IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012798 


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 an increase of his disability percentage that he was awarded on 24 July 2006.

2.  The applicant states that the physical evaluation board (PEB) failed to rate the disfigurements he obtained during and as a result of the grenade attack that injured him in August 2004.

3.  The applicant provides additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's disability rating be increased.

2.  Counsel states that the disability rating awarded to the applicant was incorrect, in error, and unjust because it failed to account for the disfigurements to his head and the rest of his body caused by the grenade explosion.

3.  Counsel provides copies of the applicant's medical record reports, dated on miscellaneous dates subsequent to his injury in August 2004; a copy of the applicant's immediate commander's performance statement, dated 7 April 2005; a copy of the applicant's DD Form 2808 (Report of Medical Examination) and supplementary medical statements, dated 2 September 2005; a copy of the applicant's DA Form 3349 (Physical Profile), dated 28 November 2005; a copy of the applicant's DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), 
dated 30 November 2005; copies of the applicant's DA Forms 199 (PEB Proceedings), dated 24 February 2006 and 5 May 2006; and a copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 August 2006, in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 3 years on 20 June 2002.  He was trained in, awarded, and held military occupational specialty (MOS) 11B (Infantryman).  He also executed a 3-month extension in the RA on 19 September 2006.  He was assigned C Company, 1st Battalion, 9th Cavalry, 1st Cavalry Division.  He attained the rank/grade of specialist (SPC)/E-4 during his tenure of service.

2.  The applicant’s records also show he served in Iraq from 16 March 2004 to
5 August 2004.  His awards and decorations include the Bronze Star Medal with "V" Device, Purple Heart, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service and Expeditionary Medals, Korea Defense Service Medal, and the Army Service Ribbon.

3.  The applicant's medical records show he was injured in Iraq on 5 August 2004 during an ambush and he suffered multiple shrapnel wounds to his extremities, back, and head.  He was evacuated through Landstuhl Army Medical Center (LRMC), Germany to Walter Reed Army Medical Center (WRAMC), Washington, DC.  He was initially diagnosed as having left frontotemporal craniotomy and expressive aphasia and anomie.  The attending physician remarked that the applicant did not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), at the time; however, with intensive therapy, he expected the applicant would recover fully and at that time may remain on active duty.

4.  On 26 August 2004, the applicant was evaluated for traumatic brain injury (TBI).  The attending physician remarked that he had no significant permanent physical impairments but his TBI resulted in significant cognitive and language deficits that were limiting his level of functioning.  He recommended the applicant's referral through the Physical Disability Evaluation System (PDES).

5.  On 18 March 2005, the applicant's immediate commander submitted a performance statement and indicated that the applicant should be retained on active duty and reclassified into a non-combat MOS.  He also stated that his duty performance had been outstanding but he was unable to perform the duties of an infantryman due to his severe injuries.

6.  On 6 April 2005, the applicant was again evaluated for TBI.  The attending physician indicated that the applicant had made significant progress and he was discharged to complete TBI rehabilitation at the Minneapolis Department of Veterans Affairs (DVA) clinic.  He recovered full motor strength and normal functions of his extremities.  He continued to have cognitive deficits and his status would be determined by full neuropsychological testing.  The attending physician again indicated that he did not meet retention standards and he should be referred to the PDES.

7.  On 24 October 2005, the applicant underwent neuropsychological testing and he showed a persistent deficit in aspects of language, mildly impaired attention, slowed speed of processing, mildly reduced verbal learning, and impairment in some aspects of efficiency problem-solving and executive functioning.  The attending physician concluded that the applicant no longer met retention standards and as such should be referred to a PEB.

8.  On 30 November 2005, an MEBD convened at WRAMC and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD diagnosed the applicant as having the medically unacceptable conditions of TBI with cognitive disorder and post-traumatic seizure disorder.  The MEBD recommended that he be referred to a PEB.  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty. 

9.  On 24 February 2006, an informal PEB convened at WRAMC and found one of the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to cognitive disorder secondary to TBI.  The PEB noted that neuropsychological testing was conducted in August 2005 documented generally intact cognitive functioning with the exception of mild attentional variability and impairment in one measure of cognitive flexibility.  He was working in an administrative capacity in the Medical Holding Company.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and he was granted a 10-percent disability rating for code 8045 and 9304 (for the condition of cognitive disorder).  The PEB also considered the applicant's other medical condition but found it not be unfitting and therefore was not rated.  The PEB recommended that the applicant be separated with entitlement to severance pay, if otherwise qualified.

10.  On 24 March 2006, the applicant indicated that he did not concur with the PEB's findings and recommendations and demanded a formal hearing of his case with personal appearance and counsel.  He was informed by return letter 
that he did not provide information as to any new diagnosis or changes in his current rated disability and that the board affirmed the decision of the informal PEB that found him unfit with a disability rating of 10 percent.  He was also notified that although he presented no new objective evidence his case was carefully reviewed and that based on the review, the board found no basis for a change in its action in his case and reaffirmed its previous findings.  He was also scheduled for a formal hearing of his case.

11.  On 5 May 2006, a formal PEB convened at WRAMC and again found the applicant's cognitive disorder secondary to his TBI condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to this condition.  He was rated under the VASRD and he was granted a 10 percent disability rating for code 8045 and 9304.  The PEB also considered his other medical condition but found it not to be unfitting and therefore it was not rated.  The PEB recommended that the applicant be separated with entitlement to severance pay, if otherwise qualified.  He was also notified to complete a statement of election and return it with his concurrence or non-concurrence.  However, he failed to make an election.  The PEB proceedings were ultimately approved on behalf of the Secretary of the Army on 27 June 2006.

12.  On 25 August 2006, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) by reason of disability with severance pay.  The DD Form 214 he was issued shows he was awarded $16,972.80 in severance pay.

13.  The applicant's counsel submitted an argument in which he detailed the applicant's scars on his head and his body.  He described in details the location, length, and width of each scar and argued that the applicant's scars meet the criteria for several characteristics of VASRD code 7800 (burn scars) and that the combined effects of his injuries has the same effect as an injury that does satisfy the rating code for disabilities.

14.  In the processing of this case, on 18 November 2009, an advisory opinion was obtained.  An official at the U.S. Army Physical Disability Agency recommended no change to the applicant's military records.  He stated:

	a.  The applicant was wounded by a grenade explosion.  As a result, he sustained numerous scars on his head and body.  His MEBD addendum, dated
6 April 2005, noted that he recovered full motor strength and normal function in all of his extremities.  His scars were noted to be well healed.  He was noted to 
be physically capable of remaining on active duty.  There were no physical conditions/scars listed on his MEBD which interfered with his ability to perform his duties.  His commander recommended retention on active duty in another MOS.  The applicant concurred with the MEBD's findings on 25 January 2006.

	b.  On 5 May 2006, a PEB found the applicant unfit for the two listed conditions on his MEBD: Cognitive disorder and post-traumatic seizure disorder. He was rated a total of 20 (sic) percent with separation and entitlement to severance pay.  He failed to respond to the PEB's findings and provided no appeal or rebuttal comments.

   c.  The mere presence of a scar does not, of itself, justify a finding of unfitness because of physical disability.  Only conditions to be unfitting can be compensated by the military.  The fact that the applicant had some residual scarring does not automatically result in disability compensation.  It is clear that these scars did not limit his ability to perform as all the medical and performance data supported the fact that the applicant had no physical limitations imposed on his assigned duties.  The fact that the DVA automatically compensates for all scars, without any relationship to industrial capacity, is not relevant to the military disability system which requires such a nexus before compensation is authorized.

	d.  The applicant had provided no evidence of a PEB error.  The PEB's findings were supported by the preponderance of evidence; were not arbitrary or capricious; and were not in violation of any statute, directive, or regulation.

15.  On 19 November 2009, the applicant was provided with a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 12 January 2010, he submitted a rebuttal through counsel, in which he stated:

	a.  The advisory opinion incorrectly shows that the applicant received 20 percent severance pay when in fact he received only 10 percent.

	b.  The advisory opinion incorrectly surmises that the MEBD met its duty to completely reflect the applicant's medical problems with physical limitations.

	c.  The applicant's disfigurements, tinnitus, peripheral neuropathy, lumbar strain, and headaches, should be found unfitting and he should be awarded a disability rating for his disfigurements.

	d.  The applicant did submit a timely request to the VA to receive his medical records.
	e.  All the medical conditions that the applicant suffered made him unfit to remain in the Army.  Therefore, he should have received a disability rating for all his conditions.

16.  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 rating at least 30 percent.  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 rating at less than 30 percent.

17.  Department of Defense Instruction (DODI) 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation.  All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.  Paragraph E4.1. provides a listing of medical conditions that are cause for referral to the physical disability evaluation system.  Paragraph E4.13.5. provides for Organic Mental Disorders, dementia or organic personality disorders that significantly impair duty performance.

18.  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 MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

19.  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 applicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.
20.  The VASRD contains the rating criteria that the PEB uses to assign ratings.  The nomenclature employed with regard to cognitive disorders rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  VASRD Code 9304 applies to cases of dementia due to head trauma and VASRD code 8045 applies to brain disease due to trauma.  Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207).   Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304 [Dementia due to head trauma].  This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.

21.  TBI per se is not rated directly; rather, it is rated according to the resulting impairments.  The guidance at 8045 gives hemiplegia, epileptiform seizures, and facial nerve paralysis, which are physical effects, as examples of conditions that could be rated.  The guidance limits a rating based on symptoms such as headache, dizziness, and insomnia, to 10 percent.  The clinical criteria for post-concussional syndrome in ICD-10 would call for a history of TBI and the presence of three or more of the following eight symptoms: (1) headache, (2) dizziness, (3) fatigue, (4) irritability, (5) insomnia, (6) concentration difficulty, (7) memory difficulty, and (8) intolerance of stress, emotion, or alcohol.  The DSM-IV criteria are: (1) a history of TBI causing "significant cerebral concussion"; (2) cognitive deficit in attention, memory, or both; (3) presence of at least three of eight symptoms—fatigue, sleep disturbance, headache, dizziness, irritability, affective disturbance, personality change, or apathy—that appear after injury and persist for 3 months; (4) symptoms that begin or worsen after injury; (5) interference with social role functioning; and (6) exclusion of dementia due to head trauma or other disorders that better account for the symptoms.  Currently, the Rating Schedule criteria for TBI do not refer to evaluation of cognitive and emotional impacts through structured clinical interviews or neuropsychological testing. Such impacts may be the only manifestations of closed-head TBIs. The guide for DVA clinicians performing compensation and pension examinations and the worksheet for brain and spinal cord examinations do not provide guidance for assessments of the cognitive effects of TBI (although the worksheet calls for a detailed description of any psychiatric manifestations).



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be increased to show a higher rating.

2.  The evidence of record shows the applicant underwent a thorough medical evaluation that resulted in a diagnosis of the medically unacceptable conditions of cognitive disorder and post-traumatic seizure disorder.  He subsequently underwent an MEBD which recommended that he be referred to a PEB.  He agreed with this recommendation and he elected not to remain on active duty.  The PEB considered the cognitive disorder condition listed by the MEBD and found this condition prevented him from performing his duties.  The PEB thus determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.  He disagreed with the PEB’s findings and recommendations.  He was provided with an opportunity to submit new documentary evidence in support of his non-concurrence but failed to do so. A formal PEB was even convened to further consider his condition.  The formal PEB reached the same conclusion and he was ultimately discharged with severance pay.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation.  The mere presence of a scar does not, of itself, justify a finding of unfitness because of physical disability.  The Army compensates only those conditions found to be unfitting.  The fact that the applicant had some residual scarring does not automatically result in disability compensation since these scars did not limit his ability to perform or imposed any physical limitations on his assigned duties.  The fact that the DVA automatically compensates for all scars, without any relationship to industrial capacity, is not relevant to the Army’s disability system which requires such a nexus before compensation is authorized.

4.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  It is acknowledged that the applicant’s condition may have worsened since his separation; however, the Army’s rating is dependent on the severity of the condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting their disability rating.

5.  There is no error or injustice in this case.  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 him 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)                                         AR20090012798



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ABCMR Record of Proceedings (cont)                                         AR20090012798



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