IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130021387 


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 previous request for correction of her records to show she was medically retired in 1997 vice honorably discharged with severance pay.   

2.  The applicant states she is providing new evidence and new arguments that were not previously considered.  

3.  The applicant provides:

* DA Form 4700 (Emergency Department Discharge Instructions), dated 3 October 1996
* Emergency Care & Treatment Record, dated 27 and 28 November 1996
* two DD Forms 689 (Individual Sick Slip), dated 2 December 1996 and 27 May 1997
* two DA Forms 5008 (Telephone Consultation), dated 2 December 1996 and 3 February 1997
* Standard Form (SF) 513 (Consultation Sheet), dated 3 December 1966
* DA Form 3349 (Physical Profile), dated 3 December 1996
* letter, dated 28 January 1997, from the applicant's neurologist
* SF 600 (Chronological Record of Medical Care), dated 24 April 1997
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 May 1997
* letter, undated, from the applicant to the medical evaluation board (MEB)


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 AR20120003752, on 15 October 2013.

2.  As a new argument, the applicant states:

	a.  There was an inaccuracy on the first page of the MEB.  The accident that occurred [on 27 November 1996] involved a sprocket from an M1A1 Abrams tank which weighed in excess of 600 pounds of solid steel and she weighed 110 pounds.  The sprocket had fallen off the flatbed truck, hit the asphalt, and was a rolling force when she tried to stop it from rolling into traffic and injuring others.  This was a major dynamic force which threw her forward and to the ground.  This was due to a faulty tie-down strap that broke while the truck was in motion and the sprocket caused a two-inch depression in the asphalt when it hit the ground.

	b.  There was an inaccuracy on the last page of her physical evaluation board (PEB) (i.e., MEB).  There were two places to make a choice whether you agreed or disagreed with the findings.  This page shows an "x" was marked in the "do not agree" block as well as a check mark to show "my appeal is attached as an enclosure."   Both were marked but were erased and in her handwriting she commented "see attached statement."  She was told that the letter of rebuttal she attached would be her decision of "not agreeing," implying the places she originally marked were not necessary to check.

3.  As new evidence, the applicant provides:

	a.  An Emergency Care & Treatment Record, dated 27 and 28 November 1996, wherein it stated she was seen at the Darnall Army Community Hospital (DACH), Fort Hood, TX, late on 27 November until early on 28 November 1996 for a complaint of a right arm, back, shoulder, and neck pain caused by a training accident.  She arrived in a privately owned vehicle and stated she was injured that day when a 600 pound post fell off a truck and rolled down into traffic.  She grabbed the post to stop it and jerked both her arms causing severe pain in her right arm, past her shoulder, up into her neck, and on the left side of her upper chest.  She was prescribed medication and given a consult for the Neurology Clinic. 

	b.  An SF 513, dated 3 December 1996, wherein it shows she was seen in the Neurology Clinic, DACH, on that date.  The examining neurologist, Dr. EJK, noted the applicant stated she experienced right shoulder, right back pain, and numbness that was progressive in nature.  She also experienced right leg pain and two episodes of weakness.  Her strength was limited by extremity and back pain and the pain and weakness was worsening.

	c.  A DA Form 3349, dated 3 December 1996, issued by Dr. EJK, wherein it shows he gave her a temporary profile of 2 in the PULHES (physical capacity, upper extremities, lower extremities, hearing and ears, eyes, and psychiatric) of P.  This profile expired on 3 January 1997 and stated no lifting, no physical training (PT), no field duty, and no driving due to right arm difficulties.

	d.  A letter, dated 28 January 1997, to Sergeant Major (SGM) TE, 4th Forward Support Battalion (FSB), Fort Hood, from Dr. EJK, wherein he stated the applicant was his patient and she had suffered a severe traction injury to her right arm and shoulder.  As a result, she was experiencing related pain and weakness which were exacerbated with lifting and movement.  Therefore, it was necessary for her to wear sweats since she had difficulty dressing and undressing, as well as abide by other limitations he indicated on the physical profile he submitted on 3 January 1997 such as no lifting, no PT, no field duty, and no driving until at least 3 March 1997.  In addition, she was undergoing essential physical rehabilitation at the hospital and it was not in her best interest to participate in the upcoming Force 21 exercise.  

	e.  A letter, undated, addressed to President, MEB, from the applicant, wherein she stated she was not disputing what her doctor had written in regard to her injury but wanted to give a summary as to how it had affected her emotionally and physically.  Right after the accident, she noticed extreme pain in her right arm with numbness beginning to set in, as well as pain in her neck, back, and shoulder region.  Her left arm was also sore as she used it to grab her right arm.  Currently, the pain in her neck, arm, and shoulder was constant and was especially aggravated while turning her head to the right which sent pain all the way down her right arm.  She also often experienced her hand and arm turning purple and feeling ice cold to the touch with noticeable swelling.  Quite often the mobility in her right arm was very limited and she had a hard time getting dressed and fixing her hair.  Even when doing her job, she still encountered problems and had to ask for help.  Because of the accident, she was "dependent" which was hard for her to swallow.  At home, she often had to disappoint her children by telling them she couldn't do some things because of her arm.

4.  On 9 November 1995, the applicant enlisted in the Regular Army.  On 28 August 1996, she was assigned to the 4th FSB, Fort Hood.  At the time of her injury on 27 November 1996, she held the rank/grade of private first class (PFC)/E-3 and was serving in military occupational specialty (MOS) 92A (Automated Logistical Specialist)

5.  On 6 March 1997, she was given a permanent profile of 3 in the PULHES of P wherein it stated her assignment limitations were no lifting, no PT as noted, no Army Physical Fitness Test (APFT) in its entirety, and she should not be in a field environment for longer than a 30-minute period.

6.  On 28 April 1997, an MEB convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found she was diagnosed as having the medically-unacceptable conditions of post-traumatic, chronic right upper extremity and neck pain with apparently normal neurological evaluation, unresponsive to medication and rehabilitative therapy and degenerative changes to the C5-6 spine.  

7.  The MEB recommended her referral to an informal PEB.  On 9 June 1997, she was counseled and agreed with the MEB's findings and recommendation.  Her DA Form 3947 (MEB Proceedings) shows in item 24 (I have been informed of the approved findings and recommendation of the board) she checked the block that showed she agreed with the findings and recommendation and it contained the handwritten comment "see attached statement."  As new evidence, the applicant stated she provided the rebuttal statement to the MEB listed in paragraph 3e above. 

8.  On 18 June 1997, an informal PEB convened and found the applicant's condition prevented her from performing the duties required of her grade and MOS and determined that she was physically unfit due to chronic post-traumatic pain, right upper extremity and neck, without neurological abnormality (emphasis added).  The PEB noted her chronic pain and profile restrictions precluded the performance of the duties of her grade and MOS.  

9.  The PEB rated her under the VA Schedule for Rating Disabilities (VASRD) code 5003, granted a 20 percent (%) disability rating, and recommended she be separated with entitlement to severance pay, if otherwise qualified.

10.  On 27 June 1997, after having been counseled as to the PEB findings/recommendations and as to her legal rights, she concurred with the PEB findings and recommendations and waived her right to a formal hearing of her case.

11.  She was honorably discharged on 22 August 1997 in the rank of PFC.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph
4-24b(3), due to disability, severance pay and she received severance pay.

12.  On 2 January 1998, the VA awarded the applicant service-connected disability compensation for degenerative changes of the cervical spine with disc bulge at the rate of 60% effective 23 August 1997.  The VASRD Code is not listed on her Rating Decision.  The Rating Decision noted that an electromyography/nerve conduction velocity (EMG/NCV) study was attempted while she was in the Army but she could not tolerate the procedure.

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition that is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10%.

15.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  VASRD Code 5003, in effect at the time, was used in the case of Arthritis, degenerative (hypertrophic or osteoarthritis).  With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20%; and with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint, 10%.

16.  The VASRD, Code 5003, does not provide for any rating higher than 20%.

17.  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 rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

18.  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.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  Unlike the Army, 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.  The evidence of record confirms the applicant sustained an injury that warranted her entrance into the PDES.  She underwent an MEB which recommended her referral to a PEB.  The PEB found her medical condition prevented her from reasonably performing the duties required of her grade and military specialty and determined she was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay with a 20% disability rating.  

2.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The PEB is tasked to assess the degree of disability at the time of discharge; the PEB did so and rated her condition 20% disabling.  The evidence of record shows her PEB was conducted in accordance with applicable laws and regulations.  Unfortunately, it appears that her inability to tolerate an EMG/NCV study may have led to a failure to confirm neurological abnormalities.  There is no evidence and she has not provided any evidence that shows she should have been awarded a higher rating at the time of her discharge.  Since this rating was less than 30%, by law she was only entitled to severance pay.

3.  Although she may have been awarded a service-connected disability of 60% by the VA for degenerative changes of the cervical spine with disc bulge, an award of a different rating by another agency does not establish error on the part of the Army.  Operating under different laws and their own policies, the VA is permitted to accept mere symptomology without medical test confirmation.  

4.  In view of foregoing, there is 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 to amend the decision of the ABCMR set forth in Docket Number AR20130003752, dated 15 October 2013.



      _______ _   _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)                                         AR20130021387





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ABCMR Record of Proceedings (cont)                                         AR20130021387



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