IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20100026423 


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 disability retirement due to injuries sustained during his last period of mobilization, prior to receipt of Department of Veterans Affairs (VA) benefits, Combat Related Special Compensation, Tricare, and/or any other associated benefits.

2.  The applicant defers addition comment and submissions to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show he was released from active duty and medically retired due to a physical disability.

2.  Counsel states the applicant was injured in Iraq by an improvised explosive device (IED) blast on 9 October 2005.  He was medically evacuated for treatment but due to a shortage of uninjured Soldiers in his unit he returned to his unit despite a serious shoulder injury.  Counsel contends the applicant was unfit for duty at both the time of release from active duty and at the time of discharge from the Massachusetts Army National Guard (MAARNG).  He should have been referred to a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).

3.  Counsel provides copies of: 

	a.  a personal statement from the applicant detailing the incident involving his injury;

	b.  a 15 December 2009 Social Security Disability Income award statement;
	c.  a 22 March 2005 Pre-Deployment Health Assessment;

	d.  documents relating to the applicant's request to return to active duty for a medical a review under the Medical Retention Processing 2 (MRP2) program; 

	e.  e-mail between the applicant and his chain of command;

	f.  medical and administrative records from the Boston, Roxbury, and Brockton VA Regional Offices; and  

	g.  service medical and personnel records.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a specialist (E-4) infantryman in MAARNG was mobilized from 18 May 2004 through 3 July 2006.  He served in Egypt, from 14 July 2004 through 13 January 2005.  He volunteered to remain on active duty and served in Kuwait/Iraq from 26 June 2005 through 9 June 2006.

2.  On 9 October 2005, the vehicle the applicant was riding in was hit by an IED.  The applicant reported being suddenly thrown against another Soldier injuring his left side.  The medical records prepared at this that time show the applicant received a grade II separation of the left acromio-clavicular (AC) [shoulder-collar bone] joint and a bruise to his left arm.  His shoulder was x-rayed, he was given medication for pain, his shoulder was placed in a sling for comfort, and he was placed on light duty for 6 or 8 weeks. 

3.  A treatment record, dated 13 October 2005, states the applicant had regained full range of motion with tolerable pain.  His diagnosis was reported as a left shoulder type II AC separation/sprain.  Other than his shoulder injury, the applicant voiced no additional complaints. 

4.  On 18 October 2005, an in-the-line-of-duty (LOD) determination was made for his 9 October 2005 injury.

5.  On a post-deployment medical assessment the applicant reported his treatment for the shoulder injury.  He also complained of intermittent foot pain, stiffness in his wrist, and reoccurring nail fungus.  He marked "Yes" to having developed the following symptoms during his deployment:  swollen, stiff, or painful joints, back pain, skin diseases, or rashes, and diarrhea.  He marked "No" indicating no symptoms of headaches, difficulty remembering, or ringing in the ears.  He indicated he had not been bothered by any of the following:  Little interest or pleasure in doing things, feeling down, depressed, or hopeless, and thoughts of being better off dead or hurting himself in some way.  He indicated he was not interested in receiving help for any stress, emotional, alcohol, or family problems. 

6.  On 3 July 2006, the applicant was honorably released from active duty under the provisions of chapter 4, Army Regulation 635-200, due to completion of require active service and transferred to his ARNG unit.  

7.  On 19 July 2006, a magnetic resonance imaging (MRI), found degenerative changes in the applicant's left AC joint.  On 1 August 2006, the applicant requested to return to active duty to receive medical care and an evaluation for his service incurred injuries.  This request was declined.

8.  On 12 March 2007, the applicant underwent surgical intervention on his left AC joint, at a VA hospital.  

9.  The MAARNG found the applicant unfit for duty and awarded him incapacitation pay from 4 July 2006 through 31 August 2007.  The date of this determination is not in the available evidence.

10.  On 19 April 2007 a VA surgeon stated the applicant needed three months of physical therapy before returning to work.  Additionally on or about this date a VA medical examination afforded the applicant the diagnoses of Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI).

11.  Joint Force Headquarters, Massachusetts National Guard Orders 030-025, dated 30 January 2008, discharged the applicant from the ARNG and as a member of the Reserve of the Army, effective 18 October 2007, due to expiration term of service (ETS).

12.  The applicant was laid off as a result of his medical condition(s) preventing him from performing his civilian duties as a heavy machine equipment repairman on 29 October 2008.

13.  Copies of the applicant's VA disability ratings and decisional documents are not included in the information provided by the applicant and counsel.  However, within the documentation and medical records he has shown to have a combined disability rating of 70 percent for a left shoulder injury, PTSD [with major depression and anxiety], lower back pain, and tinnitus.  



14.  The Social Security Administration granted the applicant supplemental security income effective August 2009.  The medical basis for this decision is not available.

15.  On 3 April 2011, the MAARNG issued two sets of orders.  One set revoked his earlier ETS discharge, and the second set of orders discharged him from the ARNG and the Reserve of the Army due to being medically unfit for retention.  A National Guard Bureau (NGB) Form 22A (Correction to NGB Form 22) was issued on this date.

16.  No documentation was available from the MAARNG to substantiate the reason for this change or the narrative reason for separation. 

17.  An advisory opinion, dated 6 April 2011, was obtained from the NGB.  The Chief, Personnel Policy Division stated that there was no evidence the applicant was counseled concerning referral to a Mandatory Medical Review Board, an MEB for disability evaluation processing, and referred to a PEB to determine the applicant's fitness for consideration for a medical discharge.  This opinion noted the applicant's 19 July 2006 MRI of his shoulder, award of incapacitation pay from 4 July 2006 through 31 August 2007, the 19 April 2007 VA positive screening for PTSD and TBI, award of SSI benefits, and the fact that he was laid off from his civilian job due to his medical condition.  The advisory opinion also states that a Soldier should be referred to an MEB in accordance with Army Regulation 40-501, paragraphs 3-14b if they experience "arthritis due to trauma when surgical treatment fails or is contraindicated and there is functional impairment of the joints which precludes the satisfactory performance of duty." Section 3-30 also provides that Soldiers are entitled to an MEB/PEB if there is a presence of any neurologic conditions warranting such a board.

18.  A copy of the advisory opinion was forwarded to the applicant and no response was received from him or his counsel.

19.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.

20.  Army Regulation 635-40 (Physical Evaluation For Retention, Retirement, or Separation) provides that when a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with their rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  

	a.  Paragraph 3-14b states that a Soldier should be referred to an MEB when surgical treatment for arthritis (due to trauma) fails or is contraindicated and there is functional impairment of the joints involved that precludes the Soldiers satisfactory performance of duty; and 

	b.  Paragraph 3-30j states that a Soldier should be referred to an MEB for a neurological disorder (including TBI) when residual symptoms and impairments persist after adequate treatment such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty."

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel state the applicant received serious injuries as a result of an IED blast on 9 October 2005.  He was medically evacuated for treatment but due to a shortage of uninjured Soldiers in his unit he returned to his unit despite a serious shoulder injury.  They contend the applicant was medically unfit for duty at the time of release from active duty, and at the time of discharge from the MAARNG.  He should have been referred to an MEB/PEB.

2.  The applicant's service medical records show he sustained an injury to his left shoulder on 9 October 2005 when a vehicle in which he was riding was hit by an IED.  At that time, the applicant's was diagnosed as having a type II AC separation/sprain.  The applicant continued to serve in his military specialty in Iraq an additional 7 months.  

3.  The applicant's post-deployment medical assessment shows his only complaints were for the shoulder injury, intermittent foot pain, stiffness in his wrist, and reoccurring nail fungus.  He denied having any symptoms of headaches, difficulty remembering, ringing in the ears, little interest or pleasure in doing things, feeling down, depressed, or hopeless, having thoughts that he would be better off dead or hurting himself.  He was not interested in receiving help for stress, emotional problems, alcohol, or family problems.

4.  The information provided by the applicant, at the time of the shoulder injury and in preparation of the LOD determination did not show he had head trauma or complaints of TBI or PTSD related symptoms.

5.  The service medical records do not show any complaints of or treatment for lower back problems, lower extremity problems, or any of the symptoms related to a TBI or PTSD while on active duty.  
6.  The statements provided at the time of the IED incident do not show or even suggest the applicant sustained a head injury.  The first indication of findings possibly consistent with TBI were made in concert with the 19 April 2007 VA medical rating and was based wholly on the applicant's description of a head injury.  The record does not show the applicant noted or complained of any symptoms that could be associated with this type of injury while on active duty.

7.  PTSD is by its very name a condition that manifests itself after a traumatic event.  While the VA has afforded the applicant this diagnosis and compensation, there is no evidence the condition manifested itself until after the applicant had been released from active duty. 

8.  While the medical evidence provided shows the applicant's shoulder injury deteriorated to a point that required surgical intervention in 2007, his continued performance of his assigned duties, while on active duty, creates a presumption that he was fit for duty at that time.  

9.  Not withstanding the ARNG opinion that the applicant's medical records should be referred to an MEB/PEB there is insufficient evidence to show the applicant's shoulder condition would have resulted in a determination that he was medically unfit for duty and that the manifestations of the condition would have afforded him a disability evaluation sufficient to warrant award of medical retirement.

10.  Based on the above facts and findings as determined by the available evidence there is insufficient evidence to show the applicant meets the criteria for medical disability retirement.  Without an award of a medical retirement the remainder of the applicant's request is moot.

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)                                         AR20100026423



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ABCMR Record of Proceedings (cont)                                         AR20100026423



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