BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150005361 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ____x____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150005361 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150005361 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, in effect, a change of his narrative reason for separation from "disability, severance pay" to "disability, retirement," due to multiple conditions that he believes were not properly diagnosed by the Army at the time of discharge. He also requests an increase in his disability rating to reflect all his medical conditions. 2. The applicant states his additional illnesses and injuries during his active duty service were not considered during the medical evaluation board (MEB). The fracture to his left eye orbital is included as proof of trauma and stress that he still suffers. He also listed these medical conditions at his exit medical separation appointment/briefing. 3. He requests, in effect, a discharge upgrade and correction of his military records to show the illnesses and injuries he sustained during active duty that were not included as part of his medical discharge in 2003. He suffers from a combination of Gulf War syndrome due to his service in Southwest Asia and post-traumatic stress disorder (PTSD) beginning in 1994 when he was attacked, injured, and robbed while assigned in Germany. He requests that the omissions be considered and that his record be corrected, because his overall rating is impacted. He listed these conditions at his exit medical separation briefing prior to being discharged from Fort Benning, GA. 4. He states he incurred the following additional illnesses and injuries during his military service and they were not rated during the separation process even though they were present: (1) A lack of normal sleep and sleep disturbances. (2) Extreme abdominal and epigastric pain, dyspepsia, irritable bowel syndrome, frequent indigestion causing diarrhea especially when he experienced any stress whatsoever at least twice per week. (3) Left shoulder syndrome and pain. He has limited motion with significant pain. (4) Cervical neck pain and left eye orbital fracture since April 1994, due to being attacked, kicked to the floor, hit in the head, and robbed while serving in Kaiserslautern, Germany. He was treated in Landstuhl Regional Medical Center, Germany for a concussion and trauma to the head. He has the physical x-ray of the cervical spine. He believes this is when his PTSD began. He has experienced many symptoms throughout the years as documented in his medical records to include: sleep disturbances, violent dreams, bowel irritability, an inability to handle stress well, anxiety in stressful situations, emotional instability, and problems concentrating. (5) Abnormal skin conditions, which required two surgeries to remove neurofibroma and lipoma growths during active service. His skin gets very irritated when exposed to the sun and heat. A lump was recently removed from his back. (6) Left knee always hurts and he cannot kneel without considerable pain; arthritis due being subjected to extreme weather changes from the desert to snow during military training and deployments. Two sets of his medical records were lost during his active service. However, his commanding officer, CPT Mc--- documented the loss of his medical records in May 1999. He also suffered a left shoulder arm rotator cuff injury that should be documented in the lost medical records. (7) High cholesterol since 1999, a condition that persists. (8) Recurring lung issues, colds, and extreme headaches. (9) Heart palpitations, uneasiness, nervousness, a lack of concentration, and emotional instability, particularly under stress. 5. The applicant provides a compact disc that contains personnel and/or medical records, including: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-authored summary of major medical conditions * Separation orders * Treatment records, including physical profiles, an MEB, commander's evaluation, physical evaluation board (PEB), and post-service medical bills CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed as a Regular Army commissioned officer and executed an oath of office on 20 December 1991. He completed the Air Defense Artillery Officer Basic Course. 3. He served in a variety of stateside and overseas assignments, including Southwest Asia from 15 August to 24 December 1992. He was promoted to captain (CPT) on 1 January 1996. 4. In September 2002, he began complaining of back pain. He underwent a medical examination that found a medical condition that failed retention standards. His Narrative Summary (NARSUM), dated 13 September 2002 shows: a. He stated that around 1996 he began having mild occurrences of low back pain, which were initially treated conservatively with non-steroidal anti-inflammatory medications, muscle relaxers, and with activity modification. His pain progressed over the next year or two, prompting several acute care visits for low back pain. He stated while he was in Germany his low back pain prompted an acute care visit. b. At that time, x-rays and a magnetic resonance imaging were ordered which revealed a herniated nucleus pulposus at L4/L5. He was evaluated at physical therapy, neurosurgery, and orthopedic surgery. He elected conservative pain management instead of surgical intervention at that time. He then had a prolonged course of aggressive physical therapy with a temporary profile for protection and rehabilitation of his back. c. Those interventions resulted in moderate symptomatic improvement and he was able to continue his usual duties. His symptoms over the years have progressed to now include radicular symptoms marked by shooting pain down the right leg from the proximal thigh to his toes. He denied experiencing the loss of bladder or bowel control. d. He also stated that he had become progressively dysfunctional, now unable to perform physical training, riding in tactical vehicles, having to tolerate the weight of Kevlar or the weight of a rucksack. He was unable to lift more than 5 to 10 pounds, among a myriad of other physical limitations. He had approximately 14 years of military and federal service combined and requested an MEB in the interest of preserving his health. He continued to decline the option of having a lumbar discectomy. 5. His NARSUM also shows, on examination, his condition and functional status at the time were as follows: a. His condition was fair. He had significant functional limitations with severe back pain provoked by the most innocuous of physical activity such as teeth brushing and donning of his boots. He required chronic daily narcotic pharmacotherapy as well as chronic non-steroidal anti-inflammatory medication. He had exhausted all nonsurgical options for treatment and continued to be in significant constant pain. He was also significantly limited in terms of ability to perform basic military training and the requirements of his duty. b. There was a memorandum in his medical record from his command, which in summary states that he was an excellent Soldier, but he was unable to meet the requirements of his job. He was well regarded by his command and he had by all accounts been a very good, hard working military officer. He had been compliant with all treatment recommendations to date. He had been offered surgery, but declined this intervention at this time. c. The medical examiner stated that it was his opinion the applicant did not meet current retention standards. Treatment recommendations for the future would include: (1) a surgical option, (2) lifestyle modification, (3) periodic physical therapy intervention, (4) chronic use of non-steroidal anti-inflammatory medications, and (5) periodic use of narcotic medications. The medical examiner opined the applicant's pain was rated as moderate and constant. His diagnosis was chronic low back pain secondary to herniated nucleus pulposus. He did not meet the physical standards for retention under Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-39e. The medical examiner recommended his case be referred to a PEB for disposition. 6. On 1 October 2002, his commander rendered a commander's evaluation statement wherein he stated the applicant was very limited in what he could do physically due to a ruptured disc. His medical profile was a significant factor in his ability to lead troops in any environment to include wearing Kevlar, load bearing equipment, and the rucksack. Given his back injury, he did not meet the physical standards for subsequent assignments of increasing responsibility or continued future military service. 7. On 15 October 2002, following his medical examination and recommendation for surgery: a. The applicant signed a statement indicating he was offered surgery twice and he refused because neurosurgeons explained to him that surgery often would not reduce the pain and may increase it. Surgery involved fusing lower vertebrae with titanium pins and the possible risk of an infection, complications leading to paralysis, and finally surgery would not keep him in the military. b. The Chief, Patient Administration Division, Fort Benning, GA forwarded the applicant's case to the Office of The Surgeon General (OTSG) in light of the applicant's refusal to undergo surgery. He stated that the applicant had refused to submit to recommended medical care (surgery). Surgery was offered, but the doctor could not guarantee the applicant's condition would be much better than it was. If his condition were to decline by loss of bowel, urine and sensation in his legs he would opt to have surgery, as a result of an emergency, through a Veteran's Administration (VA) Hospital. An MEB had been initiated and a statement had been obtained from the applicant detailing his rationale for not submitting to the recommended surgical care. 8. On 17 October 2002, the Director of Health Policy and Services, OTSG, reviewed the applicant's MEB and his refusal of surgery. This official rendered an opinion wherein he recommended the applicant's case be forwarded to a PEB. a. The applicant had been treated conservatively for progressively worsening low back pain since 1996. Magnetic resonance imaging revealed a herniated nucleus pulposus at L4/L5. He had right lower extremity radicular symptoms. He denied any history of loss of bowel or bladder control. He required daily narcotic and chronic steroidal anti-inflammatory medication. He declined an offer of surgical intervention for his back pain, believing the risks outweighed the benefits. b. His informed decision could be considered reasonable because there was no certainly that surgery would relieve his symptoms or allow satisfactory performance of military duty. The MEB did not mention referral to a pain clinic. In the opinion of this official, although not mandatory, such an evaluation should be offered to the applicant and the decision left to him. 9. On 19 December 2002, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic low back pain, secondary to herniated nucleus pulposus. The MEB recommended his referral to a PEB. On 14 January 2003, following counseling, he agreed with the MEB's findings and recommendation. He also indicated he did not desire to continue on active duty. The MEB proceedings were approved. He certified that: * the medical board accurately covered all of his medical conditions * all health records pertaining to his case had been turned over to the proper authorities * he had been counseled in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 10. On 21 January 2003, an informal PEB convened. a. The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to chronic low back pain, due to L4-5 herniated nucleus pulposus, without neurological abnormalities or documented chronic paravertebral muscle spasms on repeated examinations with characteristic pain on motion. b. The PEB rated his condition under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5293/5295/5299, and granted him a 10-percent disability rating. The PEB recommended the applicant’s separation with entitlement to severance pay, if otherwise qualified. c. On 22 January 2003, the applicant was counseled by a PEB liaison officer who explained to him his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, the difference between an informal and formal PEB, and the role of the U.S. Army Physical Disability Agency (USAPDA). He elected to concur with the PEB's findings and recommendation and waived his right to a formal hearing of his case. 11. He was honorably discharged on 5 April 2003 under the provisions of paragraph 4-24b(3) of AR 635-40 by reason of physical disability with entitlement to severance pay. His DD Form 214 shows he completed 15 years, 9 months, and 6 days of active service and he received severance pay in the amount of $96,927.60. 12. The applicant provides his service medical records as well as post-service medical bills. The Board forwarded his records to OTSG for review. OTSG rendered an advisory opinion on 15 July 2016 in the processing of his case. An advisory official referenced the Diagnostic and Statistical Manual-5th Volume; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Separations), dated 6 September 2011. Additionally, this official stated: a. The applicant entered active duty on 20 December 1991 and he was honorably discharged on 5 April 2003, in accordance with AR 635-40, paragraph 4-24B (3) (Disability, Severance Pay). He was deployed to Kuwait, Saudi Arabia, and Bahrain from August to December 1992. b. In April 2015, he requested that the Board (ABCMR) add illnesses and injuries to his PEB that were not originally included. The OTSG was asked to determine if the applicant's military separation was due to Gulf War Syndrome/ PTSD or any other behavioral health condition. This opinion is based solely on the information provided by the Board as the Department of Defense (DOD) electronic medical record (AHLTA) was not in use at the time. c. In January 2003, a PEB determined that the applicant was physically unfit because of chronic low back pain and recommended a disability rating of 10 percent. d. The documentation accompanying his current request covers only his physical conditions and resulting impairments. e. The statement and medical documentation in support of correction of his record and a medical discharge upgrade, dated 21 December 2015, makes no mention of PTSD. Elsewhere in his application, he states since he was attacked in 1994 he has had PTSD symptoms, i.e., "uneasiness, irritability under stress, sleep disturbances with violent dreams, agitation and nervousness," which persist to this day. f. There is no documentation during or subsequent to the applicant's service to support the presence of any behavioral health conditions at the time of separation. 13. The applicant was provided a copy of this advisory opinion. He responded on 8 August 2016. He provided additional treatment records from 1994 to 2002, including a profile and his commander's statement. In his rebuttal, the applicant stated: a. He has enclosed a report of medical history while assigned to the 1st Battalion, 7th Air Defense Artillery, in the rank of CPT from 1996-1999 documenting his early symptoms of dizziness, pain or pressure in the chest, heart palpitations, painful shoulder, and his recurrent back pain. Many of these conditions are Gulf War syndrome-related that he suffers daily. b. His radiculopathy conditions were also diagnosed and referred to as sciatica with severe, chronic pain as his current medical condition. His left and right hip were always noted and diagnosed as a snapping painful hip joint, which exists until today, but were omitted from his medical discharge review despite his symptoms, complaints, and medical reports. c. On 31 January 2000, Dr. VN documented his deep pain in the right hip "as though the hip is dislocated but pain radiates down leg." d. On 13 February 2002, Dr. Wi--- from the Family Practice Clinic specifically diagnosed and documented a snapping hip with "a pop with sit-ups and maneuver of the femur of the left side." On 11 March 2002, Dr. Wi--- also specifically noted the popping left hip 'with lower back pain with tingling shooting pain, which radiates down to the foot with numbness in prolonged sitting/standing." He currently suffers from this pain that radiates down to both feet with numbness and prickling sensations. e. In 2002, CPT Sil---, the physical therapist, also documented right lower extremity pain as "acute on chronic," a severity level that persists today. He also documented his herniated disk condition of the lower spine with "neuro deficits." On 15 July 2002, PA (Physician Assistant) Ha-- documented pain in the hip with "paresthesia condition past knee," which is an abnormal sensation, typically tingling or prickling, caused chiefly by pressure on or damage to peripheral nerves. This medical condition exists today as he has "moderate degenerative changes of bilateral hip joints consisting of joint space narrowing and sub-chondral sclerosis" as documented in March 2015 although these disabling conditions existed during his active duty service. f. He has also been diagnosed with peripheral neuropathy, which existed during his service and the symptoms are documented. He requests that these errors and omissions be corrected on his service record and characterized as Gulf War Syndrome. In August 2002, Dr. Wi-- documented "significant limitations: cannot run at all, wear Kevlar helmet, PT at all, and difficulty riding in tactical vehicles," which proves problems in his neck as well. His neck condition should also be characterized as service disabling. g. On 1 October 2002, CPT Sa____, his commanding officer at Fort Benning, documented his record to show that he could not tolerate the weight of the Kevlar helmet on his head and back. Although his records depict this disabling condition, it was not until after his medical discharge that he was appropriately diagnosed. He requests his neck condition be characterized as disabling with the diagnosis of chronic cervical neck pain and numbness in the upper extremities and fatigue as documented by the medical treatment reports from Wilson Medical Center in July 2003. This medical documentation was also medically covered by the Army through Tricare Humana Military Healthcare during the covered months after his discharge in April 2003. h. Further, he requests his back condition be characterized as being combat-related because the injuries sustained were consistently aggravated during combat training and simulating war training. His early medical records were lost by a medical clinic, which documented back injuries. He was also attacked and robbed in April 1994 where he suffered a left eye orbital fracture and head concussion. His headaches, dizziness, heart palpitations, and pain in his chest should also be characterized as a stress disorder as documented. REFERENCES: 1. Title 10, U.S. Code chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA is responsible for administering the physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB. They are also referred to an MEB when they receive a permanent medical profile rating of "3" or "4" and are referred by an MOS/Medical Retention Board. c. The disability system assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. AR 635-40 establishes the Army disability 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. 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. 3. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 4. 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 of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, 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: 1. It appears the applicant contends his narrative reason for separation should be changed from "disability, severance pay" to "disability, retirement," due to multiple conditions that he believes were not properly diagnosed by the Army at the time of discharge. He also contends that his disability rating should be increased to reflect all his medical conditions. 2. The evidence of record shows the applicant complained of back pain in September 2002. He underwent treatment but he continued to experience pain and discomfort. He was offered surgery twice and he declined. He was seen by various medical specialists and recommended for entry into the disability system. The MEB diagnosed him with only one physical condition that did not meet retention standards. He was not diagnosed with any behavioral health conditions or any other physical conditions and his commander did not address any behavioral issues or other physical conditions. He also certified that there were no other conditions that the MEB omitted. 3. The MEB referred him to a PEB. The informal PEB determined he was physically unfit due to chronic low back pain. Based on a review of the medical evidence of record, the PEB concluded his medical condition prevented him from the satisfactory performance of the duties associated with his rank and military specialty. He was rated under the VASRD and granted a 10-percent disability rating. 4. The informal PEB recommended his separation with entitlement to severance pay, if otherwise qualified. He concurred with the PEB's findings and recommendation and waived his right to formal hearing of his case. He was discharged by reason of disability on 5 April 2003. 5. With respect to his arguments: a. The reason for the applicant's entry into the disability system was his back pain. This is the only condition that failed retention standards and was found unfitting. His disability rating was not intended to be a prediction of his future medical condition. The fact that he may have later developed new medical issues, such as PTSD and/or new physical conditions, does not invalidate the PEB determination. b. Not only is there no evidence of a diagnosis of a behavioral/mental health condition or additional physical conditions at the time of his separation, there is also no evidence that if there had been they would have failed retention standards and/or been found unfitting. Conditions that are not diagnosed and are not unfitting are not ratable or compensable. Likewise, conditions that are not unfitting are neither assigned a VASRD code nor a rating. c. A key element of the Army's disability system is the Soldier's condition at the time of separation. His contention that other conditions may have existed at the time or worsened with time are noted. Conditions that worsen after a Soldier is separated may be treated and compensated for by the VA. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. e. There is no evidence in his records and he provided insufficient evidence that shows he suffered from and was diagnosed by competent medical authorities with any mental or behavioral health conditions, including PTSD, or additional physical conditions. His contention that he suffered from a possible behavioral health condition (PTSD) prior to separation from active duty or during the time he was undergoing the disability process is not supported by the available evidence. f. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. g. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army based on the level of disability at the time of the Soldier's separation. Only those conditions that render a member unfit for continued military service at the time of separation will be rated. However, the VA can potentially rate all service-connected conditions. 6. The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated his physical condition as 10-percent disabling. There is no evidence that he should have been awarded a higher rating. Since this rating was less than 30 percent, by law he was only entitled to severance pay. 7. The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB’s recommendation. There does not appear to be an error or an injustice in his case. Aside from his dissatisfaction, he has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005361 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005361 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2