IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090013428 


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 correction of the results of his Physical Evaluation Board (PEB) to show his injuries were the direct result of armed conflict.

2.  The applicant states that he was injured several times while deployed to a combat zone with the 864th Engineer Battalion in Afghanistan.

	a.  He states the evidence he provides pertaining to his leg injury shows its permanence and that the injury is not going away.  He also states he was severely burned during a concrete pour and this occurred in the line of duty while he was deployed.

   b.  He adds that his Department of Veterans Affairs (VA) medical records show multiple injuries inflicted by action while he was deployed to Afghanistan, including trauma possibly due to military service; a diagnosis combining two pains in his right foot (neuritis and metatarsalgia); and a diagnosis of Traumatic Brain Injury (TBI) from the Low-Vision Clinic.
 
	c.  He states that the 2008 National Defense Authorization Act (NDAA) states "service members injured in combat, in a combat zone or performing tasks related to combat - such as training - would not have to repay any disability retirement severance pay."

	d.  He concludes that his PEB proceedings and separation documents need to be corrected to show his disability did result from a combat-related injury, and that his separation is based on disability from injury or disease received in the line of duty as a direct result of armed conflict.

3.  The applicant provides, in support of his application, a self-authored statement, PEB and Medical Evaluation Board (MEBD) Proceedings, deployment orders, separation orders, his discharge document, and VA medical records and rating decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's PEB case to show his injuries were the direct result of armed conflict.

2.  Counsel, in effect, defers to the applicant.

3.  Counsel provides no additional documentary evidence in support of the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior active duty enlisted service in the Regular Army (RA) from 12 November 1991 through 9 January 1996.

2.  The applicant enlisted in the RA on 18 August 2004.  Upon completion of training he was awarded military occupational specialty (MOS) 21W (Carpenter/
Masonry Specialist).  He served in a designated imminent danger pay area (Afghanistan) from 31 March 2005 to 28 March 2006.

3.  A DA Form 199 (PEB Proceedings) shows a PEB convened on 1 October 2007.  The PEB Proceedings, Disability Description section, describes the applicant's MEBD diagnoses as:

   a.  "[m]etatarsalgia, affecting right foot.  Imaging normal.  Exam shows tenderness over the second metatarsal head.  Unable to wear military boot.  Single prescribed rating.  (Revised MEDB Dx [Medical Board Diagnosis] 2, [NARSUM] Narrative Summary and Podiatry Clinic note, dated 16 May 2007)."  This diagnosis shows a recommended disability rating of 10%.

   b.  "[m]igraine headaches, onset in summer of 2006, requiring acute ER [emergency room] visit at that time.  Since then headaches continue once or twice weekly managed with abortive medications, precluding wear of Kevlar helmet.  Evidence supplied at the Formal PEB shows ER visit for headache on 27 July 2007 and an unscheduled sick call visit on 5 September 2007.  Rated 10% for prostrating migraines occurring once every 2 months over the last several months.  [Revised MEDB Dx 1, NARSUM [Narrative Summary], Neurology Clinic note, dated 6 July 2007, Commander's statement, and FP.)"

   c.  Based on a review of the medical evidence of record the PEB found the applicant physically unfit, recommended a combined rating of 20%, and separation with severance pay, if otherwise qualified.

   d.  The applicant appeared, with counsel, at a formal board.

	e.  The formal board responded to the applicant's appeal.  The PEB reiterated that the preponderance of the evidence did not support that all of his headaches were prostrating and therefore could not be rated at the higher rating.  It also found that the applicant's leg pain was separate and distinct from this foot pain and that the minimal physical findings related to the leg did not justify a separate independent finding of unfit.

   f.  On 16 October 2007, the applicant indicated he did not concur with the findings and recommendation of the formal board.

4.  Headquarters, U.S. Army Physical Disability Agency (USAPDA), Washington, DC, memorandum, subject:  Nonconcurrence/Rebuttal to PEB Findings, dated
24 October 2007, shows the USAPDA reviewed the applicant's entire case and concluded that his case was properly adjudicated by the PEB.  This document also shows that the findings and recommendation of the PEB are supported by substantial evidence and were affirmed.

5.  Headquarters, Installation Management Command, Military Personnel Division, Fort Lewis, WA, Orders 340-0028, dated 6 December 2007, show the applicant was reassigned to the U.S. Army Transition Center on 24 January 2008 for the purpose of discharge with a disability rating of 20%.

6.  A Physical Disability Information Report, Fort Lewis, dated 24 January 2008, in pertinent part, shows the following:

	a.  "Disability is based on injury or disease received in line of duty as a direct result of war and incurred in the line of armed conflict or caused by instrumentality of war during a war period as defined by law:  No;
   b.  Member of an Armed Force on 24 September 1975:  No;

   c.  Mentally Competent:  Yes;

   d.  Disability resulted from a combat-related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]:  No."

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 24 January 2008, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  At the time he had completed 3 years, 5 months, and 7 days of net active service this period; 4 years, 1 month, and 28 days of total prior active service; and 7 years, 7 months, and 5 days of total active service.  Item 18 (Remarks), in pertinent part, shows the applicant was authorized disability severance pay in the amount of $37,180.80 in accordance with Title 10, U.S. Code, section 1208.

8.  In support of an earlier application that was administratively closed, the applicant provided, in pertinent part, the following documents:

   a.  Headquarters, I Corps, Fort Lewis, Permanent Orders 033-307, dated
2 February 2005, that show the applicant deployed with his unit, the 864th Engineer Battalion (Combat), on 29 March 2005, in support of Operation Enduring Freedom for a period of 365 days.

	b.  A DD Form 689 (Individual Sick Slip), dated 14 March 2006, that shows the applicant injured his right leg while assigned to the 864th Engineer Battalion.

   c.  A copy of a prescription label that shows the applicant was prescribed Ibuprofen, as needed for pain relief, on 3 July 2006.

	d.  An email from Staff Sergeant C------ S----, the applicant's supervisor while serving in Afghanistan, dated 30 August 2008, in which he recalled that the applicant received severe concrete burns to his feet and he instructed him to shower and scrub his feet.  He adds that two scabs formed on the applicant's feet, he was seen by a medic who provided him ointment with instructions on its use for the chemical burns, and that it took several weeks for the applicant's feet to heal.

   e.  MEBD Proceedings that show the MEBD considered the applicant's clinical records, laboratory findings, and physical examination.  He was 
diagnosed with:  "migraine headaches, prostrating; metatarsalgia; right leg lateral femoral cutaneous nerve syndrome (meets retention standards); sensorineural hearing loss of combined types (meets retention standards), and adjustment disorder (meets retention standards).  The MEBD recommended the applicant be referred to a PEB; the applicant indicated he did not desire to continue on active duty; the findings and recommendations of the MEB were approved on 8 August 2007; and the applicant agreed with the MEB's findings and recommendation on
10 August 2007.

   f.  Social Security Administration (SSA), Retirement, Survivors, and Disability Insurance, Notice of Award, that shows the SSA found that the applicant became disabled under its rules on 12 November 2006 and that he will receive benefits beginning May 2007.

   g.  VA medical records and rating decision that show:
   
       (1)  the VA determined the following conditions were related to the applicant's military service, so service-connection was granted for migraine headaches (50%); anxiety disorder, not otherwise specified (claimed post traumatic stress disorder) (50%); meralgia paresthetica (lateral femoral cutaneous nerve syndrome) of the right lower extremity, with metarsalgia of the right foot (20%); multilevel degenerative disc disease of the lumbar spine (10%); Meniere's disease of unknown etiology (10%), tinnitus (10%), and shin splint of the right leg (0%), all effective 24 January 2008; and that
   
       (2)  the VA determined the following conditions were not related to the applicant's military service, so service-connection could not be granted for right trochanteric bursitis; right iliotibial tendon syndrome; shin splint of the left leg; bilateral hearing loss; and scars on the bilateral feet secondary to lye (or lime) burns.

9.  In support of his current application, the applicant now provides a VA Medical Facility Worksheet, dated 29 August 2008, and Padula Institute of Vision, Guilford, Connecticut, Neuro-Optometric Rehabilitation Examination Report, dated 5 December 2008.  These documents show the applicant was referred to Doctor W------ V. P----- by the VA.

   a.  The History section of the examination report shows the applicant stated, "[he] was struck by a mortar round while in service in June 2005.  It was reported that he was unconscious although he did not remember the incident.  He reported an additional head injury at a time later than the first incident when he struck his head on a vehicle.  He also reported that he fell from a bulldozer in 2006 while in service and he has also had an injury to his right foot and leg."

   b.  The Results and Recommendations section of the examination report shows, in pertinent part, "[t]he examiner found that [the applicant] has significant visual difficulties as a result of his head injury which interfere with posture, balance, and movement as well as integration of using his vision for near activities, such as reading and writing."

10.  In connection with the processing of this case, an advisory opinion was obtained from the USAPDA, Washington.

	a.  The advisory opinion states that on 18 April 2007 the applicant's MEBD was completed with the following listed diagnoses not meeting medical retention standards:  Migraine headaches and metatarsalgia.  The applicant's conditions of right leg lateral femoral cutaneous nerve syndrome and sensorineural hearing loss were found to meet medical retention standards.  Based on the applicant's appeal, on 12 June 2007, the MEBD approving authority responded to all of the applicant's concerns, several corrections to the body of the MEBD report were made, but the diagnosed conditions remained unchanged.

	b.  Based on further concerns of the applicant, a new MEBD was completed on 4 August 2007.  The applicant had a full psychiatric evaluation and this resulted in the addition of the diagnosis of adjustment disorder.  The condition was found to meet medical retention standards.  The review noted no claims of head trauma or any periods of unconsciousness with no physical findings relating to TBI.  The advisory elaborates on the applicant's migraine headaches, right leg injury and right leg pain, and metatarsalgia of his right foot.  It also states the applicant's physical profile reflected no visual or psychiatric limitations; the commander indicated that the only condition limiting the applicant's duty performance was the painful right extremity; and there was no mention of any other conditions affecting the applicant's duty performance.  On 10 August 2007, the applicant concurred with the MEBD's findings and recommendation.

	c.  On 14 August 2007 an informal PEB found the applicant unfit for metatarsalgia affecting the right foot (rated 10%) and migraine headaches rated as prostrating headaches less frequent than once every 2 months (rated 10%).  The PEB found the other listed conditions met medical standards.  On 28 August 2007, the applicant appealed the PEB's findings and recommendation.  On
6 September 2007, the PEB reviewed the applicant's appeal and reaffirmed their informal findings and recommendation.

   d.  On 1 October 2007, a formal PEB affirmed the informal PEB's findings and recommendation.  The applicant appealed citing his previous rationale and that his headaches should be rated higher.  The PEB found the headaches could not be rated at the higher rating.  It also found the applicant's leg pain was separate and distinct from his foot pain and that the minimal physical findings related to the leg did not justify a separate independent finding of unfit.

   e.  The applicant's case was reviewed by the USAPDA and the PEB was asked to review their findings in regard to the headache rating.  The PEB, using guidance in effect at the time, continued to find that the evidence did not support a higher rating and did not result in any change to the PEB's findings and recommendation.  The USAPDA affirmed the PEB's findings and recommendation on 24 October 2007.  The applicant was separated from the U.S. Army on 24 January 2008 with severance pay.

	f.  The USAPDA advisory reviewed the Neuro-Optometric Rehabilitation Examination Report, dated 5 December 2008 and concluded, "there is no evidence to support any such TBI incident and there is no evidence to support that the applicant had any visual condition that would have been unfitting at the time of his separation."

   g.  The USAPDA advisory adds that injuries incurred in a combat zone became eligible for enhanced severance pay when Title 10, U.S. Code,
section 1212 was amended on 28 January 2008.  The applicant was separated on 24 January 2008; therefore, the new law was not applicable to the applicant's condition.  The advisory opinion also states that "there is no evidence the applicant's headaches were incurred in a combat zone (headaches began insidiously after deployment) and the foot pain and headaches were not the direct result of armed conflict."

   h.  The advisory opinion states that the applicant has not provided any evidence of any substantive and material error in the PEB's findings and recommendation.  The PEB fully considered all the evidence relating to the applicant's headaches and did not concur with the applicant's opinion that all his headaches were prostrating.  It added that continued claims of leg pain do not automatically result in findings of unfitness.
   
   i.  The USAPDA advisory concludes that the PEB's findings and recommendation were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in effect at the time of the applicant's separation.  The USAPDA advisory opinion recommends no change to the applicant's military records.

11.  On 15 September 2009, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to respond to its contents.  To date, a response from the applicant has not been received.

12.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

13.  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%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits 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 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.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his PEB proceedings should be corrected to show he was medically retired based on injuries received in the line of duty as a result of being deployed in a combat zone.

2.  Records show that the PEB recommended a combined rating of 20% and that the applicant be separated with severance pay.  Accordingly, the applicant was honorably discharged on 24 January 2008 by reason of disability with severance pay.

3.  Injuries incurred in a combat zone became eligible for enhanced severance pay on 28 January 2008.  The applicant was separated on 24 January 2008.  Thus, the new law was not applicable to the applicant's condition.  In addition, there is no evidence the applicant's headaches were incurred in a combat zone and the foot pain and headaches were not the direct result of armed conflict.  Therefore, the applicant is not entitled to correction of his records to show was medically retired based on injuries received in line of duty as a result of being deployed in a combat zone.

4.  The statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA to give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a disability rating for a condition that was determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

5.  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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090013428



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ABCMR Record of Proceedings (cont)                                         AR20090013428



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