).  This medical condition was listed as existing prior to service and without muscle spasms.  The board stated that lacking evidence of an unfitting diagnosis for her right knee, there were no evident procedural errors with her disability processing and recommended denying her relief.

3.  The medical documents provided by the applicant are additional evidence, which requires that her case be reconsidered by the ABCMR.

4.  The applicant had an MEB physical examination on 12 December 2002.  The narrative summary states the applicant enlisted in the Regular Army in August 1999 and served as a medical specialist.  Her records indicated that at the time of her military entrance processing examination in February 1999, scoliosis was noted but waived (initial curvature measured 12 percent).  The applicant contended she had no history of back pain prior to entering the Army.  Since being on active duty she had sought treatment for her back pain on several occasions and was referred to orthopedics for evaluation of her scoliosis.  Her treatment thus far included medication, physical therapy, and medical profile restrictions.  Repeated back surveys showed a levoscoliosis of 23 degrees.  Her medical records also showed that she injured her knee while playing football in January 2001 and she underwent surgery for a torn anterior cruciate ligament (ACL) in January 2002.  At the time of her MEB examination she denied any knee pain.  The MEB diagnosed the applicant with:

* chronic mid and upper back pain, non-surgical and scoliosis (did not meet retention standards)
* scoliosis (met retentions standards)

5.  Her corrected MEB, dated 4 March 2003, shows her chronic mid and upper back pain existed prior to service and there is no entry regarding a medical condition related to her knee pain.  The MEB recommended referral to a PEB and the applicant agreed with the board’s findings and recommendation on 7 March 2003.

6.  On 18 March 2003, the PEB evaluated her chronic thoracolumbar back pain.  The board noted that the onset of this condition was listed as basic training and was determined to be secondary to her scoliosis of 23 degrees which was present at the time of enlistment (18 degrees) and followed a course of normal progression without permanent service aggravation and with no evidence of muscular spasm.

7.  The PEB found the applicant’s condition made her physically unfit to perform the duties required of her rank and specialty.  The PEB recommended separation from the service without disability benefits because the unfitting condition was neither service incurred nor permanently aggravated by her military service.  Her impairment had increased based on its accepted normal and natural progression.
	
8.  On 20 March 2003, she indicated that she did not concur with the PEB's determination and waived a formal hearing; however, she did not attach a written appeal and she initialed a statement acknowledging that she understood that her failure to submit a written appeal could result in final processing of her case without review by Headquarters, U.S. Army Physical Disability Agency (USAPDA).

9.  On 18 May 2003, she was discharged due to physical disability which existed prior to service.  She completed 3 years, 8 months, and 25 days of creditable active service.

10.  The applicant provides two DA Forms 2173, which show:

	a.  She was evaluated at the Support Battalion, Troop Medical Clinic, Schofield Barracks, HI, for scoliosis on 1 December 2000.  She stated that "she had come into the service with the condition."  The condition had worsened due to daily activities (physical training, sit-ups, etc.) and she was pending a MEB.

   b.  She was evaluated at the same location on 6 December 2002 for her right knee injury.  She stated that she injured her right knee during physical training (football) on 3 July 2001.
   
11.  In addition, she provided:

   a.  Her post service medical records dated between 4 January 2011 and 4 June 2014, showing her treatment for right knee pain which included a wearing a knee brace, pain medication, injections, and physical therapy and treatment for her back pain which included adjustment to the thoracic region and lower back.

	b.  A letter from the Cumberland Chiropractic Clinic, Fayetteville, NC, dated 2 July 2014 wherein the doctor stated that she had treated other patients with scoliosis and did not believe that the applicant’s back pain was from her scoliosis.

	c.  A letter of support from a fellow combat medic wherein he states that he has seen the applicant walk with a limp most days and that she has told him that is because of the pain in her right knee.  She complained of lower back pain and contended that it was possibly due to her service as a combat medic.  He knew first hand that the rigors of being a Soldier can take a toll on a person physically and mentally.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

13.  Army Regulation 635-40 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of the performance of duty by supervisors may provide better evidence than a clinical estimate by the Soldier's physician describing the physical ability to perform the duties of the office, grade, rank, or rating.  Thus, if evidence establishes that the Soldier adequately performed the normal duties of his or her office, grade, rank or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty, even though medical evidence indicates the Soldier's physical ability to perform such duties may be questionable. 

14.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  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 request that her MEB/PEB documents be corrected to show that her back pain with spasms did not exist prior to service and to include her right knee pain due to surgery.

2.  The applicant contends that her back pain did not exist prior to service.  The evidence shows that the PEB determined that her back pain was due, in part, to her scoliosis (reported by the applicant during her entrance physical examination) which had progressed to 23 degrees and followed a normal course of progression without permanent service aggravation.  She provides a statement from her chiropractor wherein she opined that the applicant’s back pain was not due to her scoliosis.  This latter diagnosis is not in question.  However, medical diagnoses often differ, but this does not equate to an error, administrative or otherwise.  More likely it is the result of the subjective nature of medical diagnoses in general.  It must be noted that the PEB did not state that the sole origin of her pain was her scoliosis; however, this preexisting condition had progressed and there was no evidence of muscle spasms.  Absent evidence to the contrary, it is presumed that the military physician’s diagnosis was proper and formulated based on the symptoms exhibited by the Soldier at the time of the medical evaluation.

3.  In regards to her knee pain, the evidence of record shows that the applicant indicated that she was not suffering with any knee pain at the time of her MEB; therefore, this condition was not further evaluated by the PEB.  Further, the new evidence provided by the applicant does not show that she was not medically qualified to perform her military and specialty duties or that she failed to meet retention criteria because of this condition.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and effects the individual's civilian employability and/or social functioning.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings or finding other medical conditions to be service connected.

5.  The applicant's physical disability evaluation was conducted in accordance with the law and regulations in effect at the time, and although she did not concur with the findings and recommendations of the PEB in 2003, she failed to make a written appeal and also waived her right to a formal hearing.  With this decision, she agreed to accept the board’s decision.  Thus, there is no procedural or administrative error or an injustice in this case.

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 AR20130005832, dated 14 November 2013.




      _______ _   __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)                                         AR20140020001



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ABCMR Record of Proceedings (cont)                                         AR20140020001



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