BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140015901 


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 her records to show she was diagnosed with a service-connected, unfitting condition and placed on the Permanent Disability Retired List (PDRL).

2.  The applicant states she has a line of duty determination, dated 7 July 1987, that indicates she had a concussion, which led to a diagnosis of Traumatic Brain Injury (TBI).  She states the Department of Veterans Affairs (VA) granted her service connection for TBI, effective 7 November 2011.  She concludes that the Physical Evaluation Board (PEB), conducted in April 2012, should have granted her a disability rating for TBI instead of bipolar disorder.

3.  The applicant provides copies of an Accident Investigation Report, her PEB proceedings, and VA rating decisions with medical records.

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 was appointed as a commissioned officer on 28 August 1984 in the U.S. Army Reserve (USAR) and detailed in the Army Nurse Corps (ANC).

3.  She continued to serve in the USAR and was promoted to lieutenant colonel (LTC)/pay grade O-5 effective 21 October 2005.

4.  On 21 June 2006, the Deputy Director, Personnel Actions and Services, U.S. Army Human Resources Command (HRC), St. Louis, MO, notified the applicant that her eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

5.  A DA Form 199 (PEB Proceedings) shows an informal PEB convened on 
2 April 2012 at Fort Sam Houston, TX.  

   a.  The case was presented to the PEB as a non-duty related (NDR) case under the provisions of Department of Defense (DoD) Directive 1332.18 (Separation or Retirement for Physical Disability), paragraph 3.5, and
DoD Instruction 1332.38 (Physical Disability Evaluation), Part II, Enclosure 3 (Operational Standards for the Disability Evaluation System), paragraph 2.3.

   b.  The PEB proceedings show the applicant's diagnosis of bipolar disorder was unfitting because her behavior affected the good order and discipline of the unit.  The PEB also found her unfit due to her lower back condition which affects her ability to reliably attend and perform her military duties.

6.  On 2 April 2012, the applicant was notified of the results of the informal PEB proceedings.  She was advised of her right to submit a written appeal and/or demand a formal hearing.  She was afforded 10 days to provide her response.

7.  A DA Form 199 shows a formal PEB convened on 26 April 2012 at Fort Sam Houston, TX.  The case was presented to the PEB as an NDR case under the provisions of DoD Directive 1332.18, paragraph 3.5 and DoD Instruction 1332.38, Part II, Enclosure 3, paragraph 2.3.

   a.  The applicant was present at the formal PEB proceedings and she was represented by regularly appointed counsel.

   b.  The PEB reevaluated all available medical and performance records, to include sworn testimony and exhibits provided by the applicant.  A DA Form 3349 (Physical Profile), dated 14 February 2011, indicated the three diagnoses:  bipolar disorder, lower back pain, and brain injury.

    	(1)  Her back disorder was unfitting because it restricted her from riding in a military vehicle, wearing a helmet, wearing body armor, or wearing load bearing equipment for at least 12 hours per day.

    	(2)  She was involuntarily hospitalized for bipolar disorder (from 
21-30 December 2010) with discharge against medical advice.  She was unable to perform her duties due to emotional instability and paranoid ideation.  In addition, she was unable to take orders, do chart check orders, or take a full patient load during annual training in March 2003.

    	(3)  Neuropsychological assessment (3 February 2011) indicated there were clear and compelling signs of organic dementia that are vocationally limiting.

   c.  The PEB proceedings also show, "[t]he officer contends that her organic brain syndrome is related to striking her head entering an ambulance at Camp Shelby in 1987.  The question of whether her organic brain disorder is related to an event in 1987 is beyond the purview of the PEB because her case has been specifically referred to the PEB by Headquarters, 81st Regional Support Command (RSC) as an NDR case."

   d.  Based on a review of the objective medical evidence of record, the PEB found that the combination of bipolar disorder and organic dementia interfere with military duty performance.  The PEB also found the applicant's medical and physical impairment prevents reasonable performance of duties required by her grade and military specialty.

   e.  The PEB proceedings further show the applicant was diagnosed with bipolar disorder, organic dementia, and a lower back condition that are unfitting because her combined disability from the disorders render her unable to reasonably continue performing duties as an ANC officer.

   f.  The PEB determined the applicant was physically unfit and recommended her case be referred for disposition under Reserve Component (RC) regulations.

	g.  On 31 May 2012, the applicant confirmed that she was advised of the findings and recommendations of the formal PEB, had received a full explanation of the results of the findings and recommendations, and was advised of her legal rights.  She indicated with her initials and signature that she did not concur and that a statement of rebuttal explaining why she did not agree with the findings and recommendations was written below or attached.  (A review of the PEB proceedings failed to reveal any evidence of the applicant's statement of rebuttal.)

   h.  On 14 July 2012, the PEB proceedings were approved for the Secretary of the Army.
   
8.  On 16 July 2012, the NDR case was forwarded to the Commander, 81st RSC, Fort Jackson, SC, for disposition based on the PEB determination that the applicant was unfit for duty.

9.  Headquarters, USAR Command, Fort Bragg, NC, Orders 12-324-00009, dated 19 November 2012, reassigned the applicant to the USAR Control Group (Retired Reserve) effective 15 December 2012.

10.  A review of the applicant's military personnel records failed to reveal a copy of a line of duty investigation pertaining to the applicant for an injury that occurred in 1987.

11.  In support of her application the applicant provides the following documents.

   a.  An undated U.S. Army Accident Investigation Report pertaining to the applicant who was assigned to the 382nd Field Hospital and attending annual training at Camp Shelby, MS.  It shows that at about 1900 hours, 7 July 1987, she attempted to enter the rear of a truck ambulance while being assisted by two commissioned officers.  She misjudged the clearance and struck her head against the top of the ambulance.  She sustained a contusion to the head and muscle spasms in the neck.  The report was signed by an appropriate unit authority.  It does not show any entries in the command review section.

   b.  VA Atlanta Regional Office, Decatur, GA, rating decision, dated 1 April 2014, with medical records dating back to 4 October 2010, that show –

* the VA granted her service-connected disability compensation for –

* residuals of TBI with mild neurocognitive disorder (also claimed as dementia, increased from 40% (from 7 November 2011) to 
70% disabling (from 6 February 2013)
* intervertebral disc syndrome (IVDS) with degenerative changes, cervical spine, increased from 10% (from 7 November 2011) to
20% disabling (from 18 March 2011)
* IVDS of the right upper radicular group (previously addressed as dorsal scapular nerve) associated with residuals of TBI with mild neurocognitive disorder (also claimed as dementia), increased from 10% (from 18 March 2011) to 20% disabling (from 5 May 2013)
* Dequervains's syndrome left wrist (non-dominant), rated as
10% disabling (from 7 November 2007)
* Dequervains's syndrome right wrist (dominant), rated as 10% disabling (from 7 November 2007)
* bilateral tinnitus, rated as 10% (from 13 September 2010)
* pes planus, sesamoiditis great toe with hallux valgus, right foot, increased from 0% (from 17 June 2009) to 10% disabling (from
27 September 2010)
* right wrist hypopigmentation scar status post dermatitis from wrist brace (dominant), 0% (from 7 November 2007)
* bilateral papillary conjunctivitis, decreased from 10% (from 17 June 2009) to 0% (from 28 February 2014)

* the VA determined the following conditions were not service connected/ not subject to compensation –

* pes planus, sesamoiditis great toe with hallux valgus, left foot
* bilateral hearing loss
* heat exhaustion
* dermatitis, bilateral wrist
* bipolar disorder

   c.  The VA medical records show she was seen in the TBI/Polytrauma Clinic, Augusta, GA, for initial evaluation on 10 November 2010, having self-reported that she sustained a head injury in 1987 while stationed at Camp Shelby.  She reported that while they were loading up the ambulance, she was running behind, and the step stool had been removed.  Two Soldiers lifted her up by her arms and she hit her head on a steel arch.  She stated she was wearing a thin metal helmet with a wood insert at the time.  She could not remember what happened, but she did not feel well.  She experienced headache and muscle spasms in her shoulders and neck.  Following annual training, she went to Forest General Hospital in Hattiesburg and was treated for a compressed c-spine with ice, physical therapy, and nonsteroidal anti-inflammatory drugs.  She added she was committed to Georgia Regional (Hospital) for psychological diagnosis in 1992.

12.  DoD Instruction 1332.18 establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability.  Enclosure 3 provides that for RC members referred for NDR determinations, the record of proceedings will document only the fitness determination.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the Physical Disability Evaluation System.

	b.  Chapter 8 (Reserve Component), outlines the rules for processing through the disability system Soldiers of the RC who are on active duty for a period of
less than 30 days or on inactive duty training.

    	(1)  Paragraph 8-2 (Eligibility) provides that Soldiers of the RC eligible for processing are those who incur a disability from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training with or without pay, or temporary tour of active duty under a call or order that specifies a period of 30 days or less, to include full-time training duty are  under Title 32, U.S. Code, sections 502f, 503, 504, and 505.

    	(2)  Paragraph 8-3 (Proximate result) provides that in order for Soldiers of the RC to be compensated for disabilities incurred while performing duty for
30 days or less, to include inactive duty training, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty.  This determination is different from a line of duty determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.

    	(3)  Paragraph 8-8 (PEB processing) shows the PEB must be convinced that the Soldier's status and entitlement to processing have been documented in the file.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was diagnosed with an in line of duty TBI, found unfit for continued military service, and placed on the PDRL.

2.  The applicant indicated that she provided a copy of a line of duty investigation pertaining to an injury she sustained on 7 July 1987 while attending annual training; however, she did not, she provided an accident report.

   a.  The evidence of record shows the applicant was attending annual training on 7 July 1987 at Camp Shelby, MS, when she struck her head while attempting to enter the rear door of an ambulance and that she sustained a contusion to the head and muscle spasms in the neck.

   b.  There is no evidence of record of a line of duty investigation pertaining to the incident.  However, this is not the overriding issue in this case.

   c.  The evidence of records shows that in order for a RC Soldier to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty.

   d.  The evidence of record fails to show the applicant sought medical treatment at the time of the incident.  (It is noted that the applicant was attending annual training with a medical unit.)  She contends that she subsequently sought medical treatment at a civilian hospital for headache and muscle spasms.

   e.  The applicant provides no contemporaneous medical records showing she was treated for a head injury and/or that she was diagnosed with a TBI related to the head injury at that time.

   f.  The evidence of record shows the applicant initially self-reported for TBI in November 2010 and, at that time, she related it to her 7 July 1987 head injury.

   g.  Thus, based on the available evidence of record, there is an insufficient evidentiary basis to establish a proximate causal relationship between the claimed disability and the event that occurred during the required military duty that is under review in this case.

3.  The VA granted the applicant service-connected disability compensation for residuals of TBI with mild neurocognitive disorder (also claimed as dementia) effective 7 November 2011.

4.  On 26 April 2012, a formal PEB found the applicant's diagnoses of bipolar disorder, organic dementia, and lower back condition were unfitting.

   a.  The PEB found the applicant was physically unfit and recommended that her case be referred for disposition under RC regulations.
   b.  The PEB determined that the question of whether her organic brain disorder is related to an event in 1987 was beyond the purview of the PEB because her case was referred to the PEB as an NDR case.  Moreover, based on the available evidence of record, there was no basis for review by the PEB.

	c.  The applicant indicated that she did not concur with the PEB findings and recommendation.  However, there is no evidence of record that shows the applicant (or her counsel) submitted a rebuttal or an appeal to the PEB proceedings.

   d.  The PEB proceedings were approved on 14 July 2012.
   
   e.  On 15 December 2012, the applicant was reassigned to the USAR Control Group (Retired Reserve).

5.  There is no evidence of record that shows the head injury the applicant sustained on 7 July 1987 led to a diagnosis of TBI.

   a.  The applicant continued to serve in the RC and she attained the rank of LTC (O-5) in October 2005.

   b.  In April 2012, her case was presented to the PEB as an NDR case for three diagnoses:  bipolar disorder, organic brain injury (dementia), and lower back pain.

   c.  Thus, the evidence of record does not support the applicant's contention that the injury she sustained in 1987 was a proximate cause of a diagnosis of TBI in 2011.

6.  Therefore, 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)                                         AR20140015901



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ABCMR Record of Proceedings (cont)                                         AR20140015901



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