IN THE CASE OF:	  

		BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20130022151 


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 an increase in the total combat-related disability percentage (%) of his verified combat-related special compensation (CRSC) injury.

2.  The applicant states he was injured during a jump and he has been pursuing an upgrade to his claim for several years.

3.  The applicant provides a letter and four pages of medical documentation.

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 29 June 1978.

3.  His record contains:

   a.  DA Form 3349 (Physical Profile), dated 2 October 1992, which shows he received a temporary profile for a Volar Plate injury to his left arm with rigid fixation.

   b.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated         13 September 1993, which notes the applicant had a static line injury to his left arm seven days ago while in airborne school.  He was not seen at the time because he was determined not to be recycled.
   
   c.  SF 513 (Medical Record - Consultation Sheet), dated 14 September 1993, which shows he received a static line injury with a partial rupture of his left biceps with no loss of strength or range of motion.
   
   d.  SF 513 dated 14 September 1993, which shows he received a static line injury with a partial rupture of the left biceps.  He was placed in a sling for            4 weeks and instructed to return.  
   
   e.  DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) that evaluated him as a Medical NCO for the period April 1993 through March 1994, which shows he was rated as "among the best" by his rater.  His senior rater indicated his overall performance was in the successful range and his potential for promotion and/or service in positions of greater responsibility was in the superior range.  This form also shows he successfully passed his Army Physical Fitness Test in October 1993.
   
   f.  DA Form 3349, dated 3 June 1994, which shows he received a temporary profile for a left brain stroke with right arm and leg paralysis.

4.  On 18 June 1994, he underwent a Medical Evaluation Board (MEB).  The  applicant's DA Form 3947 (MEB Proceedings) shows he was given the opportunity and elected not to appeal the information/diagnoses made at the MEB.  He was subsequently recommended for referral to a Physical Evaluation Board (PEB).  On 29 June 1994, the PEB rated him 100 percent disabled due to:

* Left middle cerebral artery cerebrovascular accident with nonfunctional right hemiparesis, aphasia and right facial droop
* Radicular group paralysis
* Sciatic nerve paralysis
* Aphasia

5.  Effective 16 September 1994, he was placed on the Temporary Disability Retired List (TDRL) by authority of Department of the Army Order D138-13, dated 20 July 1994.

6.  On 19 June 1996, the Secretary of the Army approved a PEB which rated him 100 percent disabled due to:

* Left middle cerebral artery cerebrovascular accident with right hemiparesis, expressive aphasia and right facial droop
* Aphasia
* Facial droop - facial nerve paralysis

7.  After consideration of clinical records, laboratory findings, and physical examination, neither the MEB nor PEB considered the applicant's prior left biceps injury; however, the applicant concurred with each recommendation. 

8.  He was subsequently removed from the TDRL due to permanent physical disability and permanently retired in the rank of sergeant first class.  

9.  On 12 June 2009, 17 May 2012, 20 July 2012, and 24 July 2013 the applicant applied to the U.S. Army Human Resources Command (HRC) for CRSC.  In each instance HRC verified he had sustained a left biceps tendon rupture and that it was combat-related; however, he received a total combat-related disability of 0% for the injury.

10.  The applicant provides four pages of medical documentation from March and May 2013 which shows he suffers from left shoulder pain with resisted abduction.

11.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

12.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it weren't for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) or a disability retirement and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10-percent disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a static line injury to his left biceps during his military service.  It is apparent he was evaluated and treated for this injury and he continued to successfully perform his duties.  

2.  He subsequently suffered a stroke and underwent a medical examination that warranted his entry into the PDES.  He underwent an MEB which recommended referral to a PEB.  The PEB found his conditions prevented him from performing his military duties and determined he was physically unfit.  Neither the MEB nor the PEB evaluated the applicant for a left biceps tendon rupture.

3.  Once the applicant applied for CRSC, HRC verified his left biceps tendon rupture was combat-related; however, based on information provided by the applicant and information contained in his medical records, it was determined he rated a total combat-related disability of 0% for the injury.  

4.  The applicant provides medical documentation from March and May 2013 which shows he continues to suffer from left shoulder pain with resisted abduction.  However, in accordance with the VASRD based on the severity of this condition, the evidence provided is insufficient to substantiate an increase in the total combat-related disability percentage of his left biceps injury.
     
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)                                         AR20130022151





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ABCMR Record of Proceedings (cont)                                         AR20130022151



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