ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160014730 APPLICANT REQUESTS: correction to her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in item 28 (Narrative Reason for Separation) that she was medically separated or retired vice separated due to a disability that existed prior to service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement – three pages * DD Form 2807-2 (Medical Prescreen of Medical History Report), dated 21 September 2004 * DD Form 2807-1 (Report of Medical History), dated 24 September 2004 * Magnetic Resonance Imaging (MRI) of Lower Extremity and Joint, dated 21 September 2005 * Narrative Summary for Medical [Evaluation] Board (MEB), dated 22 November 2005 * DA Form 3947 (Medical Evaluation Board Proceedings), dated 1 December 2005 * DD Form 214 for the period ending 11 February 2011 * Department of Veterans Affairs eBenefits, dated 18 August 2016 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, that she injured herself during basic combat training when she hit the ground hard with her body after responding to incoming fire by “taking cover.” Up until reacting to the drill she was in excellent condition and had passed her Army Physical Fitness Test (APFT). When she fell, she heard and felt a pop in her right hip. It was very sore and she tried to push through it to ensure she was not held back in basic training. She found that walking, running and marching became more difficult for her so she sought medical treatment and received a temporary profile. After many visits to sick call, she was referred to the orthopedic clinic where a medical doctor ordered an MRI of her lower back. The result of the MRI showed she had in fact injured herself during the training drill because her anterior labrum was torn, but with no evidence of avascular necrosis or fracture. The doctor told her she required surgery, but she declined their medical treatment. She then found out that her medical condition was medically unacceptable by Army standards. 3. She continues in her statement by outlining the MEB proceedings and how she never saw a doctor during the process. Her MEB confirms that the injury happened while she was entitled to base pay and that this injury did not exist prior to service based on the narrative summary. Her pain developed in March 2005 and got progressively worse. At the end of the MEB proceedings, she was referred to the physical evaluation board (PEB) for adjudication. She never saw anyone until she was brought in to sign many documents including her DD Form 214. She did not notice her DD Form 214 listed her medical condition as existing prior to service. She was told she would be able to receive Veteran’s benefits including education benefits. She states, "As a young Soldier with no real experience in the out processing procedure, [she] signed everything that was placed before [her] thinking it was true and correct." 4. After her discharge, she had surgery and applied for VA benefits. Her request for VA benefits was denied. In 2014, she started having major issues with her back and found out she had degeneration which her doctor said was directly related to her military injury. She started a new claim with the VA which was approved for the degeneration of her back but not her hip injury because her DD Form 214 said her injury existed prior to service. Her discharge is unfair because she joined the Army to serve her country. Her type of discharge means she is now denied benefits that she feels are rightfully owed to her because of her service. She described her post service experiences as a wife, mother and a member of the Federal civilian workforce. She would like to receive education benefits or pass them to her children. Without a discharge upgrade, she cannot access the benefits she rightfully earned. 5. The applicant enlisted in the U.S. Army Reserve (USAR) on 4 October 2004. In the process of enlisting in the USAR, she underwent an entrance physical on or about 24 September 2004 wherein she was found qualified for military service. Her physical profile was rated PULHES 1 1 1 1 1 1 on 4 October 2004. At the time it was noted she had a urinary tract infection and a history of sinusitis. [A physical profile, as reflected on a DA Form 3349 (Physical Profile), is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary.] 6. She entered active duty as a member of the Reserve Component on 4 January 2005. 7. On 6 June 2005, she failed a record AFPT in the run event. She earned passing scores in the push-up and sit-up events. 8. On 17 September 2005, she underwent an MRI of her lower extremity due to months of right hip pain which had migrated to her buttocks and groin. On 22 September 2005 the results of the MRI were read and she was diagnosed with a 5 centimeter lesion or tear of the anterior labrum with no evidence of a fracture or avascular necrosis. 9. On 18 November 2005, she completed DA Form 2807-1 wherein she stated she had bursitis, recurrent back pain, wore glasses and had recurring ear, nose and throat problems. On 29 November 2005, a medical doctor reviewed this form with the applicant and found the two most significant medical problems were pain in her right hip due to a tear of her anterior labrum of her right hip and being a symptomatic for a Factor II deficiency (blood clotting disorder). 10. On or about 18 November 2005, a narrative summary of the applicant’s medical conditions was prepared in preparation for the MEB, an administrative medical board. The medical doctor stated the applicant’s right hip pain occurred in March 2005 shortly after she started basic combat training. She reached a point where her pain in her right hip interfered with her ability to run, march and jump. In addition, her medical history was significant for a Factor VII bleeding disorder and a history of thalassemia minor (clotting disorder). Upon his physical exam, he noted she walks with a slight limp on the right side. There was tenderness in the femoral triangle to the posterior hip with deep palpation into the buttock. Measurements of her range of motion were conducted with a goniometer. Her history of x-rays shows on 11 April 2005 she had normal bilateral hips. An MRI completed on 17 October 205 revealed, "A 5 centimeter lesion within the proximal femoral diaphysis when likely represent a small enchondroma. There is no evidence of a fracture, significant joint fluid collection or bursitis.” He opined the applicant’s right hip pain prevented her from running, jumping, marching or participating in physical training with her unit which is a requirement for graduation from advanced individual training. The applicant declined surgery. The medical doctor recommended her record undergo an MEB for adjudication by a PEB in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 41e(1). 11. She underwent a medical examination that resulted in a permanent profile rating of "3" for her lower extremities – right hip pain. She could not participate in the 2 mile run and no alternate aerobic activity was noted on her DA Form 3349 (Physical Profile). This form was approved by her profiling officer and a senior approval authority. Later, the alternate aerobic activity of swimming was authorized with no walking or biking. 12. On 1 December 2005, an MEB met without the applicant present. There were two diagnoses identified during the proceedings. The first diagnosis was her right hip labrum tear and the second diagnosis was right hip pain secondary to her right hip labrum tear. Both of these medical conditions were medically unacceptable. At the time, both conditions were shown to not have existed prior to service and were incurred while she was entitled to base pay. The date of origin was March 2005. The MEB referred her medical file to a physical evaluation board (PEB). The applicant indicated she did not desire to continue on active duty and agreed with the MEB’s findings and recommendation. 13. On 22 December 2005, the PEB met in Washington, D.C. The PEB considered her right hip pain "without any specific history of trauma/injury which the Soldier reports starting after a run." His physical examination noted she has pes planus and a passive flexion to 112 degrees. The plain x-rays were normal but the MRI reported a focal full thickness tear of the anterior labrum. The PEB found this condition existed prior to service referencing The Lower Extremity and Spine in Sports Medicine, Hershman and Nicholas, Volume II, pages 1481-1495, Mosby Second Edition. In its statement, the PEB stated there was sufficient evidence of record to substantiate it existed prior to service for which the applicant was found unfit. They stated, "Your condition has not been permanently aggravated by service but is the result of natural progression." As her medical condition existed prior to service, she was not compensated under the Army Physical Disability System. Therefore, she was to be separated from the Army without entitlement to disability benefits under the provisions of Title 10, U.S. Code. However, she might be eligible for benefits under Title 38, U.S. Code administered by the VA. 14. On 29 December 2005, the applicant concurred with the findings and waived a formal hearing of her case. A PEB Liaison Officer met with the applicant in November 2005 and advised her of the basis for her MEB and PEB and her rights under the provisions of Title 10, U.S. Code, chapter 61. 15. On 20 January 2005, Orders 020-0505 were issued by the U.S. Army Combined Arms Support Command and Fort Lee, Fort Lee, VA wherein the applicant was discharged from the Reserve of the Army effective 11 February 2006 with no entitlement to separation pay. 16. On 11 February 2006, the applicant was honorably discharged after completing 1 year, 1 month and 7 days of active service. She did not complete her advanced individual training; therefore, she did not receive a military occupational specialty. She was issued a DD Form 214 that contained the following pertinent information: * Item 25 (Separation Authority) – Army Regulation 635-40, paragraph 4-24b(4) * Item 26 (Separation code) – JFM * Item 28 – Disability, existed prior to service, PEB 17. The applicant provided her VA eBenefits statement dated 18 August 2016 with degenerative disc disease and arthritis of the lumbar spine rated at 20 percent and service connected. The following medical conditions were found to not be service connected by the VA: * Anterior cruciate ligament, left knee – 10 percent * Gastrointestinal problems – 30 percent * Syncope – 0 percent * Cyclops lesions or anterior arthrofibrosis – 0 percent * Methicillin-resistant staphylococcus aureus – 0 percent 18. In the processing of this case, the Army Review Boards Agency senior medical advisor provided an advisory. In his concluding remarks he found no evidence of a medical disability or condition that would support a change to her reason, rated conditions or disability determinations. He found there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended condition(s) with no additional disability rating recommended. a. Within the advisory, he provided the causes of a hip labral tear which can be caused from trauma, structural abnormalities, repetitive motions and some tears have no signs or symptoms. In the examples he provided a traumatic injury would be an accident or from contact sports wherein the hip is dislocated at the hip joint causing a hip labral tear. Repetitive motions from sudden twisting or pivoting motions common in golf or softball can cause joint wear and tear that could ultimately result in a hip labral tear. Throughout her medical treatment service records there is no trauma noted that could have resulted in a labral tear which is why the PEB found this condition to have existed prior to her service. While she indicates in her statement she hit the ground hard and felt a pop during basic combat training, there is no record of a specific injury nor mention of a training related accident or injury in her record. b. He opined the applicant did not meet medical accession standards for "unknown to applicant and/or undisclosed right hip labrum tear" in accordance with Army Regulation 40-501, chapter 2 and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) that were applicable during the applicant’s era of service. c. In the advisory he states, "The applicant did not meet medical retention standards for right hip labrum tear and right hip pain." 19. The applicant was mailed a copy of the medical advisory opinion to provide her an opportunity to respond. On 29 October 2018 she responded by email. a. She asserts that her wrist was not injured during an accident but was fractured during an assault. Upon her entry into the Army, she provided an Army representative with the documents to support her contentions. She opines that the medical advisor assumed she injured her hip when her wrist was fractured is a false statement. [The wrist fracture was not considered during the Army Disability Evaluation System processing, therefore, it was not discussed within this Record of Proceedings] b. Several times in the advisory it was noted her erythrocyte sedimentation rate (ESR) were mentioned to imply she did not have inflammation because of normal ESR results [her results were within the normal to low range]. She opines the ESR is not a good indicator of inflammation and should not be used to definitively state she had no inflammation. c. She asserts her medical records do support her cause of injury being from direct trauma sustained in training, but often she was only asked why she was seeking medical treatment and not what the cause of her visit to the clinic was. She believes she meets the criteria for trauma because she always said she was injured when "taking cover" during a road march. The states she threw herself to the ground to brace for incoming artillery. She then outlines her medical treatment and how she felt she was not heard by medical personnel. d. By August 2005 she could not do her physical therapy exercises and in time an MRI was ordered which happened in October 2005. It was then she had a reason for her pain, but her MEB process was started because of the tear and her inability to complete an APFT. e. She then outlines her grievances with how the MEB medical examination was done and how the specific forms were completed wherein she felt she was ordered to make corrections that were untrue. [No evidence to support this contention was provided] f. She concludes by stating she did not have flat feet when she enlisted but according to military forms she has flat feet. She consistently sought help for her hip and no one believed her until it could be proven by the MRI and then ultimately led to her removal from service. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. One Board member determined there is no evidence to support the injury in which the medical evaluation was initiated showing it was caused prior to the applicant’s entry into service. The other two Board members agreed with the PEB in which the applicant also concurred with its accuracy. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRTAIVE NOTES: N/A REFERENCES: 1. Title 10, USC, 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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 U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. 4. Army Regulation 635-40 establishes the Army Disability Evaluation 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command- referred for a fitness-for-duty medical examination or directed by medical providers. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or 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 whose medical condition did not exist prior to service 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. c. 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. e. Paragraph 3-4 states Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. f. Paragraph 4-24b(4) concerns final disposition wherein disposition instructions (discharge orders) will be prepared stating separation will be for physical disability without severance pay (Title 10, U.S. Code, section 12681). g. Appendix B, paragraph B-10c states hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed. 5. 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. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014730 8 1