IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090012843 


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 a disability retirement.

2.  The applicant states that the evaluations of his physical and mental condition during the medical evaluation board (MEBD) and the physical evaluation board (PEB) were not consistent with DOD directives and failed to properly determine the extent of his service-connected conditions.  He offers that the degree of his disability was not properly determined in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) as evidenced by the 100-percent disability rating he received from the VA for a traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD).

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a supporting letter from The American Legion, MEBD and PEB Proceedings, Department of Veterans Affairs (VA) Disability Decisions, numerous medical documents, and photographs.

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.  On 28 May 1986, the applicant was appointed as an officer in the U.S. Army Reserve (USAR).  On 18 December 1986, he entered active duty.

3.  On 12 August 1991, the applicant underwent surgery of the right frontal parietal craniotomy for drainage of a subdural hematoma.  The medical report stated the applicant hit his head while parachute training during a combat course in Georgia 10 days ago.  The applicant was seen at the emergency room at David Grant Medical Center after complaining of increased lethargy and headaches.  A computed axial tomography (CT) scan was obtained that showed a dense subdural hematoma with a right to left shift.  A magnetic resonance image was also obtained that revealed an approximately 1 1/2 cubic centimeter wide subdural hematoma that extended from frontal pole to occipital pole, primary located around the frontoparietal region.

4.  In a narrative summary dictated on 26 August 1991, the staff neurosurgeon said, in pertinent part, that the applicant tolerated his surgery well without complications and was returned to the ward in excellent condition.  He added that approximately 36 hours after the surgical procedure, the applicant experienced focal seizures of both cranial nerves, seven in the left upper extremity.  A CT scan was completed without significant changes and no signs of recurrent bleeds.  He added that over the next several days the applicant's symptoms of focal seizures gradually resolved and his focal seizures were completely resolved prior to his discharge.  The staff neurosurgeon also said the applicant complained of right shoulder pain; however, shoulder films were completed during his hospital admission and were without significant findings.  Additionally, his complaints of left chest pain were consistent with pleuritic-type chest discomfort.  The applicant's symptoms were resolved over a 12-hour period and his vital signs were stable throughout the interval.  The applicant was discharged from the hospital on 21 August 1991 on 30 days of convalescent leave.

5.  On 31 March 1992, the applicant underwent a neuropsychological evaluation to determine his fitness for duty.  The report provided a brief synopsis of the applicant's accident that occurred in August 1991 and his subsequent surgery.  The applicant was given a comprehensive evaluation including qualitative and quantitative procedures.  The qualitative procedures included a review of relevant medical records, a clinical interview with the clinical neuropsychologist, and observations of the applicant during testing.  Quantitative procedures included the Adult Halstead-Reitan Neuropsychological Test Battery, Minnesota Multiphasic Personality Inventory - 2, Stroop Test (Dodrill version) and Tonal Memory Test, Wechsler Memory - Russell Administration, Wechsler Adult Intelligence Scale - Revised, and Wide Range Achievement Test - Revised.

6.  The tests revealed that the applicant's overall neuropsychological level of functioning was in the normal range.  Reasoning and complex problem solving were in the low average range.  Basic academic skills in math, spelling, and reading were in the average to above average range relative to his age and peers.  New learning and memory in the verbal and tactile modality were average.  Visual memory was slightly below his peers.  Motor strength and speed in the left dominant hand were mildly impaired and consistent with his right hemisphere injury.  Emotional adjustment was good and considered an asset in the applicant's rapid recovery and early return to normal functioning.  The clinical neuropsychologist recommended that the applicant be returned to full active duty with no restrictions.

7.  On 7 December 1995, the applicant underwent a neuropsychological evaluation for consideration by an MEBD because of a knee problem.  The findings of his evaluation were compared with his neuropsychological evaluation conducted in1992.  The neuropsychologist said that the applicant's intellectual function was unchanged and remained in the low average to average range.  He offered that the Halstead Impairment Index had increased from .3 to .57 indicating the overall efficiency of brain functioning was decreased slightly.  He said the findings indicated that the applicant had decreased motor speed and strength in the left hand, slower rate of information processing, and mild difficulty with new learning.

8.  The neuropsychologist further stated that the changes in the applicant's current evaluation from the previous testing were best explained by additional trauma to the brain done by a head injury subsequent to the hematoma in 1991.  He added that cognitive loss from head injuries tends to be cumulative.  He offered that the applicant could have sustained a brain injury in the August 1992 motor vehicle accident.

9.  In the applicant's medical record report dictated on 2 August 1995 for an MEBD, his chief complaint was listed as patellofemoral pain.  The orthopedics doctor said the applicant's onset of symptoms began in January 1994 when he sustained bilateral knee injuries.  The doctor added that the applicant was treated with a variety of physical therapy modalities for 12 months without improvement.  He offered that the applicant underwent a diagnostic arthroscopy of the left knee in April 1995.  He said the applicant's symptoms did not improve after the arthroscopy and because of his continued inability to run and lift, a permanent P3 profile was recommended and an MEBD initiated.
10.  The applicant provided a copy of his MEBD which shows he was referred to a PEB.  The MEBD found that the applicant had the following medical conditions: 
(1) bilateral retropatellar pain syndrome, (2) status post-closed head injury with ongoing neurologic symptoms, (3) history of motor vehicle accident with ongoing low back and left shoulder pain, (4) history of skin reaction (hives), (5) atypical chest pain, and (6) bilateral plantar fasciitis.  The date the MEBD convened is illegible; however, the results of the board were signed on 20 May 1996.

11.  On 20 May 1996, a PEB was convened which recommended a disability rating of 10 percent for bilateral retropatellar pain syndrome.  The PEB stated that the applicant's functional limitation in maintaining the appropriate level of mobility and agility caused by the physical impairment made him unfit to perform duties required of a captain Quartermaster officer.  However, his conditions of numbers 2, 3, 4, 5, and 6, as cited in his MEBD, were considered by the PEB and found to be not unfitting and, therefore, not ratable.

12.  The copy of the PEB provided to the Board is unsigned.  However, page 2 of the PEB form provided the applicant with the following options:

I concur and waive a formal hearing of my case;

I do not concur but waive a formal hearing.  My written appeal is or is not attached;

I do not concur and demand a formal hearing with or without personal appearance;

I request a regularly appointed counsel to represent me; and

I will have counsel of my choice at no expense to the government.  I understand that I must notify my counsel at this time of the pending hearing.  I further understand that a delay will not be granted merely because I did not contact my counsel in sufficient time for him to properly prepare.  I will inform my counsel that he should immediately contact the PEB to coordinate further actions in my case.

13.  On 16 June 1997, the applicant was seen by a psychiatrist for anxiety and depression.  The psychiatrist said that the applicant was scheduled to separate in 3 weeks.  He added that the applicant was found unfit by an MEBD for knee problems with cognitive deficit secondary to "chi."  The psychiatrist offered that the applicant had problems with cognition and was noncompetitive for promotion.  He said that the applicant also had significant anxiety and depressed mood.  He recommended that the applicant pursue a VA claim for his various medical problems which were found unfitting by the PEB.  He concluded that initiating an MEBD at this time was not indicated.

14.  The applicant's DD Form 214 shows that he was released from active duty on 8 July 1997 and transferred to the USAR Control Group.  The separation authority was listed as Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-5, and the narrative reason for separation was listed as "miscellaneous/general reasons."  Army Regulation 600-8-24, paragraph 2-5, provides for the voluntary release from active duty due to personal reasons.

15.  On 25 June 1997, the applicant underwent a psychiatric examination for compensation and pension from the VA.  The examination provided a history of the applicant's illness and the results of his examination.  Based on the examination, the applicant was diagnosed with PTSD, major depression, cognitive disorder, bilateral knee injuries and residuals of knee injury, with psychosocial stressors noted.

16.  On 27 May 1997, the applicant received his rating decision from the VA.  His overall combined rating was not provided.  However, he was rated for the following conditions.

	a.  service connection for scar, residuals craniotomy, 10 percent;

	b.  service connection for right testicle aplasia, 0 percent;

	c.  entitlement to special monthly compensation based on loss of use of creative organ, granted;

   d.  service connection for left foot plantar fasciitis and heel spurs, 10 percent.

	e.  service connection for right foot plantar fasciitis and heel spurs, 10 percent

	f.  service connection for C5-6 disc bulge (claimed as cervical strain and bilateral shoulder pain), 10 percent;

	g.  service connection for thoracic strain, 10 percent;

	h.  service connection for lumbosacral strain, 10 percent;

	i.  service connection for right knee Pellegrini-Stieda syndrome, 10 percent;

	j.  service connection for left knee Pellegrini-Stieda syndrome, 10 percent;

	k.  service connection for cognitive disorder due to head trauma, 50 percent;

	l.  PTSD, differed; and

	m.  service connection for residuals, cyst excision, abdomen, 0 percent.

17.  On 28 January 1998, the VA increased his cognitive disorder rating due to head trauma with PTSD from 50 to 70 percent with an overall disability rating of 90 percent.

18.  On 8 July 1999, the VA said that it made a decision on the applicant's compensation claim.  The VA added that the applicant's overall evaluation was 90 percent with individual unemployability and he was being paid at the 
100-percent rate.

19.  The American Legion letter, dated 10 July 2009, stated that the applicant suffered from a TBI as a result of a hard parachute landing and blows to the head during hand-to-hand combat training later that same day.  The Veterans Service Officer stated that both events rendered the applicant unconscious and led to brain surgery to alleviate a subdural hematoma.  The Veterans Service Officer added that after sustaining a TBI, the applicant was no longer fully able to fulfill his duties as an Army officer.  He offered that the applicant's performance declined after the TBI as reflected in lower evaluation reports.  He questions the evaluations conducted in conjunction with the MEBD and the one conducted by VA.  He adds that the VA determined that the applicant was 70-percent disabled because of a cognitive disorder due to head trauma whereas the MEBD/PEB found the applicant fit for duty.  The Veterans Service Officer opined that the MEBD/PEB process was to base its medical evaluation in accordance with the same VASRD as used by the VA.  He concluded that the applicant should have been medically retired due to his debilitating injuries.

20.  Orders D-02-007223, dated 3 February 2000, show the applicant was honorably discharged from the USAR effective 1 August 2000.  Information obtained from the U.S. Army Human Resources Command Integrated Web Service transaction history shows the applicant was separated for twice being non-selected for promotion to major.

21.  On 27 January 2010, the PEB Liaison Officer (PEBLO) was contacted in an effort to obtain a completed signed copy of the applicant's MEBD, PEB, and his election form.  However, the PEBLO was unable to provide the requested information since the applicant's MEBD and PEB were conducted in 1996 and 1997 respectively.  The PEB did not maintain any records of any medical boards conducted prior to 2000.
22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  PEB's 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 the eligibility of a Soldier to be separated or retired because of physical disability.

23.  Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

24.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

25.  Title 38, U.S. Code, sections 1110 and 1131, 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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an MEBD was conducted as well as a PEB.  The applicant was given the opportunity to either appear before the board or provide additional evidence that would aid the board in making its final determination.  Further, the evidence shows the applicant was found unfit for bilateral retropatellar pain syndrome with a 10-percent disability rating.  He also had five other conditions:  status post-closed head injury, low back and left shoulder pain, hives, chest pain, and bilateral plantar fasciitis that were considered by the PEB but were found not to be unfitting and, therefore, not rated.

2.  It is reasonable to presume that if the applicant was not satisfied with the findings and recommendations rendered by the boards, he should have, at a minimum, nonconcurred with the board findings and either submitted an appeal or requested a formal hearing.  The fact he states 12 years later that the MEBD/PEB erred and failed to determine the extent of his service-connected conditions is not sufficient evidence to justify granting him a disability retirement.

3.  The applicant failed to provide a signed copy of his PEB and a copy could not be obtained that showed he either concurred or nonconcurred with the findings and recommendations of the board.  However, based on the facts that he was released from active duty and transferred to the USAR Control Group on 8 July 1997 and he was not discharged until February 2000 are an indication that he applied for and was approved to continue in an active Reserve status.  Additionally, the fact that he continued to serve in the military for over 3 years after the PEB and was not discharged until he was twice non-selected for promotion to major indicates he believed himself to be physically fit to perform his duties at the time of separation.

4.  The evidence of record further shows that the applicant underwent a psychiatric examination for compensation and pension from the VA shortly after his release from active duty on 25 June 1997.  During this examination PTSD was discussed, which had not surfaced during his MEBD or PEB.  On 28 January 1998, after three rating decisions were rendered, the VA increased the applicant's cognitive disorder due to head trauma with PTSD from 50 to 70 percent with an overall disability rating of 90 percent.

5.  The applicant and the The American Legion representative offer the fact that the applicant was awarded a 100-percent disability rating from the VA for TBI and PTSD as proof that he should have received a disability retirement.  However, the VA is not required by law to determine medical unfitness for further military service.  The VA 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.  Consequently, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Consequently, there is no basis for granting the applicant's request.

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)                                         AR20090012843



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ABCMR Record of Proceedings (cont)                                         AR20090012843



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