IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20080014590 


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 reconsideration of his request that his disability rating be changed to a higher rating.

2.  The applicant states, in effect, that the Medical Evaluation Board (MEB) did not consider or rate him for the complications of a bad blood transfusion.

3.  The applicant provides copies of progress notes from the Department of Veterans Affairs (VA) dated 27 August 2008.

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 AR20050015311, on 11 July 2006.

2.  The evidence provided by the applicant is new evidence that will be considered by the Board.

3.  The applicant was a United States Army Reserve Soldier serving on active duty when he was involved in a motorcycle accident involving a deer that resulted in his sustaining a severe leg injury.  After being transferred to Walter Reed Army Medical Center, he underwent an open reduction and internal fixation on 19 September 2002.  He required two additional surgeries for irrigation and debridement of his wound which appeared to show signs of infection.
4.  Progress Notes dated 6 September 2002 show the applicant was evaluated for a provisional diagnosis of depression/anxiety and lack of motivation interfering with his rehabilitation.  He was found to be experiencing multiple stressors but no urgent psychiatric disorder requiring treatment at that time.  

5.  The applicant’s MEB Narrative Summary, dictated on 16 December 2003, shows he was evaluated for a chief complaint of right knee pain.  Orthopedics referred him to a Physical Evaluation Board (PEB) for not meeting medical retention standards due to a limited range of motion in the right knee, with early arthritis after trauma, and joint contracture and loss of function.

6.  The applicant’s MEB Narrative Summary shows he was evaluated by the Behavioral Health Clinic for a history of panic attacks.  He reported experiencing his first attack in the fall of 2001.  He described awakening from sleep in the middle of the night with extreme difficulty breathing.  The attacks had not significantly interfered with his work performance as a military police officer nor did they hinder his social life.  A general medical condition was ruled out.  He was diagnosed with anxiety disorder, not otherwise specified, manifested by episodes of shortness of breath, rapid heart rate, diaphoresis (profuse sweating), and fear of [losing] control.  The Clinic found that he met retention standards and referred him to a PEB for final disposition.

7.  On 30 January 2004, the applicant was evaluated by the Neurology Department for a complaint of headaches that had increased in frequency (from 4 – 6 per month to daily) about a month previously.  No definitive diagnosis was made at that time although an assessment of “Headache, possibly migrainous” was made.

8.  He was apparently discharged on or about 23 September 2004 due to physical disability, with a 20% disability rating and entitlement to severance pay.  The Board determined on 11 July 2006 that there was insufficient evidence to establish an error or injustice and denied his request for an increase in his disability rating.

9.  On 24 May 2007, the applicant applied to the Board for reconsideration of his request contending that he was never rated for Post-Traumatic Stress Disorder (PTSD) or complications of a bad blood transfusion.  He did not submit any evidence or new argument and the staff of the Board returned his request for reconsideration without action.



10.  The VA Progress notes provided by the applicant indicate that the applicant reported that he received the wrong blood during a blood transfusion while at Walter Reed Army Medical Center and has had headaches and language problems since that time.

11.  In the processing of this case a staff advisory opinion was obtained from the Army Physical Disability Agency (PDA) at Walter Reed.  Officials at the PDA opined that the applicant's MEB was completed on 16 December 2003 and the MEB only considered his right leg as a limiting condition.  The MEB did not consider any diagnosis or condition related to a complication of "bad blood transfusion" and the applicant concurred with the findings on 3 March 2004.

12.  The advisory opinion further stated that, on 8 March 2004, an informal Physical Evaluation Board (PEB) found the applicant unfit and rated him at 20% for his 15 degree decrease in extension of his right leg and recommended he be separated with severance pay.  The applicant non-concurred with the findings and requested a formal hearing contending that his right leg was much worse than portrayed by the MEB.  He did not mention any other condition that might be unfitting or ratable.  The PEB responded on 12 April 2004, indicating that the applicant had not provided any new medical evidence and that the PEB rating remained unchanged.  The PEB advised the applicant to provide any new medical data not previously provided.  On 19 April 2004, a formal PEB was convened that affirmed the PEB's findings and on 4 May 2004, the applicant non-concurred and submitted undated results of an EMG (electromyography) examination.  He subsequently provided an MRI (magnetic resonance imaging) finding and assessment and on 17 May 2004, the formal PEB determined that no change in his rating was justified.  The applicant's case was reviewed by the PDA in May and June 2004 and no changes were recommended.  Officials at the PDA opined that the applicant did not provide any evidence of an unfitting blood related condition at the time he was being evaluated and recommended that no changes be made to the applicant's records.

13.  The advisory opinion was provided to the applicant for comment on 24 December 2008 and on 14 January 2009, he responded to the effect that he was not properly represented by counsel during his MEB, because his counsel knew of the issue of his blood transfusion and made no mention of it.  He also went on to state that the VA Progress notes document his medical issues sufficiently to change his rating.



14.  The applicant's MEB and PEB proceedings are not present in the available records.

15.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  

16.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, 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.  Consequently, due to the two concepts involved, an individual'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 the individual for VA benefits based on an evaluation by that agency.

17.  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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

18.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.



DISCUSSION AND CONCLUSIONS:

1.  Inasmuch as the PEB proceedings are not present in the available evidence for the Board to review, it must be presumed, based on the explanation from the PDA, that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time, with no violations of any of the applicant's rights..

2.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that the evaluation and the rating rendered by the PEB was incorrect, that he was not properly represented by counsel or that he should have received a higher disability rating at the time of his separation. 

4.  The fact that the VA, in its discretion, may have awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.  

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 AR20050015311, dated 11 July 2006.




      _______ _ 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)                                         AR20080014590





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ABCMR Record of Proceedings (cont)                                         AR20080014590



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