IN THE CASE OF: 

		BOARD DATE: 2 September 2014

		DOCKET NUMBER:  AR20130022076 


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 correction of her medical evaluation board (MEB) and physical evaluation board (PEB) proceedings to show additional unfitting medical conditions and her discharge with severance pay changed to physical disability retirement. 

2.  The applicant states:

	a.  Her MEB did not consider all her potentially unfitting conditions, which could have resulted in her being placed on the temporary disability retirement list (TDRL).  She is requesting the following conditions be considered by an MEB/PEB:

* Post-traumatic stress disorder (PTSD)
* cervical strain
* migraine headaches (tension headaches)
* left third cutaneous nerve injury from incision
* left elbow tendinitis
* left shoulder tendinitis
* maxillary sinusitis

	b.  Her military occupational specialty (MOS) was 91R (Operating Room Specialist).  It was noted that one particular physician did not practice safe aseptic technique and would throw instruments (blades) as well as needles on the back table.  The junior enlisted Soldiers felt uncomfortable working with him due to his unsafe practices.  She scrubbed into a mastectomy case with this physician and was stuck with a needle.  She adhered to the needle-stick guidelines and completed all paperwork.  A few days after the incident her finger began to swell and after a week her finger, hand, and forearm were swollen and infected.  She sought emergency medical services and had emergency surgery which resulted in her staying in the hospital as an inpatient for four days. 

	c.  Due to the surgery her left hand, finger and forearm have residual numbness and tingling and recurrent infections.  Due to this incident she was unable to perform her duties to standard and was told she would be medically boarded.  She had only been in the Army for about five years and was not aware she could have had a medical MOS retention board (MMRB) and possibly reclassified to another MOS that would not require her to wear gloves daily and, even when the recurrent infection was present, she could still do her job.

	d.  Once her noncommissioned officer in charge (NCOIC) was informed she was being medically boarded, she was treated differently and was even sent to work in the Medical Holding Company.  She received a bad noncommissioned officer evaluation report (NCOER).  

	e.  She felt like she went from hero to zero only because she did not want the junior enlisted Soldiers to work with that physician and got injured in the process. 

	f.  She was not familiar with the MEB/PEB process and trusted her PEB liaison officer (PEBLO) to do a thorough job.  

	g.  She listed all her injuries and illnesses she incurred on active duty on the DD Form 2807-1 (Report of Medical History); however, the conditions she listed were not evaluated to see if they were medically unfitting.  During the MEB process she was not told she had the right to appeal if she did not agree with the findings, nor was she told she could consult with legal counsel.    

	h.  She would like the Board to consider other conditions that were potentially unfitting and consider her for medical retirement based upon the initial Department of Veterans Affairs (VA) disability rating of 50%.  

	i.  She would like the Board to determine if she was eligible for physical disability retirement or placement on the TDRL.

3.  The applicant provides:

	a.  Department of the Air Force Review Boards Office letter, dated 
4 November 2013.

	b.  Her 25 November 2013 letter stating her request to withdraw her application to the Physical Disability Board of Review (PDBR).

	c.  VA Rating Decision, dated 9 September 2008, showing she was awarded service-connection for PTSD (50%), left third finger cutaneous nerve injury from incision and drainage (10%), left shoulder tendinitis (0%), left elbow tendinitis (0%), and cervical strain (20%).

	d.  VA Rating Decision letter, dated 25 January 2013, showing she was awarded service-connection for PTSD (50%), cervical strain (30%), tension headaches (formerly referenced as migraine headaches) (30%), left third finger cutaneous nerve injury from incision (10%), left elbow tendinitis (0%), left shoulder tendinitis (0%), and maxillary sinusitis (10%).  Her combined rating was 80%.

	e.  Her medication history.

	f.  Medical records showing she was seen, while on active duty, on several occasions for neck sprain, neck strain, shoulder sprain, cervicalgia (neck pain), and muscle spasms resulting from an October 2004 motor vehicle accident.  She was treated primarily with physical therapy and medication to reduce pain.  She was also seen for numbness and tingling in her left forearm and chronic recurring headaches.

	g.  numerous pages of medical care documents showing her medical treatment after her discharge.

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.  The applicant enlisted in the Regular Army on 19 January 2000.  She held MOS 91D (Operating Room Specialist).  
3.  On 25 July 2005. an MEB referred the applicant to a PEB for left middle finger hypersensitivity with injury to the radial or ulnar nerve.  

4.  The applicant agreed with the findings and recommendation of the MEB.  She indicated she did not desire to continue on active duty.

5.  On 9 August 2005, an informal PEB found her unfit for duty for left middle finger hypersensitivity as residual after incision and drainage flexor tendon tenosynovitis (the inflammation of the fluid-filled sheath (called the synovium) that surrounds a tendon).  The PEB recommended a disability rating of 0 percent and separation with severance pay if otherwise qualified.  

6.  On 25 August 2005, the applicant acknowledged she had been advised of the findings and recommendations of the PEB and received a full explanation of the results and her legal rights pertaining thereto.  She concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.

7.  On 2 November 2005, she was honorably discharged by reason of disability with severance pay as a sergeant/E-5.  She had completed 5 years, 9 months, and 14 days of active duty service.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

	a.  Paragraph 3-1 contains guidance pertaining to the standards of unfitness because of physical disability.  It states 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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which 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.

	b.  Chapter 4 contains guidance pertaining to processing through the Army PDES, which includes convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

9.  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.  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.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

	a.  An Army disability rating 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.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individuals' civilian employability.

	b.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her MEB and PEB proceedings should be corrected to show additional unfitting medical conditions and her discharge with severance pay changed to physical disability retirement.   Her medical conditions of PTSD, cervical strain, migraine headaches (tension headaches), left third cutaneous nerve injury from incision. left elbow tendinitis, left shoulder tendinitis, and maxillary sinusitis should all have been considered unfitting.  She listed all her injuries and illnesses she incurred on active duty on the DD Form 2807-1; however, the conditions she listed were not evaluated.

2.  The applicant indicated in her statement to this Board she was prevented from performing her duties as an Operating Room Specialist only because of the infection to her left hand.  It does not appear that any other medical condition rendered her unfit to perform her duties.

3.  The available evidence shows she was evaluated by an MEB and PEB to determine whether she was fit for duty based on her rank and military specialty.  She agreed with the findings and recommendations of the MEB.  She indicated she did not desire to continue on active duty.  An informal PEB found her unfit for duty for left middle finger hypersensitivity as residual after incision and drainage flexor tendon tenosynovitis.  The PEB recommended a disability rating of 0 percent and separation with severance pay.  She concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.

4.  She was discharged with severance pay.  She had other physical complaints at the time, including neck sprain, neck strain, shoulder sprain, cervicalgia (neck pain), and muscle spasms resulting from an October 2004 motor vehicle accident, numbness and tingling in her left forearm and chronic recurring headaches.  However, there is no evidence showing any of these medical conditions rendered her physically unfit to perform her duties at the time of her discharge.  Therefore, there is no basis for granting the applicant's request for consideration of those conditions.

5.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.

6.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  While the VA may have determined a service connection for service-connection for PTSD (50%), cervical strain (30%), tension headaches (30%), left third finger cutaneous nerve injury from incision (10%), left elbow tendinitis (0%), left shoulder tendinitis (0%), and maxillary sinusitis (10%), that does not indicate the Army was in error by discharging her with a 0-percent disability rating for left middle finger hypersensitivity as residual after incision and drainage flexor tendon tenosynovitis.

7.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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 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)                                         AR20120003061



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ABCMR Record of Proceedings (cont)                                         AR20130022076



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