IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130018394 


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, in effect, removal of a falsified Department of Veterans Affairs (VA) Compensation and Pension (C&P) exam from his Medical Evaluation Board (MEB) packet.

2.  The applicant states:

	a.  A falsified VA C&P exam was evaluated and submitted into his MEB packet.  The falsified document currently exists in a digital database that is maintained by the Fort Knox Integrated Disability Evaluation System (IDES), his unit (2nd Battalion, 233rd Regional Training Institute), and the Arkansas Army National Guard (ARARNG).  This injustice needs to be corrected immediately.  The MEB has a legal obligation to review only actual, non-falsified VA C&P exams.

	b.  The VA maintains a non-falsified, permanent record of the C&P exam.  It is completed with the addendum that was signed by the doctor.  Conversely, the MEB maintains a falsified copy of the C&P exam.  The addendum clarified a continuing diagnosis whereas the Department of Defense (DOD) provider states there is no diagnosis.  The addendum completely refutes the Military Retention Determination Point (MRDP) statement.  In contrast, the DOD provider's MRDP statement can only be justified by the falsified document.

	c.  He was provided the falsified C&P exam under the pretense that all information was "true and complete."  This caused an injustice that his diagnosis 

was wrongly evaluated against a falsified doctor's C&P exam.  Not having access to the actual non-falsified C&P exam during his appeal also caused an injustice.  The DOD provider's response to his appeal cited the falsified C&P exam as one of the main reasons to deny his appeal.  This caused an injustice as well.

	d.  Since the injustice was only discovered after he signed the response to his appeal, he was informed by his Physical Evaluation Board Liaison Officer (PEBLO) and ombudsman that there is nothing he can do to remove the falsified documents from his MEB packet.  His request to have the MEB evaluate him based on legitimate, non-manipulated C&P exams was also dismissed.  It is his belief that the DOD provider caused the injustice by omitting the addendum.

3.  The applicant provides:

* MEB – Narrative Summary (NARSUM)
* MEB C&P exam
* VA C&P exam
* MEB Proceedings
* Deputy Commander for Clinical Services (DCCS) response to his rebuttal memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARARNG on 29 August 1990.  He completed training and he was awarded military occupational specialty (MOS) 13M (Multiple Launch Rocket System (MRLS) Crewmember). 

2.  On 1 May 2010, he was issued a memorandum from the Military Department of Arkansas, Office of The Adjutant General, subject:  Notification of Eligibility for Retied Pay at Age 60 (Twenty-Year Letter).

3.  He was ordered to active duty for participation in a Reserve Component managed care evaluation/disability system, with a report date of 30 March 2013.

4.  He provides:

a. A 5 April 2013 VA C&P exam that indicates he had no axis I diagnosis

b. A 10 April 2013 VA C&P exam addendum that states the evaluating psychologist was “leaving his diagnosis of Cognitive Disorder NOS (294.9), which was diagnosed via neuropsychological testing, intact.  His note indicates “No diagnosis,” but that is referring only to anxiety, depression, PTSD, etc.  Instead, it should read Cognitive Disorder NOS as the continuing diagnosis.”

	c.  MEB NARSUM, dated 20 June 2013, that states:

		(1)  Mild Traumatic Brain Injury (TBI) with residuals of Cognitive Disorders, not otherwise specified (NOS) and Headaches met medical retention standards.  Diagnosed by the VA as Cognitive Disorders, NOS; TBI; and Headaches.  The applicant suffered a blast exposure while deployed in Iraq in 2004.  Since that 
time he has suffered from depressive symptoms and recurrent headaches.  He is undergoing treatment with medications and counseling for his Cognitive Disorder, NOS, and he treats his headaches (that occur monthly and are not prostrating) with rest and medications.  The condition was found to be medically acceptable per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3-30j.

		(2)  The VA-found diagnosis of Hypothyroidism appears to be well controlled with medications and appeared to not have residuals or sequelae.  There was no evidence available that suggested this condition had affected the applicant's performance of his military duties or that his health would be compromised due to worsening of this condition were he to remain in the military; thus, that condition was acceptable per Army Regulation 40-501, chapter 3-41e.

		(3)  The VA-found diagnosis of Benign Paroxysmal Positional Vertigo was not mentioned in his VA medical records and there was no mention of recurrence of this condition that required the applicant to seek treatment within the past 24 months.  There was no evidence available that suggested this condition had affected the applicant's performance of his military duties or his health would be compromised due to worsening of this condition were he to remain in the military; thus, that condition was acceptable per Army Regulation 40-501, chapter 3-41e.

		(4)  The VA-found diagnosis of Chondromalacia (bilateral knees) was noted for an acceptable range of motions of both knees, without functional loss after repetitive motion, per the VA IDES C&P General Medical exam.  Thus, that condition was acceptable per Army Regulation 40-501, chapter 3-13d(2).

	d.  MEB C&P exam that shows he underwent a C&P examination on 5 April 2013 for mental disorder.

	e.  VA C&P exam that shows he underwent a C&P examination on 5 April 2013 for a review of an already service-connected mental disorder.

	f.  MEB Processing that shows:

		(1)  an MEB convened on 20 June 2013 and determined his medical conditions of mild TBI with residual of Cognitive Disorder, Hypothyroidism, and Benign Paroxysmal Positional Vertigo that met retention standards in accordance with Army Regulation 40-501 and were medically acceptable.  The board recommended the applicant be returned to duty with no Army Physical Fitness Test run and running at his own pace/distance.  The MEB's recommendations and findings were approved on 25 June 2013.

		(2)  On 16 July 2013, the applicant stated he did not concur with the MEB's findings and recommendation and submitted an appeal.

	g.  Response to rebuttal memorandum, dated 26 July 2013, wherein the MEB Convening Authority advised the applicant of the following:

		(1)  After the review of his rebuttal, it was not the purpose of the medical board to discuss his symptoms or that he had received treatment.  The purpose of the medical board was to confirm an accurate diagnosis and how it affected the Soldier in his performance of his MOS.

		(2)  As noted in the NARSUM, there was no evidence his headaches were either frequent or severe, as might be evidenced by frequent seeking of medical care for flare-ups, referral to a neurologist, or prescription of prophylactic or aborting headache medications.  In addition, there was no evidence available that demonstrated those symptoms interfered with his activities of daily living, civilian occupation, or military duties.

		(3)  The VA IDES C&P Mental Health examiner did not render a diagnosis, and provided rationale, in addition to noting there was no evidence that his symptoms cause persistent occupational or social dysfunction.  In addition, at the time of their telephone conversation, the applicant noted a desire to remain in the Reserve component military and that was noted in the NARSUM.

		(4)  In reference to errors claimed in paragraph 32 of his rebuttal, it was noted that he served in COMPO 2.  The NARSUM accurately denotes his MOS.  The reference to "Sergeant S-----" was a typographical error and had been stricken from the NARSUM.

		(5)  No further changes to the NARSUM were recommended.

	h.  On 30 July 2013, after consideration of the applicant's appeal the board's original findings and recommendations were confirmed.

6.  A review of his record located on the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal a copy of his PEB Processing and VA C&P examination documents.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management), effective 2 September 2012, prescribes policies governing the Army Military Human Resource Records Management Program.  Appendix C (Out-dated Documents or Documents no Longer Authorized for Filing in the AMHRR), Table C-1 (Documents No Longer Authorized for Filing) include the DA Form 3947 (MEB Proceedings).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and documents he provided were carefully considered; however, he has not shown the VA C&P exam contains any administrative deficiencies, or was improperly filed, or that it was not prepared in compliance with applicable regulations and policy, or that it caused him harm during his MEB processing.  

2.  A review of his records located in IPERMS failed to reveal his MEB packet and any documents filed from the VA C&P and MEB C&P.  He provided his MEB NARSUM.  It is possible the NARSUM did not consider the VA C&P exam addendum that clarified that Cognitive Disorder, NOS was still a diagnosis.  However, the NARSUM specifically addressed his Mild TBI with residuals of Cognitive Disorders, NOS and Headaches, diagnosed by the VA as Cognitive Disorders, NOS; TBI; and Headaches.  Whether taken from the addendum or from his medical records, the condition was considered.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130018394



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ABCMR Record of Proceedings (cont)                                         AR20130018394



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