IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090004128 


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 consideration of additional medical conditions related to his electrical burn injury he sustained in Iraq for an increased disability rating of 30 percent or greater.

2.  The applicant states that his medical conditions considered by his initial Medical Evaluation Board (MEB) only resulted in a 20 percent disability rating.  There are several conditions that were not listed in his MEB and Physical Evaluation Board (PEB) which directly resulted from his electrical injury and have actually gotten worse.  The MEB and PEB only rated him for right hand pain and dysfunction status post-electrical burn (10 percent) and post-concussive syndrome (10 percent), and he was honorably discharged with a 20 percent disability rating.

3.  The applicant further states that he believes that if all of his medical conditions had been properly noted on his MEB, then his disability rating would have been greater than 30 percent which would entitle him to a medical retirement from the service with benefits.  The following medical conditions were not identified by his MEB, but were a direct result of his electrical injury in Iraq:  (1) anxiety disorder with amnesic disorders due to electrical injury (to include post traumatic stress disorder (PTSD), head injury, and memory loss); (2) Chronic Obstructive Pulmonary Disease due to electrical injury; (3) cervical spine injury with strain; and (4) vascular insufficiency of right leg (tingling and numbness has increased over time).  The applicant also stated these medical problems have continued to plague his daily life and most of his conditions have gotten worse in a very short 
time and that these issues have been thoroughly documented in his Department of Veterans Affairs (VA) medical records.  He looks forward to a formal review in order to correct this injustice and change his Department of Defense rating to
30 percent or greater so that he will be properly compensated as a medical retiree.

4.  In support of his application, the applicant provides copies of his MEB and PEB proceedings, a Spirometery Report, and page 2 of his VA Rating Decision.

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.  The applicant's military records show he enlisted in the U.S. Army Reserve (USAR), in pay grade E-5, on 31 October 2001, for 8 years.  He entered on active duty on 31 January 2003 and he was honorably released from active duty on 16 December 2003 and transferred to a Reserve unit.  He again entered on active duty on 31 January 2004, for the purpose of a medical extension.

3.  On 29 March 2004, an MEB convened and considered the applicant's conditions under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, of right hand pain and dysfunction, status post-electrical burn; post-concussive syndrome; bilateral sensorineural hearing loss; and hypercholesterolemia (not disqualifying).  The MEB recommended he be referred to a PEB.  The board noted the applicant did desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 6 April 2004 and the applicant agreed with the findings and recommendations of the MEB on 19 April 2004.

4.  On 11 May 2004, an informal PEB convened and considered the applicant's disabilities of right hand pain, post-electrical burn accident, with physical 
examination noting some non-ratable decreases in active finger extension and grip strength weakness and post-concussive headaches and reported blackouts. The PEB determined that his other medical conditions, bilateral sensorineural hearing loss and hypercholesterolemia, were not unfitting and non-disqualifying; therefore, they were not ratable.  The PEB reviewed all available medical records and determined that the applicant's medical condition prevented performance of duty in his grade and specialty.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent and separation with severance pay, if otherwise qualified.  The PEB also advised that ratings of less than 30 percent for Soldiers with less than 20 years active service required separation with severance pay in lieu of retirement and advised that he should contact a VA counselor to learn about available benefits.  The PEB noted that the voting membership of the PEB included an officer of the Reserve Components.   

5.  There is no evidence the applicant concurred or non-concurred with the informal PEB's findings and recommendations or that he requested a formal hearing.  

6.  The applicant was honorably discharged from active duty, in pay grade E-5, on 2 July 2004, under the provisions of Army Regulation 635-40, paragraph
4-24b(3), for disability with severance pay, and he was transferred to a Reserve unit.

7.  The applicant submits a copy of page 2 of his VA Rating Decision that shows on 3 July 2004, he was granted service-connected disability for (1) anxiety disorders with amnesic disorder due to electrical injury (also claimed as PTSD, head injury, and difficulty with memory), rated 100 percent; (2) right hand electrical injury with paresthesias, rated 50 percent; (3) Chronic Obstructive Pulmonary Disease due to electrical injury, rated 60 percent; (4) cervical spine injury with strain, rated 30 percent; (5) post concussive headaches, rated 30 percent; (6) degenerative disc disease with arthritis, lumbosacral spine with mid-back strain and radiculopathy, rated 10 percent; (7) tinnitus, rated 10 percent; (8) bilateral hearing loss, rated zero percent; and (9) impotence, rated zero percent.  

8.  The applicant also submits a copy of a Spirometery Report, dated 26 August 2004, wherein it was commented that he had a breathing problem due to electric shock.

9.  In an advisory opinion, dated 16 July 2009, the Agency Legal Advisor, U.S. Army Physical Disability Agency (USAPDA), Washington, DC, stated that the 

applicant's DD Form 2808 (Report of Medical Examination), dated 10 November 2003, only noted dental and some right hand dysesthesia as conditions adversely affecting him.  His MEB was completed on 29 March 2004, with the following diagnoses that determined he did not meet medical retention standards:  right hand pain and dysfunction, post-concussive syndrome, and bilateral sensorinaural loss.  His diagnosis of hypercholesterolemia met medical retention standards.  The applicant complained of headaches, neck pain, "spells" in which he was "out" for periods of time, and some right hand pain.  His orthopedic examination revealed well healed scars on his right palm, some reduction in grip strength, with minor range of motion reductions.  He had no significant deformity or atrophy, but still had pain mainly in his middle and ring fingers and at his palm and dorsum of his wrist.  He had diminished ability to grip things with full strength.  His hand was functional and he could lift objects.  There were no complaints about his lower extremities.  He had some tenderness to palpation in his cervical and lumbar spine, but with full range of motion.  He had some bilateral sensorinaural hearing loss that had existed prior to service (provided medical waiver to enlist) that was not aggravated by military service.  The applicant complained of hypersensitivity of his right arm.  However, a physical examination did not reveal any abnormalities regarding the sensory or reflex aspects of his arm.  There was no evidence of any "spells" or of an epileptic condition and a routine electroencephalography (EEG) did not reveal any epileptic form activity or paroxysmal disturbances and he continued to drive.

10.  The USAPDA official also stated that the applicant claimed daily muscle contraction headaches and stated he got little relief from his headache medication.  He did not seek medical care for these headaches when they occurred and they were not claimed to be incapacitating/prostrating.  Neuropsychological testing at the Walter Reed Army Medical Center Traumatic Brain Injury Clinic was found to be invalid as the applicant did not perform to required levels of effort.  Findings were not consistent with known patterns of brain injury.  His electrical accident did not result in any loss of consciousness.  There were no observable deficits in the applicant's language or mental abilities.  The applicant's physical profile only listed post concussive syndrome/headaches and right hand burn causing limitations on military performance.  On 19 April 2004, he concurred with the MEB's findings.  On 11 May 2004, an informal PEB found the applicant unfit for his right hand pain, rated 10 percent under the USAPDA's Pain Policy, and unfit for his post-concussive headaches, rated at 10 percent for "purely subjective complaints" in accordance with Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 8045, separate with severance pay at 20 percent.  His back and cervical complaints of pain and his hearing loss were found not to be unfitting.  On 13 May 2004, the applicant concurred with the PEB's findings and waived his right to a formal hearing. 

11.  The USAPDA further stated that the applicant's allegations of error only relate to conditions not included in his MEB and PEB and later compensated by the VA.  The conditions of anxiety disorder, pulmonary problems, and vascular insufficiency of his right leg were not conditions which he noted as part of his "chief complaints" in the Narrative Summary.  Those conditions were not listed on his physical profile as limiting his performance of duties and were not noted on his DD Form 2808 or within the MEB.  If the conditions had been present at the time of his separation they would not have been found unfitting.  Only conditions that are unfitting at the time of separation are compensable (Army Regulation 635-40, paragraph 3-1).  His cervical condition was considered by the PEB as a part of his post-concussive headaches diagnosis and the residuals from that injury were properly compensated in accordance with criteria found at VASRD 8045.  The PEB did not find his cervical pain separately unfitting.  The applicant concurred in the listing of his diagnoses in the MEB and he did not indicate that he had any additional conditions that should have been listed at that time.  He noted in his petition for correction that "most of his conditions have gotten worse."  If this is accurate, then these conditions that have progressed to a compensable level since separation in 2004 are properly the responsibility of the VA and not the U.S. Army. 

12.  The USAPDA official also stated that although the applicant did not allege any error in the rating percentage that the PEB did provide, a review of the 10 percent rating for his hand pain does reveal an alternative rating that could have resulted in a higher rating.  The USAPDA's Pain Policy that was properly in effect in 2004 was only to be used when there were no other medical/physical findings that could be used to support an existing VASRD rating.  In the case of the applicant's right hand, the findings did reveal some physical manifestation of nerve damage from the electrical injury which could have been rated in accordance with VASRD Code 8612, neuritis of the right hand.  VASRD Code 8612 was meant for rating all the muscles of the hand and some or all of flexors of the wrist and fingers.  The applicant did not have such a complete hand injury and could not be ratable at the highest levels of VASRD Code 8612.  Since the pain did affect the use of the hand, but only directly to the middle and ring fingers and parts of his palm and wrist, the condition did not result in the hand becoming dysfunctional.  The use of the hand was limited in strength and some flexion to certain areas of the hand only.  Based upon a review of the criteria for rating under VASRD Code 8612 and comparing the affected components of the applicant's right hand, the PEB could have rated the applicant under VASRD Code 8612, neuritis of the right hand, mild at 20 percent.  That 20 percent rating, in conjunction with the 10 percent rating for VASRD Code 8045 headaches would have resulted in a permanent disability retirement of 30 percent.  

13.  The USAPDA official further stated that the applicant has not provided any proof of MEB/PEB error in regard to the claims of missing diagnoses from his MEB.  The fact that the VA has subsequently rated certain conditions not listed or found to be unfitting at the time of his separation is not evidence of error by the MEB/PEB.  Based upon the evidence presented at the time of his separation, the PEB's findings are correct in regard to these additional conditions.  The PEB's findings in regard to his right hand could be changed as described in the foregoing paragraph, which would result in permanent military disability retirement from 2 July 2004.  The USAPDA official recommended the applicant's military records be correct to reflect a change in his right hand rating only.   

14.  On 21 July 2009, the advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal.  The applicant submitted a 5-page rebuttal in which he continued to disagree with the findings of his MEB.  He stated, in effect, the MEB and PEB findings were made from inaccurate and incompletely reviewed medical documents and/or poorly performed exams by the Army doctors at Womack Army Medical Center which resulted in an unfair and inaccurate MEB.  He also stated that the findings from the VA and Social Security Administration made a more comprehensive and complete examination and properly filled out documentation resulted in what the Army should have found to begin with.

15.  In support of his rebuttal, the applicant provided copies of his DD Form 2807-1 (Report of Medical History), his DD Form 2808, his DA Form 3349 (Physical Profile), his Standard Form 500 (Chronological Record of Medical Care), his MEB summation, and his DD Form 2798 (Post-Deployment Health Assessment).

16.  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 Army Regulation 40-501, Chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

17.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers 
who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

18.  Army Regulation 40-501, chapter 3, provides that an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

19.  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 rated at least 30 percent.  

20.  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 rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

21.  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 the 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 11 May 2004 the applicant was found physically unfit with a combined rating of 20 percent.  The PEB recommended his separation for disability with severance pay.  He was separated from active duty on 2 July 2004 with entitlement to severance pay.  The applicant contends that he should have been awarded a higher disability rating for a medical retirement.  

2.  In the advisory opinion provided to the Board, an USAPDA official stated that based upon a review of the criteria for rating under VASRD Code 8612 and comparing the affected components of the applicant's right hand, the PEB could have rated him under VASRD Code 8612, neuritis of the right hand, mild at       20 percent.  This 20 percent rating, in conjunction with the 10 percent for VASRD Code 8045 headaches, would have resulted in a permanent disability retirement of 30 percent.  The USAPDA official recommended the PEB's findings in regard to the applicant's right hand be changed to show he was rated under VASRD Code 8612, neuritis of the right hand, mild at 20 percent, with a total permanent disability retirement of 30 percent on 2 July 2004.

3.  The applicant provides insufficient evidence to show his other conditions were improperly not considered.

4.  Based on the foregoing, the applicant should have been rated at 20 percent for neuritis of the right hand, mild.  With an increased rating of 20 percent and 10 percent rating for his headaches, he would have been awarded a combined rating of 30 percent and would have been eligible for a total permanent disability retirement.  Therefore, his record should be correction to show he was found physically unfit with a combine rating of 30 percent and medically retired from the US Army on 2 July 2004.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant was rated under VASRD Code 8612 for neuritis of the right hand, mild, at 20 percent, and awarded a combined disability rating of 30 percent by an informal PEB on 11 May 2004;

	b.  voiding the applicant's DD Form 214, dated 2 July 2004, which separated him for disability with severance pay;  

	c.  showing the applicant was separated from active duty on 2 July 2004 by reason of physical disability rated at 30 percent and transferring him to the Retired Reserve, with entitlement to retired pay in the rank of sergeant, pay grade E-5; and

	d.  providing him retired pay as a result of the above corrections and recouping his severance pay with monthly pay back not to exceed his monthly retired pay or less as negotiated between the Defense Finance and Accounting Service and the applicant.



      __________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)                                         AR20090004128



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ABCMR Record of Proceedings (cont)                                         AR20090004128



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