MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             2 February 2000                 
	DOCKET NUMBER:   AR

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Lester Echols		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:  That she be medically retired.

APPLICANT STATES:  That the finding that her disability existed prior to service (EPTS) did not take into consideration that the condition had its inception while she was performing her initial obligated active service and was aggravated by a surgical procedure that was performed on her by military physicians while she was on annual training.  She adds that she has been awarded a 50 percent disability rating by the VA.

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

She entered on active duty as an obligated officer on 17 January 1981, was awarded the area of concentration of administrative and personnel systems management, and was promoted to first lieutenant.

While on her obligated active duty, she became pregnant and reported having minor back pain.  She delivered her child on 15 November 1983.  On 16 January 1984 she was honorably released from active duty and transferred to the USAR Control Group .  In conjunction with her release from active duty she was given a physical examination in which she was determined medically qualified without any physical limitations.

She performed duties as an Individual Mobilization Augmentee (IMA) officer, performing between 2 and 5 weeks of annual training with her unit yearly, and was promoted to captain.  On 4 November 1988 she was assigned to a USAR unit.

Her medical history shows that on 27 March 1986 she reported having had lower back pain off and on for several years, but which had worsened when she delivered her second child in April 1985.  In August 1986 she opted to have a lipoma (a benign tumor) removed from her lower back.  She was informed prior to the surgery that the procedure may not alleviate her back pain, and that the lipoma may recur.  She continued to complain of lower back pain, and a diagnosis was made of suspected lower sacrum (the triangular bone just below the lumbar vertebrae) pain.  Her back pain subsided and only became problematic when she applied direct pressure to the lower back area or was particularly tired.  On 13 June 1990, while on 2 weeks annual training, the applicant went on sick call complaining of pain in her abdomen.  She was noted to have an abdomen distention at that time and the attending physician decided that the possibility of a peptic ulcer should be ruled out before further examination and treatment was considered.  She was then referred to surgical department which removed a small bowel obstruction.

On 10 January 1992 a medical evaluation board was conducted on the applicant and she was referred to a physical evaluation board (PEB).
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Physical Disability Agency (PDA) which chronicled the applicant’s processing under the physical disability system.  In the applicant’s case this included two MEB’s, six PEB’s, and two reviews by the PDA, not including the PDA review for this advisory opinion.  The PDA stated that the applicant only complained of back pain when she was pregnant while on active duty in 1983, which is not an uncommon complaint for pregnant women.  The PDA also stated that none of the conditions which were determined to be unfitting in the applicant’s case, psoriatic spondyloarthopathy, sacroiliitis and lumbar herniated pulposis (all of the back), were diagnosed when she was on active duty in 1983 nor is there any reliable evidence which shows that they were caused or permanently aggravated by her 1990 surgery.  The PDA continues that the PEB took into consideration contrary medical opinions provided by the applicant during its hearings, the same opinions the applicant provided in support of her request to the Board, but when that evidence was weighted against the official MEB findings and other medical evidence, the PEB found insufficient evidence to support the applicant’s contentions.  The PDA continued that the applicant’s underlying physically unfitting condition is psoriasis which in no way can be linked to her 1983 pregnancy or her 1990 surgery.  The PDA recommends disapproval of the applicant’s request.

The PDA advisory opinion was provided to the applicant for comment.  The applicant retained legal counsel who provided a rebuttal to the PDA advisory opinion.  Counsel states that the PDA advisory opinion is legally defective as it made a statement that there is no evidence that the applicant’s physically unfitting conditions existed in 1983 or were caused or permanently aggravated by her 1990 surgery, in the presence of medical opinion to the contrary without addressing those contrary medical opinions.  Counsel also asks the Board to consider the initial misdiagnosis of the applicant’s medical condition while she was on annual training in 1990 which caused an undue delay in her treatment.  That delay, counsel argues, resulted in her colon blockage progressing beyond the point where a non-surgical procedure could be used.  The surgery that then became necessary resulted in the weakening of her abdominal muscles to the point they could no longer support her lower back, thus further damaging her already inflamed sacroiliac region.

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

1.  It would appear that the medical opinions submitted by the applicant that her lower back pain is due to the stretching she experienced in child birth have little to no bearing on this case.  The applicant was determined physically fit for chronic low back pain by her first PEB.
2.  Since the applicant was not determined physically unfit until the diagnosis of psoriatic spondyloarthopathy was made, along with related diagnoses, and none of the “conflicting” medical opinions place the origin of this condition to a time when the applicant was on a duty status, the Board must conclude that the finding of EPTS by the applicant’s PEB and the PDA were appropriate.

3.  In addition, as pointed out by the PDA, the applicant was performing less than 30 days of active duty when she had the blockage in her small intestine surgically removed.  In accordance with law, to be able to qualify for a medical retirement while performing less than 30 days of active duty, the disability must have been incurred as a proximate result of performing the duty.  As such, since her medical condition did not become physically unfitting until after the surgery and that surgery is said to have aggravated her back pain to physically unfitting proportions, even if her chronic back pain was the physically unfitting condition it would not qualify her for a medical retirement from the Army.

4.  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

_cmf_____  _jea____  ___le___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Board Agency

INDEX

CASE ID	AR1999032598	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000202	
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.	108.04	
2.		
3.		
4.		
5.		
6.