IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080012089


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 that her discharge by reason of disability with severance pay be changed to retirement by reason of permanent physical disability.

2.  The applicant states, in effect, she had a hernia operation while serving in Kuwait which resulted in residual pain.  She was unable to perform her duties because of the pain.  She had a second operation at Eisenhower Army Medical Center (EAMC), Fort Gordon, GA, but she continued to experience pain.  She was processed through the Physical Disability Evaluation System (PDES) and discharged with severance pay.  She states she continues to suffer from post-operative pain and it has affected her whole life.

3.  The applicant provides:

	a.  A 9 June 2008 letter from a friend.

	b.  Vista [Veterans Health Information Systems and Technology Architecture] Electronic Medical Documentation records from the Columbia, SC, Veterans Affairs Medical Center (VAMC) pages 14-23, 31-39, 41, 48-50, 52-58, 60, 75-76, 80-81, 89, and 92-94.

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 January 2007.

	d.  Orders 352-0018, Headquarters, 3rd Infantry Division, Fort Stewart, GA, dated 18 December 2006.
	
   e.  DD Form 2648 (Preseparation Counseling Checklist), dated 4 January 2007.

	f.  SGLV-8286 (Servicemember’s Group Life Insurance Election and Certificate), dated 9 January 2007.

	g.  DD Form 93E (Record of Emergency Data), dated 9 January 2007.

	h.  Enlisted Record Brief (ERB), dated 15 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant served as a specialist (SPC)/E-4 in the Regular Army in military occupational specialty (MOS) 92Y (unit supply specialist) from 24 May 2001 through 12 January 2007.  She had service in Iraq from 30 January 2005 through 24 December 2005.

2.  While in Iraq, the applicant was diagnosed as having a left inguinal hernia.  She underwent a herniorrhaphy in-theater in November 2005 during which the hernia was repaired with mesh.  She developed post-herniorrhaphy pain syndrome and she underwent a second operation at EAMC in May 2006.  At that time, the ilioinguinal nerve was found to be trapped within scar tissue and was dissected free and transected.  Unfortunately, her pain did not abate and, in August 2006, she was given a permanent L-3 physical profile.

3.  The applicant was referred to the PDES.  On 21 November 2006, a Medical Evaluation Board (MEBD) was completed with a diagnosis of left inguinal herniorraphy with residual pain.  The MEBD referred her case to a Physical Evaluation Board (PEB).

4.  On 6 December 2006, a PEB found the applicant unfit for residual pain following surgical repair of an inguinal hernia.  The pain was rated as moderate under VASRD (Veterans Administration Schedule for Rating Disabilities) code 8799-8730 (neuralgia of ilioinguinal nerve) and she was given a disability rating of zero percent.  The PEB recommended she be separated with severance pay.  On 12 December 2006, she concurred with the PEB's findings and recommendation.

5.  The applicant was honorably discharged on 12 January 2007 under the provisions of Army Regulation 635-40 by reason of disability, with severance pay of $23,230.80.

6.  Subsequent to her discharge, she has been treated by the Department of Veterans Affairs (DVA) where she had a peripheral nerve stimulator implanted.

7.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, Washington, DC.  The opinion relates:

	a.  An MEBD was completed on 21 November 2006 with a diagnosis of left inguinal herniorrhaphy with residual pain.  The NARSUM [Narrative Summary] indicated the applicant had two successful repairs of her hernia, but she was left with residual scar pain.

	b.  A PEB was completed on 6 December 2006.  The applicant was found unfit for residual pain after surgical repair of her hernia.  Her pain was rated under the VASRD as moderate paralysis of the ilioinguinal nerve, with neuralgia under VASRD code 8799-8730. A moderate rating carries a zero percent disability rating.  On 12 December 2006, the applicant concurred with the PEB's findings and recommendation and waived further review.

8.  The opinion states the applicant has not provided any evidence the PEB findings were in error, while the findings were, themselves, supported by a preponderance of the evidence and were not arbitrary or capricious.  The opinion recommended the applicant’s request be denied.  The applicant was provided an opportunity to rebut the USAPDA advisory opinion, but she did not do so.

9.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Chapter 3 (Physical Profiling) gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for enlisted Soldiers of the Active Army, Army National Guard/Army National Guard of the United States, and United States Army Reserve.  Possession of one or more of the conditions listed in Chapter 3 does not mean automatic retirement or separation from the Service.  Physicians are responsible for referring Soldiers with conditions listed therein to the PDES and an MEBD.  It is critical that MEBDs are complete and reflect all of the Soldier’s medical problems and physical limitations for proper referral to a PEB.  The PEB 

will make the determination of fitness or unfitness.  The PEB, under the authority of the USAPDA, will consider the results of the MEBD, as well as the requirements of the Soldier’s MOS, in determining fitness.

10.  Army Regulation 40-501 provides that any unspecified  neurologic conditions, traumatic brain injury (TBI) or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches,  uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, lack of coordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty are cause for referral to an MEBD.

11.  Chapter 61, Title 10, U.S. Code 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.  In the Army, the USAPDA, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, Title 10, U.S. Code, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

12.  Army Regulation 635-40 establishes the Army's PDES 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 MEBDs, 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 Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

13.  Soldiers enter the PDES in one of four ways:

	a.  Referral by an MEBD.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts an MEBD to determine whether the Soldier meets the medical retention standards of Army 

Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40;

	b.  Referral by an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent medical profiles to physically perform in a worldwide field environment in their primary MOS.  Referral to an MEBD/PEB is one of the actions the MMRB Convening Authority may direct;

	c.  Referral as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If the evaluation results in an MEBD and the MEBD determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referral as a result of Headquarters, Department of the Army action.  The Commander, USAHRC, upon recommendation of The Surgeon General of the Army, may refer a Soldier to the responsible MTF for medical evaluation as described in (c) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

14.  The VASRD, in Section 4.124a (Schedule of ratings--neurological conditions and convulsive disorders), provides, under code 8730, that the applicant’s condition is neuralgia/pain of the ilioinguinal nerve causing a paralysis.  Mild to moderate paralysis is rated at zero percent; severe to complete paralysis is rated at 10 percent.  The VASRD code 8799 merely signifies that the issue is related to the nervous system via analogous coding.

15.  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 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 service and a disability rating at less than 30 percent.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 24 May 2001 through 12 January 2007.  During that time, she underwent a hernia repair in Kuwait.



2.  Following her surgery, the applicant developed pain related to the entrapment of her ilioinguinal nerve in scar tissue.  In subsequent surgeries, the nerve was surgically excised, but the pain persisted.

3.  The applicant’s chain of command sought to refer her to the PDES for evaluation of her fitness.  The medical evaluation was conducted on 6 December 2006, and she was found unfit because of her ilioinguinal nerve paralysis/pain with a percentage of disability of zero.  A PEB recommended she be separated for disability, and she concurred.

4.  The VASRD, in Section 4.124a provides, under code 8730, that the applicant’s condition is neuralgia/pain of the ilioinguinal nerve causing a paralysis.  Mild to moderate paralysis is rated at zero percent; severe to complete paralysis is rated at 10 percent.  The VASRD code 8799 merely signifies that the issue is related to the nervous system via analogous coding.  The applicant was properly rated in accordance with the VASRD.

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.  Although she was processed through the Army’s PDES and determined to have a disability which would warrant separation, she did not qualify for disability retirement because of a disability rating of zero percent and less than 6 years of active service.

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 for correction of the records of the individual concerned.


															XXX
      ______________________
               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)                                         AR20080012089



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ABCMR Record of Proceedings (cont)                                         AR20080012089



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