MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           17 August 2000                  
	DOCKET NUMBER:   AR1999031648

	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:

	Ms. Sherri V. Ward 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons 		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, the applicant requests reinstatement in the Army Reserve until 7 January 2001 (her discharge date had she not been earlier separated), transfer to the Retired Reserve after that date, and payment of her medical bills.    

APPLICANT STATES:  That she never received the proper care for her medical problems, but had to seek outside [civilian] care.  She was not properly advised of her rights and now she is indebted because of her medical bills.  She is unable to work and can’t pay her medical bills.  The Army physician would not review her medical records.  The Physical Evaluation Board did not give her an opportunity to rebut their decision, and refused to hear what she had to present.  

The applicant has submitted copies of numerous medical bills with her application.

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

The applicant was an Army Reserve soldier, sergeant E-5, who was assigned to the 542nd Transportation Company (MTC) in Kingsbury, Indiana, working in her MOS (Military Occupational Specialty) of 88M20, heavy vehicle driver.  She was ordered to active duty on 4 August 1996 in support of Operation Joint Endeavor, serving in Germany from 17 August 1996 to 28 March 1997.

A DA Form 2173 (Statement of Medical Examination and Duty Status) of             2 June 1993 shows that the applicant fell and hit her head on a truck on              1 June 1993 while serving on active duty for training at the Crane Naval Ammunition Depot in Indiana, with her unit, the 542nd Transportation Company.  She was treated at the Bloomington Hospital and released.  Her injury was considered to have been incurred in line of duty.  She was placed in quarters for 4 days and on light duty for 8 days.  Follow on treatment indicates that the applicant had a scalp laceration as a result of the head trauma.

A 12 August 1996 report of medical examination shows that the applicant was medically qualified for military service and deployment, with a physical profile serial of 1 1 1 1 1 1.

Medical documents in late 1996 show that the applicant was treated by medical personnel in Kaiserslautern, Germany, for various ailments, to include pain to her left ankle, back pain, muscle spasms, ear ache, nasal congestion, and chest congestion.  She was on quarters, and had a medical profile during that period of time.

A 4 February 1997 DA Form 2173 shows that the applicant slipped on ice and fell on her lower back and buttocks on 2 January 1997.  Her injuries were considered to have been incurred in line of duty.  Her condition was described as lower back pain and she was placed on quarters for 72 hours.  She apparently slipped and fell again on 13 January 1997, hitting the back of her skull on concrete.  A          13 January 1997 medical record shows that her condition was diagnosed as a contusion to the coccyx (small bone at the lower end of the vertebral column) and a contusion to the back of her skull.  She was placed on quarters for 24 hours.

She was seen and treated again on 15 January 1997, and received a profile on 24 January 1997, e.g., light indoor duty, no physical training.  A                          24 February 1997 medical record shows that the applicant was again seen for lower back pain, and headaches.  Her profile was extended, and an orthopedic consultation was planned.  She was seen by an orthopedist.  Her profile was extended for 4 weeks.  Medical documents in March 1997 show that she continued to receive treatment for musculosketal pain.  A 30 March 1997 medical documents shows that her main complaint was chronic neck and low back pain.  That report shows that the pain response was out of proportion to the physical examination.  There were no significant X-ray findings.   

An NCO evaluation report (NCOER) ending in March 1997 indicates that the applicant was considered fully capable for promotion and/or service in positions of greater responsibility. That report indicates that she worked diligently to improve her physical fitness prior to her profile; and that her profile did not preclude her from performing her assigned duties.

A 30 March 1997 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history she furnished for the examination, she stated that she fell on the ice in Germany twice, hurt her back and tail bone, and also hit her head on cement.  She stated that she still had a lump on her head, which was still sore.  She stated that she was in a lot of pain and had headaches.  She was given a temporary profile of 1 1 3 1 1 1 on 31 March 1997.  A medical record of that date shows a diagnosis of muscular neck pain, low back pain and degenerative disk disease, but no evidence of trauma.  There was no evidence  no evidence of fracture on x-rays or bone scan on the coccyx .  That report indicated that no specific treatment was needed at that time, and stated that the applicant could return to civilian employment.

A 3 April 1997 medical record indicates an attempt was made for a physical therapy appointment for the applicant, but she would not be able to be seen for three weeks.

On 23 April 1997 the applicant was released from active duty and transferred to her Reserve command in Indianapolis.  She had 8 months and 20 days of service.

An NCOER ending in October 1997 shows that the applicant was considered fully capable for promotion and/or service in positions of greater responsibility.  That portion of the report concerning physical fitness and military bearing reflects that she needed improvement, that she had a civilian profile and was awaiting a military evaluation, that she was enrolled in an overweight program and was making progress, and that her profile did not hinder her normal duty performance.

In a 24 February 1999 memorandum, a civilian doctor from the Hofferth Family Chiropractic [Clinic] stated that the applicant was treated in his office from         10 June 1997 to 29 January 1998 for a lumbosacral sprain/strain injury.  The treatments were only able to control the symptoms, so the applicant sought the advice of an orthopedic surgeon after 28 January 1998.       

On 20 April 1998 the applicant underwent surgery at a civilian medical facility.  The operative report indicates a preoperative diagnosis of C5-C6 disc herniation with radiculitis.  It indicated that the applicant had severe neck and shoulder pain with increasing arm pain since she slipped on the ice while on active duty.  That report indicated that an MRI showed C5-C6 significant disc herniation with significant spinal cord compression.  After the surgery, the applicant was discharged to the recovery room, where she noted that her arm pain was relieved.

A 6 June 1998 report of medical examination indicates that the applicant had a physical profile serial of 1 T3 T3 1 2 1, and that she was not qualified for physical training.  That report indicated that the applicant had numerous ailments, to include decreased power of her left arm, lower back pain, neck problems, headaches, pain in her legs when standing for long periods of time, recurrent back pain in past, but worse since the 1997 accident, degenerative disc disease and spondylosis from L2-L3 through L4-L5.  In the report of medical history she furnished for that examination, she stated that she was taking medication for her pain.  She provided a summary of her ailments and her surgeries.

On 24 July 1998, in a letter to a member of congress (MC), the applicant stated that she had encountered harassment and mistreatment in the handling of her medical needs.  She also stated that neither the military nor her civilian medical plans covered the cost of her recent surgery for injuries that occurred on active duty.

In an 18 August 1998 letter to the Special Assistant of Military and State Affairs, the applicant’s unit administrator stated that the unit was aware of the applicant’s medical problems and expenses, and that she had been instructed to bring in all her medical bills and treatment records, which she did, and that her records were forwarded to the applicant’s next higher command.  The applicant was instructed not to seek civilian medical treatment until she could be sent to an Army doctor for evaluation.

In a 21 September 1998 statement, a doctor of the Orthopaedic Specialists of Northwest Indiana, P.C., stated that the applicant came under his care on          29 January 1998, and stated that she apparently had a mild concussion, low back, shoulder, and neck pain as a result of her slipping on the ice while on active duty.  He stated that since that time she had continued cervical pain radiating into her right upper extremity, and continued back pain.  Subsequent to his first examination of the applicant, an MRI of the applicant’s lumbar spine showed multi-level degenerative disc disease, and an MRI of her cervical spine showed a C5-6 disc herniation with significant cord impingement.  She received conservative treatment, which was ineffective, and ultimately underwent a C5-6 anterior cervical fusion with left iliac crest auto graft and Orion plate, with a good clinical result.  She was able to go to annual training three weeks later.  He stated that her cervical problems were quiescent in nature, but she continued to have severe low back pain and numbness into her left thigh.  He stated that her condition was clearly related to her accident while on active duty, and recommended that she continue with conservative treatment.

In a 24 November 1998 letter, a MC was informed of the history of the applicant’s injury, her treatment by the military, and her surgery by civilian medical personnel.  The MC was informed that the surgery was performed without authorization from the military; therefore, the Army was not responsible for the medical bills she incurred.  Surgery for active duty and Reserve military personnel injured on active duty was managed and performed in a military medical treatment facility.  The MC was informed that the only exception was emergency surgery, which was not so in the applicant’s case.  The MC was informed that an orthopedic evaluation was being arranged for the applicant.  He was further informed that the applicant’s command was aware of her injuries when she returned to her Reserve unit; however, the unit administrator was not aware of any further difficulties she might have been experiencing.  He was informed that the approved line of duty investigation authorized medical treatment at a medical treatment facility or a VA medical center for her line of duty injuries, but did not automatically guarantee payment for civilian medical care not authorized by military medical authorities.  Her medical bills had been forwarded to the civilian medical claims officer at Fort Knox for processing.  She was advised that there was no guarantee for payment, and was also advised not to seek any further civilian medical care.

An NCOER ending in December 1998 shows that the applicant was considered fully capable for promotion and/or service in positions of greater responsibility.  In that portion of the report concerning physical fitness and military bearing, the applicant’s rater stated that she needed improvement, that she was exempt from physical training requirements pending a medical evaluation, and that she was able to perform her duties in her secondary MOS of 71L (Administrative Specialist). 

In a 21 February 1999 rating decision, the VA awarded the applicant a              10 percent service connected disability rating for low back injury with degenerative disc disease to lumbar spine at L2-3, through L4-L5, effective       24 April 1997; a 10 percent rating for residuals of head injury with headaches, effective 24 April 1997, and a 0 percent rating for coccygodynia, effective            24 April 1997.  Service connection for post operative C5-6 anterior cervical fusion with cord impingement and herniated nucleus pulposes was denied.

The VA rating indicated that a bone scan confirmed the presence of degenerative disk disease as noted on treatment record of 31 March 1997.  Private treatment records confirmed diagnosis of degenerative disc disease of the lumbar spine.  Examination revealed various range of motion measurements.  It indicated that there was no evidence of muscle spasms.  She was tender along the lumbar spine and paraspinal regions.  She had no paresthesias.  There was normal muscle strength in the lower extremities.  She was able to toe and heel walk.  The 10 percent rating was assigned based on slightly limited motion of extension and painful motion.

An evaluation of a 10 percent rating for residuals of head injury with headaches was assigned for subjective complaints, such as headaches, dizziness, etc.  It stated that since there was a likelihood of improvement, the evaluation was not considered permanent.  

Service connection for coccygodynia was established because her medical records showed that she sustained an injury to the coccyx during service, and was diagnosed with coccygodynia on active duty.  

Service connection was not established for a neck injury.  That decision indicated that there was no evidence that the applicant sustained a neck injury while on active duty.  A line of duty determination on 1 June 1993 showed a laceration to the head.  A line of duty determination on 2 January 1997 showed injury to her lower back and bilateral buttocks.  A line of duty determination on 13 January 1997 showed that she hit the back of her skull on concrete.  There was no evidence that she sustained an injury to her neck which resulted in C5-6 anterior cervical fusion with cord impingement.  There was no evidence of C5-6 disc herniation or impingement while on active duty.  Her claim was denied.

A 15 March 1999 interoffice memo (origin unknown) that the applicant submitted with her application, indicates that the applicant might be available for a Point-of-Service (POS) option under TRICARE Prime, in that she had surgery in          April 1998 without prior authorization.  Under the POS option the applicant would be responsible for payment of a $300.00 deductible and 50 percent of the TRICARE allowable charge.  That memo also indicated that the applicant had not attempted to go through any formal appeals procedures.  

In a 22 March 1999 letter to the Ireland Community Hospital at Fort Knox, Kentucky, the applicant’s commanding officer stated that the applicant was physically incapable of reasonably performing her duties as a heavy vehicle driver because of her back and neck problems.  He stated that she was a good soldier, was working in her secondary specialty (administrative), and recommended that she be allowed to continue her military career pending the results of her medical evaluation.

On 14 April 1999 a Medical Evaluation Board (MEBD) diagnosed the applicant’s condition as herniated cervical disc, status post anterior cervical diskectomy and fusion, degenerative disc disease of her lumbar spine with mechanical lower back pain, and bilateral mild carpal tunnel syndrome.  The board recommended that she be referred to a Physical Evaluation Board (PEB).  The applicant stated that she did not agree with the board’s findings and recommendation and provided an appeal.  Among other things, she stated that she did not receive an adequate evaluation during the orthopedic review.  She felt that there was too much focus on her carpal tunnel syndrome at Fort Knox, and not enough on her chronic pain.  She stated that if she had the proper medical attention she could possibly pass the physical fitness test.  She stated that her treatment for her 1997 injuries was not successful, and that she was still in chronic pain, unaware that she needed authorization to obtain civilian care.  The approving authority considered her appeal, but stated that the original findings and recommendation were confirmed.

On 29 April 1999 a PEB determined that the applicant was physically unfit because of chronic neck pain, status post cervical discektomy and fusion and mechanical low back pain, due to degenerative disc disease, without neurologic abnormality.  It recommended a combined rating of 20 percent and recommended that she be separated with severance pay.  The applicant did not concur and she requested a formal hearing.

On 28 May 1999 she requested an extension of the suspense date for the formal hearing in order to schedule an EMG test.  The PEB disapproved her request, stating that sufficient evidence was available during her formal hearing to adjudicate her case.

In a 6 June 1999 letter to the Physical Disability Agency she appealed for assistance.  The applicant provided a history of her three injuries, one during annual training in May 1993, and the two in January 1997.  She stated that she was eventually discharged in 1997 and told she could return to her civilian job.  She was not provided any additional care, nor provided any information on continued treatment from the military.

She assumed her civilian job, but had such intense pain that she sought and received medical care, to include surgery, from civilian medical personnel.  Her medical bills totaled $38,000 and her insurance company determined they were not liable because her injuries were a result of her military duties.  She then began the process of getting the bills paid by the military, while continuing to seek medical treatment because of her pain.  She finally had to contact a member of congress (MC) for assistance.  She still experienced pain and numbness in her leg and arm and has reduced her work week to four days.  Her civilian job has suffered.  Since she was never advised concerning medical assistance from a military physician, she did not understand why they would not pay her medical claims.  Additionally, she requested reevaluation of her case and stated that she needed another medical procedure, and that her civilian doctor had arranged for her to have an EMG performed on 7 June 1999. 

On 11 June 1999 the Physical Disability Agency stated that it had reviewed her rebuttal to the formal PEB findings, and found that no change to the original findings was warranted.  It stated that her rebuttal had not provided any new objective medical evidence to justify an increase in her disability rating, and that her chronic neck and back pain received the maximum allowable rating for pain.  It also informed her that the questions she raised concerning her civilian medical expenses were not the purview of the PEB.

A 17 June 1999 letter informed an MC that the applicant could appeal her unpaid medical bills to the TRICARE Division at the Walter Reed Army Medical Center.  He was further informed of the applicant’s medical condition, and that she had received appropriate medical care and due process, that she was referred for medical board processing, and that a formal hearing had affirmed an informal finding of a PEB of a 20 percent disability rating and separation with severance pay. The applicant was informed of her options, and she decided not to make an election at that time.  He was informed that the applicant could apply to the VA for future care and assistance for her service-connected disabilities.

In a 22 June 1999 letter the MC informed the applicant of the above information, stating that she could submit appeals of her unpaid medical bills to TRICARE at Walter Reed.

In an 18 July 1999 letter to her commanding officer, she requested that her case be reevaluated.  She provided that officer the same information she had provided to the Physical Disability Agency.

In a 28 June 1999 letter to the VA clinic in Crown Point, Indiana, the applicant’s commanding officer requested that the applicant receive follow up care because she fell during duty at the unit’s weekend drill on 27 June 1999.  She apparently injured her left knee, left ankle, and coccyx.  Her injury was considered to have been incurred in line of duty.

A 30 July 1999 chronological statement of retirement points shows that the applicant had 20 qualifying years of service for retired pay at age 60 through her 10 November 1998 retirement year ending date.  That report also shows that she continued serving with her Reserve unit after her release from active duty in    April 1997 through November 1998, to include serving on active duty for 15 days during the period from November 1997 to November 1998. 

The applicant was discharged with severance pay on 25 August 1999.

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 found physically unfit to perform her military duties by a PEB in April 1999.  Her discharge with severance pay was proper.  She is not eligible for reinstatement in the Army Reserve as she has requested.

2.  The Board notes, however, that the applicant continued to successfully perform her duties with her Reserve unit after her release from active duty in April 1997, throughout her treatment by civilian medical personnel, to include her surgery in April 1998, and at least until December 1998, as evidenced by her NCOER ending on that date, and by the 30 July 1999 chronological statement of her retirement points.  Her commanding officer, in March 1999, indicated that the applicant was a good soldier, was working in her secondary specialty, and recommended that she be allowed to continue her service pending the results of her medical evaluation.

3.  Nevertheless, during her medical board and physical evaluation board proceedings, the applicant apparently felt that her injuries and pain was such that the determinations made by those boards were unsatisfactory – in effect, she should have received a higher disability rating.  The Board notes that the  applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.
 
4.  The applicant was seen and treated by military medical personnel on numerous occasions prior to her release from active duty in April 1997.  The applicant stated that she was still in pain in the 30 March 1997 report that she furnished for the medical examination.  She was given a temporary profile, and her condition was diagnosed as muscular neck pain, low back pain, and degenerative disk disease, but with no evidence of trauma.  She was considered physically fit for separation from active duty.  

5.  On her own volition, sometime in June of 1997, she sought treatment from civilian medical personnel, and received medical attention, to include surgery.  Her medical bills indicate they were forwarded to her insurer, American Medical Security, for payment, and that sometime in June 1998 she and her medical providers were informed by her insurer that her injuries as a result of her military service were not covered.  Apparently, only after discovering that her civilian medical insurer would not foot her medical bills, did she turn to the military for assistance.  The evidence indicates that her unit was aware of the medical injuries she sustained while on active duty, but apparently unaware she was being treated by civilian personnel after her release from active duty.  She attended unit training assemblies and performed annual training, in spite of her profile.  Once aware of her difficulties, she was informed not to seek further civilian medical care.  Whether or not she was aware that she had to obtain prior authorization for non-emergency medical care from civilian sources cannot be determined.  However, the applicant would not have applied to the military for payment of her bills, had her civilian insurer not deigned to do so.  She is responsible for her medical treatment received at the hands of civilian medical personnel.        

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  There is no evidence that she never received the proper medical care for her injuries.  She herself sought civilian medical treatment, causing her present indebtedness.  She herself could have prevented this.     

7.  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.

8.  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

___svw__  ___lds___  ___mhm_  DENY APPLICATION

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

INDEX

CASE ID	AR1999031648	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000817	
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.  338	111.03	
2.	128.00	
3.		
4.		
5.		
6.