IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20110024098 


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 discharge for disability with severance pay be changed to a medical retirement.

2.  He states he had multiple conditions which were not considered by the physical evaluation board (PEB). 

   a.  When he was initially recommended for the medical evaluation board (MEB) process in November 2005, the main contributing factor was multiple neurological symptoms.  He was unable to acquire a narrative summary (NARSUM) for his neurological problems from the local care provider who was treating him or from Dr. J----- from the Fort Drum Aviation Troop Medical Clinic who had initially begun the MEB process.

	b.  He was unable to acquire a NARSUM of his condition because the other physicians were unfamiliar with his situation and he was left with drafting the NARSUM of the condition to forward to the PEB with the rest of his MEB information.  Unfortunately, his personal NARSUM was disregarded by the PEB, resulting in the neurological problems being left off of the list of his conditions for medical discharge.

	c.  Since his discharge, the Department of Veterans Affairs (VA) has reviewed his medical records and performed more neurological testing, resulting in a service-connected rating of 40 percent for post-concussive syndrome.  It is for these reasons, and the difficulties experienced during his MEB process, that he believes his medical discharge deserves to be reviewed and updated for the addition of the post-concussive syndrome.  

3.  He provides:

* Standard Form 600 (Chronological Record of Medical Care)
* VA Rating Decision, dated 16 October 2009
* VA Rating Decision, dated 24 February 2011
* VA Rating Decision, dated 11 July 2011
* DA Form 199 (PEB Proceedings) 
* Conner Troop Medical Clinic (CTMC) Notification of Completion of Physical Examination
* DD Form 2807-1 (Report of Medical History) (page 3 of 3)
* DD Form 2808 (Report of Medical Examination) (page 3 of 3)
* DA Form 3947 (MEB Proceedings)
* MEB NARSUM
* MEB NARSUM Psychiatric Addendum

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.  His military records show he enlisted in the Regular Army on 9 May 2000.  He completed training and was awarded the military occupational specialty of 15T (Utility Helicopter-60 Helicopter Repairer).

3.  He provided a Standard Form 600 from CTMC, dated October 2005.  The form shows the reason for the visit was not for a deployment-related health concern.

   a.  The entries in the complaint section of the form were:

* a 1-year history of neurologic symptoms which started in August 2004 with numbness/tingling in entire spine
* C-spine magnetic resonance imaging (MRI) which was negative
* no improvement with chiropractor and physical therapy
* in December 2005 he had blurred vision symptoms and also headaches - seen by ophthalmologist and had normal examination
* in January had facial numbness, black and colored spots in vision
* worsened pain in back of neck and head
* seen by neurologist in Syracuse - had negative MRI of brain
* noted to have facial asymmetry during the evaluation in Syracuse - this was resolved
* evaluation by Dr. L---- in Syracuse Medical Center - had normal exam
* started Tomamax and Amytriptaline
* had not had much improvement in symptoms
* generally appeared pain free and alert, healthy

   b.  The assessment included the following:
   
* to refer him to neurology at the Walter Reed Army Medical Center
* the physician felt the applicant should probably have "LP" to rule out multiple sclerosis, infection
* start the MEB process

4.  He provided a CTMC Notification of Completion of Physical Examination, dated 30 November 2005, which listed his medical condition(s) or physical defect(s) and assignment limitations as brachial neuritis and multiple neurologic problems.

5.  Page 3 of 3 of a DD Form 2807-1, dated 30 November 2005, provided by the applicant indicated his MEB was for multiple neurologic problems.

6.  Page 3 of 3 of a DD Form 2808, dated 30 December 2005, provided by the applicant lists a summary of defects and diagnoses of multiple neurologic problems, brachial neuritis, headache - post impact, lumbago, tremor, and nicotine dependence.  The form indicated he was not qualified for further service and that he should have an MEB.

7.  The NARSUM provided by the applicant shows the following information:  The MEB date was 19 January 2006.  The chief complaint by the applicant was his neck, shoulder, elbow, and lower back pain.  The NARSUM indicated the MEB had been directed by treating orthopedic surgeon, Dr. S-----.  The NARSUM indicated there were no other conditions.

	a.  The NARSUM states the applicant noted that he was having some balance problems which were being treated by his primary care manager, as well as his neurologist.

	b.  A general physical examination was performed on 17 November 2005.

   c.  The MEB diagnoses were chronic neck pain with C5-C6 degenerative disc disease, chronic ulnar neuropathy at elbow, and functional lower back pain.
   
   d.  He was referred to a PEB for further disposition.
   
8.  A psychiatric addendum to the NARSUM stated the applicant referred to 
Dr. D----, on 22 August 2005, due to continued headaches and multiple neurological complaints.

   a.  He reported being involved in a motor vehicle accident in 2004.  He denied loss of consciousness with the accident but noted cervical neck and lumbar neck pain following the accident.  Approximately 1 month after the accident he noted the onset of headaches and multiple neurological complaints.  An MRI of the head and neck was negative initially after the accident.  An MRI of the brain conducted on 6 December 2005 was unremarkable.
   
   b.  The results of a mental status evaluation from 11 January 2006 shows that tests failed to demonstrate any significant cognitive deficits.  From a psychiatric standpoint, the applicant met retention standards.

9. The applicant provided page 2 of an incomplete DA Form 3947, signed by him on 21 February 2006.  It shows the findings and recommendation of the board were approved.  However, there is no available record of pages 1 and 2 to determine what those findings and recommendation were.  This page shows the applicant indicated he did not desire to continue on active duty.

10.  He provided page 1 of his informal PEB that convened on 10 March 2006.  This shows the PEB found him unfit for duty under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 5237 - chronic neck pain, C5/6 disc degeneration as demonstrated by an MRI, which started without specific history of trauma/injury.  About 2 years later, the applicant was involved in a motor vehicle accident which accelerated the pain, rated 10 percent disabled.  Two additional conditions listed:  chronic left ulnar neuropathy (MEB diagnosis #2) and low back pain (MEB diagnosis #3) without any history of 


trauma/injury and low back pain were rated at a zero percent disability.  MEB diagnosis #4 (unknown) was found to be neither unfitting nor ratable.

11.  The PEB recommended a combined rating of 10 percent and discharge with severance pay.  Page 2 is unavailable; therefore, it is not known whether the applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing in his case or requested a formal hearing.

12.  On 1 May 2006, he was discharged for disability with severance pay.  He completed 5 years, 11 months, and 22 days of active service.

13.  His records maintained in the interactive Personnel Electronic Records Management System contain no service medical records.

14.  A VA Rating Decision, dated 16 October 2009, changed his rating from 10 percent to 40 percent for post-concussive syndrome effective 23 October 2008.

15.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.

16.  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 percent.

17.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

18.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in an Army disability rating which 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. 

DISCUSSION AND CONCLUSIONS:

1.  He contends he should have received a disability rating from the military for multiple neurological problems, specifically post-concussive syndrome that would have resulted in a medical retirement instead of a discharge with severance pay.

2.  He was referred to an MEB for neck, shoulder, elbow, and lower back pain.  The MEB referred him to a PEB for a determination of fitness or unfitness for duty.  It is not known whether the applicant agreed with the MEB's findings and recommendation.

3.  The PEB recommended a combined rating of 10 percent based on a zero percent disability rating for his chronic left ulnar neuropathy and low back pain and a 10 percent disability rating for his chronic neck pain with degenerative disc disease.  It is not known whether he concurred with the findings and recommendation and waived his right to a formal PEB.  

4.  An MRI of the head and neck was negative initially after the motor vehicle accident and an MRI of the brain conducted on 6 December 2005 was unremarkable.  The VA initially granted him a disability rating of 10 percent for post-concussive syndrome, indicating that any neurological problems he had when first examined by the VA were comparatively minor, and would fit with the Army’s failure to rate him for neurological symptoms (especially combined with the negative MRI findings).

5.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the applicant was properly evaluated by competent medical personnel, referred to an MEB for all appropriate medical conditions, and that the MEB's findings and recommendation were properly evaluated by the PEB.

6.  There is insufficient evidence to support a 30 percent or higher disability rating for the applicant.  Therefore, the disability rating of 10 percent assigned by the PEB and his discharge with severance pay are determined to be correct.  In order for him to receive a medical retirement he would have had to have been rated 30 percent for low back pain or a combined rating in conjunction with other conditions.

7.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, operating under its own laws and regulations, can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  As such, the award of a VA disability rating does not mean the rating assigned by the Army or the lack of a rating was in error.



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)                                         AR20110024098



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ABCMR Record of Proceedings (cont)                                         AR20110024098



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