MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            28 November 2000                  
	DOCKET NUMBER:   AR2000040971

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock 		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. John H. Kern 		Member	
	Mr. Wilford A. Hale 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, an increase in his physical disability rating.  

APPLICANT STATES:  He was discharged with an erroneous physical disability rating of 10 percent, which is inconsistent with the overall industrial impairment he suffers.  They neglected to evaluate and assign a rating for his traumatic brain injury and his other disabilities.

EVIDENCE OF RECORD:  The applicant's military records show:

A medical report from the Minneapolis VA Medical Center shows that the applicant sustained a traumatic brain injury and numerous orthopedic injuries on 25 January 1998 during a pedestrian versus motor vehicle accident in Italy.  He had a previous traumatic brain injury in December 1997 during an altercation while stationed in Italy.  That report described the nature and extent of his injuries, stated that he was unconscious for seven days, but that included a pharmacologically induced coma, and that he was intubated from 25 January 1998 through 1 February 1998.  He was transferred to the VA Medical Center from Walter Reed Army Hospital in stable condition on 24 February 1998 to participate in intensive traumatic brain injury rehabilitation.  The report shows that he had a relatively uncomplicated brain injury rehabilitation and had a relatively uncomplicated course during acute care.  Orthopedic injuries included a left scapular fracture, right glenoid and greater tuberosity fracture, right proximal radial fracture with displacement causing decrease right forearm supination, a vertical fracture of the right sacrum with no foraminal involvement, comminuted right tibia fibula fracture with external fixator.  The report indicated that the applicant had no complications related to his traumatic brain injury, following a course of gradual improvement in all functions.  He did have symptoms of headache at admission, which were resolved at discharge.  There was no evidence of seizure throughout the rehabilitation stay.

The report indicates that the applicant was independent with all dressing, grooming, feeding, and toileting tasks, but had more difficulty with higher level tasks.  For instance, in bill paying he demonstrated lack of memory to pay bills and lack of memory to record checks.  Some of his functional activities were limited by his limited memory.  At discharge, he was independent in the wheelchair, independent with Loftstrand crutches, and able to walk to his appointments on crutches.  He participated in a weekend pass with no wheelchair.  He required Loftstrand crutches because he had no weight bearing on his right shoulder.  The applicant had communication problems at admission; however, he improved through being seen by speech and language pathology.  By discharge, there was no further speech and language pathology recommendations.  The report indicates that his problem solving skills and memory were severely limited.  At discharge, his cognitive function improved to a great extent.  The report indicates that the applicant’s comprehension of every day routine or previously used knowledge should be no problem for him, but he might have difficulty with complex information in new areas.  No further recommendations were made for cognitive treatment.  The applicant had increased swelling, erythema and pain of his right lower extremity upon admission and was found to have a deep venous thrombosis.  He was treated and showed no symptoms or signs of pulmonary embolus at discharge; however, the report indicated that Coumadin should be continued for three months.  The applicant had various orthopedic injuries upon admission; however, there was no further recommendations from orthopedic surgery regarding the injuries, although orthopedics did follow him throughout his hospital stay.  They indicated that it was likely that he would need follow up x-rays in two to four weeks, with recommendations made by an orthopedic surgeon concerning medical care.  He remained non-weight bearing on the right lower extremity and no weight bearing on the right axilla.  At the end of March 1998, the applicant was noted to have increased drainage at his pin sites and was kept in a private room throughout his rehabilitation stay.  However, there was no further drainage to culture.  The applicant had completed several weekend passes with the family reporting no difficulties, although he was still noted to have some problems with higher level cognitive functions.  The applicant was discharged on 28 April 1998 in stable and improved condition.  He met the majority of his rehabilitation goals, but was not yet able to return to his command.  The report indicated that he would be followed for further recovery and recommendations for further vocational planning.  Discharge restrictions included no weight bearing on the right lower extremity, no right axilla pressure, no drinking alcohol, and no driving until reevaluated for driving.    

A Medical Evaluation Board (MEB) narrative summary of 15 November 1999 indicates that the applicant had been struck by a motor vehicle in Italy on          25 January 1998 while on active duty.  He suffered an open segmental fracture of the right tibia and was treated with irrigation, debridement and application of an external fixator.  He also suffered a right shoulder dislocation that was reduced in the emergency room, a right ulna fracture, and a pelvic fracture.  His injuries included a traumatic brain injury and he was in an intensive care unit in a coma for 10 days.  He was medically evacuated to Germany, and after his rehabilitation for his head injury and his bone injuries he was referred to orthopedic service at Fort Knox in May 1998 for further treatment.  He underwent treatment because of his draining pin sites.  His fracture was healed at that time. His fixator was removed and deep cultures obtained, which were positive for Methicillin resistant staphylococcus aureus, for which he was treated.  Around August of 1998, he developed a different strain in his leg, and was again treated.  He had a significant problem clearing the infection in his right tibia and significant difficult healing the operative wound.  He was referred for plastic surgery evaluation and underwent erectus abdominus muscle free flap to the coverage of the right tibial defect in May 1999.  The applicant underwent additional treatments and grafting in July, September, and October 1999.  The summary indicates that the applicant complained of pain in his right ankle, stiffness in his right shoulder, and decreased range of motion.  He did not complain of any problems with his right ulna.  The narrative indicated that the applicant’s shoulders had a symmetric range of motion, and he had a positive apprehension sign on the right shoulder.  His right ulna showed no abnormality.  He had painless, full hip range of motion bilaterally. The narrative indicated that the applicant was involved in a significant trauma, suffering a closed head injury and also suffering significant long bone injuries, the worst being the right tibia fracture with secondary staph aureus osteomyeliitis requiring approximately 10 surgical procedures for irrigation and debridement plus free muscle coverage and split thickness skin grafting.  He also required iliac crest bone grafting to his fractured area.  The MEB narrative stated that the applicant was unfit and had been issued a permanent profile.  It recommended that he be placed on the temporary disabled retired list because the nature of his injuries were such that he had not reached maximal medical improvement.  The narrative indicated that the applicant’s pain was frequent and moderate.  His condition was diagnosed as open segmental fracture of the right tibia, right shoulder dislocation, right ulna fracture, pelvic fracture, and traumatic brain injury.

A 21 October 1999 medical board addendum indicates that the applicant’s condition was diagnosed as idiopathic left ventricular tachycardia, sensitive to Verapamil, and multiple orthopedic surgeries.  That addendum indicated that the applicant had finished all of his plastic surgical treatment.  His last skin graft had completely taken.  All his sutures were out and his wound was well healed.  There was no further surgical intervention planned.

A 5 November 1999 medical board addendum indicates that the applicant had undergone several neuropsychological evaluations with the most recent in September of 1999.  The conclusions of those tests resulted in residual deficits in verbal learning of unstructured information, moderate deficits in complex auditory attention, borderline deficits in retentive memory for prose materials, nonverbal generative fluency/divergent reasoning, visual spatial reasoning and foresight and planning on visual tasks.  Those results were consistent with the neuroradiological findings on the MRI.  The examining physician recommendations included supportive counseling, complete abstinence from alcohol, no contact sports or activity that could result in potential blows to the head, and temporary prohibition from operating a motor vehicle.  He also recommended that the applicant slowly reenter the workforce in a familiar structural self-paced program at work or college.  He stated that the applicant had significant deficits on neuropsychological testing, that he had suffered a head injury with persistent sequela, and had residual sensory disturbance in the right lower extremity secondary to multiple orthopedic procedures.  He was recommended to a physical evaluation board (PEB) for further disposition. 

On 30 November 1999 a MEB recommended that the applicant be referred to a physical evaluation board (PEB) because of his open segmental fracture of the right tibia, his right shoulder dislocation, right ulna fracture, pelvic fracture, and traumatic brain injury. 

A 3 January 2000 medical board addendum indicates that the applicant’s affect was neutral and somewhat constricted.  His thought processes were generally goal directed, however, there were times when he appeared to act on impulsive thoughts.  His thought content was without any suicidal or homicidal ideations and no auditory or visual hallucinations.  Cognitively, he was alert.  Immediate recall was 3 out of 3 objects.  Delayed recall at 5 minutes was 3 out of 3 objects.  He was able to perform serial 7’s correctly.  He was able to spell world backwards.  Proverb testing revealed decent ability to abstract.  Judgment and insight were fair.  His condition was diagnosed as cognitive disorder due to traumatic brain injury.  Impairment for military duty was marked.  Impairment for social and industrial adaptability was mild to moderate.  There was no evidence of any idiopathic psychiatric illness.  He was competent for pay purposes. 

Another medical board addendum, dated 7 February 2000, indicates that the applicant was not actively being treated by either plastic surgery or orthopedic surgery at that time.  There was no further orthopedic or plastic surgical intervention planned.  The applicant was able to walk for short distances only without pain.  He was unable to run.  He was unable to participate in strenuous activities and was unable to participate in sports.  His right ulna fracture appeared healed without any abnormality.  His shoulders had a full range of motion but he did have pain and difficulty with overhead motion on the right side.

On 1 March 2000 a PEB found the applicant physically unfit because of his pelvic, right leg, shoulder, and ankle pain, which was rated as moderate/frequent.
The PEB determined that the applicant’s right ulna fracture and traumatic brain injury were not unfitting, and therefore not rated.  The PEB recommended a rating of 10 percent and that the applicant be separated with severance pay.  The applicant concurred and waived a formal hearing of his case.  The PEB proceedings were approved on 3 March 2000.   

Neither the applicant’s military personnel records file nor his DD Form 214 is available.  The applicant indicated on his request to this Board that he was discharged on 30 March 2000.

Army Regulation 635-40 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 AR 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.

Physical evaluation boards 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.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Contrary to the applicant’s contentions, his traumatic brain injury and his right ulna fracture as diagnosed by the 30 November 1999 MEB were considered by the PEB.  That board determined that those conditions were not unfitting, and therefore not ratable.  The applicant concurred in the findings and recommendation of the PEB.  His disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  The applicant stated in his request to this Board that he was discharged with a 10 percent rating.  His separation with severance pay was in compliance with law and regulation.          

2.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3.  There is no evidence, nor has the applicant submitted any, to show that he has been granted a service connected disability rating by the VA.  Nonetheless, 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.  Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___jhk___  __mkp___  __wah__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040971	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.