IN THE CASE OF:	  

		BOARD DATE:	  7 May 2014

		DOCKET NUMBER:  AR20130012453 


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:

The applicant’s request, statements, and supporting documents are submitted through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's previous request to be medically discharged or retired by reason of physical disability.  Further, counsel submits an additional request to have the applicant placed on the Temporary Retired Disability List (TDRL) for evaluation under the Physical Disability Evaluation System (PDES) if he cannot be medically retired.

2.  Counsel states, in effect, that the Army failed to comply with its own regulations in evaluating the applicant's disorder and injuries and ultimately finding him unfit for further military service due to his traumatic brain injury (TBI) and injuries to his hip, back, and ankle.  As a result, the applicant should have been medically retired from the Army.

3.  Counsel provides a 15-page argument and a statement from the applicant.

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 AR20100025841 on 4 August 2011.


2.  During the original review of the case, the Board found the applicant had no diagnosed unfitting conditions at the time of his discharge that required processing through the PDES and, as a result, there was no basis to grant the applicant's requested relief.

3.  The applicant, through counsel, argues the Army should have medically retired the applicant on the basis that he was unfit for further military duty due to his injuries.  Specifically:

* the applicant's discharge under Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations) was improper because the applicant suffered from a mental disability that interfered with his military duties
* the applicant required referral to a medical evaluation board (MEB) by a physician
* had the Army complied with its regulation governing the discharge of service members [with mental disabilities] the applicant would have been found medically unfit and permanently retired with full benefits
* the applicant was diagnosed with TBI with post-concussive disorder as the result of falling from a ladder in Iraq, headaches, memory deficit, dizziness, and cognitive disorder
* his other medical conditions include blunt trauma to his left hip caused by an explosion in Iraq, lateral pain in the hip, right ankle injury, and lower back
* the applicant has been awarded service connection from the Department of Veterans Affairs (VA) for the following conditions at the percentage ratings indicated –

* TBI, 70 percent
* Post-Traumatic Stress Disorder (PTSD), 30 percent
* lumbago (formerly diagnosed as mechanical lower back pain), 
10 percent
* left hip trochanteric bursitis, 10 percent
* left wrist strain, 10 percent
* right hip trochanteric bursitis, 10 percent
* right ankle tendonitis, 0 percent

4.  Counsel now argues that the applicant's TBI and his other medical conditions rendered him unfit for duty and he is entitled to a medical retirement.  This is a new argument which warrants consideration.

5.  The applicant did not provide and his Army Military Human Resource Record (AMHRR) is void of any medical documentation related to the medical treatment he received immediately following the incident in Iraq, his medical evacuation from Iraq, the medical treatment he received in Kuwait, or the treatment he received at Landstuhl Regional Medical Center in Germany.

6.  The applicant did not provide any of his service medical records related to the medical conditions that he is now requesting to be considered.

7.  The record shows the applicant enlisted in the Regular Army on 30 June 2000 and he was awarded military occupational specialty 11B (Infantryman).  During his period of active duty he served in Kuwait/Iraq from 27 February through 30 November 2003.

8.  Counsel states in his brief that during a night patrol tactical climb in An Najaf, Iraq, on or about 13 April 2003, while the applicant ascended a ladder, an explosive device struck the building against which the ladder was leaning.  The explosion knocked the applicant off the ladder.  He fell approximately two stories to the concrete ground and landed on his head.  At the time, he was wearing a Kevlar helmet, which cracked when he hit the pavement.  He lost consciousness for approximately five to fifteen minutes.  The following morning, he was medically evaluated at a local hospital in Iraq, later he returned to his unit for another three to four weeks.  During that time, the applicant began to experience problems with his memory, as well as daily headaches, tremors, and episodic vertigo.  Eventually, the applicant was medically evacuated from Iraq and sent to a hospital in Kuwait where he received treatment for seven to ten days.  The applicant was transferred to Landstuhl Regional Medical Center in Germany on 18 May 2003.  He returned to the United States on 30 May 2003 for further evaluation and treatment at Blanchfield Army Community Hospital (BACH) at Fort Campbell, Kentucky.  Upon his return to the United States, the applicant was placed on convalescent leave, which allowed him to receive treatment for his injuries.

9.  Medical records provided by the applicant and his counsel show:

	a.  On 28 April 2003, he was issued a temporary DA Form 3349 (Physical Profile) for a "Closed Head Trauma."  He was limited to light duty for not more than five hours per day and no physical fitness testing.  His record is void of a permanent profile based on his head injury or any other medical condition.

	b.  On 6 June 2003, he was evaluated at the Tennessee Valley Healthcare System for a closed head injury.  The staff neurologist recommended further evaluation and treatment to optimize and accelerate recovery and transfer to an outpatient traumatic brain injury center.

	c.  On 28 July 2003, the medical provider indicated the applicant was progressing well and stated that "although it [his injury] can't be seen, his injury was quite substantial.

	d.  On 25 and 27 June 2003, he was evaluated at the Richmond Veterans Affairs Medical Center.  The progress notes show he sustained a mild brain injury on 3 April 2003 with residual vertigo, headaches, memory, and cognitive deficits.  His discharge diagnosis was TBI.

	e.  On 6 October 2003, the applicant received a Neuropsychological Evaluation at Walter Reed Army Medical Center.  The neurologist noted that the evaluation was "conducted with available information (much of which was either third hand or via patient retrospective self-report and therefore of limited reliability).  This evaluation showed his current impairment was:



Attention (Simple):  unimpaired
Visual Immediate:  unimpaired
Attention (Complex):  mild to moderate
Visual Delayed:  moderate
Learning :  unimpaired
Psychomotor:  mild to moderate
Executive:  mild to moderate
Effort:  unimpaired
Verbal Immediate:  unimpaired
Language:  unimpaired
Verbal Delayed:  mild to moderate
Visuospatial:  mild


	f.  The applicant was evaluated at BACH on 20 November 2003.  The neurologist stated the "Degree of cognitive impairment detected here is greater than would ordinarily be expected six months following a mild traumatic brain injury, suggesting either that factors other than the original injury may be prolonging his symptoms or, alternatively, that his original injury was more significant than available information suggests.”  The applicant's treatment plan included:

* not to be redeployed, due to his persistent difficulties with thinking
* a repeat of neuropsychiatric testing in 6 months
* a follow up in Neurology in December 2003

	g.  On 20 April 2004, his neurologist contacted Ms. C____ to discuss the applicant's case.  The provider's notes show that the applicant did not follow up in December 2003 as directed in the initial plan and no follow up had been done to date.  Consideration could be given for extending the applicant's active duty time, with his expiration of term of service (ETS) planned in 1 week.  A Behavioral Health assessment was needed to determine the extent of disability that was behaviorally-based.

	h.  On 28 April 2004, the neurologist noted that he had discussed with Ms. H____, Physical Evaluation Board (PEB) office, concerning a VA follow up versus an MEB with the patient's ETS tomorrow; a recommendation was made for VA follow up.

10.  On 29 June 2004, the applicant was honorably released from active duty upon completion of required active service.  He completed 4 years of net active service during this period.

11.  The applicant provides a self-authored letter in which he contends that his injury prevented him from completing his duties as an 11B.  He often required assistance from fellow Soldiers and his spouse because of his memory loss and decreased cognitive abilities.  He suffered with constant migraines, blurry vision, difficulty walking due to numbness in his left foot and leg, and slurred speech.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's PDES and sets forth 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.  Further it states in:

	a.  Paragraph 3-1 that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

	b.  Paragraph 3-9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant through his counsel requests reconsideration of his previous request to be medically discharged or retired by reason of physical disability.  Further, counsel submits an additional request to have the applicant placed on the TDRL for evaluation under the PDES if he cannot be medically retired.

2.  The fact that the applicant suffered a TBI and other medical conditions is not in question; however, the origin of his injuries and the medical treatment records which would show the extent of his injuries are not available for review.  However, the available records show he was treated by both Army and VA medical centers prior to his discharge. 

3.  His counsel argues that the applicant should have been extended on active duty and referred to an MEB for proper evaluation as was considered by the neurologist on 20 April 2004.  A review of these progress notes shows the applicant was last seen on November 2003, with an initial plan to follow up in December 2003 (six months prior to his ETS); however, the applicant failed to  follow this treatment plan.  As a result, on 28 April 2004, the neurologist consulted with the PEB office whether the applicant should be referred to an MEB versus follow-up with the VA indicating the applicant's ETS was the next day.  He recommended follow-up with the VA and it must be presumed that this decision was made weighing the available medical evidence, taking into account the applicant had previously sought treatment with the VA, and most importantly the applicant’s failure to follow-up on his treatment plan.

4.  It is not clear why the applicant failed to complete his follow-up treatment, but his failure to do so contributed directly to the inability to complete his evaluation and reach a timely and complete diagnosis.  The applicant has not provided any medical documents, other than the VA disabilities ratings, which show he was treated on active duty for any other medical conditions.  Nonetheless, applicable regulatory guidance states that the mere presence of a medical condition does not, in itself, justify a finding of unfitness because of physical disability.  There is insufficient evidence to show his head injury or any of his other medical conditions prevented him from performing his duties to the extent that he would be determined to be unfit.  Absent evidence to the contrary, there is insufficient evidence to show that any of these medical conditions were severe enough to warrant evaluation through the PDES or that the evaluation of his other medical conditions would require him to be extended beyond his ETS date.

5.  The available evidence and the applicant's argument are insufficient to overturn the original Board decision or to place the applicant on the TDRL.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100025841, dated 4 August 2011.



      ___________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)                                         AR20130012453



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ABCMR Record of Proceedings (cont)                                         AR20130012453



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