IN THE CASE OF:
BOARD DATE: 22 March 2012
DOCKET NUMBER: AR20110018902
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 an increase in her disability rating.
2. The applicant states:
* she was found medically unfit by the MEB/PEB (Medical Evaluation Board/Physical Evaluation Board) process
* she was rated 20% disabled by the PEB
* the PEB did not have access to all of her LOD (line of duty) determinations.
3. The applicant provides:
* 3 LOD determinations
* associated medical documentation
CONSIDERATION OF EVIDENCE:
1. The applicant served in the Air National Guard from 20 September 1984 through 7 March 1999. She had a break in military service from 8 March 1999 to 29 June 2004. On 30 June 2004, she joined the Army National Guard. She was transferred to the Retired Reserve on 8 August 2011.
2. The applicant provided three LOD determinations:
a. An NGB Form 348 (LOD Determination), dated 20 July 1995 and approved on 5 August 1995, shows the applicant was a technical sergeant (TSgt/E-6) in the Air National Guard and was involved in a motor vehicle accident on 29 June 1995. She experienced left hip and thigh pain.
b. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 December 2007 and completed 1 April 2008, shows the applicant, a sergeant (SGT/E-5) tripped and fell into a soda machine. She experienced a pathologic fracture of her left shoulder.
c. A DA Form 2173, dated 25 January 2008 and completed on 1 April 2008, is basically an addendum to the previous LOD determination. It adds a new complaint of right leg pain.
3. The applicant entered the Physical Disability Evaluation System (PDES) and was referred to an MEB. The results of the applicant's MEB are not available.
4. On 20 April 2011, the applicant underwent an informal PEB at Fort Sam Houston, TX. The PEB evaluated the following disabilities.
a. Left (non-dominant) shoulder arthopathy, rated analogous to VASRD [Veterans Administration Schedule for Rating Disabilities] DC [Diagnostic Code] 5003 IAW [in accordance with] VASRD 4.20. Condition manifested after sustaining fracture/dislocation of left humerus in fall against coke machine in Arkansas on first day of activation onto active duty in December 2007. Condition is unfitting due to Soldier's inability to move 40 pounds (wearing usual protective gear) which is incompatible with the demands of her health care (68W) MOS [military occupational specialty]. Shoulder is stable. Forward flexion is 135 degrees, abduction is 100 degrees. Soldier rated for limitation of range of motion. (MEB DX [diagnosis] 2). The rating was 10%.
b. Reflex Sympathetic Dystrophy of left upper extremity following fracture/dislocation of left humerus in December 2007 and subsequent physical therapy, rated analogous to VASRD DC 8516 IAW VASRD 4.20. Condition is unfitting due to Soldier's hypersensitivity to touch and occasional left hand weakness which is incompatible with the demands of her 68W MOS. Strength 4+/5 all left upper extremity muscles, 5/5 elsewhere. Diffusely tender over left wrist with decreased sensation over ulnar nerve distribution in hand. Normal EMG/NCS [electromyogram/nerve conduction study] 31 December 2009. Soldier rated for mild incomplete paralysis. (MEB DX 1). The rating was 10%.
c. MEB DX 3 (Type II Diabetes Mellitus) is not found to be separately unfitting. This condition is under good control with diet, oral medication and exercise. There is no evidence this condition has adversely affected Soldier's duty performance. No rating.
d. MED DX 4-7 (history of hysterectomy; dermatophytosis of the nails; solitary pulmonary nodule; and hypertension) meet retention standards per the MEB, and have been found by the PEB to not be unfitting either independently or in combination with any other conditions and they are not a significant limitation on the Soldier's ability to perform her MOS. No rating.
5. The PEB found the applicant unfit with a combined rating of 20% and recommended separation with severance pay. The applicant concurred and waived a formal PEB hearing, but requested "18 year early retirement."
6. The U.S. Army Physical Disability Agency, on 6 May 2011, determined the applicant was physically unfit and would be transferred to the Retired Reserve, and requested orders. Orders 220-884, Military Department of Arkansas, Office of The Adjutant General, Camp Joseph T. Robinson, North Little Rock, Arkansas, dated 8 August 2011, discharged the applicant from the Army National Guard and transferred her to the Retired Reserve effective 8 August 2011.
7. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.
a. The objectives of the system are to:
* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected
b. Soldiers are referred to the PDES:
* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, Human Resources Command
c. The PDES assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service members injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of unfit for duty is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.
d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.
8. 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. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a
result, these two Government agencies, operating under different policies, may arrive at a different results for disability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability up or down based upon that agency's examinations and findings.
Army Regulation 600-8-4 (Line of Duty Policy Procedures and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier. It provides standards and considerations used in determining line of duty (LOD) status.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an increased disability rating. She states the PEB did not consider her three LOD investigations.
2. LOD investigations are not a part of the PDES; they only determine if a Soldier's disease, injury, or death occurred in the line of duty, that is whether there is evidence of intentional misconduct or willful negligence that is substantial and of a greater weight than the presumption of "in line of duty."
3. The applicant was properly evaluated for unfitness related to seven diagnoses reported in her MEB. They were:
* reflex sympathetic dystrophy (RSD)
* left shoulder arthropathy
* type II diabetes mellitus
* hysterectomy
* dermatophytosis of the nails
* solitary pulmonary nodule
* hypertension
She was found unfit for RSD and left shoulder arthropathy with a combined rating of 20%.
4. The applicant signed off on her informal PEB accepting the results and waiving a formal hearing. She has not submitted any documentation which would cast doubt on the accuracy of her PEB results, or which would warrant reconsideration of her disability percentage.
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) AR20110018902
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