IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090012847 


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 that his disability rating be increased from 60 percent to 70 percent.

2.  The applicant states, in effect, he should have been rated at least 10 percent each for traumatic brain injury (TBI), left radial and ulnar nerve damage, degenerative disc disease/spondylosis, and chronic cervical strain.

3.  The applicant provides, in support of his request, copies of his Department of Veterans Affairs (VA) and Army disability ratings and some supporting medical documents.

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, a U.S. Army Reserve officer, was mobilized and entered active duty on 27 January 2003.  He was initially deployed to Honduras, but went to Iraq in May 2004.  He was promoted to major on 28 July 2004.

3.  On 17 August 2004 the vehicle he was driving encountered an improvised explosive device (IED).  He nearly died from loss of blood, but survived to undergo numerous surgeries on his left leg that contracted multiple infections.  The leg was amputated at the thigh on 1 October 2004.

4.  A 21 January 2005 medical evaluation board (MEBD) referred his case to a physical evaluation board (PEB) with diagnoses of left transfemoral amputation, chronic phantom pain of the left lower limb, and PTSD.

5.  The 4 February 2005 PEB rated the applicant's amputation and associated symptoms at 60 percent and his PTSD at 10 percent and found him unfit at a combined rating of 60 percent.  The applicant concurred.

6.  He was retired, on 16 May 2005, due to permanent disability.

7.  On 25 May 2005, the VA awarded disability ratings of 60 percent for the left leg amputation, 50 percent for the PTSD, and 10 percent each for the following conditions:
	
	a.  shrapnel wound to the left arm;

	b.  scars on the left thighs;

	c.  chronic cervical strain;

	d.  thoracolumbar degenerative disc disease/spondylosis;

   e.  tinnitus;

   f.  scar over the left iliac crest; and

   g.  scar over the left triceps. 

8.  The VA subsequently noted complaints of headaches, major memory loss, insomnia, tiredness, problems concentrating, light sensitivity and dizziness and granted the applicant a 10 percent rating for TBI, effective 7 October 2008.



9.  On 16 November 2009, the U.S. Army Physical Disability Agency (USAPDA) provided an advisory opinion recommending that the applicant's disability be changed to 80 percent, effective 16 May 2005.  The advisory official noted that, although the mere listing of conditions by an MEBD does not necessarily translate to a finding of unfitness, there was sufficient evidence that the applicant's left arm condition, back pain, and neck pain should have been rated.

10.  The official also notes that before the applicant retired the TBI seems not to have been prostrating or to have required any special medication and that some of the symptoms (such as insomnia, tiredness, and problems concentrating) are also attributable to PTSD.  It seems unlikely that TBI would have been found independently unfitting at that time.

11.  The official further stated that the left arm condition should be rated at
20 percent [as the non-dominate hand], and the lumbosacral strain and chronic neck pain should be rated at 10 percent each.  These combined with the original 60 percent produce a final rating of 80 percent.

12.  On 30 November 2009, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  There is no evidence that the applicant responded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he should have been rated, at least 10 percent each for traumatic brain injury (TBI), left radial and ulnar nerve damage, degenerative disc disease/spondylosis, and chronic cervical strain.

2.  The applicant's left arm condition should have been rated at 20 percent and the lumbosacral strain and chronic neck pain should have been rated 10 percent each, at the time of his original PEB.

3.  These combined with the original 60 percent rating produce a combined disability percent rating of 80 percent, effective 16 May 2005.

4.  There is insufficient evidence to conclude that the TBI would have been independently ratable at the time of his discharge.

5.  In view of the foregoing, it would be appropriate to rectify this injustice by correcting the applicant’s records as recommended below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by rating his left arm condition at 20 percent, lumbosacral strain and chronic neck pain at 10 percent each, and combining these with the original 60 percent rating to produce a combined disability percent rating of 80 percent, effective 16 May 2005.
 
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to rating TBI as disabling at the time of discharge.



      _________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)                                         AR20090012847



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ABCMR Record of Proceedings (cont)                                         AR20090012847



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