MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           19 October 2000                  
	DOCKET NUMBER:   AR2000040585

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz 		Chairperson	
	Mr. Christopher J. Prosser 		Member	
	Ms. Tracey L. Pinson 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, physical disability discharge or retirement.  

APPLICANT STATES:  That she was in a wheel chair at the time of her discharge.  She had spent 51/2 weeks in an Army hospital, but was denied a medical board.  

On 18 August 1995, while hospitalized in Womack Army Hospital at Fort Bragg, North Carolina, the applicant requested assistance from a member of congress (MC).  She stated at that time that she was unable to walk without falling because of a trigger pain in her lower back.  She used a walker to go to the bathroom, and no further.  She was in excruciating pain and had been since     24 June 1995.  She needed medical treatment from unbiased doctors and needed to be retained on active duty until she was able to stand without falling.

The applicant provided the MC a history of her difficulties, stating that she fell about 25-30 feet from an obstacle course in 1987, landing on her lower back/tailbone, and has had recurring back pain radiating down to her left leg, for which she takes muscle relaxers, motrin, physical therapy, and bed rest.  The last time she was treated for pain was in November 1994.  In January 1995 she requested separation from active duty under the voluntary separation incentive (VSI) program to be effective on 1 August 1995.  

She was mopping her floor on 24 June 1995 when her back pain returned.  She did not want to go to the emergency room, because she was scheduled for surgery (dilatation and curretage, and laparoscopy, because of two positive pap smears and uterus biopsy), and she did not want anything to interfere with her surgery.  She endured pain for five days.  Her doctor postponed surgery because she could not walk and because she was in too much pain.

She stated that she went to the emergency room clinic for her back pain on          28 June 1995.  She outlined her difficulties with her treatment for her back pain and the alleged indifference of medical personnel to her plight.  She stated that she had to call the 44th Medical Brigade commanding general, a brigadier general, in order to obtain help.  She received a pain injection, sleeping pills, and a referral for an MRI and was sent home.  She saw another doctor on                  5 July 1995, who arranged physical therapy for her.  She stated that even with physical therapy she was in pain and had problems driving her car.  She tried to convince the hospital commander that she should be hospitalized.  Eventually, she saw a neurologist, who informed her that her pain was muscular, not nerves. That doctor stated that he would talk with the other doctors who treated her, and have her put on medical hold until she was able to get on her feet.  However, that doctor later denied that he said that.  On 17 July 1995, she was admitted to the hospital, but only because of the intervention of the 44th Medical Brigade commander.  She was treated, to include receiving a spinal injection, and was released to her home on 21 July 1995.  The pain returned, however, and she requested help from the hospital commander, stating that she could not bear the pain, that she could not care for her two children because of the pain, and that she fell twice while at home.  She stated that her separation date was approaching, and she needed her family taken care of financially.  She requested that she be extended on active duty until she was able to support her family.  He stated that he would extend her on active duty until 1 September 1995.

She was admitted to the hospital on 26 July 1995 and she was still a patient as of the date of the letter (17 August).  Neither her medical nor her administrative needs were being met.  Her treatment was hindered because the neurologist stated that he could not find any reason for her pain.  She could tell that he was not concerned about her condition.  He expressed his belief to two other doctors, who worked for another doctor, who was unconcerned about her condition and who did not want her extended on active duty.  She had to take a new psychological test, and the neurologist indicated in her chart that he doubted that she was in real pain.  The neurologist indicated that her pain might be due to her pending separation.  She fell while in her hospital room, and was assisted to her bed, and she fell once again on 2 August while going to physical therapy.  A neuro-muscular specialist examined her on 9 August, in the middle of the floor.  She fell.  He made no attempt to break her fall or to help her in getting up.  He stood there and watched her pull herself up.  He did not document that he pressed her trigger point.  There is poor documentation concerning her condition, and if her medical records went before a board, the board would not get a true picture of her physical condition.  She needed a decision to extend her on active duty again to keep her pay check coming in so she can take care of her family.    

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered on active duty on 26 September 1986 and remained on continuous active duty until her discharge in the grade of Captain in 1995.

The applicant has a history of back pain, in addition to other ailments since her entry on active duty.

A 12 November 1986 medical record shows that the applicant was treated for unresolved lower back pain and bilateral leg pain, which she had for three weeks. That record indicated that she fell while running.  

She was seen for chronic lower back pain on 23 December 1987.  The medical record shows that she stated that her pain began after a fall over an obstacle course, that her pain was intermittent and occurred approximately once a year.  She was hospitalized once for back pain.  She delivered a baby in September 1987.  She had been in pain for two weeks.  She was approximately 30 pounds heavier.
A 4 January 1988 medical record shows that she underwent physical therapy for six days for low back pain.  A 6 May 1988 medical record shows that she was referred to physical therapy for back pain.

The applicant was treated on 23 October and again on 22 November 1989 for right shoulder pain.  She was seen again on 21 December 1989, 11 January and 18 January 1990 for her right shoulder pain.  She was referred to orthopedics for a rotator cuff injury.  She continued receiving treatment in 1990 and early 1991 for her shoulder pain.  An 18 September 1990 record shows that her condition was diagnosed as recurrent right shoulder subluxation.   

The applicant was treated for back pain in October 1991, stating that her pain was a continuing problem, and requesting physical therapy.  A 31 October 1991 medical record shows that she attended a back class on 21 October 1991.

The applicant was treated for pelvic pain on 16 April 1993 and again on             30 April 1993.

On 14 November 1994 she was treated for lower back pain.  She indicated that the pain radiated down her left leg and localized on her tail bone and when she walked the pain radiated up to her buttocks.  The last episode of her pain was one year prior.  She stated that her back pain had existed since 1987.  She was referred to physical therapy on 16 November.

The applicant underwent a CT of the lumbosacral spine on 2 December 1994, which indicated a broad based disc bulge at L4-5.  There did not appear to be significant spinal stenosis or neural foraminal encroachment.  It indicated a broad based disc bulge at L5-S1 with mild bilateral neural foraminal encroachment.  

A 28 June 1995 medical report shows that she was seen for acute lower back pain, which she had for four days, and which she said was the worse she had ever had, with the pain being over her tail bone and down both legs.  The report indicates that the applicant was in obvious distress, in a wheel chair.  Medication was prescribed and an MRI scheduled.  She was given bed rest for 48 hours. 

On 5 July 1995 and again on 12 July 1995 she was seen for her back pain, at which time she commented on her problem driving and her extreme pain.  On     5 July she was referred to physical therapy.  On 12 July the doctor described her condition as sacral – coccyx pain, and L4-5 and L5-S1 bulge and possible encroachment on S1 based on previous CT objective findings.  The doctor stated that the applicant had compensation concerns due to her pending separation.  She was again seen on 13 July 1995.  She was seen again on 18 July 1995 for severe lower back pain, and referred to orthopedics.  The applicant was referred to anesthesia pain service on 19 July 1995.

The applicant was seen for her low back pain on 7 August and again on               9 August 1995.     

A 9 August 1995 medical report shows that her D&C surgery was cancelled because she developed low back pain.

A 17 August 1995 line of duty investigation shows that the applicant hurt her back when she bent over while mopping the floor.  That report indicated that she had a prior back injury going back to 1987 when she fell off an obstacle.  Her     17 August 1995 injury was determined to be in line of duty.

The applicant was given a temporary physical profile of “2” for low back strain on 24 August 1995, with the notation that she required a walker/cane for ambulation. She was expected to improve.

A narrative summary provides a history of her back pain and her treatment thereof.  That summary shows that she had an MRI in November 1994 which revealed bulges at L4-L5 and L5-S1.  A workup thereafter included a follow up MRI which showed a small bulge at L4-L5 which was not impinging on the thecal sac.  She also had a bone scan on 14 July 1995 which was negative.  She was admitted from 17 to 21 July 1995 and was evaluated by neurology which did not find a cause for her herniated nucleus pulposus.  She was seen by orthopedics on 18 July 1995 which felt that there was minimal disc bulge and agreed that there was no physical evidence of a herniated nucleus pulposus.  She was seen on 20 July 1995 and given the first lumbar epidural steroid injection and later received an additional injection, as well as trigger point injections.  She was evaluated initially on 20 July 1995 by psychiatry and given an Axis I diagnosis of psychological factors affecting medical condition.  Axis II was deferred with further psychological testing recommended.  She was started on medication and discharged from the hospital on 21 July 1995, but readmitted on 26 July 1995. 

That summary showed that her past medical history was significant for low back pain, dysfunctional uterine bleeding, chronic pelvic pain, history of pelvic inflammatory disease, bilateral plantar fascilitis, and bilateral stress fractures of her shins.  Prior surgical history included bilateral breast cyst biopsies, ruptured ovarian cyst and laparoscopy, right rotator cuff repair, and bilateral tubal ligation.

A physical examination showed that the applicant was an obese female in distress whenever she moved but in no distress when lying still.  Among other findings, back examination was significant for a decreased range of motion secondary to pain.  She also had bilateral S1 joint tenderness to palpation, left side greater than right side, with radiation of pain down her leg.  On straight leg raises bilaterally, she had back pain only and no radiation.  At the time of her admission, it was felt that she had recurrent low back pain without physical findings consistent with a herniated nucleus pulposus or sciatica.  She was brought into the hospital to continue work up for her low back pain.  

The summary indicated that she had numerous consultations, to include physical therapy.  She received a second epidural steroid injection, followed by trigger point injections, which showed initial relief for approximately three days.  Neuropsychiatric testing doubted that she was a malinger, but indicated that she had a personality which increased her pain perception.  An EMG and NCV were read as a normal study.  During the hospitalization, she had surgery that had previously been scheduled for her chronic pelvic pain.  On 14 August 1995 she was prepared for discharge [from the hospital].  She had a complete evaluation for low back pain to include MRI, bone scan, EMG, and NCV.  She received numerous therapeutic modalities to include physical therapy, anesthesia pain clinic, medications, and had been evaluated by neuropsychiatric testing.  Throughout all the testing, there was no clear etiology for her low back pain.  She also had a diagnosis for chronic pelvic pain, with no clear etiology.  The applicant was sent to a doctor at the Southeastern Regional Rehabilitation Center on       18 August 1995 for a second opinion.  He agreed with the diagnosis of musculoskeletal lower back pain, and recommend a vigorous, twice a day physical therapy program.  She underwent the program from 21-24 August 1995, and was ready for discharge. 

In a 28 August 1995 letter to a MC, the deputy commander for clinical services at Womack Army Medical Center at Fort Bragg, North Carolina, stated that the applicant had no physical, radiologic, or neuro-muscular findings that documented any lesion (such as a disc) which could explain her back pain.  He stated that after extensive testing and evaluation, it was determined that she needed to go home and resume her daily activities, in that recent studies showed that method of treatment could be much more effective than continued in-patient treatment, especially when there were no findings to explain her pain.  He stated that he allowed the applicant a 30 day extension on active duty, but told her that unless she was found to have a condition for which she would have been medically boarded, she would separate at the end of that time.  Her condition did not fit that category and she would be separated on 1 September 1995.  He informed the MC that if she had further claims, she should go to the VA.

An 11 September 1995 record of inpatient treatment shows that the applicant was admitted to the hospital on 26 July 1995 with a diagnosis of low back pain and chronic pelvic pain, and was discharged to duty on 24 August 1995.

The applicant was released from active duty and transferred to the Army Reserve Control Group at St. Louis on 1 September 1995.  She had 8 years, 11 months, and 6 days of service, 8 months and 10 days of prior active service, and 4 years, 3 months, and 27 days of prior inactive service.  She was released under the provisions of Army Regulation 635-100, chapter 3, Section XVI, under the voluntary separation incentive early release program.  Her DD Form 214 indicates a VSI payment of $9867.00 for 19 years.

A 2 October 1995 rheumatology consultation report indicates that the applicant’s condition was diagnosed as fibromyalgia, manifested by multiple trigger points, and chronic pain syndrome.

The applicant was treated on 10 October 1995 for her back pain.  She was seen by a rheumatologist who indicated a diagnosis of fibromyalgia, and recommended physical therapy. 

Medical records in December 1995 show that the applicant was seen on eight occasions for lower back pain, cuff cellulitis, chronic pelvic pain, and abdominal (lower) pain.  She was hospitalized from 14 December to 21 December 1995 for cuff cellulitis.

In a 5 December 1996 letter an individual stated that the applicant was his patient and had been diagnosed with fibromyalgia since October 1995, and that the condition rendered her totally and completely disabled and unemployable.  She was on the maximum dosages for all of her medications for her condition.  He stated that she should receive 100 percent disability with all benefits and compensations to which she was entitled.

A 26 December 1996 rheumatology consultation report indicated that the applicant still used her cane for ambulation, and that she had various medical problems, to include her left shoulder and her knees constantly aching.  The physician diagnosed her condition as fibromyalgia, recalcitrant disease with multiple trigger points, and chronic lower back pain. 

On 1 February 1999 the applicant was assigned to the Retired Reserve because of her non-selection for promotion.

Army Regulation 635-100 then in effect, provides the authority for the separation of commissioned officers from the active Army.  Section XVI provides the rules for processing voluntary relief from active duty, and states that if eligible, an officer may request relief from active duty whenever such action is considered appropriate.

A soldier approved for separation under the VSI program is paid an amount equal to 2.5 percent of her monthly basic pay on the date transferred to the Ready Reserve, multiplied by twelve and multiplied again by her years of service. A soldier will be paid in annual installments commencing on her departure date from active duty, and on each anniversary date thereafter for twice the number of years of active duty, provided the soldier continues to serve in the Ready Reserve.  VSI annual payments will be discontinued if the member is separated from the Ready Reserve, except under certain conditions, i.e., the soldier’s death.

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

Army Regulation 635-40 establishes the Army physical disability evaluation system 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.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the Medical Evaluation Board (MEBD) determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a Physical Evaluation Board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendations to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was on active duty from 26 September 1986 until her discharge on 1 September 1995.  Her medical records show that she had problems with her back throughout her years of service; nonetheless, she was capable of performing her duties.  Her back pain was apparently intermittent, occurring for the most part, once a year or even less.

2.  She was, however, seen, examined, tested, and treated for her back pain on numerous occasions in the few months preceding her discharge.  She had numerous consultations, was prescribed various medications, underwent injections, and physical therapy.  Nevertheless, competent medical personnel determined that she did not have a medical condition that required referral to a medical board.  Consequently, she was separated from the active Army and transferred to the Reserve in accordance with her request.

3.  Notwithstanding her contentions, the applicant has submitted no medical evidence to demonstrate an injustice in the medical treatment received in service.  Medical personnel did all that they could to treat her and to alleviate her back pain, as evidenced by the numerous tests and treatments that she received. 

4.  Although there is no evidence that the applicant has received a disability rating by the VA, the award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before she can be medically retired or separated.

5.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify her for VA benefits based on an evaluation by that agency.

6.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

7.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___cjp___  ___ewl__  ___tlp___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040585	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.