IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090007807 


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 earlier request for 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 that medical documentation was missing at the time of the decision of the disability ratings.  He states there is no mention of vertigo, post-traumatic stress disorder (PTSD), back pains, and hearing loss.

3.  In addition to documents previously considered, the applicant provides the following documents in support of his request for reconsideration:

	a.  Post-Deployment Health Assessment, dated 26 February 2004;

	b.  Cardiology Consult Report from Darnall Army Community Hospital, Fort Hood, TX, dated 4 May 2004;

	c.  DD Form 2697 (Report of Medical Assessment), dated 25 August 2005;

	d.  two Standard Forms 600 (Chronological Record of Medical Care), dated 19 August 2005 and 29 August 2005;

	e.  Patient Lab Inquiry from Darnall Army Community Hospital, Fort Hood TX, dated 26 August 2005;

	f.  DD Form 2808 (Report of Medical Examination), dated 26 August 2005;

	g.  Hearing Conservation Data; 26 August 2005;

	h.  DA Form 4700 (Medical Record Supplemental Medical Data), dated 26 August 2005;

	i.  Houston Department of Veterans Affairs (VA) Medical Center (MC) Radiology Diagnostic Report, dated 27 November 2007;

	j.  four Houston VAMC Medical Record Progress Notes, dated 25 March 2008, 27 May 2008, 3 October 2008, and 21 November 2008;

	k.  four diagnostic reports from the Gulf Coast MRI and Diagnostic, Incorporated, dated 23 March 2009,

	l.  self-authored statement, dated 27 June 2009;

	m.  VA Rating Decision, dated 10 April 2009;

	n.  letter addressed to the Physical Disability Board of Review, dated 31 July 2009; and

	o.  letter from the VA Regional Office, Houston, TX, dated 4 November 2009.

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 AR20090001082 on 23 April 2009.

2.  The applicant provided new evidence [as listed in paragraph 3, above] and new arguments that will be considered by the Board.

3.  The applicant provided a copy of his Deployment Health Assessment, dated 26 February 2004.  In response to Question 1 (Did your health change during this deployment?), the applicant marked "Health got worse."  In response to Question 6 (Do you have any of these symptoms now or did you develop them anytime during this deployment?), the applicant marked "Yes During" and "Yes Now" to the following conditions:  headaches, back pain, numbness or tingling in hands or feet, chest pain or pressure, difficulty breathing, still feeling tired after sleeping, and difficulty remembering.  During his interview with a health care provider, the applicant indicated he had concerns about his wrist pain during deployment.

4.  The applicant provided test results from a cardiology consult, dated 4 May 2004.  The document shows that the test was performed because the applicant complained of a racing heart that occurred three times.  The results were negative for palpitations.

5.  The applicant also provided a DD Form 2697, dated 25 August 2005, in which he indicated that his overall health had gotten worse since his last medical assessment.  He marked "Yes" and indicated the following:  surgery on left wrist in May 2002 and treatment at an emergency room for vertigo in January 2005, right shoulder pops a lot, unable to lift or carry over 15 pounds with left hand, concerns about sleeplessness, use of left hand, chest pain, difficulty breathing, and intent to apply to VA for limitations of left hand and ringing in ears.

6.  The applicant's Standard Form 600, dated 19 August 2005, shows the applicant was treated at the Darnall Army Community Hospital, Fort Hood, TX, for pain in his left wrist.  This report indicated he was released without limitations.  His Standard Form 600, dated 29 August 2005, shows he was physically examined by reason of an MEBD for left wrist pain.

7.  The applicant's DA Form 4700, dated 26 August 2005, shows he elected to be tested for hepatitis C.

8.  The applicant provided a Patient Lab Inquiry, dated 26 August 2005, that shows he tested negative for hepatitis C infection.

9.  The applicant provided a Hearing Conservation Data which shows he underwent an audiogram on 26 August 2005.

10.  On 16 December 2005, the applicant was evaluated by an MEBD.  The DA Form 3947, in pertinent part, shows the applicant's MEBD diagnosis of chronic left wrist pain (did not meet the retention standards), his diagnosis of left cubital tunnel syndrome with neuropathy (did not meet the retention standards), and his diagnosis of difficulty in sleeping (met the retention standards).  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 of psychology on 26 September 2005 with no significant psychiatric symptoms noted.  The MEBD proceedings also show the applicant was referred to a PEB.

11.  A DA Form 199 (PEB Proceedings) shows a PEB convened on 7 February 2006.  The 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.

12.  The applicant was discharged from the Regular Army on 15 April 2006 due to disability with severance pay.

13.  On 27 November 2007, the applicant had two diagnostic tests of his thoracic spine taken.  The radiology diagnostic report indicated that there was no scoliosis [spine is curved from side to side] or kyphosis [curvature of the upper spine].  The disc spaces were normal.  Paravertebral [situated, occurring, or performed beside or adjacent to the spinal column] soft tissues were unremarkable.

14.  The applicant provided four Houston VAMC Medical Record Progress Notes, dated 25 March 2008, 27 May 2008, 3 October 2008, and 21 November 2008 which show the following:

	a.  assessment – applicant was rather well-defended when the potential risks of alcohol abuse were reviewed with him, tending to insist that this is the only way that he could get any relief from his anxiety.  Axis I – PTSD, depression (not otherwise specified (NOS)), alcohol abuse; Axis II – deferred; Axis III - history of low back pain; Axis IV – environmental and psychological problems; and Axis V – current GAF [acronym unknown]:  55;

	b.  dental oral surgery performed, dental disorder (NOS); head and neck assessment – active problems were carpal tunnel syndrome, PTSD, major depressive disorder, back strain, and chronic low back pain;

	c.  low back pain; and

	d.  x-ray computed tomography scan; active problems – chronic headache, PTSD, back strain, carpal tunnel syndrome, and chronic low back pain.

15.  The applicant provided four diagnostic reports from the Gulf Coast MRI [magnetic resonance imaging] and Diagnostic, Incorporated, dated 23 March 2009, which indicated he received an x-ray of his thoracic spine (three views); MRI of his thoracic spine; MRI of his lumbar spine; and x-ray of his lumbar spine (five views).

16.  The applicant provided a self-authored statement, dated 27 June 2009, in which he addressed the review of his MEBD documentation as indicated below:

	a.  chief complaint - did not mention his right arm or nerve damage (i.e., carpal tunnel, cubital tunnel syndrome, and polyneuropathy) as evidenced on test from Excel Tech, Limited, dated 17 January 2006, and Standard Form 600, dated 17 January 2006;

   b.  history of present illness - did not mention his other problems;

	c.  physical examination - did not mention his right nerve damage or any other problems, just mentioned his left arm;

	d.  laboratory and x-ray data - did not mention his last nerve examination, vertigo, or other findings;

	e.  current condition - reiterated that he could not carry a weapon;

	f.  prognosis - did not mention his right arm nerve damage just his left arm and nothing else;

	g.  final diagnosis - did not mention his right arm or other medical problems, such as vertigo, hearing loss, tinnitus, breathing problems, sleeping problems, back problems, adjustment disorders;

	h.  he stated other medical problems were listed on his medical documents such as adjustment disorder, adjustment disorder with anxiety, anxiety disorder (not otherwise specified), adjustment disorder with anxiety and depressed mood;

	i.  he alleged that he should have never been in Iraq during wartime or in South Korea since he was not able to carry or hold a weapon in his right hand;

	j.  he quoted statements from his permanent physical profile, dated 26 July 2005;

	k.  he alleged he was only evaluated for his left wrist and arm and he was discharged from the service with a 10-percent disability rating; and 

	l.  he stated he is now rated at 60 percent and he just wants what he deserves.
17.  A 10 April 2009, VA Rating Decision indicated the applicant was granted service connection for the following conditions:  PTSD with major depression (30 percent), bilateral hearing loss (increased from 0 to 10 percent), vertigo (10 percent), bilateral tinnitus (10 percent), cubital tunnel syndrome with left upper extremity ulnar nerve neuralgia (10 percent), and cubital tunnel syndrome with right upper extremity ulnar nerve neuralgia (10 percent).

18.  The applicant provided a letter addressed to the Physical Disability Board of Review (PDBR), dated 31 July 2009, in which he stated he strongly disagreed with the decision of the PDBR.  He alleged that the board did not review all of his medical conditions identified during this Physical Disability Evaluation System (PDES) case.  He referenced Title 10, U.S. Code, section 1554a; Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-18; and DOD Instruction 1332.38.

19.  In a 4 November 2009 letter, the VA certified that the applicant was receiving $1,694.00 monthly compensation effective 1 July 2009 for a service-connected disability rating at 80 percent.

20.  Army Regulation 635-40 establishes the Army 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 MEBD's 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 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

21.  Title 38, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that medical documentation was missing at the time of the decision of the disability ratings and there is no mention of vertigo, PTSD, back pains, and hearing loss.  However, there is no evidence which shows that his disability processing was in error or unjust or that his condition was improperly evaluated by the PEB.

2.  The medical documents provided by the applicant were carefully reviewed.  On the applicant's DD Form 2697, dated 25 August 2005, he indicated that he was treated at an emergency room for vertigo in January 2005.  However, there is no evidence which confirms he was diagnosed with or was unable to perform his duties due to vertigo, PTSD, back pains, or hearing loss at the time of his MEBD on 16 December 2005.

3.  The applicant was evaluated by an MEBD on 16 December 2005.  At that time, he was diagnosed as having chronic left wrist pain, cubital tunnel syndrome with neuropathy, and difficulty in sleeping.  There were no other medical conditions listed.

4.  A 7 February 2006 PEB found the applicant unfit for military service for chronic left wrist pain at a 10-percent combined disability rating.  As a result, the applicant was discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to disability with entitlement to severance pay.  The applicant concurred with the findings and he waived his right to a formal PEB hearing.

5.  There is no evidence to show the applicant's disability was improperly rated by the PEB or failed to properly consider any other conditions or that his separation with severance pay was not in compliance with law and regulation.

6.  The evidence of record shows the VA granted the applicant service connection at a combined disability rating of 80 percent for PTSD with major depression, bilateral hearing loss, vertigo, bilateral tinnitus, cubital tunnel syndrome with left upper extremity ulnar nerve neuralgia, and cubital tunnel syndrome with right upper extremity ulnar nerve neuralgia.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.

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 AR20090001082, dated 23 April 2009.



      ____________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)                                         AR20090007807



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ABCMR Record of Proceedings (cont)                                         AR20090007807



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