RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2006
      DOCKET NUMBER:  AR20060006763


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Peter Fisher                  |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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, in effect, that his disability rating be
increased to 30 percent or more.

2.  The applicant states, in effect, that he was removed from the Temporary
Disability Retired List (TDRL) with a percentage of 20 percent and that the
percentage did not properly reflect a previously noted heart condition.  He
contends that the disability percentage also overcompensated for his coping
skills and did not properly reflect his true disability.  He requested that
his heart condition and his performance inadequacies in the workplace be
properly reflected in his percentage of disability.

3.  The applicant provides a copy of the U.S. Army Physical Disability
Agency (USAPDA) proceedings and numerous service personnel records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the findings of the USAPDA be vacated and that
the Board restore and concur with the original findings of the Physical
Evaluation Board (PEB), that the applicant be found disabled with a
combined rating of 30 percent and that he be allowed to apply for continued
health care coverage to deal with his ongoing medical problems, and that
his separation should include severance pay if otherwise qualified.  He
also requests that the USAPDA justify their decision with an evidentiary
basis if the Board affirms the USAPDA decision.

2.  Counsel points out that in April 2003 the applicant was found
physically unfit with a recommended combined rating of 30 percent by a PEB
and that the 2005 PEB findings resulted in a combined rating of 20 percent;
however, there was no reason offered for this change in rating.  He also
points out that during the period between 2003 and 2005, the applicant
developed a series of heart problems which were not annotated on his 2005
PEB findings.

3.  Counsel provides a statement on behalf of the applicant, dated 2 May
2006.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 26 April 1990
for a period of 8 years.  He was discharged from the USAR effective 19
April 1992.  On 20 April 1992, the applicant enlisted in the Naval Reserve
for a period of        6 years and 5 days.  He apparently was discharged
from the Naval Reserve on an unknown date and enlisted in the Regular Army
on 9 September 1994.  On     6 November 1998, he was prompted to sergeant,
E-5 in military occupational specialty 67U (CH-47 Helicopter Repairer).

2.  A DA Form 2173 (Statement of Medical Examination and Duty Status),
dated 24 December 2001, shows the applicant was injured (forehead
laceration, right 2nd finger laceration, and cerebral concussion) when
another Soldier struck him on the head from behind with a beer bottle at a
night club in Korea.

3.  The applicant provided a chronological statement of his medical
problems.  He indicated that on 15 May 2002 he experienced his first heart
palpitations after a 4-mile run.  He also indicated that on 1 September
2002 he was sent to Walter Reed Army Medical Center and underwent a 24-hour
halter test, an electrocardiogram (EKG), and an echo cardiogram and the
tests were normal.

4.  On 18 March 2003, a Medical Evaluation Board (MEB) diagnosed the
applicant with post-concussive syndrome status post traumatic brain injury;
impaired right hand dexterity associated with traumatic left frontal brain
injury; cognitive disorder due to traumatic brain injury; and anxiety
disorder due to traumatic brain injury and postconcussive disorder.  The
MEB recommended referral to a PEB.  On 19 March 2003, the applicant agreed
with the findings and recommendations.

5.  On 4 April 2003, an informal PEB found the applicant physically unfit
due to impaired right (dominant) hand dexterity, post head trauma, with
neurological examination noting hypokinetic finger to nose testing as well
as slowing of ranges of motion testing as compared to the non-dominant
side; and cognitive disorder post head trauma with reported loss of
consciousness.  The PEB recommended a combined rating of 30 percent and
that the applicant be placed on the TDRL.  On 9 April 2003, the applicant
concurred with the findings and recommendations and waived a formal
hearing.

6.  On 19 May 2003, the applicant was released from active duty and placed
on the TDRL the following day with a disability rating of 30 percent.

7.  The applicant appeared for a periodic physical examination on 18 August
2005.  This medical report states, in pertinent part, that “Cardiovascular
symptoms Patient report a further episode of palpitations and tachycardia
(excessive rapidity in the action of the heart) for which he was seen and
treated in his local ER.  Started on toprol and to follow up with PCM
today.  Chest pain radiating to left arm but apparently the EKG was normal
and patient reports no lab abnormalities apart from being told that K+ was
low.  Event lasted about 90 minutes.  No altered level of consciousness.
No metallic taste.  No abnormal movements.  This is 3rd event.  Last was
longer and first was >45 mins,” Neck:
Appearance was normal.  Palpation revealed no abnormalities.  Carotid
arteries were normal.” and “Cardiovascular System:  Heart Rate And Rhythm:
Normal.  Heart Sounds: Normal.  Murmurs: No murmurs were heard.”

8.  A MEB diagnosed the applicant with status post head injury, cognitive
dysfunction, and impairment in right hand motor skills.  The MEB
recommended referral to a PEB.

9.  In the applicant’s chronological statement of his medical conditions,
he indicated that on 10 August 2005 he went to the emergency room because
his left arm went numb and he experienced rapid heart beat.  He stated that
they ran all the usual tests (EKG, chest x-ray, enzyme for heart attack,
thyroid, and blood sugar) and they were all normal except for his
potassium.

10.  The applicant also underwent a psychological evaluation on 2 September
2005 and was diagnosed with cognitive disorder, not otherwise specified, as
evidenced by decreased capacity in abstract reasoning, complex task
planning and information processing, medically unacceptable in accordance
with Army Regulation 40-501, Chapter 3-50j.

11.  On 9 September 2005, the applicant was notified in writing of the
findings and recommendations of his periodic physical examination (that he
was medically unacceptable for further military service in accordance with
current medical fitness standards).  He was also advised that the findings
and recommendations were approved by the Deputy Commander for Clinical
Services, at Fort Campbell, Kentucky on 8 September 2005.  It was requested
that he reply by endorsement indicating his agreement or disagreement with
action.  He had 10 days to respond.  A memorandum, dated 26 September 2005,
indicated that the applicant failed to respond and it was assumed that he
waived his rights to appeal.

12.  On 27 September 2005, an informal PEB found the applicant physically
unfit due to impaired right (dominant) hand dexterity, status post head
trauma December 2001, magnetic resonance imaging cystic changes in the left
frontoparietal region judged to be posttraumatic changes, normal muscle
tone and power, deep tendon reflexes normal; rated at 20 percent.  The DA
Form 199 (Physical Evaluation Board (PEB) Proceedings) states that this
disability is rated as mild incomplete paralysis.  The PEB also found the
applicant physically unfit due to cognitive disorder, status post head
trauma, deficits in abstract reasoning and frontal lobe function, requiring
Soldier to develop compensating organizing and attending tools and process,
rated at 0 percent.  It states that he works in a full-time position as an
aviation instructor and the developer of aviation curriculum at Fort
Campbell and he has a Master’s Degree in aeronautics.  No evidence of
significant social/industrial impairment [was found].  It further states
that based on review of the TDRL examination, the PEB found that the
applicant remains unfit to reasonably perform the duties required by his
previous grade and military specialty.  His current condition was
considered sufficiently stable for final adjudication.

13.  The PEB recommended a combined rating of 20 percent and that the
applicant be removed from the TDRL and separated with severance pay.

14.  On 6 November 2005, the applicant did not concur with the findings and
recommendations, waived a formal hearing, and submitted an appeal.  In
summary, the applicant stated that he was not the same guy he was before
the incident (when he was attacked by four off-duty military policemen in
Korea on  24 December 2001) and that problems with memory and numbers were
growing evident.  He stated that he had been making mistakes at work and
failing classes at the state university.  He contended that he had been
having other health issues (heart palpitations/strange sensations in his
neck) that were not mentioned in the MEB for some reason.  He claimed that
he had mentioned these issues to the doctors and that the neurologist said
it was anxiety and that the psychologist said it was not anxiety.  His
doctor said the heart problem could be related to the head injury but that
it wasn’t something that happened the night of the injury and that he did
not want to add any of this to the report because it would have meant
starting all the tests over again.

15.  The applicant disagreed with the 2005 PEB’s recommended disability
percentage for his cognitive disorder disability.  He stated that he still
had the same cognitive disorder but because he was dealing with it so well
by “developing compensating organizing and attending tools and process” he
lost  10 percent.  He doesn’t think that losing a job and being on the
fence at another was doing fine.  He pointed out that he had his Master’s
degree before the injury and that although his credentials get him in the
door the employers see performance that doesn’t reflect his credentials or
experience levels.  He requested to go back on active duty, that he be
cleared for a training program leading to a commission.  He stated that he
did not want to leave the military under any other circumstances other than
retired.

16.  On 9 November 2005, the PEB found that no change to the original
findings was warranted.  The PEB determined that the applicant’s rebuttal
did not present new objective medical information or performance evidence,
which would warrant any change in his disability rating; that the medical
information available indicated no evidence of significant
social/industrial impairment from the diagnosis of cognitive disorder; and
that his overall disability was appropriately rated as 20 percent.  His
case was forwarded to the USAPDA for review.
17.  The USAPDA affirmed the PEB’s findings and recommendations.

18.  The applicant was removed from the TDRL and discharged with severance
pay with a 20 percent disability rating on 22 November 2005.

19.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.


20.  Army Regulation 635-40 states, in pertinent part, that the combined
percentage rating approved at the time the Soldier was placed on the TDRL
cannot be changed by the PEB throughout the period the Soldier is on the
TDRL. Adjustment will be made at the time of removal from the TDRL to
reflect the degree of severity of those conditions rated at the time of
placement on the TDRL and any ratable conditions identified since placement
on the TDRL.

21.  Army Regulation 635-40 also states that entries on the DA Form 199
will reflect the Soldier’s condition at the time of the most recent
periodic examination. The DA Form 199 will include the reason for variation
between the original action (findings, recommendations, or ratings) causing
the Soldier’s placement on the TDRL and current action removing him or her
from the list.  Explanations need not be lengthy, but must be
understandable.

22.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.  Section 1212 provides that a
member separated under Section 1203 is entitled to disability severance
pay.

23.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has an impairment rated at least 30
percent disabling.

24.  Department of Defense Instruction 1332.38, paragraph E3.P6.2.4 states
that conditions newly diagnosed during TDRL periodic physical examinations
shall be compensable when the condition is unfitting and the condition was
caused by the condition for which the member was placed on the TDRL or the
evidence of record establishes that the condition was incurred while
entitled to basic pay or as the proximate result of performing duty and was
an unfitting disability at the time the member was placed on the TDRL.

25.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a VA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a VA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the VA pension
and military retirement.  The new law does not apply to disability retirees
with less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his disability percentage did not
properly reflect a previously noted heart condition and that he had been
having other health issues (heart palpitations/strange sensations in his
neck) that were not mentioned in the MEB were noted.  Counsel’s contention
that between 2003 and 2005, the applicant developed a series of heart
problems which were not annotated on his 2005 PEB findings was also noted.


2.  It is acknowledged the applicant contended he first had heart
palpitations in May 2002 and was sent to Walter Reed Army Medical Center in
September 2002 for evaluation of these symptoms.  However, the EKG and echo
cardiogram were normal.  No heart condition was noted by the original MEB
in March 2003 and the applicant agreed with the findings of the MEB.  No
heart condition was noted by his original PEB in 2003 and the applicant
concurred with the findings.

3.  Although the applicant’s 2005 MEB mentions that he had three episodes
of palpitations and tachycardia, the physical findings indicate that his
neck and cardiovascular system were normal.  In addition, in his
chronological statement he even noted that all tests, taken by the civilian
hospital, were normal.  Therefore, there is insufficient evidence to show
any heart condition was a ratable disability.

4.  Although the applicant contends that the disability percentage
overcompensated for his coping skills and did not properly reflect his true
disability, the 2005 PEB noted, and the applicant acknowledged in his
appeal, that he did hold a job.  Other than his own statement, he provides
no evidence to show he lost that job as a result of his medical condition
or that he was in danger of losing it because of his medical condition.  In
addition, in his appeal it appears he felt sufficiently well enough to
request to go back on active duty.

5.  The evidence of record does not support Counsel’s contention that there
was no reason offered for the applicant’s change in disability percentage
rating.  The governing regulation states only that the DA Form 199 would
include the reason for variation between the original action causing his
placement on the TDRL and the current action removing him from the list.
It states that explanations need not be lengthy, but must be
understandable.

6.  The 2005 PEB stated there was no evidence of significant
social/industrial impairment from the diagnosis of cognitive disorder.  The
PEB justified this determination by noting that he worked in a full-time
position as an aviation instructor and the developer of aviation curriculum
at Fort Campbell (although it is acknowledged that he earned his Master’s
Degree prior to his injury).  The justification appears to be clear and
understandable.  In addition, as noted above, it appears he did feel
sufficiently well enough to request to go back on active duty.

7.  There is insufficient evidence to show the applicant’s disabilities
were improperly rated by the TDRL PEB or that his separation with severance
pay was not in compliance with law and regulation.  Therefore, there is
insufficient evidence on which to increase his disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

PF_____  _TR____  _JR______  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.




                                  ___Peter Fisher_____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006763                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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