IN THE CASE OF:	  

		BOARD DATE:	 16 October 2014 

		DOCKET NUMBER:  AR20140000146 


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, correction of his record to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states:

   a.  The diagnosis of intermittent focal dystonia of his left hand should not have met retention standards when evaluated by the Medical Evaluation Board (MEB).  At the time of his MEB, his neurologist determined the condition met retention standards; however, a few weeks after he concurred with the board proceedings the neurologist changed her evaluation noting "patient is clearly impaired at this time and has significant flexion of his digits 2-4 in left hand."

   b.  A "hole" in his brain was found while he was on active duty which may have been caused by a mild traumatic brain injury (TBI).  The same "hole" and TBI may be associated with his hand problem.  He does not know how this condition was overlooked, but it clearly would have made him unfit for duty.

   c.  As a heavy equipment operator it is imperative he have good strength in his hands.  His hand has completely lost function and the Department of Veterans Affairs (VA) has granted him 60 percent service-connected disability and a special compensation for loss of use.



3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 (MEB Proceedings)
* various medical records and correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 June 2005.  He completed training and he was awarded military occupational specialty (MOS) 12N (Horizontal Construction Engineer).  He served in Iraq from 14 March to            20 November 2006 and in Afghanistan from 24 April 2008 to 17 July 2009.

2.  On 18 February 2010, the applicant received a permanent physical profile for low back pain and asthma.  He subsequently appeared before an MOS/Medical Retention Board (MMRB) to evaluate his ability to perform the physical requirements of his MOS.  The convening authority for the MMRB approved the board's findings and mandated the applicant be sent to the MEB/Physical Examination Board (PEB) for further evaluation.

3.  On 30 March 2011, after consideration of the applicant's clinical records, laboratory findings, and physical examination, an MEB diagnosed the applicant with chronic low back pain, asthma, and an anxiety disorder (not otherwise specified) which were deemed medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The applicant was further diagnosed with 18 separate ailments which were determined to meet retention standards to include intermittent focal dystonia of the left hand and mild TBI with residual post-concussive headaches.  The applicant agreed with the board's findings and recommendations and he was subsequently referred to a PEB.

4.  On 20 September 2011, an informal PEB found the applicant unfit for low back pain and rated it at 20 percent.  The applicant's asthma, anxiety, and all other listed ailments to include intermittent focal dystonia of the left hand and mild TBI with residual post-concussive headaches were considered by the PEB and found to be not unfitting and therefore not ratable.  The applicant was counseled on the PEB findings and his rights to a formal hearing, and on           22 September 2011, he concurred with the PEB findings and waived his right to a formal hearing.

5.  He was honorably discharged on 26 November 2011 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of non-combat related disability with entitlement to severance pay.  The DD Form 214 he was issued shows he completed 6 years, 1 month, and 1 day of active service.

6.  The applicant provides:

     a.  Radiologic Examination Reports and Health Records dated prior to and considered during the applicant's MEB.  

     b.  Radiologic Examination Reports and Health Records dated after his MEB.  On 1 June 2011, his physician noted the applicant's dystonia significantly worsened over the past two months.  The movement disorders clinic's impression was that the findings were aphysiologic, there may be a psychogenic component but the applicant was clearly impaired at this time and had significant flexion of his digits 2-4 in the left hand.  His physician believed the applicant would benefit strongly from botox therapy.

     c.  On 26 July 2011, a physician noted the applicant had a little over a month of good relief with his hand after a Myobloc injection.  The applicant was to receive one more injection with the hope of getting him more longevity with his hand. 

     d.  An incomplete VA Rating Decision which appears to show a combined disability rating of 100 percent in accordance with the VA Schedule for Rating Disabilities (VASRD).  The form shows a 60 percent rating for loss of use of the left upper extremity including acquired focal dystonia and carpal tunnel syndrome (also claimed as left wrist pain) (nondominant) and 10 percent for cerebral vascular disease status post lacunar infarct (claimed as hole in brain).

7.  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 provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	a.  Paragraph 3-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
 
   b.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VASRD.  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.  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.

8.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  

   a.  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

   b.  Paragraph 3-12 (Upper Extremities) states the causes for referral to an MEB for upper extremities are for amputation or joint ranges of motion.  For the purpose of the evaluation of the hand, a combined joint motion is the arithmetic sum of the motion at each of the three finger joints.  Based on the VASRD, an active flexor value of combined joint motions of 135 degrees in each of two or more fingers of the same hand, or an active extensor value of combined joint motions of 75 degrees in each of the same two or more fingers, or limitation of motion of the thumb that precludes opposition to at least two finger tips.

   c.  Paragraph 3-30j (Neurological Disorders) states any other neurologic conditions, TBI or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty will be referred to an MEB. 

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 rating of at least 30 percent.  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 of less than 30 percent.

10.  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 on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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 applicant contends, in effect, his record should be corrected to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant was seen by various medical specialists and recommended for entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  Although the applicant noted numerous complaints, the examination and review of the history of his conditions resulted in his low back pain being found not to meet medical retention standards.  

3.  The applicant claims a few weeks after he concurred with the MEB proceedings a neurologist changed her evaluation of the applicant's dystonia  which he appears to contest invalidates the MEB finding; however, evidence in the applicant's medical record also shows weeks later he subsequently found good relief with his hand after a Myobloc injection.

4.  The PEB properly rated his back condition at 20 percent and recommended separation with entitlement to severance pay.  He was counseled on the PEB findings and his rights to a formal hearing, and on 22 September 2011, he concurred with the PEB findings and waived his right to a formal hearing.  

5.  He appears to attest the VA subsequently awarded him a disability rating of 60 percent for loss of use of the left upper extremity including acquired focal dystonia and 10 percent for cerebral vascular disease status post lacunar infarct (claimed as hole in brain); therefore, the PEB should have awarded him a combined disability rating of at least 30 percent for his conditions which would have resulted in a medical retirement.  

6.  The applicant contends that a "hole" in his brain was found while he was on active duty which may have been caused by a mild TBI and may also be associated with his hand problem.  He does not know how this condition was overlooked, but it clearly would have made him unfit for duty.  

7.  While it is evident the applicant was diagnosed and undergoing treatment for focal dystonia and mild TBI with residual post-concussive headaches, further consideration by the MEB/PEB to include review of the applicant's Radiologic Examination Reports and Health Records determined these conditions did not render him physically unfit.    

8.  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 evidence shows the applicant was properly rated for his injuries.  There is insufficient evidence to support a higher rating or medical retirement.

9.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, he is not entitled to the 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)                                         AR20140000146





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000146



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1