PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            23 June 1999                  
	DOCKET NUMBER:   AR1999018067

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, through a counselor from the Department of Veterans Affairs, that her discharge be corrected to a medical retirement.

3.  The applicant states, through counsel, that following Operation Desert Storm she went on leave to discuss starting a computer business with a friend when she was released from active duty.  However, while she was on leave she stepped off a road and the embankment gave way, causing her to fall head over heels about 150 feet, finally being stopped when she hit a tree.  Being dazed after that incident, she got up and started running, and again fell, sliding down an embankment into a rain swollen stream wherein she was swept downstream, hitting branches and roots along the way.  When her friend pulled her ashore she couldn’t see and was almost unconscious.  She was treated on an emergency basis by a civilian medical facility which only treated her for her cuts and contusions, and did not test her for a closed head injury.  The applicant was totally incoherent for the next two weeks.  When she was released from active duty and treated by the VA, she was again only treated for her back pain.  Nobody questioned her slurred speech, ready tears, disjointed reasoning, and difficulty speaking.  She crawled through life for the next couple of years until she moved to Texas to stay with a friend.  At the friend’s insistence she went to the local VA hospital which, 4 years after the injury, correctly diagnosed her from suffering from aphasia (a defect or loss of language function in which the comprehension or expression of words is impaired as a result of injury to the language center in the cerebral cortex).

4.  The applicant’s military records show that she was commissioned as a second lieutenant, USAR, on 19 July 1978, served continuously, alternating between unit assignment and assignment to the Control Group, and was promoted to captain.  Her assignments included Headquarters Commandant, Communications Officer, Supply Distribution Officer, and Battalion S-4 (logistics/supply).

5.  On 14 March 1991 she was ordered to active duty in support of Operation Desert Shield and was assigned to the Pentagon.

6.  On 3 June 1991, while returning from authorized leave, the applicant was treated for injuries she sustained to her right hand, her neck, her back and her head when she fell down an embankment while on leave.  

7.  On 31 July 1991 the applicant was given a physical examination in conjunction with her release from active duty.  At that time she reported having hurt her hand, neck, back and head in the accident, and she reported that she was still experiencing back pain, foot problems, swollen joints in her left ankle, headaches and a loss of memory, all of which she attributed to her fall, and was taking Prozac, pain killers and muscle relaxers at that time.  She then underwent a battery of examinations and tests for her back and eye and was diagnosed as having muscular back pain and a hemorrhage in her eye (both of which were attributed to her fall during active duty), but was determined medically qualified for release from active duty.  Accordingly, on 12 September 1991 she was honorably released from active duty and returned to her status as a reservist assigned to the USAR Control Group.  On 29 November 1993 she was honorably discharged from the USAR as a captain due to being twice considered for promotion to major but not selected.

8.  On 22 August 1996 the applicant was examined by the VA.  In that examination the applicant was diagnosed as suffering from a closed head injury, organic brain syndrome with headaches and post-traumatic mood disorder secondary to closed head injury, chronic lumbrosacral myofascial pain with pain in the left buttocks, and seizure disorder secondary to closed head injury, improved with medications.  The applicant’s records showed that she had been unemployable since the date of the accident and had been living at the VA hospital domiciliary for the previous 8 months.  As a result of that examination the applicant was awarded a 50 percent disability rating for organic brain syndrome with headaches, mood disorder and seizure disorder secondary to head injury, VASRD code 9304, effective 25 August 1994 and a 100 percent disability rating for those conditions from 27 November 1995.  She was also awarded a 20 percent disability rating for chronic lumbrosacral myofascial pain to left buttock, effective 25 August 1994, giving her a combined rating of 60 percent disabled from 25 August 1994 and 100 percent disabled from 27 November 1995.

9.  On 3 March 1997 a formal line of duty investigation was conducted on the nature of the applicant’s accident and injuries.  During that investigation a woman who was with the applicant submitted a sworn statement in which she attested she witnessed the applicant “fall down a large embankment toward a rain swollen creek.  She collided with numerous trees as well as rolling over many rocks and much debris before landing on her back at the bottom of the hill.  As it was still raining, the hill was quite slippery and [the applicant] was semi-conscious and in a great deal of pain from the initial fall; consequently she fell a number of times trying to reach the top of the hill where I had the car waiting.”  The formal investigation determined that the applicant’s injuries were incurred in line of duty.

10. In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG).  The OTSG stated that the only medical condition that can be objectively attributed to the applicant’s accident is her back pain.  The OTSG stated that there is insufficient pertinent military or civilian medical records which would give a chronological treatment history of the applicant’s condition.  The OTSG also stated that her mental condition appears to have deteriorated over time, which is out of context with a closed head injury where the worst symptoms are generally experienced right after the injury and then improves.  The OTSG continues that there is a possibility that she may have suffered a second closed head injury after her release from active duty which is causing her disability, and there is a possibility that she may be exaggerating her symptoms.  Based on those considerations, the OTSG recommends that the applicant be scheduled for a medical evaluation board (MEB) and that specific tests be conducted during that MEB.

11.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  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.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

CONCLUSIONS:

1.  The underlying facts in this case are that the applicant injured her head, hand and back while she was on authorized leave while on active duty; those injuries were treated at the time of injury and reported during her separation physical examination; and she has been rated at 50 and then 100 percent disabled by the VA for closed head injuries. 

4.  The OTSG’s concerns that the applicant’s mental condition may have deteriorated after her injury, which is out of context with a closed head injury, that she may have reinjured her head after her release from active duty, and that she is/was exaggerating her symptoms, are well thought out.  While it is possible that the applicant was never properly diagnosed while on active duty or in the several years following her release from active duty, which would lead to some of the disparities which formed the basis of the concerns espoused by the OTSG, those concerns need to be resolved by formal medical and psychiatric testing.
5.  As such, the interest of justice would be served by scheduling the applicant for a medical board and physical evaluation board.  The MEB and PEB will ascertain to the best of their ability the applicant’s current medical and physical fitness, and by reconstruction, her medical and physical fitness at the time of her release from active duty on 12 September 1991.  The MEB will perform the tests and procedures recommended by the OTSG in its advisory opinion.  The PEB should then recommend one of three courses of action:  (a)  That the applicant’s military records not be corrected, which would be appropriate with a finding of no service connection for her disability or a finding that her medical and psychiatric condition are not physically unfitting;  (b)  that the applicant be placed on the TDRL on the date of her release from active duty and either placed on the PDRL (with a recommended percentage of disability) or returned to duty on a specified date; or (c)  that the applicant’s be retired due to physical disability on the date of her release from active duty on 12 September 1991, with a recommended percentage of disability.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  scheduling the individual concerned for a medical board and an informal physical evaluation board on a priority basis;

b.  providing her, now a civilian with no military status, invitational travel orders for the medical examination; and

c.  providing the results of the MEB and PEB to this Board along with the findingds and recommendation of the PEB for final disposition of the case.

BOARD VOTE:  

_mkp____  _gfg____  _le____ _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Margaret K. Patterson_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999018067	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990623	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.