IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140018403 


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 disability rating she received by the Physical Evaluation Board (PEB) for a back injury incurred while she was on active duty and that she receive a rating for Traumatic Brain Injury (TBI).

2.  The applicant states:

	a.  An active duty incurred back injury was rated at 10 percent as far back as 1979.  It was rated at 20 percent prior to the 2 years she served in Iraq and to say that after four combat tours and 25 more years of service the injury has gotten better is absurd.

	b.  She can no longer perform her profession, she experiences falls, and she has severe memory loss due to a diagnosis of TBI.

	c.  The first board was lazy with the use of a form letter complete with many errors.  The second board was "reluctant to change" anything the first board did or didn't do.

	d.  An active duty incurred back injury rated a 10 percent in 1979, rated at 20 percent by 2006, aggravated by 2 years of combat service, and rated at 10 percent in 2013 implies that the injury has improved with age and abuse.

	e.  The fact that her TBI was not rated is also negligent.  Without the ability to function in finance, vertigo and falls, tinnitus, and memory dysfunction, this is a qualifying injury.

3.  The applicant provides:

* Permanent Orders 325-001, dated 20 November 2008
* DA Form 4187 (Personnel Action), dated 19 November 2008
* Narrative to Accompany Award of the Combat Action Badge
* Temporary Disability Retired List (TDRL) Election, dated 22 April 2014
* TDRL Evaluation, dated 3 April 2014
* Radiologic Examination Report, dated 4 April 2014
* Chronological Record of Medical Care, dated 3 April 2014
* Patient Inquiry, dated 17 January 2014
* Order D 246-24
* Cognitive Screening for TBI, dated 20 September 2010

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army and the Arizona Army National Guard, the applicant enlisted in the U.S. Army Reserve (USAR) on 12 September 1985.  She remained a member of the USAR through continuous reenlistments.

2.  On 16 December 2006, the applicant was ordered to active duty for the purpose of mobilization in support of Operation Iraqi Freedom, effective 16 January 2007.  The orders were amended on 19 December 2006 to show 28 January 2007 as her active duty effective date.

3.  On 20 September 2010, the applicant underwent a cognitive screening for TBI.  The examination showed findings of staggering gait with mild swaying to the right while walking.  She was diagnosed with dizziness secondary to TBI.

4.  The applicant's Medical Evaluation Board (MEB) and initial PEB proceedings were not available during the preparation of these proceedings.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that she retired on 26 September 2011, under the provisions of Army Regulation 635-40, chapter 4, due to disability, temporary (enhanced).  She was placed on the TDRL with a service-connected disability rating of 70 percent.

5.  On 23 November 2011, the applicant received a 70 percent combined service-connected disability rating by the Department of Veterans Affairs (VA) for the following conditions:

* Post-traumatic stress disorder, major depression, and cognitive disorder – 70 percent
* Vertigo and dizziness due to TBI – 30 percent

* Migraine headaches – rated at 30 percent
* Lumbar spine degenerative disc disease with low back syndrome – 20 percent
* Cervical spine degenerative disc disease, intervertebral disc syndrome – 10 percent
* Left shoulder tendonitis – 10 percent
* Right shoulder tendonitis – 10 percent
* Tinnitus – 10 percent
* Irritable bowel syndrome – 10 percent
* Residuals of TBI – 10 percent
* Left elbow lateral epicondylitis with radial nerve involvement – 0 percent
* Right hip trochanteric bursitis – 0 percent
* Right knee strain – 0 percent

6.  The applicant provides a VA Patient Inquiry printed on 17 January 2014, showing her emergency contact information, primary care information, mental health treatment information, health insurance information, service connection rated disabilities, and next of kin information.  This inquiry shows she received a combined service-connected disability of 100 percent.

7.  The applicant provides a Chronological Record of Medical Care, dated 3 April 2014.  It shows a diagnosis of chronic cervical neck pain secondary to degenerative arthritis of the cervical spine, which failed Army retention standards according to Army Regulation 40-501, paragraph 3-39h.  She was also diagnosed with PTSD which was determined to be an unfitting condition.  

8.  She was diagnosed with the following conditions that met medical retention standards:

* Chronic law back pain secondary to lumbar degenerative disc disease
* Gluteus tendinosis syndrome, point tenderness over the posterior superior iliac spine, greater trochanter, and illotbial band bilaterally
* Bilateral shoulder pain secondary to supraspinatous tendinitis
* Left foot pain, secondary to abductor hallucis strain and medial deltoid ligament strain
* Bursitis over the C7 spinous process
* Bilateral upper trapezius myofascial pain

9.  On 3 April 2014, the applicant underwent a TDRL Periodic Medical Evaluation.  This evaluation shows that her MEB Proceedings were conducted on 4 February 2011 and that her initial PEB Proceedings were conducted on 25 July 2011.  The evaluation states that her PEB designated unfitting diagnoses were PTSD and degenerative arthritis of the cervical spine.  Her prognosis was that the PTSD was unlikely to significantly improve or deteriorate due to the fact that her symptoms remained constant for the past several years.  Her cervical neck pain had persisted for several years making it unlikely that it would improve or deteriorate.  The evaluation shows no new diagnoses.

10.  On 13 August 2014, a formal PEB convened to determine if the applicant should be permanently retired due to physical disability.  The PEB Proceedings state that she requested that the board add TBI, shoulders, and lower back conditions as unfitting.  The board stated that her original narrative summary stated she had TBI at age 30 due to a motor vehicle accident and then another TBI due to a rocket attack in June 2007.  The board stated that despite the injuries, a November 2009 neuro-psychiatric evaluation found no cognitive deficit (no TBI); opining that her subjective symptoms were due to sleep deprivation, stress, and medication side effect.  The board noted that the evaluation appeared to support the PEB's original findings that her symptoms at that time were not unfitting.  The board acknowledged that she has cognitive impairment consistent with TBI, but the condition was not found unfitting by the original PEB and because TBI does not arise out of either condition found unfitting (PTSD and cervical spine disease), the board could not find TBI as compensable.  The PEB stated that there was insufficient medical evidence to determine that shoulder weakness or a back condition arose out of cervical spine disease.

11.  The PEB found that the applicant was unfit due to PTSD rated at 50 percent and unfit due to degenerative arthritis of the cervical spine rated at 10 percent, which is unlikely to improve or deteriorate.  The PEB recommended that the applicant be permanently retired.  She was emailed a copy of the PEB's findings on 15 August 2014.  She failed to either concur or to non-concur with the board's findings and recommendation.

12.  On 3 September 2014, the applicant was removed from the TDRL.  She was permanently retired due to physical disability on 4 September 2014, with a combined service-connected disability rating of 60 percent.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.


14.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides standards for medical retention and separation, including retirement.  Basically, members with conditions as severe as those listed in this chapter are considered medically unfit for further military service.

15.  Department of Defense Instruction 1332.38 provides for medical evaluation boards, 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 
Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

16.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

17.  The VA 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.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties of physical disability.  It states:

	a.  The mere presence of an 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 the degree of the 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.


	b.  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.

	c.  The Narrative Summary to the MEB is the heart of the disability evaluation system.  In describing a Soldier's condition, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of the appeal procedures.

19.  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.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  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.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  Her supporting evidence has been considered.

2.  She has provided no evidence to substantiate her contention that the ratings she received from her formal PEB are incorrect.

3.  The available evidence shows that at the time of her formal PEB she requested that the board add TBI, shoulders, and lower back conditions as unfitting.  The board noted that her original narrative summary stated she had TBI at age 30 due to a motor vehicle accident and then another TBI due to a rocket attack in June 2007.  The PEB also stated that despite the injuries, a November 2009 neuro-psychiatric evaluation found no cognitive deficit 

(no TBI); opining that her subjective symptoms were due to sleep deprivation, stress, and medication side effect.  

4.  The board acknowledged that she has a cognitive impairment consistent with TBI, but the condition was not found unfitting by the original PEB and because TBI does not arise out of either condition found unfitting (PTSD and cervical spine disease) the board could not find TBI as compensable.  

5.  The PEB stated that there was insufficient medical evidence to determine that shoulder weakness or back condition arose out of her cervical spine disease.  Therefore, the PEB's decision not to rate her for either of these conditions was proper.

6.  The applicant was provided the opportunity to concur or non-concur with the findings and recommendation of the PEB and she failed to do so.

7.  As previously stated, the VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  If she believes that her medical conditions are worsening, she should contact the VA and request reevaluation.

8.  The applicant has failed to show error or injustice in the actions taken by the Army in her case.  Her request should be denied.

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)                                         AR20140018403



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ABCMR Record of Proceedings (cont)                                         AR20140018403



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