IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20100029340 


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 his status from Retired Reserve due to physical disability to disability retirement.

2.  The applicant states he is disabled due to electrical burns suffered while he was on annual training with his Puerto Rico Army National Guard (PRARNG) unit.  The PRARNG placed him in the Retired Reserve, but he should have been referred to the Physical Disability Evaluation System (PDES) and retired due to physical disability.  

3.  The applicant provides:

* letters from his civilian employment 
* the line of duty determination 
* final medical evaluation
* Department of Veterans Affairs (VA) disability rating

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests referral of the applicant's case to the PDES.

2.  Counsel states the applicant was injured while on annual training.  He subsequently developed disabilities including upper and lower peripheral neuropathy, bilateral hearing loss, bilateral tinnitus, scars, stomach and intestinal problems, a nervous condition, and aggravation of high blood pressure.  

3.  Counsel provides no additional 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 was a Regular Army Soldier from October 1976 through January 1983, attained the rank of sergeant, and transferred to the U.S. Army Reserve (USAR).  He was awarded primary military occupational specialty (MOS) 75H (Personnel Service Specialist) in April 1987.  He served in the USAR until January 1992.  He enlisted in the ARNG on 7 March 1996.  He served in duty MOS 63J as a general construction equipment operator.

3.  On 25 July 1999, he was on annual training with his PRARNG unit when he sustained an electrical shock after the government vehicle he was driving caught fire.  The only medical treatment document available is an emergency room report that documents burns to both hands described as erythematous (red).  He was given pain medication and referred for a surgical consult.  Neither a surgical evaluation nor any other treatment record is available.  The burns are later referred to as "1st" degree (indicating a very superficial burn, like a sunburn, that might peel later but did not blister).

4.  A line of duty determination finding that flexor tendonitis due to the burns and high blood pressure had occurred in the line of duty was favorably endorsed, on 28 September 1999, by the appointing authority, and by the reviewing authority, on 14 February 2000.  However, the approval authority approved only the finding relative to the first degree electrical burns of both hands and found the hypertension to have been not in the line of duty but rather to have existed prior to service (EPTS). 

5.  In July 2000, the applicant received a permanent U3 profile for "bilateral arm/wrist peripheral neuropathy s/p electrical shock."  The hands were not mentioned.  Because of his arm/hand numbness he was not able to do hip raise, knee bender, side-straddle hop, high jump, run in place, and chest stretch, among others.  The decreased sensation in his arm/wrist also prevented him from running, wearing a backpack, marching more than 1 mile, or doing sit-ups.  His profile was later upgraded to a permanent U4 profile, for the same reason.

6.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned in duty MOS 75H as a personnel records sergeant on 2 October 2000.

7.  On 21 December 2001, the applicant applied for VA compensation for neuropathy, hypertension, sexual dysfunction, and "generalized muscle numbness/involuntary movements."  

8.  On 26 February 2002, the applicant underwent annual medical certification.  He denied any medical problem and denied taking any medication.  Apparently due to his P3 physical profile he had a physical examination on 23 March 2002, and on 2 April 2002 he was apparently referred for a Fitness for Duty Evaluation.  A Medical Duty Review Board met on 20 April 2002 and found him to be medically disqualified due to "Severe peripheral neuropathy due to electrical shock."

9.  In April 2002, the applicant was notified by memorandum he was eligible for retired pay at age 60 (a 20-year letter).

10.  On 6 May 2002, the applicant was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired).  The available NGB Form 22 (Report of Separation and Record of Service) does not indicate the reason for discharge from the ARNG.

11.  On 8 January 2003, the VA awarded the applicant service connection for "Peripheral neuropathy, left upper extremity; flexor tendinitis, left upper extremity: residuals of electrical burns both hands" and for "Peripheral neuropathy, right upper extremity; flexor tendinitis, right upper extremity: residuals of electrical burns both hands."  He had apparently received a "VA Peripheral Nerves Examination" prior to this date and that examination noted the applicant had "subjective complaints of numbness, weakness, tingling sensation."  No mention of any positive finding on EMG (electromyography) or any muscular wasting was mentioned.  He received a 20 percent rating bilaterally (for a combined rating of 40 percent) because of "muscle strength of 4 over 5 for each hand which is considered mild."  The VA Schedule for Rating Disabilities (VASRD) code was for "incomplete paralysis of hand movements which is mild."

12.  An advisory opinion from the NGB recommended referral of the applicant's case to the PDES.  The advisory opinion was forwarded to the applicant for his concurrence/comment.  No response was received.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, and Separation) provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

14.  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 disability incurred while entitled to basic pay.

15.  Title 10, U. S. Code, section 1209, states any member of the armed forces who has at least 20 years of service (for a reserve retirement) and who would be qualified for disability retirement but for the fact that his disability is less than      30 percent may elect, instead of being separated, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive (reserve) retired pay upon becoming 60 years of age.

16.  Title 10, U. S. Code, section 1212(c), states the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

17.  Title 10, U. S. Code, section 1213, states that, unless a person who has received disability severance pay again becomes a member of an armed force he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.  However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due him on the date of his separation or if a claim by him is allowed under any law.

18.  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.  
19.  The VASRD rates incomplete paralysis of either the median nerve (VASRD code 8515) or the ulnar nerve (VASRD code 8516), mild, as 10 percent disabling.  Both of these codes involve weakened flexion of the wrist.

20.  The VASRD rates incomplete paralysis of the radial nerve (VASRD code 8514), mild, as 20 percent disabling.  This code involves extensors of the hand.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he is disabled due to electrical burns suffered while he was on annual training with his PRARNG unit.  The PRARNG placed him in the Retired Reserve, but he should have been referred to the PDES and retired due to physical disability.  

2.  The only Army medical treatment document available is an emergency room report that documents burns to both hands described as red.  The burns are later referred to as "1st" degree (much like a sunburn).  Superficial burns do not kill nerves.

3.  In July 2000, the applicant received a permanent U3 profile for "bilateral arm/wrist peripheral neuropathy s/p electrical shock."  There is no evidence available, and the applicant does not contend, that any other medical condition rendered him unfit for retention.

4.  On 26 February 2002, the applicant underwent annual medical certification.  He denied any medical problem and denied taking any medication at that time.  Nevertheless, although he did not indicate that he had any medical problem, much less could not perform his duties due to any medical problem, it appears he was referred for a Fitness for Duty Evaluation due to his physical profile.  On        2 April 2002 a Medical Duty Review Board found him to be medically disqualified due to "Severe peripheral neuropathy due to electrical shock."  The basis for the finding of "severe" peripheral neuropathy is not available.

5.  Subsequent to his discharge from the ARNG, the VA awarded the applicant service connection for "Peripheral neuropathy, left upper extremity; flexor tendinitis, left upper extremity: residuals of electrical burns both hands"  and for "Peripheral neuropathy, right upper extremity; flexor tendinitis, right upper extremity: residuals of electrical burns both hands."  The VA examination noted he had "subjective complaints of numbness, weakness, tingling sensation."  No mention of any positive finding on EMG or any muscular wasting was mentioned.  He received a 20 percent rating bilaterally even though the VA also noted that "muscle strength of 4 over 5 for each hand… is considered mild."  The VASRD code was for "incomplete paralysis of hand movements which is mild."
6.  The basis for the VA's 20 percent bilateral rating cannot be determined.  It appears the VA rated him based on VASRD code 8514.  However, that code involves the extensors, and the VA's rating indicated that only the flexors were involved.  Based on either VASRD code 8515 or 8516, since the incomplete paralysis was mild, he should have been rated at the most 10 percent bilaterally.  With a 20 percent disability rating, he would have been eligible at the most for disability severance pay.  If he had received and accepted such a rating from the Army he would have forfeited his right to Reserve retired pay, plus he would have had to forfeit the severance pay itself in order to accept VA disability compensation.

7.  More importantly, there is still no evidence of record that he could not perform his military duties.  As already noted, two months prior to his separation due to being medically unqualified he denied having any medical problems.

8.  Notwithstanding the advisory opinion, 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)                                         AR20100029340





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ABCMR Record of Proceedings (cont)                                         AR20100029340



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