RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 NOVEMBER 2005 DOCKET NUMBER: AR20050001690 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Deborah L. Brantley Senior Analyst The following members, a quorum, were present: Mr. Stanley Kelley Chairperson Mr. John Meixell Member Mr. Robert Duecaster Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his records be corrected to show that he was retired by reason of disability in 1998 rather than being placed on the Temporary Disability Retired List (TDRL). 2. The applicant states that the Army's assumption that they acted correctly in characterizing his disability rating as temporary did not apply in his particular case. He maintains that the TDRL was not fully undertaken and he may have been unfairly denied an increased level or rating. 3. The applicant notes that he was placed on the TDRL for a period of 5 years and as such should have remained on the TDRL until November 2003. He states, however, that he was removed from the TDRL in October 2002. He states that he was originally scheduled for a TDRL examination in May 2000, but that examination was not realized. He states that an examination in December 2001 proved to be his first and only TDRL examination. 4. The applicant states that in May and July 2002 physicians recommended that he be retained on the TDRL. He also notes that there is an unresolved question on his Medical Evaluation Boards (MEB) which failed to discuss a 1997 positive Lyme disease test, and a 1988 remark in his health records concerning a rash all over his body. He also states that in April 2003 a radiological examination noted abnormalities in his lumbar spine which he maintains may have been an oversight during his initial disability processing which could have resulted in his permanent retirement at that time, rather than being placed on the TDRL. 5. The applicant provides a statement, extracts from his service medical records, limited documents associated with his disability processing, and copies of radiologic examinations completed in 2003. CONSIDERATION OF EVIDENCE: 1. Records available to the Board indicate the applicant entered active duty on 5 December 1984 and served continuously through a series of reenlistment actions. 2. An extract from his service medical records notes that in June 1988 the applicant complained of a rash to medical personnel. He was prescribed Benadryl for the rash. There was no diagnosis of Lyme disease on the 1988 medical treatment document. 3. The applicant's performance evaluation reports indicated he consistently passed the Army's annual physical fitness test until March 1997 when a physical profile precluded him from taking the fitness test. 4. The applicant's complete disability process documentation was not in records available to the Board, but was limited to the following documents, or portions of documents provided by the applicant as part of his application to this Board. 5. A March 1997 physical profile noted the applicant suffered from spondylolisthesis (stress fracture of a vertebra which weakens the bone so much that it is unable to maintain its proper position and the vertebra can start to shift out of place) and neurogenic claudication (pain in the legs that occurs with exercise and may be relieved with rest) and chronic fatigue syndrome. His P-3 profile precluded heavy lifting, running, and riding in tactical vehicles. 6. On 12 March 1997 the applicant underwent a medical evaluation as part of a MEB. The evaluating physician noted the applicant was 30 years old and had a history of several years of intermittent low back pain which became more constant in the last 1 to 2 years. The applicant also reported intermittent bilateral buttock and posterior leg paresthesias, which typically occurred when standing erect for greater than 15 minutes. He denied focal weakness in his lower extremities, no decrease in bowel or bladder function, and denied persistent numbness in his lower extremities. The applicant also complained of intermittent episodes of vertigo, and headaches consistent with migraine headaches. However, on follow-up the applicant noted the headaches only lasted 20 to 30 minutes, were relieved with Motrin, and that he had not missed any work due to the headaches. He also reported complaints of intermittent twitches or jerks of his muscles in multiple regions of his body, which were not associated with any pain or triggered by any particular activity. 7. The evaluating physician noted that the applicant's past medical history was notable for evaluations of multiple systemic complaints including noncardiac chest pain, chronic fatigue, and tobacco abuse. The physician concluded that the applicant was limited in his standing tolerance due to low back pain and development of bilateral lower extremity paresthesias secondary to his spondylolisthesis and degenerative disc changes, but that he had not suffered any permanent loss of strength of sensory function in his lower extremities. The physician noted the applicant was enrolled in physical therapy for spine stabilization and that spine stabilization may effectively control the applicant's symptoms and progression. If the symptoms did not respond to conservative spine care, then spine stabilization with either bracing or neurosurgical intervention could be necessary. 8. The evaluating physician concluded the applicant suffered from (med diag 1) degenerative disc disease of the lumbosacral spine, (med diag 2) degenerative joint disease of the lumbosacral spine with grade 1 spondylolisthesis, (med diag 3) neurogenic claudication secondary to med diag 1 and 2, (med diag 4) intermittent benign muscle jerks; (med diag 5) benign positional vertigo, and (med diag 6) mixed headache syndrome with both migrainous and tension type headaches, historically not incapacitating. The evaluating physician recommended referral to a Physical Evaluation Board (PEB). 9. On 9 April 1997 an addendum was added to the applicant's original MEB evaluation. The addendum noted the applicant's chief complaint as fatigue. The evaluating physician stated the applicant reported no longer being able to perform his duties adequately and that in general his fatigue reduced his daily activities by over 50 percent and his energy was not restored by sleep. The physician noted the applicant had undergone an extensive evaluation for secondary causes of chronic fatigue to include a normal physical exam, chest x-ray, EKG, and multiple laboratory studies all of which were unremarkable. The copy of the MEB, provided by the applicant, contains a hand written notation, which appears to have originally made on a "sticky note" which indicates "Lyme Titer?" and "see tab 1, but see p2 of MEB." The source of that information is not identified. However, attached to the April 1997 addendum is a specimen test noting positive results for Lyme disease and a March 1997 treatment document which notes the applicant's "history is not consistent with Lyme of CMV infection so I am not sure what to make of these [positive] test results." 10. A second addendum to the original MEB evaluation was completed on 14 April 1997. The evaluating physician, a psychiatrist, noted the applicant was referred from the neurology department for multiple physical complaints, some with objective evidence of disease, others without objective evidence of disease and behaviors and responses on neurologic exam that support nonphysiologic complaints and responses. The inconsistency of subjective response on a single exam raises concern for embellishment. The psychiatrist noted the applicant reported his physical problems started in 1993 and that he was extremely concerned and preoccupied with his poor health. He noted the applicant reported a variety of complaints and that he tried physical therapy for approximately one week and then self-discontinued, claiming that it was not helping him. The psychiatrist rendered a diagnosis of: undifferentiated somatoform disorder, as manifested by multiple physical complaints unsupported by objective findings, not intentionally produced, causing significant impairment, more than six months in duration; external precipitating stress, minimal, routine military duty, degree of predisposition, none known; degree of psychiatric impairment for military duty, moderate; degree of psychiatric impairment for social and industrial adaptability, definite; untreated and unimproved. 11. In early May 1997 the applicant complained of a headache, fatigue, weakness in his arm and leg muscles, a cold, stuffy nose, and coughing since the AM. 12. On 13 May 1997 the MEB proceedings referred the applicant to a PEB. The proceeding included the 6 medical diagnoses reflected on the March 1997 MEB medical evaluation summary. The reverse side of the MEB proceedings, which would have indicated if the applicant concurred or nonconcurred with the proceedings was not included with the documents provided by the applicant to the Board. He provided only the front of the MEB proceedings. 13. On 29 May 1997 the applicant was again seen by medical personnel, at his request, for a follow up examination and second opinion. The notations on the examination document are extensive but conclude with a plan for the applicant to have follow-up care with his primary care physician with general stretches and non-impact aerobic activity starting at 10 minutes, and gradually increasing. 14. On 18 June 1997 the applicant's PEB was discontinued citing the disorganized MEB, an illegible consult for EMG/NCV, and the numerous addenda which all addressed the same problems. 15. On 29 July 1997 the applicant was referred to physical therapy for lower back pain and chronic fatigue syndrome. He was instructed in stretching exercises, low impact exercise, and establishing an exercise program. A similar consult sheet was issued on 25 September 1997. 16. On 1 April 1998 the applicant underwent a PEB. The PEB proceeding notes only two ratable medical diagnoses; undifferentiated somatoform disorder manifested by multiple physical complaints unsupported by objective findings (MEB diag 2 and psych addendum) rated at 30 percent; and low back pain with degenerative joint and disc disease with scoliosis, grade I spondylolisthesis, spinal stenosis and neurogenic claudication (MEB diag 1, neuro addendum dated 5 March 1998, neuro-surg addendum dated 9 February 1998, and narrative summary dated 11 March 1997) rated at 20 percent. A third MEB diagnosis, which was not specifically identified, was determined not to be unfitting and therefore not rated. The April 1998 PEB concluded the applicant's multiple conditions prevented performance of his duties, but his condition was not sufficiently stable for a final adjudication. As such, the PEB recommended the applicant's name be placed on the TDRL with a combined disability rating of 40 percent and a reexamination in October 1999. The recommendation was approved on behalf of the Secretary of the Army. 17. As with the MEB proceedings, the applicant only provided the front portion of the PEB proceedings, and did not include the reverse of the form which would have indicated whether he concurred or nonconcurred with the findings and recommendation of the PEB. There is, however, no indication in available documents that he nonconcurred with the findings and recommendation of the April 1998 PEB and no indication he demanded a formal hearing. 18. According to documents provided by the applicant, in May 2001 he was notified that he should undergo a periodic medical examination during or before August 2001. There is no indication if the applicant underwent that physical or if he did not, and why. A second letter, dated 3 December 2001, also informed the applicant that he was to undergo a medical examination during or before January 2002. The applicant, a resident of Guam, was directed to report to Hawaii for the evaluations. 19. In April 2002 the applicant underwent a psychiatric evaluation at a civilian facility in Guam. The evaluation noted the applicant was referred to establish the presence of a continuing disability for social security benefits due to somatoform disorder. The evaluating physician noted the applicant was not taking any prescription medication and used Motrin and Tylenol as needed. The prognosis was that the applicant was then not interested in any psychiatric treatment and that he did not consider his alcohol use to be a problem. The psychiatrist concluded that little progress could be made until denial and symptoms of avoidance were confronted. 20. On 8 May 2002 the applicant underwent a TDRL evaluation which noted he reported for the evaluation for the diagnosis of "undifferentiated somatoform disorder." The evaluator noted that the report of a previous TDRL evaluation was not available for review. The evaluation noted that the applicant reported that his lower back pain was less prominent and occurred only when he abused his back, that intermittent joint pain throughout his body was less frequent and could not be attributed to any cause or circumstance, that twitches and spasms were still there but not as worrisome, and that he gradually weaned himself from ibuprofen which he now used once in a while. The applicant related that all of the other symptoms listed in the PEB had resolved over time. He noted he slept well, had a good appetite, and was optimistic about his future. He states he was otherwise in good health and not taking any prescribed medicines. The evaluating physician concluded that the applicant's undifferentiated somatoform disorder had improved by not completely resolved and recommended the applicant remain on the TDRL. 21. The front page of a 13 August 2002 memorandum to the applicant, which he provided with his application to this Board, notes that the PEB received his recent periodic medical examination and other available records and conducted an informal hearing. The informal PEB recommended the applicant be removed from the TDRL and the memorandum informed the applicant that he needed to indicate if he agreed with the findings and recommendations of the PEB and that if he wished to submit a rebuttal it must be based on specific issues and fully justified. 22. The applicant underwent a formal PEB on 24 September 2002 which concluded that his undifferentiated somatoform disorder had substantially improved without evidence of significant mood disorder, thought disorder, or other impairments in function. They noted that while improved, the condition had not improved to the extent that he was fit for duty and as such, concluded that a final rating of 10 percent was appropriate. The PEB noted that the TDRL examination suggested full unrestricted activity is permitted for his back pain and concluded no disability rating for that condition was warranted. The PEB recommended the applicant's name be removed from the TDRL and authorized severance pay if otherwise qualified. The PEB proceedings noted the applicant was represented by appointed counsel and appeared before the formal PEB. 23. On 21 October 2002 the applicant was provided copies of the documents removing him from the TDRL and informing him that he would no longer receive retirement payments from the Defense Finance and Accounting Service after the effective date of his removal from the TDRL. He was also asked to return his military identification card. 24. The actual date the applicant's name was removed from the TDRL is unknown, although the applicant stated in his application that his name was removed on 21 October 2002. 25. According to a June 2003 radiologic report, the applicant showed spondylolysis with trace spondylolisthesis present at L5. By March 2004 his radiologic report noted large broad based disc bulge at L5/S1 which may mechanically impact exiting nerve roots lateral to the foramina, bilaterally. It also noted spondylolysis of pars interarticularis at L5, bilaterally, with no evidence of spondylolisthesis or hypertrophic sclerotic bone changes. 26. Army Regulation 635-40, which establishes the policies and provisions for physical evaluation for retention, retirement, or separation of Army Soldiers, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. Following reevaluation, and once it has been determined that the individual’s medical condition has stabilized, the individual could ultimately be found fit, permanently retired providing his final disability rating was at 30 percent or higher, or, in cases where the final disability rating was less than 30 percent, entitled to disability severance pay. Only individuals whose final disability rating is 30 percent or higher are considered permanently retired by reason of physical disability. 27. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent. 28. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. 29. Army Regulation 635-40 states that the mere presence of an impairment does not, in itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army. 30. According to information from the Center for Disease Control (CDC) Lyme disease is caused by bacterium and is transmitted to humans by the bite of infected blacklegged ticks. Typical symptoms include fever, headache, fatigue, and a characteristic skin rash called erythema migrans. If left untreated, infection can spread to joints, the heart, and the nervous system. Lyme disease is diagnosed based on symptoms, physical findings (e.g., rash), and the possibility of exposure to infected ticks; laboratory testing is helpful in the later stages of this disease. Most cases of Lyme disease can be treated successfully with a few weeks of antibiotics. 31. Army Regulation 40-501, indicates that migraine, tension and cluster headaches when manifested by frequent incapacitating attacks may be cause for referral to an MEB. There were no specific disqualifiers for Lyme disease, rashes, fever, or fatigue, although chronic fatigue was a disqualifier for aviation duty. 32. Army Regulation 635-40 further states that the combined percentage rating approved at the time the Soldier was placed on the TDRL cannot be changed by the PEB throughout the period the Soldier is on the TDRL. Adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL. 33. Additionally, Department of Defense Instruction Number 1332.38, which implements policy, assigns responsibilities, and prescribes procedures for the separation or retirement for physical disability notes that in addition to the above the TDRL periodic examinations should also address the etiology of all medical impairments diagnosed since the member was placed on the TDRL, to include: a. where the new diagnosis was caused either by the condition for which the member was placed on the TDRL or the treatment received for such a condition. b. if not caused by the condition for which the member was placed on the TDRL, whether the member’s medical records document incurrence or aggravation of the condition while the member was in a military duty status; and if so, whether the condition was cause for referral into the Disability Evaluation System at the time the member was placed on the TDRL. 34. Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. DISCUSSION AND CONCLUSIONS: 1. The applicant's entire service medical records would have been available to the physicians which evaluated the applicant as part of his MEB evaluation. The fact that his medical records suggested that he may have contracted Lyme disease is not evidence that the condition rendered him unfit for military service. The MEB evaluation was designed to identify medical conditions which may contribute to the Soldier's inability to continue his service to the military, and then it becomes the responsibility of the PEB to render decisions on the fitness or unfitness of conditions identified by the MEB. The MEB was never intended to become a litany of each and every medical visit the Soldier may have had during his military career. 2. It is noted that during the 9 April 1997 addendum to the applicant's initial MEB the evaluating physician did comment that the applicant's history was not consistent with Lyme or CMV infection and questioned the positive test result. 3. The applicant provides no evidence or documentation with his application to this Board, which substantiates that the Army did not properly evaluate his medical condition at the time of his release from active duty when his name was placed on the TDRL. His argument that because his back condition may have deteriorated since the PEB's final decision in 2002, or his belief that he suffered from Lyme disease which he maintains was not fully discussed in the 1997 proceedings is not evidence that the initial PEB did not have the necessary facts, or that his medical conditions were sufficiently stable in 1997 to warrant a permanent rating high enough to result in disability retirement rather than being placed on the TDRL. 4. It is noted that the applicant would have been involved in his disability processing and would have had the opportunity to raise objections at various stages in the process. The evidence, however, suggests, because there is no evidence of a formal PEB in 1997, that the applicant concurred with the findings and recommendation of an informal PEB in 1997, thereby confirming his agreement with the finding that his undifferentiated somatoform disorder and low back pain was not stable enough for a permanent rating and the decision to place him on the TDRL was the appropriate recommendation. He has submitted no evidence that indicates otherwise. Had he believed that the 1997 decision was unfair or unjust he could have requested a formal hearing. The fact that he did not further supports a conclusion that his condition was properly evaluated and the rating decision appropriate. 5. The applicant's suggestion that he should have been allowed to remain on the TDRL for the entire 5 year period allowed by regulation and law is unrealistic and fiscally irresponsible. If retention on the TDRL for the entire 5 year period were a requirement, there would be no need to schedule periodic physical examinations and only a single evaluation would be necessary just as the individual's 5th year on the TDRL was about to expire. The intent of the TDRL is to render a final decision when medical conditions sufficiently stabilize so that final adjudication can be accomplished. It would be unreasonable to retain an individual on the TDRL for years after his or her medical condition stabilized and continue to pay him or her retirement benefits merely because the 5 year authorized period had not expired. Retention of such individuals could deprive those, whose medical conditions resolved sufficiently, from returning to an active status as quickly as possible. 6. When the applicant underwent his physical examination in 2002 he informed the evaluating physician that his lower back pain was less prominent and occurred only when he abused his back. He also related that while his "twitches and spasms" were still there they were not as worrisome and all of the other symptoms listed in the PEB report had resolved over time. Such evidence, which was provided by the applicant himself, supports the conclusion of the 2002 final PEB. The applicant has provided no medical evidence which contradicts his own statement to the evaluating physician during his 2002 TDRL evaluation. 7. The fact that the applicant's back condition might now be deteriorating, as evidence by subsequent radiologic reports, is not evidence of any error or injustice in the original findings of the PEB. The condition was documented and its progression, as it may impact the applicant’s future employability is more appropriately addressed through the Department of Veterans Affairs rating system. 8. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___SK___ __JM ___ __RD ___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that 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. ______Stanley Kelley_______ CHAIRPERSON INDEX CASE ID AR20050001690 SUFFIX RECON YYYYMMDD DATE BOARDED 20051115 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. 108.00 2. 3. 4. 5. 6.