RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2005
	DOCKET NUMBER:  AR20050000973 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director

Mr. W. W. Osborn, Jr.

Analyst


The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Mr. John T. Meixell

Member

Mr. Robert L. Duecaster

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests physical disability retirement.

2.  The applicant states that his arteriovenous malformation (AVM) was not a congenital condition that had existed prior to entry into the service (EPTS).  It was caused by a head injury incurred in a parachute jump on 18 March 2004. 

3.  The applicant provides copies of the medical evaluation board (MEB) report, the physical evaluation board (PEB) report, his own statement, and a statement from a sergeant first class (SFC).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the same relief as the applicant. 

2.  Counsel states that, since the Department of Veteran Affairs (VA) has determined that the applicant's disabilities are not the result of a congenital defect, the Army should change its decision.   

3.  Counsel provides a copy of the VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 8 January 2002, completed infantry training and basic airborne training, and was awarded the Parachutist Badge.

2.  On 27 June 2004 a n MEB found him medically unqualified due to a cognitive, mood and seizure disorders, and visual field defect, all secondary to a AVM that was considered to be EPTS.  His case was referred to a PEB and the applicant concurred with the findings and recommendation.

3.  The applicant appeared with assigned military counsel at a 29 November 2004 formal PEB hearing.  The PEB members noted that the various defects were all secondary to surgery for the AVM and concluded that they were not compensable since they were the result of treatment for an EPTS condition.  The PEB recommended that the applicant be separated from the service without medical benefits.  The applicant appealed to the PEB to reverse the case but the PEB reaffirmed its decision.


4.  The Physical Disability Agency affirmed the decision and directed that the applicant be separated.  He completed the DD Form 149 (Application for Correction of Military Records) at that time and has probably been discharged by now.

5.  The applicant's submissions include:

	a.  His 4 March 2004 statement in which he reports a 18 March 2004 head injury.  He cites the statement from SFC L____ and also argues that an AVM can be caused by trauma as is reported in an in the Journal of the American Medical Association.

	b.  The unsigned 20 November 2004 statement from SFC L____ relates that the applicant reported immediately after the jump that he wasn't feeling well, because he might have hit his head on the ground.  A medic determined that the applicant could carry-on.  Immediately after returning from the field, the applicant reported headaches and memory problems.  SFC L____ learned that treatment would be required and provided an escort to accompany the applicant to Walter Reed Army Medical Center.  He worked with the applicant at Fort Bragg and in Afghanistan and considered him an outstanding Soldier.  He noticed a change in behavior after the applicant hit his head.

6.  The VA rating decision noted a pre-service head injury, but there were no reported symptoms prior to March 2004.  Although the applicant, had "later reported having similar symptoms prior to this, we cannot use your statements against you."  It noted that the AVM was confirmed by a 10 April 2003 MRI.  The VA, "resolved reasonable doubt in your favor and granted service connection."  

7.  The Medline Plus [an online medical reference service provided jointly by the National Library of Medicine and the National Institutes of Health] states that a cerebral arteriovenous malformation (AVM) is a congenital disorder (present at birth) of the brain's blood vessels.  It is characterized by an abnormal connection between the arteries and the veins in the brain.  The condition occurs when, in the brain, one or more blood vessels develop in which the arteries connect directly to the veins, without having the normal capillaries between them.  There are often no symptoms until complications occur, which involve rupture of the AVM and a resulting sudden bleed in the brain.  Sudden bleeding in the brain is known as a hemorrhagic stroke, which is essentially what occurs when an AVM breaks.  In more than half of patients with AVM, hemorrhage from the malformation is the first symptom.  Depending on the location and the severity of the bleed, the hemorrhage can be profoundly disabling or fatal.  The first symptoms often include headache, seizure, or other sudden problems, such as vision problems, weakness, inability to move a limb or a side of the body, lack of sensation in part of the body, or abnormal sensations.  Symptoms are the same as for stroke. After a hemorrhage, there is a risk of developing epilepsy and increased risk of another bleed.
8.  Department of Defense Instruction 1332.38 (Physical Disability Evaluation),   Part 3 (Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification) provides at E3.P4.5.6. that, generally, the recognized risks associated with treating preexisting conditions shall not be considered service aggravation.

9.  During the processing of this case an advisory opinion was obtained from the Physical Disability Agency.  The Deputy Commander noted that, although the article cited by the applicant to the effect that an AVM may be caused by a trauma, the preponderance of the evidence in this case indicates that this one was not.  He further noted that the residual effects that the applicant is now experiencing are within the parameters of the anticipated risks of the surgery.  Furthermore the AVM was potentially life threatening and the surgery was essential.  Finally the opinion noted that Depart of Defense Instruction 1332.28 provides that the recognized risks of treating an EPTS condition cannot be considered service aggravation.  Denial of the applicant's request was recommended.  The advisory opinion was provided to the applicant for possible rebuttal.  No response was received.

10.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.
 
11.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a 
military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The preponderance of the evidence indicates that the applicant's AVM was an EPTS congenital condition.   

2.  The foregoing is in consonance with the advisory opinion from the Physical Disability Agency.

3. The Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  

4.  The VA, on the other hand, must provide compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individuals industrial or social functioning.  Furthermore, the law requires the VA must give the veteran the benefit of any reasonable doubt.

5.  Accordingly, it is not unusual for these two governmental agencies arrive at different disability decisions.  They are not measuring the same thing at all.  Confusion arises from the fact that different rating systems are used but both reference the VASARD.  However, the way they are applied is governed by widely differing policies and concepts. 
6.  The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SK ___  __JTM___  __ RLD__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





__      Stanley Kelley_______
          CHAIRPERSON




INDEX

CASE ID
AR20050000973
SUFFIX

RECON

DATE BOARDED
20051115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.04
2.

3.

4.

5.

6.