MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 26 MARCH 2002
         DOCKET NUMBER: AR2001062151

         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:

Mr. George D. Paxson		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Ronald E. Blakely		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)

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APPLICANT REQUESTS: Physical disability retirement with a disability rating of 40 percent.

APPLICANT STATES: That he should receive a 40 percent disability rating for an injury that he incurred while on active duty in Bosnia. In July 1999 the VA determined that he receive a 20 percent disability rating for his left arm, with an overall rating of 30 percent. When provided the same evidence submitted to the Physical Evaluation Board (PEB) for the same time period, the VA in July 2000 determined that he receive a 40 percent rating for his left arm with an overall rating of 50 percent. The PEB and VA ratings differ significantly. The PEB made a significant error which should be corrected.

EVIDENCE OF RECORD: The applicant's complete military records are not available. The records are those submitted by the applicant.

On 25 February 1999 a formal PEB found the applicant physically unfit because of impairment to his left elbow and forearm due to chronic pain exacerbated by moderate use, with loss of strength (grip 4/5), minor sensory changes in the hand and with normal electrodiagnostic studies of the forearm. The PEB stated that the pain was of long standing and thought [to be] due to tendinitis and which existed prior to a tour of active duty, exacerbated by a fall while on active duty in September 1996. The PEB stated that there was mild interosseous (between bones) muscular atrophy attributed to pain and disuse and a positive Tinel’s sign (a tingling sensation over the distal end of a limb when percussion is made over the site of a divided nerve, indicating a partial lesion or beginning regeneration of the nerve) over the operative site (had transposition of the ulnar nerve and pronator teres repair in 1997). The impairment was rated as analogous to a group VII muscle injury, moderate. The PEB referred to the Medical Evaluation Board (MEB) diagnoses and the narrative summary. VA codes indicated are 5399, 8615, and 5307. The PEB recommended that the applicant be separated with a 10 percent disability rating. However, the PEB noted that the applicant had at least 20 qualifying years for Reserve retirement, and that he had the option of accepting disability severance pay and forfeiting his Reserve retirement or choosing to be placed in an inactive Reserve status and receive Reserve retired pay at age 60 by forfeiting his disability severance pay. He was informed that should he elect transfer to the Inactive Reserve for the purpose of receiving Reserve retired pay at age 60, no disability compensation would be computed. He was also informed that he should contact a VA counselor to learn about available benefits such as disability compensation, etc. The applicant nonconcurred and submitted a statement.

In an 11 March 1999 statement the applicant indicated that he disagreed with the disability percentage rating, the failure of the PEB to include a MEB diagnosis #3, and the failure of the PEB to consider that the injury was incurred while he was engaged in an operation involving the likelihood of armed conflict. The applicant stated that the description of his disability discussed tendonitis as opposed to the left medial epicondylitis (inflammation of the bone) as described in the informal board results. He stated that the Board had indicated that his current condition existed prior to his tour of active duty; however, he was treated for medial epicondylitis on 5 June 1995, 14 months prior to being deployed to Bosnia, and on 6 August 1996, the Army examined him and found him fully qualified for deployment. He provided the Army with all his medical information and medial epicondylitis was not a problem at that time. He fell and tore tendons in his left arm above the elbow joint in September 1996. Those torn tendons and nerve damage did not exist prior to his tour of duty. From October 1996 to March 1997 his condition was misdiagnosed and he was treated for medial epicondylitis rather than torn tendons. Consequently, his ulnar nerve was damaged, resulting in loss of motor function which was due to a muscle and tendon injury. The numbness in his fingers and lower hand was due to the nerve damage. Grip strength has varied. A retired military Reserve orthopedic surgeon determined that there was a 36 percent permanent physical impairment. The PEB did not provide any information which would dispute those findings. The PEB did not give this fact full consideration.

He stated that the MEB diagnosis #3 was exacerbation of the right lateral epicondylitis with activities of daily living. The PEB findings referred to chronic pain exacerbated by moderate use with the left arm instead of the right arm. The damage to his left arm caused overuse of his right arm, causing a loss to the right arm. The PEB did not give this fact full consideration.

The applicant stated that his disability was a direct result of armed conflict because it was incurred while he was engaged in an operation involving the likelihood of armed conflict. He stated that his injuries were sustained in Slavonski Brod, Croatia while on Operation Joint Endeavor, receiving hostile fire pay. The area was designated a hazardous duty area by Congress. Small arms fire and nightly mine explosions were a daily event. He was engaged in an operation involving the likelihood of armed conflict. The PEB did not give this fact full consideration.

In an 11 March 1999 statement to the Physical Disability Agency, the applicant’s counsel supported the applicant’s appeal, stating that the applicant was now severely handicapped in his civilian practice, and that due to his injury he could not work full days in his engineering firm in Colorado. He could not hold a telephone in his hand for a lengthy period of time and could not use his computer for ordinary typing duties. His personal gross income has been cut nearly in half. He stated that the board members appeared extremely hostile to the presentation of the applicant. The applicant did not get fair play.

On 27 July 1999 the VA granted the applicant a 20 percent service connected disability rating for his left elbow epicondylitis, status post surgery with well healed scar, effective 5 November 1998; a 10 percent rating for lumbosacral strain with limited motion and osteoarthritis; and a zero percent rating for left knee chondromalacia patella. The VA noted that the applicant reported having left elbow pain for several months on 30 January 1995 when he was on active duty for training. The diagnosis was left medial epicondylitis. On 11 May 1995 he was diagnosed with pronation strain and on 15 May 1999 with left elbow tendonitis, at which time he was given a wrist splint. In August 1995, he was again diagnosed with left medial epicondylitis, given injections and a splint. He fell on his elbow and reinjured it in September 1996. In October he went to the emergency room because of pain. X-rays showed no fracture, but he was positive for calcified soft tissues. He continued to have left elbow pain. In January 1997, an MRI showed no bony abnormalities but did show interstitial tears in the anterior bundle of the medial collateral ligament. He tested positive for tinels over the cubital tunnel. On 7 March 1997, he had ulnar nerve transposition surgery and medial collateral ligament repair of the left elbow. The final diagnosis was medial epicondylitis and cubital tunnel syndrome. He did well after surgery and had physical therapy in June 1997. On 30 September 1997, he had pain in his left elbow. He tested positive for tinels, but an EMG showed normal results.

The applicant was examined at the Denver VA on 3 February 1999. His elbow was sensitive to touch. There was tenderness on the left elbow area. The range of motion was 10 degrees on extension with an additional 5 degree assigned by the examiner because of flare-ups and pain with repeated use. There was no impaired endurance, weakness, or incoordination. Flexion was from 0 to 145 degrees with some associated soreness. Forearm supination was to 30 degrees and pronation was normal. The x-ray was normal. There was decreased sensation on the left fourth and fifth digits of the left hand. There was no atrophy of the thenar and hyperthenar muscles. Grip strength was normal. The diagnosis was left elbow epicondylitis, status post surgery, with residuals of a well-healed scar and limited motion as described. Service connection was granted and a 20 percent evaluation assigned for decreased sensation on the fourth and fifth digits of the left hand and limitation of supination to 30 degrees of the left elbow.

On 5 July 2000 the VA increased the applicant’s disability rating for his left elbow epicondylitis, status post surgery with well healed scar from 20 percent to 40 percent, based on his decreased sensation on the left hand, decreased grip strength, limited motion of the left elbow and tenderness in the area of the left elbow, effective 5 November 1998.

On 18 June 2001 the VA granted the applicant a 10 percent service connected disability rating for right epicondylitis and a 10 percent rating for gastroesophageal reflux disease. The VA indicated that a review of the September 1998 MEB proceedings revealed that the applicant was found to have exacerbation of right lateral epicondylitis with activities of daily living, approximately beginning in 1997, that the condition incurred while the applicant was on active duty and did not exist prior to his service. The VA indicated that the condition was not secondary to the applicant’s left epicondylitis and neuritis; and therefore, medical evidence regarding the relationship to the right arm was not considered, because it was moot.

Army Regulation 635-40 establishes the Army physical 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. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

The PEB may decide that a soldier’s physical defect existed prior to service. If so, the board must further consider whether military service aggravated the unfitting defect. If the soldier’s military service makes the condition worse or hastens the natural progression of the condition beyond the normal or anticipated rate had he not been exposed to such service, a finding of aggravation must be considered. When the PEB decides that a condition has been aggravated by service, the PEB will consider the degree of disability that is in excess of the degree existing at the time of entrance into service.

Guidance provided to the Board from the Physical Disability Agency (PDA) specifies that a disability or injury is considered to be a direct result of armed conflict if the injury or disease was incurred while the solider was engaged in armed conflict, an operation or incident, involving armed conflict or the likelihood of armed conflict, while interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force, or while escaping or attempting to escape from such prisoner of war or detained status. The disability must also be based upon a direct causal relationship between the armed conflict, operation, prisoner of war, or detained status and the injury. This is not a casual connection having something occur to the soldier while in an area of armed conflict or hostilities. There must be a direct cause and effect between the armed conflict and the disability.

Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel. Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries. The ratings also represent the residual effects of these health impairments on civilian occupations.

Paragraph 4.55 of the VASRD states that a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.

VA Code 5307 pertains to Group VII muscles arising from internal condyle of humerus: flexors of the carpus and long flexors of fingers and thumb; pronator. It provides for four percentage ratings, from 40 percent (severe) to 10 percent (moderate).

VA Code 8615 is a VA code grouped under diseases of the peripheral nerves, and specifically the median nerve of the hand. The code description is Neuritis. Neuritis is defined as inflammation of a nerve or nerves, often associated with a degenerative process, and accompanied by changes in sensory and motor activity in the region of the affected nerve. Ratings range from 70 percent (severe) to 10 percent (mild).

Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

Department of Defense Instruction 1332.39 implements policy, assigns responsibilities, and prescribes procedures for rating disabilities of service members determined to be physically unfit and who are eligible for disability separation or retirement. That instruction also states in pertinent part that not all the general policy provisions of the VASRD are applicable to the military departments in that the DOD instruction replaces appropriate sections of the VASRD. It states that pyramiding must be avoided when rating muscle injuries. For example, separate ratings should not be given for an ankylosed joint and an injured muscle acting on that joint. Ratings for bone and joint impairment should not be combined with ratings for muscle and nerve impairments affecting the same joint.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 10, United Stated Code, section 1209, states in effect, that any member of the armed forces who has at least 20 years of service and who would be qualified for retirement but for the fact that his disability is less than 30 percent may elect, instead of being separated, to be transferred to the inactive status list, and if otherwise eligible, to receive retired pay upon reaching age 60.

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. Neither the informal PEB nor the narrative summary are available to this Board. Consequently, there is no detailed description of the applicant’s disability or the history of his disability. Absent evidence to the contrary, the decision by the formal PEB on 25 February 1999 which awarded him a 10 percent disability rating is considered correct. His disability was properly rated in accordance with the VA Schedule for Rating Disabilities. The Board notes that the PEB indicated that his chronic pain was of long standing, thought to be due to tendinitis, which existed prior to a tour of active duty, exacerbated by a fall while on active duty. The VA, while awarding the applicant a 20 percent disability rating for his left elbow epicondylitis on 27 July 1999, noted that on 30 January 1995 while on active duty the applicant stated that he had left elbow pain for several months. VA records indicated that the applicant had been treated several times prior to referral to a formal PEB.

2. Both the PEB and VA records indicate that he fell on his elbow in September 1996. It would appear to this Board that to say that his disability was a direct result of armed conflict because he was in an area authorized hostile fire pay, while engaged in an operation involving the likelihood of armed conflict, has no basis in fact. There must be a direct cause and effect between the armed conflict and the disability. The applicant has not shown this to be so.

3. The latest rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

4. The VA is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

6. 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 that requirement.

7. 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

___GDP_ __DSB __ __REB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062151
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020326
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.	108.00
2.	177
3.
4.
5.
6.