IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090003346 


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 correction of his records to show he was medically retired for disability, with a combined rating of 100 percent, instead of honorably retired for sufficient service for retirement.

2.  The applicant states that his records were evaluated by a medical evaluation board (MEB) at Walter Reed Army Medical Center (WRAMC) that found him unfit and referred him to a physical evaluation board (PEB).  He adds that he was a physician at the time and that the regulation required that his MEB convene at a different Army medical center other than where he was assigned.  When he returned to Madigan Army Medical Center (MAMC), Fort Lewis, WA, the PEB unjustly found him fit for duty.  He further adds that he now believes that there was undue command influence at MAMC, that the MEB findings were ignored, and that the decision was therefore unjust.  When he applied for Veterans Administration (VA) disability, the VA examiner expressed dismay that the Army had not retired him for disability and ultimately awarded him a disability rating at a 100 percent.  He concludes that due to his head injury, he was unable to understand or adequately respond to the PEB's unjust decision. 

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 26 December 1979 and 31 January 2004; a copy of his DA Form 3947 (Medical Evaluation Board Proceedings), dated 25 March 2002, and accompanying Narrative Summary; a copy of neuropsychological evaluation, dated 12 February 2002; a copy of electroencephalography report, dated 12 February 2002; a copy of a DA Form 3349 (Physical Profile), dated 22 March 2002, and a copy of approval of PEB action memorandum, issued by the U.S. Army Physical Disability Agency (USAPDA), on 12 July 2002, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior commissioned service, the applicant's records show he was appointed as a major in the Medical Corps (MC) of the U.S. Army Reserve and executed an oath of office on 29 January 1990.  He was concurrently ordered to and entered active duty on the same date.  He was assigned to MAMC, Fort Lewis, WA, where he served most of his military career (with the exception of an overseas tour in Belgium).  

3.  On 14 August 2000, the applicant reported falling from the roof of his motor home while trying to fix a vent and was subsequently treated at MAMC emergency room.  

4.  On 22 March 2002, the applicant was issued a permanent physical profile for traumatic brain injury, bilateral knee pain, shoulder impingement, and degenerative changes of the cervical spine.

5.  On 25 March 2002, a MEB convened at WRAMC, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant with the following medically unacceptable conditions:  traumatic brain injury, cognitive disorder, cervical spine degenerative joint disease, right shoulder impingement, and bilateral knee pain.  The MEB recommended that he be referred to a PEB.  The applicant concurred with the MEB’s findings and recommendation and indicated that he did not desire to continue on active duty. 


6.  On 4 April 2002, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to traumatic brain injury sustained in a fall with residual headaches which had responded to therapy and a mild cognitive disorder.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for codes 8045 and 9304 (traumatic brain injury).  The PEB also considered his other conditions of cervical spine degenerative joint disease, right shoulder impingement, and bilateral knee pain but did not find them unfitting and therefore not ratable.  The PEB recommended the applicant be placed on the permanent disability retired list with a combined rating of 10 percent.  The applicant concurred with the PEB’s finding and recommendation and waived his right to a formal hearing on 15 April 2002.

7.  On 30 April 2002, after a complete review of his case, the USAPDA modified the findings, rating, and disposition in accordance with paragraph 4-22c (3) of Army Regulation 635-40.  The USAPDA determined that the applicant had been reassigned to medical administrative duties and that his Officer Evaluation Report (OER), dated September 2001, described him, in pertinent part, as an extremely talented physician and teacher who consistently exceeded expectations. He was assigned administrative duties and adequately performed tasks amenable to his rank, position, or status.  The USAPDA therefore changed his disposition to "Returned to duty as fit." 

8.  On 10 May 2002, the applicant elected not to concur with the new disposition and submitted a written appeal.  A copy of this appeal is not available for review with this case.  

9.  On 12 July 2002, after reviewing the applicant's appeal, by memorandum, the APDAB (Army Physical Disability Appeals Board) approved the findings of the PEB which convened at Fort Lewis, WA on 30 April 2002 and found him fit for duty.  It also indicated that since the applicant was not scheduled for separation or retirement for reasons other than physical disability, he should be returned to duty.

10.  Subsequent to the USAPDA decision, the applicant continued to perform his duties as director of faculty development fellowship and/or other administrative duties as shown on his OERs.  

11.  On 31 January 2004, the applicant was honorably discharged for completion of sufficient service for retirement and on 1 February 2004 he was placed on the retired list in his retired rank of colonel.  The DD Form 214 he was issued shows he completed over 22 years of creditable active military service.
12.  An advisory opinion was obtained on 13 April 2009 in the processing of the applicant’s case.  The USAPDA legal advisor recommended no change to the applicant's military records.  The legal advisor further states that:

	a.  on 25 March 2002, the applicant's MEB was accomplished at WRAMC.  This was in accordance with chapter 7 of Army Regulation 40-400 (Patient Administration) which required MEBs of Medical Corps officers to be accomplished at a medical center other than where they were assigned.  The applicant was assigned at MAMC at the time.  There is no prohibition of medical examinations or treatment records from the physician's assigned medical treatment facility (MTF) from being used or considered in the MEB accomplished at the other medical facility; 

	b.  the MEB had diagnoses of traumatic brain injury from August 2000, cognitive disorder, cervical spine degenerative joint disease, right shoulder impingement syndrome (resolving), and bilateral knee pain.  His traumatic brain injury and cognitive problems were described as mild.  His chief complaint was concern for making errors in terms of care.  It is noted that in the applicant's physical examination noted on the consult report, dated 19 December 2001, the attending physician opined that the applicant's physical diagnosis of spine, shoulder, and knee pain all met medical retention standards.  Another physician opined on the MEB consultation, dated 3 January 2002, that from a strictly chronic neck and pain status, the applicant failed to meet retention standards.  However, the neck and shoulder pain should not affect his performance as a physician and that he could continue with his normal duties.  The applicant's medical command removed him from patient duties, at his suggestion, and he was placed into a position accomplishing administrative duties as a director of physician fellowship program.  All reports to include an OER, ending 30 September 2001, indicated that the applicant was able to adequately perform those assigned duties; 

	c.  on 4 April 2002, an informal PEB found the applicant unfit for his mild cognitive disorder and rated him at a 10 percent permanent disability retirement.  All other listed conditions were found not to be unfitting and not compensable.  On 5 April 2002, he concurred and waived his right to a formal hearing of his case; 

	d.  on 30 April 2002, the USAPDA changed the PEB's findings in accordance with paragraph 4-22c(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings were changed to fit for duty in accordance with section E3.P3.4.2,, Department of Defense Instructions (DODI) 1332.38, which states that all physicians would be found fit for duty if they could perform satisfactorily in any assignment appropriate to their grade and position.  Since the applicant was adequately performing required medical administrative functions, it was immaterial to the PEB's fitness determination if the applicant felt he should not see patients any longer; 

	e.  on 10 May 2002, the applicant did not concur and submitted a rebuttal.  He continued to waive his right to a formal hearing.  The USAPDA considered his rebuttal and provided a detailed response on 30 May 2002.  The case was forwarded to the Army Physical Disability Appeal Board (APDAB) for a mandatory review.  On 9 July 2002, the APDAB concurred with the USAPDA's 30 April 2002, findings of fit for duty, and on 12 July 2002, his case was closed as final.  The applicant continued to perform his assigned military duties until January 2004 when he voluntarily retired for length of service;

	f.  although the applicant had several medical personnel write comments about his perceived fitness to see patients, that is not the required fitness criteria for physicians.  As long as a physician can perform in any position with the Office of the Surgeon General/Medical Command, he/she is considered fit for duty.  Considering how the applicant's command supported his claim of unfitness to see patients, it is unclear how he now claims that there was command influence at MAMC; and

	g.  the evidence is clear and uncontroverted that the applicant met the DOD standards of fitness for physicians.  Any subsequent VA ratings do not equate to a PEB error.  Only unfitting conditions are compensable in the military.

13.  The applicant was provided with a copy of this advisory opinion on 15 April 2009; however, to date, he has failed to reply.  

14.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 medical evaluation boards, 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

14.  Chapter 4 of Army Regulation 635-40 covers the procedures of the disability evaluation system.  Paragraph 4-22 states, in pertinent part that the USAPDA will review cases of General and Medical Corps officers found unfit and that based upon review of the PEB proceedings, USAPDA may take concur with the findings and recommendations of the PEB or make minor changes or corrections that do not affect the recommended disposition of the Soldier or lower the combined percentage rating; return the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other action when the case records show such action is in the best interests of the Soldier or the Army and in this case, a detailed explanation for the reasons for return of the case will be provided to the PEB; issue revised findings providing for a change in disposition of the Soldier or change in the Soldier’s disability rating; or refer the case to the APDAB (Army Physical Disability Appeals Board).

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  DODI 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.  

16.  Army Regulation 40-400 prescribes policies and administrative tasks governing the management and administration of patients.  Chapter 7 of this regulation covers the military personnel disability processing.  It states, in pertinent part, that MEBs will not be done by the MTF to which a Medical Corps (MC) officer is assigned.  MC officers may appear before a board at another MTF within their RMC (regional medical command) provided the review authority is not in the officer’s rating chain.  In unusual circumstances, requests for authority to deviate from this policy may be forwarded to MEDCOM, Fort Sam Houston, TX.  

17.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired for disability with a combined rating of 100 percent.

2.  The evidence of record shows that the applicant suffered an injury that warranted his entry into the Army's physical disability evaluation system.  He was assigned to MAMC, Fort Lewis, at the time.  He subsequently underwent an MEB that convened at WRAMC and recommended he be given a PEB.  He concurred with this recommendation.  An informal PEB found him unfit for his mild cognitive disorder and rated him at a 10 percent permanent disability retirement.  All other listed conditions were found not to be unfitting and not compensable.  The applicant concurred and waived his right to a formal hearing of his case. 

3.  The USAPDA subsequently reviewed the applicant's case and changed the PEB's findings to fit for duty in accordance with the DODI which states that all physicians would be found fit for duty if they could perform satisfactorily in any assignment appropriate to their grade and position.  Since the applicant was adequately performing required medical administrative functions, it was immaterial to the PEB's fitness determination if the applicant felt he should not see patients any longer.  He did not concur and submitted a rebuttal. 

4.  The USAPDA considered his rebuttal and forwarded his case to the APDAB for a mandatory review.  The APDAB concurred with the USAPDA's findings of fit for duty and his case was closed as final.  The applicant continued to perform his assigned military duties until January 2004 when he voluntarily retired for length of service.

5.  The applicant now believes he should have received a disability retirement at a 100 percent disability rating because the DVA examiner told him so.  However, an award of a DVA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

6.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  

7.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

8.  There is no evidence in the applicant's records and the applicant did not provide any evidence to substantiate his claim of undue command influence at MMC, Fort Lewis, WA.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and he was provided maximum input into the process.  There is no error or injustice in this case.  

9.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief. 

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.



      _______ _   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)                                         AR20090003346



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ABCMR Record of Proceedings (cont)                                         AR20090003346



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