BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150003527 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 correction of his records to show he was retired due to physical disability vice discharged with entitlement to severance pay. 2. The applicant states: a. His disability rating of 20 percent (%) granted from an Army medical evaluation board (MEB) was based on medical malpractice in that it was derived from a fraudulently filled out form resulting in a medical separation with 16 years of service. If the proper procedures for determining the severity of his injury had been used, he would have been properly rated with a 30% disability. His military status needs to be changed from medically separated to medically retired with a 30% disability rating. b. The medical examination that resulted in an incorrect disability rating for his MEB occurred during a Department of Veterans Affairs (VA)/Department of Defense (DOD) Joint Evaluation conducted by Dr. SJ, QTC Medical Group, Tacoma WA. Dr. SJ was supposed to examine the range of motion (ROM) of his thoracolumbar spine and record his findings in May 2011. However, he never conducted the test but falsely filled out the form annotating that he (the applicant) displayed a full ROM. Dr. SJ also described his t-spine in ways that contradicted his symptoms, magnetic resonance imaging (MRI) results, and the Optional Form 275-E (Medical Record Report - Madigan Healthcare System) MEB Narrative Summary (NARSUM). c. He requested an impartial medical review of his MEB to address this and other issues. The request was prepared by Mr. LGM, a physician’s assistant (PA), who took notes on a legal pad, told him that he had no influence on the final decision, and assured him he would type his request word for word as he had dictated it to him. In the memorandum for record (MFR), dated 16 August 2011, Mr. LGM misquoted him saying that he (the applicant) wanted a second ROM test performed and goes on to recommend that he not receive a repeat evaluation. He can only provide an improperly dated and unsigned copy of the memorandum forwarded to him by his legal counsel. He doesn’t know what was exactly on the formal correspondence, but he does know something was sent because he received a response to his request, dated 24 August 2011, signed by Colonel (COL) KKO, wherein she denied him a "second" ROM test, simply concurred with Mr. LGM’s recommendation, and avoided his specific grievance. d. He (the applicant) responded by having a memorandum prepared by his legal counsel, First Lieutenant (1LT) TF, Soldier’s MEB Counsel, Legal Assistance Office, Joint Base Lewis-McChord (JBLM), WA. In the memorandum, he stated that an evaluation on his t-spine was never conducted and he was requesting an original ROM test. The exam was never granted and the result is clearly outlined in the VA Disability Evaluation System (DES) Proposed Rating, dated 20 September 2011, that states "A higher evaluation of 20% is not warranted unless there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees…or abnormal spinal contour such as…abnormal kyphosis [curvature of the spine]." If he had been properly tested, he would have received a 20% rating for this disability and, combined with the 10% given for his neck pain, he would have been medically retired with 30% disability and not medically separated. e. The award of 10% was based solely on the evaluation conducted by Dr. SJ and does not include all physical evidence from past examinations. Dr. SJ’s inability to list obvious symptoms and evidence of his condition, and the fact that he wrote observations that contradict the documented observations of his spine, cause him, and he hopes the members of the Board, to question Dr. SJ's competency or honesty. f. The NARSUM mentions that x-rays that were performed on 29 October 2008 that showed "There is pronounced kyphosis of the thoracic spine with loss of vertebral body height at multiple consecutive mid and lower thoracic levels…" The observations in this x-ray led to an MRI on 18 December 2008 that showed: "Multilevel degenerative changes are seen of the thoracic spine with an exaggerated kyphosis centered at T10-T11." g. He is including an article authored by JCE that has done much to help him understand his pronounced and exaggerated kyphosis. JCE explains that the most common symptoms for patients with an abnormal kyphosis are the appearance of poor posture with a hump appearance of the back or hunchback. His hump is present and noted in the x-ray, the MRI, and to the naked eye. His wife has observed it and has even called him camel because of the hump on his back. He is including a disk containing digital images of this x-ray and MRI and a picture of the x-ray that shows the severity of the kyphosis. h. Because Dr. SJ described him as having normal curves of the spine, the VA DES Proposed Rating stated a higher evaluation of 20% was not warranted because there is no abnormal spinal contour. He failed to bring this evidence to the MEB because he wasn’t aware of the contradictions at time. He attempted to have his ROM tested in and out of the Army medical system prior to the conclusion of the MEB, but both a military and civilian physician refused because he was undergoing the MEB process. i. Even though it was the VA/DOD that contracted the QTC clinic that hired the doctor that falsified the forms, and it was the command at Madigan Army Medical Center (MAMC) that refused to hear him when he claimed a crime had been committed against him, he still considers his service with the Army the single most positive and definitive professional experience in his life. He is a proud veteran of Operation Desert Storm, Operation Iraqi Freedom, and Operation Enduring Freedom, and a recipient of the Combat Action Badge and the Meritorious Service Metal. Above all, he is an honest man who has not tried to take advantage of the rating system as so many veterans services representatives have encouraged him to do. He only wants what he has earned. 3. The applicant provides: * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * orders, dated 5 December 2011 * 11- page medical report, dated 14 May 2011 * MEB NARSUM * two MFR, one undated and one dated 16 August 2011 * two memoranda, dated 24 August 2011 and 26 October 2011 * VA Disability Evaluation System (DES) Proposed Rating * photograph, dated 29 October 2008 * printout from MedicineNet.com, titled Kyphosis: Get Facts on Surgery and Treatment * compact disk CONSIDERATION OF EVIDENCE: 1. The applicant’s records show, having had previous active and inactive service, he enlisted in the Regular Army on 13 January 1998 and he held military occupational specialty (MOS) 19K (M1 Armor Crewmember). 2. He served in Iraq from 15 October 2003 to 1 November 2004 and in Afghanistan from 15 July 2009 to 8 July 2010. On 12 October 2010, he was assigned to the 2nd Battalion, 358th Armor Regiment, JBLM, WA. 3. On 29 October 2010, he was issued a permanent profile of 3 in the U (Upper Extremities) category of the PULHES for mid-back pain (osteoarthritis of the thoracic spine). The DA Form 3349 (Physical Profile), dated 29 October 2010 and approved on 1 November 2010, shows: * he could do the push-up portion of the Army Physical Fitness Test (APFT) * he could take the alternate APFT of walking, swimming, or bicycling * he could carry and fire a weapon, wear a helmet, wear body armor, and wear load bearing equipment (LBE) for at least 12 hours a day * he could run at his own pace and distance, jump/side straddle, and hop at his own pace * his limitations included ruck-marching not to exceed 2 miles and to avoid high impact activities * he needed an MOS Medical Retention Board (MMRB) 4. On 18 November 2010, an MMRB met, evaluated the applicant's ability to perform the physical requirements of his MOS, reviewed his profile and all other pertinent records and reports, and determined the limitations imposed by his profile were prohibitive for his MOS. The board recommended his reclassification into a different MOS within the limits of his profile. On 23 December 2010, the Deputy Commanding General, I Corps, JBLM, disapproved the MMRB's recommendation and determined he would be referred to the Army's Physical Integrated DES. The MMRB subsequently directed the applicant be scheduled for an MEB (IDES). 5. The applicant underwent a medical evaluation by Dr. SJ on 12 May 2011. He provides a report, dated 14 May 2011, wherein Dr. SJ stated, in part: a. The applicant stated he had been diagnosed with osteoarthritis of the thoracic spine and lower back pain and the condition had existed for 3 years. He reported he could walk without limitation and had not experienced any falls or spasms. He stated his symptoms were stiffness, fatigue, decreased motion, paresthesias, and numbness. b. He reported feeling pain located on the upper and lower back that occurred three times per week lasting for 12 hours and traveled down his arms. His pain level was moderate, could be exacerbated by physical activity, and was relieved by rest or spontaneously. When he had pain, he could function without medication. During flare-ups, he experienced functional impairment described as pain that prevented running, bending, and had limitation of motion described as he could hardly twist his spine or neck. c. He reported that he was not receiving any treatment for the condition, was never hospitalized or had surgery for it, and the condition had not resulted in any incapacitation. He also reported he was unable to perform his occupational duties and was unable to wear body armor. d. The examination revealed the applicant was well developed, well nourished, and was not in any acute distress. Upon examination of the cervical spine, there was no evidence of radiating pain on movement, muscle spasm, tenderness, weakness, atrophy of the limbs, and no ankylosis [abnormal adhesion of the bones to a joint]. The joint function of the spine was not limited by pain, fatigue, weakness, or repetitive use. The ROM for the cervical spine was flexion (0-45) - 45, extension (0-45) - 45, right lateral flexion (0-45) - 25, left lateral flexion (0-45) - 25, right rotation (0-80) - 80, and left rotation (0-80) - 80. e. The examination of the thoracolumbar spine revealed there was no evidence of radiating pain on movement or muscle spasm. There was tenderness noted described as thoracic spin tenderness. There was no guarding of movement, no weakness, and the muscle tone and musculature were normal. There was no atrophy present in the limbs and no ankylosis of the thoracolumbar spine. The ROM for the thoracolumbar spine was flexion (0-90) - 0-90, extension (0-30) - 0-30, right lateral flexion (0-30) - 0-30, left lateral flexion (0-30) - 0-30, right rotation (0-30) - 0-30, and left rotation (0-30) - 0-30. f. The neurological examination of the upper and lower extremities showed motor function was within normal limits. The neurological examination of the cervical spine revealed no sensory deficits from C3-C8 and no motor weakness. The neurological examination of the lumbar spine revealed no sensory deficits from L1-L5 and no sensory deficits. The thoracic spine x-ray report showed degenerative arthritis and degenerative changes with wedging of T10. g. The diagnosis for his back condition was thoracic spine degenerative disc disease (DDD) and lumbar strain in remission. The subjective factors were upper and lower back pain and an abnormal thoracic spine MRI per the applicant. The objective factors were thoracic spine tenderness, normal lumbar spine examination, and abnormal x-ray. 6. The applicant provides an MEB NARSUM, dated 5 July 2011, wherein it shows he underwent a medical evaluation on 10 March and 5 July 2011 for an MEB by Dr. MA, Family Medicine, MAMC. His chief complaint was back pain. Dr. MA stated, in part: a. The applicant was referred for an MRI on 18 December 2008. The MRI showed multilevel degenerative changes of the thoracic spine with an exaggerated kyphosis centered at T10-T11. An anterior wedge deformity was seen at the T10 vertebral body with approximately 50% anterior vertebral body height loss. There was no abnormal vertebral body signal to suggest an acute fracture or marrow abnormality. The spinal cord demonstrated normal signal characteristics throughout and there was no evidence of neural foraminal narrowing throughout the thoracic spine. The remaining imaged soft tissue structures were grossly unremarkable. The applicant was placed on light duty as a 19K at the company command post and was permitted to deploy [to Afghanistan] with the battalion. b. The first evidence found in his records concerning back pain was 29 October 2008 when he was examined by the battalion PA for back pain secondary to injury with a twisting motion while wearing IBE. The x-rays showed pronounced kyphosis of the thoracic spine as well as anterior wedging of several vertebral bodies. Large osteophytes were present in the midthoracic spine and the findings are compatible with chronic sequelae of prior compression fracture. c. On 27 April 2009, an orthopaedic surgeon examined the applicant and diagnosed him with kyphosis and concomitant anterior wedge compression fracture. There were no surgical indications at that time and the surgeon recommended symptomatic management and disposition as well as a permanent 2 profile limiting aggravating factors and reducing any impact or repetitive stress to his back. d. He was diagnosed with back pain with herniated nucleus pulposus at T5-T6 and anterior wedge deformity at T10 that failed to meet Army retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). e. He was also diagnosed with impaired glucose tolerance, hypercholesterolemia with hypertriglyceridemia, metabolic syndrome with high body mass index (BMI), left foot pain, right elbow pain, bilateral carpal tunnel syndrome, and neck pain due to DDD that all did meet Army retention standards. 7. On 11 July 2011, an MEB convened, confirmed his condition of back pain with herniated nucleus pulposus at T5-T6 and anterior wedge deformity at T10 failed to meet retention standards, and recommended referral to a PEB. The MEB also found his additional conditions met retention standards and were not unfitting. The MEB DA Form 3947 (MEB Proceedings) is not available for review with this case. The applicant appealed the MEB findings and requested an independent review of the medical evidence provided to the MEB. 8. The applicant provides an MFR, dated 16 August 2011, wherein PA Mr. LGM stated the independent review of the medical evidence in his MEB determined, in part, the following: a. The applicant requested the diagnosis of lumbar strain that meets retention standards be added to his DA Form 3947. There were no x-rays of the lumbar spine in the medical record and x-rays performed by the VA in May 2011 were within normal limits. There were no specific profiles in the medical record for lower back pain but profile limitations for thoracic spine would protect the lower back. The VA diagnosed lumbar strain in remission because of a normal examination and normal x-rays. Since diagnoses "in remission" are not included on the DA Form 3947, the finding of lumbar strain should be added to the past history paragraph of the NARSUM. b. The applicant requested a ROM evaluation be performed on his thoracolumbar spine. He stated the VA performed his cervical spine ROM evaluation "with some kind of instrument" but did not use any instruments when performing the thoracolumbar evaluation. The VA noted decreased ROM of the cervical spine but normal ROM for the thoracolumbar spine and he feels the normal ROM finding could affect his rating by the PEB. The VA history for the back condition notes no incapacitation related to the condition for the past 12 months. Past experience has demonstrated a second ROM evaluation to be unreliable with questionable results; therefore, a repeat ROM evaluation should not be done. c. The applicant requested a better description of his left foot pain in his NARSUM; however, the current diagnosis adequately described the condition. The applicant also requested the word "gastroesophageal" be replaced with "to be" in the current functional status portion of NARSUM and he concurred. 9. The applicant provides a memorandum, dated 24 August 2011, wherein COL KKO, Deputy Commander for Clinical Services, MAMC, stated the applicant's appeal was carefully considered and she concurred with his request to add lumbar strain to the NARSUM and to correct the transcription error in the current functional status portion of NARSUM. She nonconcurred with his request for another ROM of the thoracolumbar spine and stated a review of the VA evaluation showed he had a complete ROM of the thoracolumbar spine in May 2011 that was normal. Further review of his health records did not indicate any significant changes or worsening of his thoracolumbar spine to warrant another ROM measurement. 10. The applicant provides a VA DES Proposed Rating, dated 20 September 2011, wherein it stated, in part: a. For DES purposes a 10% evaluation was proposed for his back pain condition. On 11 May 2011, the VA examination noted he had normal posture and gait, there was tenderness found on the thoracolumbar spine with preserved spinal contour, there was no guarding of movement, and no ankylosis. There was full and pain free ROMs. The joint function was not additionally limited after repetitive use and there was normal spinal curve. A 2008 MRI showed evidence of DDD of the thoracolumbar spine. He had appealed the VA ROM findings but the MEB concurred with the VA findings. They assigned a 10% disability rating for the thoracolumbar spine based on localized tenderness not resulting in abnormal gait or abnormal spine contour. b. A higher evaluation of 20% was not warranted unless there was forward flexion of the thoracolumbar spine greater than 30 degrees, or forward flexion of the cervical spine greater than 15 degrees, or the combined ROM of the thoracolumbar spine not greater than 120 degrees, or the combined range of the cervical spine not greater than 170 degrees, or muscle spasms/guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, a higher evaluation of 20% was not warranted unless there was intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. c. For DES purposes a 10% evaluation was proposed for neck pain due to DDD. For purposes of entitlement to VA benefits a 10% evaluation was proposed. 11. On 10 October 2011, an informal PEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, determined the applicant's medical conditions of back pain with herniated nucleus pulposus at T5-T6 and anterior wedge deformity at T10 and neck pain due to DDD on MRI were unfitting. His DA Form 199 (Informal PEB Proceedings), dated 10 October 2011, shows, in part: a. He was rated under VA Schedule of Rating Disabilities (VASRD) code 5242 for the condition of back pain. The onset was with impact of head against turret inside tank in Korea in 1998; not a battle injury but aggravated in a combat zone. Condition was unfitting as it impaired his ability to perform warrior tasks as well as prolonged riding in tactical vehicles. The condition was stable and assigned a 10% disability rating. b. He was rated under VASRD code 5242 for the condition of neck pain. Condition was found [by the MEB] to meet retention standards; however, on examination there was evidence the condition had been intermittently at least as problematic and duty limiting as the thoracic pain and was secondary to the aforementioned incident. X-rays taken shortly after the turret episode were normal which tends to date the onset of the degenerative changes as shortly after the x-rays were taken. The condition was stable and assigned a 10% disability rating. c. Additional conditions noted by the MEB were found to meet retention standards and were not found unfitting by the PEB. The PEB found he was physically unfit, recommended a combined rating of 20%, and separation with entitlement to severance pay if otherwise qualified. d. On 24 October 2011, after being counseled on his rights and options, he waived his right to a formal hearing and concurred with the PEB findings and recommendation. 12. He was honorably discharged on 15 February 2012. He completed 14 years, 1 month, and 3 days of creditable active service during this period of service. The DD Form 214 he was issued shows he was discharged by reason of disability with severance pay, combat-related (enhanced). 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical DES 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 states, in part: a. 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. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands their rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or he may request an extension. 14. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA C&P standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 15. 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 at less than 30 percent. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows that an MEB convened and found the applicant’s condition of back pain with herniated nucleus pulposus at T5-T6 and anterior wedge deformity at T10 was medically unacceptable and did not meet retention standards. The MEB also found additional conditions to include neck pain due to DDD did meet retention standards. The MEB recommended referral to a PEB. He subsequently appealed the MEB findings and requested an independent review of the medical evidence in his MEB and, in part, asked that a ROM evaluation be performed on his thoracolumbar spine. He stated the VA did not use any instruments when performing the thoracolumbar spine ROM evaluation. 2. An independent review was conducted and after reviewing all the medical records that went before the MEB the reviewer determined an ROM evaluation was not warranted. The MAMC Deputy Commander for Clinical Services, MAMC, then considered his appeal, reviewed all his medical records, concurred with two of his requests but denied his request for another thoracolumbar spine ROM evaluation. In addition, the VA reviewed all his records and proposed a 10% evaluation for his back pain, not just based on the May 2011 ROM evaluation, but because the examination also showed he had normal posture and gait, no guarding of his movement, and no ankylosis. 3. On 10 October 2011, the PEB found him medically unfit due to back pain with herniated nucleus pulposus at T5-T6 and anterior wedge deformity at T10 and, although the MEB found his neck pain met retention standards, found his neck pain with DDD was also unfitting and both conditions prevented him from performing his military duties. The PEB reviewed all the available and appropriate evidence, used the VA proposed rating, and recommended separation with entitlement to severance pay with a combined 20% disability rating. He concurred with the findings and recommendation of the PEB. Since this rating was less than 30%, by law he was only entitled to severance pay. If he felt the rating decision was faulty, he had the option to appeal the rating to the VA within 1 year of his separation date. 4. Notwithstanding the applicant's sincerity, the evidence of record does not show that his medical examination on 12 May 2011 was faulty, that it contradicted his MRI results, or misrepresented his medical condition at the time. His physical disability evaluation was conducted in accordance with laws and regulations and he concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his 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 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) AR20150003527 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003527 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1