IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090015382 


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 and that he be granted a formal hearing.

2.  The applicant states, in effect, he was placed on the Temporary Disability Retired List (TDRL) in 1989 with a 70-percent rating for two disabilities.  In July and September 1991 the physical evaluation board (PEB) did not have all the findings, he was not granted a formal hearing in September 1991, and he now has new findings/disabilities that were not included in his PEB packet.

3.  The applicant states in July 1991 the PEB recommended a 40-percent rating and he did not concur with the findings and recommendation and requested a formal hearing.  He indicates his rating was changed to 50 percent in September 1991 and he again did not concur with the findings and recommendation and requested a formal hearing.  He claims that as of today he has not had a formal hearing.  He contends there was no consideration by the PEB for his major depression or right leg and side condition which are noted on his permanent profile in 1989.  He indicates these conditions are noted with the Department of Veterans Affairs (VA).

4.  The applicant provides a copy of his medical evaluation board (MEBD) narrative summary; a physical profile; and a DA Form 199-1 (Election to Formal PEB Proceedings) in support of his application.



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 enlisted in the Regular Army on 6 July 1987 for a period of 3 years.  He served as a cannon crewmember.

3.  On 26 July 1989, the applicant was issued a permanent profile of 441114 for right hemiparesis status post stroke.  In the remarks section it shows the entry "MEB proceedings."

4.  On 27 July 1989, an MEBD diagnosed the applicant with status post-cerebrovascular accident, apparent onset in July 1987.  His MEBD narrative summary states, in pertinent part, he was initially referred to neurology from the surgical service at Fort Carson for a second opinion regarding right-sided weakness he developed in July 1987.  On 31 July 1989, the applicant was informed of the findings and recommendations of the MEBD and he elected not to submit a letter of exception.  The MEBD recommended referral to a PEB.

5.  On 16 August 1989, an informal PEB found the applicant physically unfit due to right (major) upper extremity weakness of uncertain etiology attributed to a cerebrovascular accident in July 1987 with profound distal weakness and mild proximal weakness.  The PEB recommended a combined rating of 70 percent and that the applicant be placed on the TDRL with reevaluation during February 1991.

6.  On 21 September 1989, the applicant was retired and placed on the TDRL the following day.

7.  On 7 January 1991, the applicant underwent a neurologic evaluation and was diagnosed with status post-left subcortical and basal ganglion lesion possibly due to cerebral infarction or demyelinating disease.  The disability consists of weakness and abnormal posturing of the right upper extremity.  The disability is mild to moderate.  On 1 January 1991, he underwent muscle testing and functional evaluation and was diagnosed with decreased use of his right upper extremity and demonstrated decreased strength and coordination of his right upper extremity.

8.  The applicant's MEBD narrative summary of his TDRL examination is not available.  On an unknown date, the applicant agreed with the approved findings and recommendations of his narrative summary from his TDRL examination.

9.  The applicant's records contain a psychiatric evaluation, dated 8 April 1991, which shows he was diagnosed with recurrent-type major depression without psychotic features.  This evaluation states, in pertinent part, that the applicant was feeling depressed since October 1989.

10.  Records show that on 18 April 1991 the PEB returned the applicant's MEBD, dated 7 January 1991, without action and requested a complete neurological evaluation of his upper and lower extremities.

11.  On 13 May 1991, the applicant underwent muscle testing and functional evaluation of all extremities and a neurological examination.  He was diagnosed with status post stroke with right upper extremity residual weakness and mild to moderate dystonic posturing.

12.  On 1 July 1991, an informal PEB found the applicant physically unfit due to right upper extremity weakness of uncertain etiology attributed to status post-cerebrovascular accident in July 1987 manifested by slowed reflexes, reduced strength, and dystonic posturing, rated analogous to paralysis of the right, dominate side, upper extremities, incomplete, severe.  The PEB stated that the applicant was still experiencing right upper extremity hemiparesis attributed to cerebrovascular accident 1987, that he now has standard gait and station, walks one block without cramping, and does not utilize a cane to ambulate; coordination on right side accurate but slow; grip strength right 24 pounds, left 85 pounds; complains of loss of hot and cold sensory in right hand, arm, and foot; cannot touch thumb to finger (right) hand, cannot put fingers together on extension; states memory is not very good, hence the rating.  This case was informally reconsidered based on a neurological examination, dated 13 May 1991, and enclosures.  The PEB recommended a combined rating of 40 percent and that the applicant be permanently retired.  On 24 July 1991, the applicant did not concur and demanded a formal hearing with personal appearance.

13.  On 18 September 1991, a formal PEB found the applicant physically unfit due to right upper extremity weakness of uncertain etiology attributed to a status post-cerebrovascular accident in July 1987 manifested by slowed reflexes, reduced strength, and dystonic posturing; rated analogous to paralysis of the right, dominate side, upper extremities, incomplete, severe.  In addition, he has increased irritability and mild anxiety requiring treatment.  The formal PEB stated the applicant was still experiencing right upper extremity hemiparesis attributed to a cerebrovascular accident 1987, that he now has standard gait and station, walks one block without cramping, and does not utilize a cane to ambulate.  The applicant is uncoordinated on the right and cannot write; grip strength right 24 pounds, left 85 pounds; complains of loss of hot and cold sensory in right hand, arm, and foot; cannot touch thumb to finger (right) hand, cannot put fingers together on extension; states memory is not very good, hence the rating.  The formal PEB recommended a combined rating of 50 percent and that the applicant be permanently retired.

14.  On 18 September 1991, the applicant did not concur with the formal PEB findings and recommendation and submitted a rebuttal.  In summary, he stated that he agreed his right hand condition should be rated at 50 percent, but disagreed with the finding that he was not given a separate rating for major depression.  He contended that this condition was diagnosed when he was on active duty, it is unfitting, and is productive of definite social and industrial impairment.  He indicates that this condition should be rated at 30 percent and he should be medically retired at 70 percent on a permanent basis.

15.  On 24 September 1991, the applicant was notified in writing that the President of the U.S. Army Physical Evaluation Board reviewed his 18 September 1991 rebuttal; however, based on that review and the regulations in effect at the time, the PEB adhered to its findings.  His case was forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review and final processing.

16.  On 10 October 1991, the USAPDA approved the formal PEB's findings and recommendations.

17.  On 16 October 1991, the applicant was removed from the TDRL and retired by reason of permanent disability with a disability rating of 50 percent.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

19.  Paragraph 6.1.7 (Disabilities not unfitting for military service) of DOD Instruction 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) states that conditions that do not themselves render a service member unfit for military service will not be considered for determining the compensable disability rating unless they contribute to the finding of unfitness.

20.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.

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.  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.  Although the applicant contends he was placed on the TDRL in 1989 with a 70-percent rating for two disabilities, the evidence of record shows he was placed on the TDRL in 1989 with a 70-percent rating for one disability (right (major) upper extremity weakness of uncertain etiology attributed to cerebrovascular accident in July 1987 with profound distal weakness and mild proximal weakness).

2.  The applicant's contention that there was no consideration by the PEB for major depression was noted.  The profile which shows he was issued a permanent "4" under psychiatric was also considered.  Apparently the profile was reviewed by the MEBD, the MEBD did not list depression, and it appears the applicant agreed that the MEBD listed all current conditions.

3.  The evidence of record does not support the applicant's contention that there was no consideration by the PEB for his right leg and side condition.  His MEBD narrative summary states he was initially referred to neurology for a second opinion regarding right-sided weakness he developed in July 1987.  In April 1991, the PEB requested that a complete neurological evaluation of the applicant's upper and lower extremities be conducted.  He underwent this evaluation in May 1991.

4.  Although the applicant contends that as of today he has not had a formal hearing, the evidence of record shows he had a formal PEB on 18 September 1991.

5.  The applicant points out that major depression and his right leg and side condition are noted with the VA.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual's medical condition may not be considered to be a physical disability by the Army and yet be rated by the VA as a disability.

6.  There is insufficient evidence to show the applicant's disability was improperly rated by the formal PEB or that his permanent disability retirement was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating.

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)                                         AR20090015382



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ABCMR Record of Proceedings (cont)                                         AR20090015382



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