ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS I BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170018028 APPLICANT REQUESTS: his lower back pain, right shoulder pain, right hip, and cervical spine be added to his Physical Evaluation Board (PEB) proceedings to be acknowledged and show they were unfitting conditions which he incurred during his active duty service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 9-page personal statement with 180 plus attachments (medical records and service record documents) FACTS: 1. The applicant did not file within the three 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: a. Since his discharged several changes have occurred in the medical evaluation board (MEB) process, including the introduction of the Integrated Disability Evaluation System (IDES). He did not have access to a Physical Evaluation Board (PEB) Liaison Officer (other than the MEB doctor). He was not afforded the opportunity to make his case to the MEB in person and was only evaluated for one condition at a time throughout the process. His company commander acknowledged his hip was part of the problem that sent me to the MOS/Medical Retention Board (MMRB); however, it was not evaluated. When he was presented with the summary document produced by Dr. B, he was not granted time to consider it. Dr. B’s response to his question regarding conditions he omitted was that his chain of command wouldn't stand for the delays necessary to process them all. It is his understanding that servicemembers are currently allowed up to ten days to consider this document and required to discuss it with a PEBLO and a judge advocate general (JAG) officer. One of his contentions is that, had this occurred, all of his conditions would have been submitted as evidence supporting Dr. B's final Permanent Profile, including the avulsion fracture of his C5, diagnosed between 21 and 25 January 2005. Dr. B’s Medical Board Summary was signed on 19 January 2005. b. While his right knee kept him from running and marching in formation, his left hip kept him from functioning as a combat medic in a field environment. His right hip ended his time as a Battalion Aid Station medic and duty driver. When he was medically evacuated from Germany to Brooke Army Medical Center near San Antonio, he was on aircraft in a sitting position 38 of 72 hours. While this aggravated his right hip, it did recover and was not a chronic problem until after his left hip surgery. Even though his unit knew his right hip had been diagnosed and the medical advice was for him to have convalescent leave until he went to post-surgical rehabilitation, he was only granted 10 days of convalescent leave. He was instructed to stand outside of the unit in order to assist the General’s wife. He thought it would take about five minutes; however, he stood on his crutches putting weight on his hip for over 90 minutes. From that point on, he had bilateral hip pain, could not sit for more than fifteen minutes, and could not trust his right hip to carry weight. Dr. E corrected Major (MAJ) P's diagnosis of labral calcification of his right hip. He explained that if the labrum had been calcified, it would have shattered instead of "shredding." The Veteran's Choice Act allowed him to have both hips replaced at Duke Medical Center, this allowed him to have functional hips again for the first time since 2004. c. While functioning as a duty driver between 29 November 2002 and 16 April 2003, he was doing individual PT to keep in shape. He shared duties with another driver and, when there was not anything scheduled, they worked a normal rear- detachment workday. However, when something was expected, they were on their own except for the time required to complete the task. On 3 March 2003, he was walking to cool down after exercising when he fell backwards on ice. Since his left foot slipped, he caught himself with both arms and his right foot. Thirty minutes later he was in excruciating pain. When he finally went to get medical attention, he had "S-I dysfunction" and had twisted his sacroiliac. He was sent to physical therapy, which helped a lot. However, over time, his back deteriorated until he was unable to stand or lay flat for more than fifteen minutes without excruciating pain. It also took longer periods of time to recover. In the end, he was assigned to the post gymnasium and other duties for work due to his physical limitations and inability to stand in formation. Although he was being reassigned to duties that would not cause further damage, his unit and the Wuerzburg Orthopedic physician assistant (PA) captain (CPT) L continued to refuse to evaluate more than one issue at any time. Only through the diligence and effort of CPT V and CPT S was any actual progress made in diagnosis and treatment of his injuries. The results of their work did not make it to the board. He realizes now that his predisposition to get the job done no matter what contributed a lot to his condition. This is the last of his service connected/secondary issues to be dealt with. He was unable to be active enough to aggravate it for several years. He is only now becoming able to be active. Thanks to the Veteran's Choice Act and Duke Medical Centers, he is preparing to have his left shoulder repaired. d. His right shoulder pain resulted in his inability to use his right arm for periods of time. Not only did he have a rotator cuff injury that was determined to be service connected and justified by his military treatment records, added to this were the tremors and weakness of his right arm due to both shoulder pain and “TOS.” Beginning in December 2004, he started seeking help due to pain in his right shoulder. He believed this was a result of not being able to sleep, except on his right side for more than a year. He had not slept on his back since he fell in March 2003 or on his left side since the surgeries on his right knee in 1989. When he brought up the problem of his right shoulder to CPT S, she wanted to do some research and find out what was going on. This research led to the first accurate diagnosis of his cervical spine. Partly because of the radiculopathy affecting his right arm, a rotator cuff injury was also diagnosed shortly before his discharge. The rotator cuff injury resulted in him not even being able to wash towels in the gym at times because of the severity of pain in his shoulder. He was also unable to do pushups. e. After a diagnostic PT test in 2007, he suffered a torn labrum in his left hip and a brain reboot. He had to lay on the ground and lock out before lifting so his hips would not pop and tear the labrums. The funny thing is, he was on a profile for PT at own pace and distance with instructions to stop when it hurt. After the brain reboot, there was no pain so he passed the sit-ups using only his right hip and passed the run-walk, hobbling at the end. He thinks this was only possible because he finished the run walk before the brain was reengaging the pain centers. He has enclosed evidence Wuerzburg Orthopedics was only working on one condition at a time. Even though he was referred to CPT L for evaluation of his right knee and left hip on 29 January 2003, when he saw him on 7 February 2003, he made him choose between his knee and hip, explaining he could only work on one at a time and it would take six months to finish the Permanent Profile process on whichever he chose. Even though he tore the labrum on his right hip, he still refused to look at it until after he completed the permanent profile for his knee. Without seeing him, he ordered PT. He submitted the profile for review on 20 October 2003, recommending an MMRB on a P2 profile. His reviewer made him choose between a P3 and the MMRB, so he chose the P3 for his right knee, knowing his left hip was causing most of the problems at the time. In fact, the first evaluation of his left hip didn't occur until 30 December 2003. f. While he did not realize it at the time, the initial results of the injury (1988) included a serious decrease in typing speed, problems carrying weight on his head, and problems with sleeping and neck rotation. Other issues included tremors, Thoracic Outlet Syndrome and numbness/tingling in fingers that developed in both hands. His original neck injury occurred during Combat Maneuver Training at Yakima Firing Center in February-March 1988. While it occasionally flared up and was a major consideration when he reenlisted for X-Ray technologist school in 1989. He did not realize the severity or complexity of his injury. After his contract was breached in 1990, he filed a disability claim, including neck pain. In 2000, after a bump on the head, he was diagnosed with calcification of a ligament. Traction resulted in his first period without symptoms since 1988. He would not have considered reentering service without the assurances from the VA that nothing was wrong with his neck. g. In 2003, while deployed to Kosovo, the diagnosis became "arthritis." This diagnoses remained until an in-service diagnosis, "avulsion fracture" of the CS was made between 21- 25 January 2005, after he signed my MEB Medical Board Summary on 19 January 2005. In 2013, he was diagnosed with "advanced" and "high-grade" osseous neural foraminal stenosis" on the left at the CS-C6/C6-C7. In June 2015, a masseuse told him he had the "best developed" and "most tense" scalenes she had ever seen. He researched scalenes and found information about Thoracic Outlet Syndrome and its symptoms. For the first time, something made sense of all the symptoms he had been experiencing since he injured my neck in 1988. In September 2015, thanks to the Veteran's Choice Act, he was able to see a surgeon at Duke University Medical Center who indicated the need to fuse three of his cervical vertebrae. The fusing of his cervical vertebrae restored his neck which had reached a point where his major accomplishment for most days was getting his head from the pillow to the bathroom and back to the pillow. The applicant goes on to describe detailed information pertaining to his cervical spine injury. The applicant’s complete statement was provided for the Board review. 3. On 8 January 2004, the applicant’s commander recommended he be reclassified to an administrative MOS or be referred to the Army’s physical disability system. He stated the applicant’s inability to perform his duties in any environment prohibits him from fulfilling the unit's mission, namely deploying to any contingency area to fight and win. The applicant suffers from a preexisting injury causing chronic knee pain and a recently manifested injury causing hip pain. Due to his medical condition the applicant is unable to run, carry heavy loads such as litters, and his condition limits both his physical agility and strength. His MOS has many physically demanding needs. The applicant cannot complete many of these tasks efficiently. Although technically proficient in his field, his physical limitations are so restrictive that they preclude the satisfactory physical performance of most MOS or specialty codes in which the Army has a need. 4. On 14 January 2004, a MMRB considered the evidence presented in the applicant’s medical records and MMRB packet, as well, as statements the applicant made and recommended he appear before the MEB/PEB board. 5. A MEB referred the applicant to a PEB due to hip and knee pain. On 19 January 2005, the applicant was informed of the approved findings and recommendation of the board and agreed with the findings and recommendation. 6. On 8 February 2005, a PEB found the applicant unfit due to chronic knee and hip pain. The board recommended a combined rating of 0 percent. 7. On 15 February 2005, after being advised of the findings and recommendation of the PEB, and having received a full explanation of the results of the findings and recommendations and legal rights, the applicant concurred with the findings and waived a formal hearing. 8. The available records contain no evidence showing his lower back pain, right shoulder pain, right hip, or cervical spine rendered him unable to perform the duties commensurate with his grade and military occupational specialty (MOS), thereby warranting entry into the physical disability evaluation system (PDES) while he was on active duty. Additionally, there is no indication he had been given a permanent profile for the aforementioned conditions. 9. On 3 May 2005, the applicant was honorably discharged due to disability with severance pay. He completed 2 years, 11 months, and 25 days of net active service this period and 4 years, 11 months, and 12 days of total prior active service. 10. On 18 July 2014, the Physical Disability Board of Review (PDBR) convened to review the applicant’s disability rating. After careful review of the application and medical separation file, PDBR recommended modification of the disability rating previously assigned to reflect a combined rating of 10 percent (10 percent for chronic left hip pain, 0 percent for chronic knee pain) versus 0 percent, without re- characterization of the separation. 11. On 26 January 2015, the applicant was informed by the Deputy Assistant Secretary of the Army (Review Boards) that she has reviewed and accepted PDBR’s recommendation and that the decision was final. Recourse with the Department of Defense or the Department of the Army is exhausted. The applicant had the option to seek relief by filing suit in a court of appropriate jurisdiction. 12. On 5 February 2015, the applicant was informed by the U.S. Army Physical Disability Agency (USAPDA) that his separation order had been amended modifying his disability rating to 10 percent without re-characterization to his separation. 13. On 7 February 2018, the Army Review Boards Agency senior medical advisor provided an advisory opinion. The advisory found that the applicant’s medical conditions were duly considered during medical separation processing. The medical advisor states in part: a. The cervical spine condition clearly did not reach a MRDP (medical retention determination point). The applicant had intermittent periods of neck pain prior to reenlistment and a few months prior to separation. The preponderance of medical records and/or evidence does not support the applicant’s contention that the cervical spine condition did not meet medical retention standards and/or was separately physically unfitting at the time of the applicant’s era service. This recommendation is congruent with the VA examination and 0 percent rating at that time. b. The right shoulder condition clearly did not reach a MRDP. The applicant had a few months of right shoulder pain evaluated and treated by physical therapy. The preponderance of medical records and/or evidence does not support the applicant’s contention that the right shoulder condition did not meet medical retention standards and/or was separately physically unfitting at the time of the applicant’s era service. c. The lower back condition clearly did not reach a MRDP. The applicant had some DJD with periods of back pain. The preponderance of medical records and/or evidence does not support the applicant’s contention that the lower back condition did not meet medical retention standards and/or was separately physically unfitting at the time of the applicant’s era service. This recommendation is congruent with the VA examination and 0 percent rating at that time. d. The right hip condition did not reach a MRDP. It was clearly abnormal – congenital hip dysplasia, with intermittent pain. The preponderance of medical records and/or evidence does not support the applicant’s contention that the right hip condition did not meet medical retention standards and/or was separately physically unfitting at the time of the applicant’s era service e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, rated condition(s), disability determination, and/or disability rating(s) (PDBR amended) for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. On 14 March 2018, in response to the medical advisory, the applicant submits a 9- page letter along with previously submitted documents. He disagrees with the medical advisor and reiterates his contentions with regard to his lower back pain, right shoulder pain, right hip, and cervical spine conditions. A copy of the complete rebuttal letter was provided to the Board for their review and consideration. 15. Army Regulation 635-40(Physical Evaluation for Retention, Retirement, or Separation) 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and the applicant’s rebuttal. The Board discussed the applicant’s claim, the medical documents he provided, the conclusions of the advising official and the applicant’s response. The Board determined that the other conditions met medical retention standards at the time of his medical processing and that he was properly rated for the unfitting condition present at the time of his separation. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 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. ADMINISTRATIVE NOTE(S): Not Applicable ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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. 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 DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 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/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 or not 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 either are 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 a 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. 3. 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. 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. b. 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. 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. ABCMR Record of Proceedings (cont) AR20170018028 5 1