IN THE CASE OF:	  

		BOARD DATE:	  	  16 OCTOBER 2008

		DOCKET NUMBER:  AR20080011896


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and reconsideration of his application for entitlement to incapacitation pay to include reimbursement of his related personal expenses, payment of base pay and allowances less incapacitation pay at the rate of E-7 for the period 16 August 2002 through July 2007, civilian salary compensation for the period August 2007 through July 2012, and a review for an increase of his Veterans Administration disability determination.

2.  The applicant states that his injury definitely aggravated his loss of hearing and that he has medical proof and witness testimonials.  He states, in effect, that his DA Form 3947 should be corrected to reflect the factual truth; that his personal expenses should be reimbursed for the amounts specified in the attached documents; that he should be paid base pay and allowances less incapacitation pay at the rate of E-7 for the period 16 August 2002 through July 2007, the date of his discharge from the Army National Guard (ARNG); that his Veterans Administration disability determination should be reviewed for an increase; and that his civilian salary loss for the period August 2007 through July 2012, his retirement date, should be discussed.  He contends that the Alabama ARNG neglected his case and that he feels disappointed and abandoned.

3.  The applicant provides the following in support of his application:  five statements from personal and military associates (attachment A), a copy of his MEB proceedings (attachment A-1), correspondence from his personal physician (attachment B), copies of audiology test results (attachments B-1 through B-6), correspondence from a former ARNG Health Systems Specialist (attachment C), a copy of a distributorship agreement (attachment D), a salary comparison worksheet with supporting documents (attachment E), copies of medical-related invoices (attachment F), a copy of a hearing aid purchase agreement (attachment G), and a sworn statement from his annual training commanding officer.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070006065 on 11 March 2008.

2.  The applicant's military service records show that he enlisted in the Alabama Army National Guard (ALARNG) on 31 May 1995 following prior active and inactive service in the Regular and Reserve Components of the Army.

3.  Distributorship Agreement for Commercial Account Executive (CAE) Contractor (attachment D) dated 24 June 2002 specifies the terms and conditions of a distributorship agreement between the owner and the CAE.  The distributorship agreement does not address physical requirements, qualifications, or limitations.  Section 1 of the distributorship agreement states that the owner is interested only in the results obtained under the contract; the manner and means of handling sales shall be under the sole control of the contractor.  Section 3 states that the owner shall guarantee a gross annual income of $100,000.00 provided the CAE has met all requirements stated in the contract, which includes attending periodic training sessions, securing and attending a minimum of 260 client appointments a year, and the sale of 144 rolls/units of product in the first 90 days.  Section 3 also states that the guarantee of income is null and void if the CAE does not complete the 1-year contract.  Section 5 states that if the CAE does not fulfill the requirement of creating $100,000.00 of gross income to himself, the option to renew the contract will be solely that of the owner.  Section 15 states that the agreement shall not be construed as an employment agreement for any period of time.

4.  Alabama State Military Department Office of the Adjutant General correspondence dated 16 September 2002, shows that the line of duty investigation regarding moderate hearing loss incurred by the applicant on 16 August 2002 was approved.  The report of investigation states that a review of his previous medical documents showed mild to moderate hearing loss which appeared to have grown worse as a result of weapons fire.  Item 21 (Approving Authority – Reasons and Substituted Findings) shows the approving authority disapproved the action on 11 August 2003 stating that the natural progression of a condition that existed prior to the period of service does not constitute aggravation.  Item 21 further shows the action was changed to in line of duty for bilateral hearing loss, this episode only, by the National Guard Bureau on 16 October 2003.

5.  A hearing aid purchase agreement (attachment G) dated 23 October 2002 shows that the applicant purchased hearing aids at a total cost of $4663.56.

6.  Alabama State Military Department Office of the Adjutant General correspondence dated 19 November 2003, shows that the line of duty investigation regarding moderate hearing loss incurred by the applicant in October 2002 was approved.

7.  Medical invoices to include prescription medicines (attachment F) for the period 20 August 2002 through 23 January 2003 show charges totaling $481.71. It is not clear which charges were not covered by the applicant's Blue Cross and Blue Shield of Alabama Preferred Medical Doctors Plan.

8.  Audiology test results (attachments B-1 through B-6) conducted by the applicant's personal physician and the Auburn University Speech and Hearing Clinic during the period 24 August 2001 through 14 June 2004 indicate increased hearing loss.

9.  On 26 February 2007, the MEB (attachment A-1) determined that the applicant's hearing loss was not a result of an in-line-of-duty injury, illness, or disease.  The MEB also determined that his hearing loss existed prior to that period of service and that his hearing loss condition was not aggravated by that period of service.  The MEB further determined that there was no medical evidence that he should not be performing duty with his unit and that there was no medical evidence that prohibited the performance of his primary military occupational specialty duties.  Item 13 (Diagnosis) of DA Form 3947 shows that the applicant's bilateral mild to moderate sensorineural hearing loss existed prior to service, did not occur while entitled to base pay, and was not permanently aggravated by service.  The MEB documentation includes a narrative summary based upon a physical examination performed on 24 July 2006 which states that the applicant has had hearing tests that confirm a bilateral high frequency hearing loss for over 10 years and includes the test results from the evaluation performed at the Auburn University in June 2004.  The MEB determined that his physical limitations included no duty or assignment to noise levels in excess of 85 decibels or weapon firing, not to include firing for preparation for overseas replacements or annual weapons firing with proper ear protection.

10.  On 2 March 2007, the applicant was honorably discharged from the ALARNG and transferred to the Retired Reserve in the rank of sergeant first class/pay grade E-7 with a date of rank of 11 January 1982.  NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows he completed 39 years, 9 months, and 11 days of total military service.

11.  Correspondence from the applicant's former ARNG Health Systems Specialist (attachment C) dated 19 May 2007 states that after the applicant's formal line of duty investigation was approved on 16 October 2003 as "in line of duty for bilateral hearing loss, this episode only," the applicant asked about applying for incapacitation pay.  The former Health Systems Specialist states that he doubted that the applicant would be approved for incapacitation pay based on the nature of the applicant's hearing loss and his experience and knowledge of the case; therefore, he recommended that the applicant continue to perform drills [unit training assemblies] with his unit as long as the unit commander approved of his participation.  He further advised the applicant that if/when the applicant was approved for any payment of incapacitation pay that any drill or other duty pay would have to be repaid to the government.

12.  Correspondence from the applicant's personal physician (attachment B) dated 11 April 2008 states, the applicant showed some mild sensorineural hearing loss in 2001.  The physician also states that in August 2002, 5 days after the applicant had been on a firing range, his audiogram confirmed a significant shift downward in his hearing.

13.  Correspondence dated 2 April 2008 from the applicant's commanding officer during the 2002 annual training period states that the applicant could hear normally prior to the injury to the best of his knowledge and did not have to wear hearing aids.  He states that the applicant was injured on the firing range and was sent home to see his personal physician, that because of the injury the applicant has to wear hearing aids, and that the applicant worked in the kitchen when he returned to drill [unit training assembly] months later.  He states that the injury definitely affected or aggravated the applicant's hearing.

14.  The applicant provides a self-prepared salary comparison worksheet with supporting documents (attachment E) in which he indicates his civilian salary earnings for the period 1989 through 2007.  The salary comparison worksheet shows that his civilian earnings averaged $82,880.45 during the 5 years preceding his injury and $38,083.84 during the 5 years succeeding his injury for an average difference of $44,796.61 per year.

15.  Attachment A includes five statements from personal and military associates essentially attesting to the applicant's hearing loss following the injury at annual training and his subsequent wearing of hearing aids.

16.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) prescribes policies and implements statutory authorities regarding incapacitation pay and allowances for Reserve Component (RC) Soldiers.  The objective of the RC Incapacitation System is to compensate, to the extent permitted by law, members of the Reserve Components who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty and to provide the required medical and dental care associated with the incapacitation.  Army Regulation 135-381 states that members incapacitated in the line of duty are entitled to medical and dental treatment in a military treatment facility for the in-the-line-of-duty condition until qualified to return to military duty.  The worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition as it relates to incapacitation pay.  Members able to perform military duties, but demonstrating a loss of earned income as a result of an in-the-line-of-duty incapacitation, will be compensated for lost earned civilian income.  The compensation under this provision will be the lesser of the amount of demonstrated lost civilian income in the amount not to exceed military pay and allowances for which the member would be entitled if serving on active duty.  Incapacitation pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation.  Incapacitation pay will end upon retirement, separation for physical disability, or determination by military service medical personnel that the member has recovered sufficiently to perform military duties, when actually returned to military duty, whichever occurs first.

17.  Army Regulation 135-381 defines incapacitation as a physical disability due to injury, illness, or disease that prevents the performance of military duties as determined by the Secretary of the Army, or which prevents the member from returning to the civilian occupation in which the member was engaged at the time of the injury, illness, or disease.

18.  Army Regulation 135-381 specifies that completed line of duty investigations serve as necessary documentation for application for disability entitlements with the Department of Veterans Affairs and for the payment of civilian medical bills related to TRICARE or other government medical care plans.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform.  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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The disability rating is the percentage assigned to a medical defect or condition.  A rating is not assigned until the Physical Evaluation Board determines the Soldier is physically unfit for duty.  The Army does not make the determination as to the probable Veterans Administration disability compensation.  The individual must apply to the Department of Veterans Affairs and receive a disability rating.

20.  Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs to award compensation for disabilities which were incurred in or aggravated by active military service.  The Department of Veterans Affairs does not have authority or responsibility for determining physical fitness for military service.  The Department of Veterans Affairs awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the Department of Veterans Affairs can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DA Form 3947 and reconsideration of his application for entitlement to incapacitation pay to include reimbursement of his related personal expenses, payment of base pay and allowances less incapacitation pay at the rate of E-7 for the period 16 August 2002 through July 2007, civilian salary compensation for the period August 2007 through July 2012, and a review for an increase of his Veterans Administration disability determination was carefully considered and determined to be without merit.

2.  The MEB determined that the applicant's hearing loss was not a result of an in-line-of-duty injury, illness, or disease.  The MEB also determined that his hearing loss existed prior to that period of service and that his hearing loss condition was not aggravated by that period of service.  The MEB further determined that there was no medical evidence that he should not be performing duty with his unit and that there was no medical evidence that prohibited the performance of his primary military occupational specialty duties.  Further, the applicant presents no evidentiary medical documentation which supports his claim that the MEB determination is incorrect; therefore, there is no basis to grant relief.

3.  The applicant presents no evidentiary documentation which supports his claim that his hearing loss affected his civilian earnings.  The prospective distributorship agreement provided by the applicant states specifically that the owner is interested only in the results obtained under the contract, the manner and means of handling sales shall be under the sole control of the contractor, and that the agreement shall not be construed as an employment agreement for any period of time.  The prospective distributorship agreement does not address physical requirements, qualifications, or limitations.  The applicant did not provide documentation which shows that a specific level of hearing was a condition of employment or that he suffered a loss in civilian pay or was denied employment as a direct result of his hearing loss.  Absent documentation from the applicant’s civilian employer which shows that he experienced a loss in pay as a direct result of his bilateral hearing loss and that the hearing loss occurred in the line of duty, there is no basis to grant relief.

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and is accomplished through the physical disability evaluation system.  The Department of Veterans Affairs evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Eligibility for veterans’ benefits, to include disability compensation, does not fall within the Army Board for Correction of Military Record’s purview.

5.  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

____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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070006065 dated 11 March 2008.



      ___________X_____________
                 CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20080011896



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ABCMR Record of Proceedings (cont)                                         AR20080011896



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