IN THE CASE OF:	   

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130003434 


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 reconsideration of her earlier request to show that she was discharged with a higher percentage of disability with severance pay.

2.  The applicant states the doctors, the Army, and the Department of Veterans Affairs (VA) made a lot of mistakes in her case.  Her medical discharge shows all of her conditions under line of duty but they only gave her a 10 percent disability rating.  She states that Dr. S____, appointed by the VA Federal court, determined her incapacitation started immediately after she had surgery in 1982.

3.  The applicant provides:

* an undated statement from Lieutenant Colonel S______
* page 1 of a Standard Form (SF) 502 (Narrative Summary (NARSUM) (Clinical Résumé)), transcribed 19 January 1988
* two pages of a NARSUM, transcribed on 2 March 1988
* a statement, dated 21 November 1995, from Dr. S____

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110017681, on 22 March 2012.

2.  On 30 November 1981, she enlisted in the U.S. Army Reserve (USAR).  She was ordered to active duty on 18 January 1982 for basic training and on 
19 March 1982 for advanced individual training (AIT) in military occupational specialty 71L (Administrative Specialist).  She was released from active duty on 10 June 1982.

3.  On 30 October 1987, she was ordered to active duty for 30 days (later extended) to report to Walter Reed Army Medical Center (WRAMC), Washington, DC, on 6 November 1987 for a medical evaluation.

4.  The applicant provides page 1 of a NARSUM, transcribed on 19 January 1988.  The examiner indicated the applicant received a magnetic resonance imaging (MRI) scan of the head and neck to rule out recurrent parotid tumor or enlarging mass in the right neck.  There was no evidence of recurrent parotid tumor or enlarging mass in the right neck.  However, due to the technical quality of the MRI scan a suprasellar mass could not be ruled out.  

5.  The applicant provided two pages of a NARSUM, transcribed on 2 March 1988.  

	a.  The examiner stated the applicant received a consultation for general surgery for what appeared to be a mass in the right parotid gland.  She had several examinations and X-ray studies and they felt that this was a mass of the right parotid gland.  In March 1982, she had a superficial parotidectomy for a benign mixed tumor.  Her postoperative course was marked with early Frey's Syndrome which had not resolved as well as continued postoperative right facial pain.  At that time she finished her AIT and she was sent back to Puerto Rico where she was working in the Army Reserve.  She was followed in Puerto Rico and eventually sent to WRAMC for continued follow-up of her benign mixed tumor of the right parotid gland and right atypical facial pain and Frey's Syndrome.  She was air-evacuated in August 1987 for another follow-up.

	b.  Although she could function in the hospital setting, the patient felt that with the stresses of her job and daily living she would not be able to fulfill her duties in the USAR.

	c.  Her present condition was stable with recurrent atypical right facial pain, which, according to the patient, was exacerbated by stress and physical activity.

	d.  She was diagnosed with:

* pleomorphic adenoma of the right parotid gland status post excision in 	1982 with no recurrence
* Frey's Syndrome
* Atypical right facial pain status post superficial parotidectomy

	e.  Under "Recommendations," the examiner stated it was the feeling of the Head and Neck Surgery Department at WRAMC that because of the applicant's complaints that facial pain was lifestyle limiting and inhibited the performance of her job during times of stress and physical activity, she was not physically fit for active duty at that time under Army Regulation 40-501 (Standards of Medical Fitness).  It was their feeling that she should receive an MEB.

6.  There was no record of her MEB Proceedings available for review.

7.  Her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) for her informal PEB was not available for review.  

	a.  Item 8 of the form would have shown the PEB considered the member's condition described in the records.  Each condition would have been listed in descending order of significance.

	b.  Item 8a would have shown the VA disability code.

	c.  Item 8b would have shown a description of the disabling condition.

8.  A letter, dated 22 April 1988, from the U.S. Army PEB, WRAMC, Washington, DC notified her of a formal PEB hearing of her case on 6 May 1988.  This hearing was scheduled consistent with her election on 22 April 1988 regarding the findings and recommendations of her informal PEB.

9.  On 3 May 1988, the U.S. Army PEB, WRAMC, returned her PEB proceedings to WRAMC because she was to undergo further treatment.

10.  On 8 June 1988, she was authorized to perform inactive duty for training without pay to report to WRAMC for 124 days to undergo medical evaluation.

11.  A letter, dated 17 June 1988, from U.S. Army PEB, WRAMC, notified the applicant the PEB had received a medical addendum dated 4 June 1988.  The addendum did not provide sufficient substantive medical evidence to warrant a change; therefore, the board affirmed the decision of the informal PEB that found her unfit with a disability rating of 10 percent.  Consistent with her earlier election she was scheduled for a formal hearing on 27 June 1988.

12.  On 24 June 1988, the applicant called Captain P_____, Legal Counsel, and indicated that she:

* withdrew her request for a formal hearing
* did not agree with the informal PEB findings 
* would not submit additional information at that time

13.  A memorandum, dated 24 June 1988, from the U.S. Army PEB, WRAMC made an administrative correction to the applicant's DA Form 199, dated 15 April 1988 (the approved informal PEB Proceedings).  Item 8a was corrected to show disability code "8499-8407."  The "8499" indicates her condition was rated analogous to disability code "8407."

14.  A memorandum, dated 6 July 1988, from WRAMC indicated the applicant had completed her medical treatment and medical evaluation and was ordered home effective 8 July 1988.

15.  She was discharged on 2 September 1988 by reason of physical disability with severance pay.  Her percentage of disability was 10 percent.  

16.  The applicant submitted a statement from Dr. S____, dated 21 November 1995.  Dr. S____ stated he reviewed the voluminous records of the applicant, except those in Spanish, and provided a chronological history of her medical condition.

	a.  A WRAMC neurologist made a diagnosis of atypical facial pain syndrome, but the WRAMC pain clinic demonstrated relief of pain in the incisional scar and myofascial trigger points by use of .25% bupivacaine.  Neurological exams were consistently normal otherwise.  On 15 April 1988, the WRAMC PEB recommended 10 percent service-connected disability for atypical facial pain following superficial right parotidectomy at Walson Army Community Hospital on 24 March 1982, with final separation from military service, which occurred on 
2 September 1988.

	b.  WRAMC Oral Surgery ruled out temporomandibular joint disease and made a diagnosis of myofascial pain dysfunction syndrome affecting masseter, temporalis, medial, and lateral pterygoid muscles.  The oral surgeon denied any connection with the previous parotid surgery, but predicted that the applicant would likely become a chronic pain patient.

	c.  On 31 January 1989, a neurologist diagnosed trigeminal neuralgia with painful nodules and tenderness along the angle of the right mandible.  On 
26 April 1994, another neurologist found mild right facial sensory impairment with blepharospasm of the right eyelid.

17.  Dr. S____ made the following conclusions:

	a.  Since pleomorphic adenomas are typically slow growing, it appears probable that the applicant already had developed the tumor upon her entry into military service.

	b.  It was likely the applicant developed Frey's Syndrome as a complication of her parotidectomy.

	c.  Rather than a diagnosis of atypical facial pain, the applicant probably has trigeminal neuralgia as a residual of postherpetic cranial - cervical neuralgia, because she had a diagnosis of varicella (Herpes zoster) documented on 
20 February 1982, only 30 days before her right parotidectomy.  Surgical trauma thus predisposed her to develop trigeminal neuralgia.

	d.  Her disability appears to be permanent since her complaints have persisted for more than 13 years without improvement.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states, in pertinent part, that after establishing the fact that a Solider is unfit because of a physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability.  The VA Schedule for Rating Disabilities (VASRD), as modified in the regulation, is used to establish this rating.  

19.  Title 38 Code of Federal Regulations, Part 4 - Schedule for Rating Disabilities, in effect at the time, stated the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.

	a.  Analogous ratings.  When an unlisted condition is encountered it will be permissible to rate under a closely-related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin
	b.  Section 4.124 (Neuralgia, cranial or peripheral) states neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 

	c.  Under diseases of the cranial nerves the VASRD code 8407 is rated as follows:

8407     Neuralgia.

      Ninth (glossopharyngeal) cranial nerve

8209     Paralysis of:

      Complete
30
      Incomplete, severe
20
      Incomplete, moderate
10
      Note: Dependent upon relative loss of ordinary sensation in                  mucous membrane of the pharynx, fauces, and tonsils.

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

21.  Title 38, USC, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  Her condition was rated under an analogous rating due to her exact condition not being listed in the VASRD.  Therefore, the VASRD code 8407 used is primarily as a guide and will not necessarily meet the exact criteria for the level of disability awarded.

2.  Because her DA Form 199 is not available for review it is impossible to tell exactly what condition(s) she was rated for by the PEB.  It is also impossible to know what determination was made by the PEB concerning any other medical conditions that were determined to not meet retention standards and referred to the PEB for determination for fitness for duty.  However, the available medical evidence shows she was rated primarily for facial pain, not for paralysis of any nerve.  Therefore, it appears she was properly given a 10% disability rating.
3.  Dr. S____'s opinion was dated 21 November 1995 and his conclusions were based in part on information obtained in January 1989 and April 1994.  Therefore, his opinion cannot be used to discount a decision made by an informal PEB in April 1988.

4.  In view of the above, there is insufficient substantive evidence to show there was any error or injustice in the decision made by the informal PEB.

5.  Service-connected disabilities which occur or which worsen after a Solder is separated are treated and compensated for by the VA.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that agency.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110017681, dated 22 March 2012.




      _______ _   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)                                         AR20130003434



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ABCMR Record of Proceedings (cont)                                         AR20130003434



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