IN THE CASE OF:	  

		BOARD DATE:	  	   23 April 2009

		DOCKET NUMBER:  AR20090001082 


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 Medical Evaluation Board (MEBD) and Physical Evaluation Board (PEB) proceedings to show an accurate and complete evaluation of all of his medical conditions, along with an increase in his disability rating.

2.  The applicant states, in effect, his MEBD and PEB proceedings are missing medical documents that should have been considered at the time.  He adds that he was pending doctor visits and was told all of the documents would be mailed to Fort Sam Houston, Texas, and would be available for final review by the PEB.

   a.  The applicant states his PEB proceedings conducted in 2006 at Fort Sam Houston did not contain the test results of 17 January 2006 for his left wrist.  He adds this test indicated nerve damage on his left and right arms, and limited range of motion (ROM) and use of his left hand.

   b.  The applicant states there is no mention of his problems or symptoms pertaining to his right arm nerve damage.

   c.  The applicant states there is also no mention of vertigo, which he was taken to the emergency room for on 27 January 2005.																																
   d.  The applicant states the Department of Veterans Affairs (VA) has been treating him for Post Traumatic Stress Disorder (PTSD), adjustment disorder, 

anxiety, depression, and lower back problems for over a year and these medical conditions were not included in the MEBD or PEB.

   e.  The applicant states that the supporting documents he provides show that these medical conditions existed at the time he was an active duty Soldier; however, the MEBD/PEB did not consider them.  He adds that he recently learned he could have his case reopened and reviewed based on the supporting documents.

3.  The applicant provides two self-authored statements, dated 1 December 2008 and 13 February 2009; DA Form 3947 (MEBD Proceedings), dated 16 December 2005, with an MEBD Medical Record Report reviewed on 15 December 2005; DA Form 199 (PEB Proceedings), dated 7 February 2006; Standard Form (SF) 513 (Consult Report), dated 4 May 2004; six SFs 600 (Chronological Record of Medical Care), dated 17 August 2003, 27 September 2004, 31 October 2005,
1 November 2005, 11 January 2006, and 17 January 2006; DA Form 3349 (Physical Profile), dated 26 July 2005; DA Form 2807-1 (Report of Medical History), dated 24 August 2005; seven Houston VA Medical Center (VAMC), Medical Record Progress Notes, dated 29 October 2007, 20 November 2007,
27 November 2007, 12 December 2007, 14 January 2008, 12 February 2008, and 15 May 2008; VA, Statement in Support of Claim, dated 1 July 2008; VAMC Houston, letter, dated 21 November 2008; Excel Tech Ltd, NeuroMax 1004, Demo Header, dated 17 January 2006; Physical Medicine and Rehabilitation, Darnall Army Community Hospital, Fort Hood, Texas, report, dated 27 August 2002; and DA Form 4700 (Medical Record - Supplemental Medical Data), dated 27 January 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the Texas Army National Guard (TXARNG) on 15 December 1999.  He then enlisted in the Regular Army (RA) for a period of 3 years on 15 May 2001.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 15H (Aircraft Pneudraulics Repairer).  The applicant served in Iraq in support of Operation Iraqi Freedom from 29 March 2003 to 17 March 2004.  The applicant reenlisted in the RA for a period of 3 years on 2 February 2004.

2.  The applicant’s military personnel records are absent a copy of his MEBD or PEB proceedings.


3.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty this period on 15 May 2001 and was honorably discharged on 15 April 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  At the time he had completed 4 years, 11 months, and 1 day of net active service this period; 10 months and 22 days of total prior active service; 6 months and 8 days of total prior inactive service; and 1 year, 11 months, and 18 days of foreign service.

4.  In support of his application, the applicant provides the following documents.

   a.  Two self-authored statements, dated 1 December 2008 and 13 February 2009, that were previously introduced, summarized, and considered in this Record of Proceedings.

   b.  A DA Form 3947, dated 16 December 2005, with an MEBD Medical Record Report reviewed on 15 December 2005.  The MEBD Medical Record Report shows that the applicant was seen on 19 August 2005 and, subsequent to that visit, he was examined by a doctor from Psychology on 26 September 2005 with no significant psychiatric symptoms noted.  The DA Form 3947, in pertinent part, shows that the applicant’s MEB diagnosis of chronic left wrist pain does not meet the retention standards; his diagnosis of left cubital tunnel syndrome, with neuropathy, does not meet the retention standards; and his diagnosis of difficulty in sleeping meets the retention standards.  The MEBD proceedings also show the applicant was referred to a PEB.

   c.  A DA Form 199 that shows a PEB convened on 7 February 2006.  The PEB Proceedings, Disability Description section, describes the applicant’s MEBD diagnosis as “chronic left wrist pain status post ganglion removal in 2002, extension 75 degrees and flexion 35 degrees, not requiring daily narcotics, rated as slight/constant” with a recommended disability rating of 10 percent (%).  This section also shows “MEBD Diagnosis 2 (Left Cubital Tunnel Syndrome) is not separately unfitting.  There is no evidence that the neuropathy adversely impacts the performance of his duties” and “MEBD Diagnosis 3 not unfitting, not rated.”  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit and recommended separation with severance pay, if otherwise qualified.

   d.  SF 513, dated 4 May 2004, that shows the applicant was seen for a cardiology consult with negative results for palpitations.

   e.  Four SFs 600, dated 17 August 2003, 27 September 2004, 31 October 2005, 1 November 2005, 11 January 2006, and 17 January 2006, that document the applicant’s medical problems for which he was seen during his military service that included difficulty with breathing, pain in left wrist, Cubital Tunnel Syndrome, Carpal Tunnel Syndrome, Polyneuropathy, Ganglion, Adjustment Disorder with Anxiety, Adjustment Disorder, Anxiety Disorder NOS [Not Otherwise Specified], Adjustment Disorder with Anxiety and Depressed Mood, Assessment for Work-Related Occupational Disease, and Axis V Global Assess of Functioning (GAF) Scale with No Psychiatric Diagnosis on Axis III and No Psychiatric Diagnosis on Axis II.
 
   f.  DA Form 3349, dated 26 July 2005, that shows the applicant was issued a permanent profile based on injury for left wrist pain and shows he was recommended for consult to psychology for anxiety/stress.

   g.  DA Form 2807-1, dated 24 August 2005, that documents the applicant's medical history and examination for the purpose of his MEBD processing.

     h.  Seven Houston VAMC, Medical Record Progress Notes, dated 29 October 2007, 20 November 2007, 27 November 2007, 12 December 2007, 14 January 2008, 12 February 2008, and 15 May 2008; and a VA Statement in Support of Claim, dated 1 July 2008, that document the applicant’s medical problems for which he was seen at the VAMC subsequent to his military service that included chronic lower back pain, sciaticia, pain in middle back and both wrists, labyrinthitis, tinnitus, impaired hearing, paralysis of median nerve, limited motion of wrist, sleeping problems and occasional flashbacks, irritability or outbursts of anger, difficulty concentrating, hypervigilance, Axis IV current psychosocial stressors, and PTSD, along with his prescribed medications and orthotic prosthetics.

   i.  VAMC Houston, letter, dated 21 November 2008, written by Stacey L_____, PhD, Staff Psychologist, Trauma Recovery Program, Operation Enduring Freedom/Operation Iraqi Freedom Team, VAMC, Houston, at the request of the applicant.  This document details the doctor’s opinion that the applicant suffers from substantial ongoing anxiety, depression, and anger stemming from his PTSD.  He also states the applicant continues to have daily problems with severe anxiety, depression, and safety concerns.

   j.  Excel Tech Ltd, NeuroMax 1004, Demo Header, dated 17 January 2006, that documents a motor nerve study and sensory nerve study of the applicant’s ulnar neuropathy at elbow (with a 3-year history).

   k.  Physical Medicine and Rehabilitation, Darnall Army Community Hospital, Fort Hood, report, dated 27 August 2002, that documents a motor nerve study and sensory nerve study, and shows the applicant had a ganglion cyst removed in May 2002.

   l.  DA Form 4700, dated 27 January 2005, that shows the applicant was prescribed medication (valium) to be used as needed.

5.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C.  The Agency Legal Advisor observed that the applicant does not request any specific correction, but he assumes the applicant wants his military disability compensation increased.

   a.  The USAPDA Legal Advisor provides a summary of the applicant’s MEBD that was completed on 16 December 2005, which listed chronic left wrist pain and left cubital tunnel syndrome, with neuropathy, as not meeting medical retention standards.  “A complaint of ‘difficulty in sleeping’ was considered to meet medical retention standards based on Doctor P______’s (Chief of Outpatient Psychiatry) 26 September 2005 evaluation that the applicant had no significant psychiatric symptoms that would result in any psychiatric diagnosis or required treatment.”  In addition, the applicant’s complaints of shoulder and back pain, and vertigo were noted on his DD Form 2808 (Report of Medical Examination) and were all addressed on the DD Form 2807-1 during his physical examination.  The Legal Advisor adds that all other complaints not listed on the applicant’s MEBD were properly noted by the examining physician and were found to not substantially affect his functioning so as to require listing as a current condition on his MEBD.  Moreover, the applicant’s profile and commander’s statement reaffirmed these examination findings, and the applicant concurred with his MEBD findings and recommendation.

   b.  The USAPDA Legal Advisor noted that an electrodiagnostic study was completed on the applicant on 17 January 2006, which found some abnormal findings suggesting bilateral peripheral polyneuropathies of his upper extremities and these findings were placed in the applicant’s health records.  These medical records noted skin temperatures for his extremities as being normal and listed no findings of any physical deficits caused by the peripheral polyneuropathies.  However, the medical entries relating to the finding do not relate that the condition did not meet medical retention standards, that the findings should be added to the MEBD, or that the MEBD must be returned for additional 
consideration.  On 7 February 2006, the MEBD was provided to the PEB and did not contain the 17 January 2006 information; however, he offers that the applicant’s medical records that were sent with the MEBD may have included the documents.

   c.  On 7 February 2006, an informal PEB found the applicant unfit for his wrist pain and rated him at 10% in accordance with the USAPDA’s existing pain policy.  The PEB did not find the left cubital tunnel syndrome or difficulty in sleeping conditions unfitting and there were no other listed diagnoses for the PEB to consider.  The applicant was to be separated with severance pay, the applicant concurred with the PEB findings and recommendation on 1 March 2006, and he waived his right to a formal PEB hearing. 

   d.  The USAPDA Legal Advisor notes that a PEB can only rate conditions that are found unfit for duty and the applicant did not have any psychiatric conditions that affected his ability to perform his military duties at the time of his separation. This was confirmed by a psychiatrist and the applicant concurred with these findings.  He adds that simply having conditions at the time of a PEB does not justify a finding of unfitness because of physical disability.  Even if the peripheral polyneuropathies were listed on the applicant’s MEB, they would not have been found unfitting, as there was no evidence of any adverse functional impairment relating to the upper extremities. The applicant may have had some sensation and diagnostic abnormalities, but performance wise, the evidence would not have supported a finding of unfit for duty for this condition.

   e.  The USAPDA Legal Advisor concludes that the applicant has provided no evidence of any error in the PEB’s findings; the findings were supported by a preponderance of the evidence and were not arbitrary or capricious; and they were not in violation of any statute, directive, or regulation in existence at the time of the applicant’s separation.

6.  On 4 March 2009, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  On 11 March 2009, the applicant provided his rebuttal to the USAPDA advisory opinion.

   a.  The applicant states that he submitted all relevant documentation to prove that all of his medical documentation was not submitted while he was going through his MEBD/PEB.  He also states he has been advised by the PEB Liaison Officer (PEBLO) at Fort Hood that he could have his case reopened and this was confirmed by another PEBLO.  He adds they both indicated he has a good case with the documentation he showed them, which he has provided to this Board.

   b.  The applicant asks how a decision could be made on 16 December 2005 if there were not complete medical records and he questions the, “it is assumed that it’s all going to be there" attitude.  He adds that he is frustrated that he cannot get some people to do the right thing or help him correct other people’s lack of training, guidance, and failure to take care of others.  The applicant states, despite his medical condition, he never complained when he was told to perform his military duties, particularly while deployed to Iraq for 9 months.

   c.  The applicant describes how his medical condition limits his daily physical activities with his children.  He adds he has provided all the necessary medical documentation to the Board and adds that he continues to receive treatment from the Houston VAMC for his medical conditions.

   d.  The applicant states the advisory opinion notes that there were medical documents missing when the MEBD was sent to Fort Sam Houston, and he was told (i.e., to help speed things) that a reevaluation could be done at a later time since he only spent about 6 months in the Medical Hold Company (MHC).  He adds there were some Soldiers who were in the MHC for years and the USAPDA wanted to make room for more incoming disabled Soldiers.

   e.  The applicant states that there was no guidance for him to obtain the results of his PEB and to understand the low rating of 10%, or know that the information was incorrect.  He adds that he took the advice of the PEBLO and states that he now he gets nothing.

     f.  The applicant restates the medical conditions he is being treated for at the Houston VAMC and the medication he now takes.  The applicant concludes by requesting that the findings and recommendation of his MEBD and PEB be corrected to include all of his medical conditions.

7.  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.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System (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 Directive 1332.18 and Army Regulation 635-40.

8.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier 
was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

9.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards 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 qualification for retention based on the criteria in AR 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Paragraph 4-12 (Informal board) of Army Regulation 635-40 provides, in pertinent part, that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEBLO of the Medical Treatment Facility (MTF) having control of the Soldier will be the counselor for the Soldier.  As such, the PEBLO is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him, the processing procedures, and benefits to which he will be entitled if separated or retired for physical disability.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the 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.
  
12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his MEBD and PEB proceedings should be corrected to show an accurate and complete evaluation of all of his medical conditions, along with an increase in his disability rating because his MEBD and PEB proceedings were missing medical documents that should have been considered at the time.

2.  The evidence of record shows that the applicant was evaluated by an MEBD on 16 December 2005 and referred to a PEB.  The evidence of record also shows that, on 7 February 2006, an informal PEB found the applicant unfit for his wrist pain and rated him at 10% in accordance with the USAPDA’s existing pain policy.  The evidence of record further shows that the PEB recommended the applicant’s separation with severance pay, the applicant concurred with the findings on 1 March 2006, and he waived his right to a formal PEB hearing.  Thus, the applicant was honorably discharged on 15 April 2006 by reason of disability with severance pay.

3.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.



4.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Since there is no evidence of record to show that the applicant's medical conditions in question at the time were found medically unfitting for retention in accordance with Army Regulation 40-501, there was no basis for consideration of any additional disability rating.  Thus, the applicant is not entitled to correction of his MEBD or PEB proceedings to show he was found unfit for the(se) condition(s) or increased permanent disability rating(s).  As a result, the applicant's MEBD and PEB proceedings are presumed proper and equitable.

6.  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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our 


Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20090001082



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001082



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1