ࡱ > #` ;, bjbj ^ ;# $ d / / / P 0 , 40 p > 0 0 1 1 1 2 2 2 U> W> W> W> W> W> W> $ ? h A * {> 7 2 2 " 7 7 {> 1 1 > : : : 7 8 1 8 8 1 U> : 7 U> : : p : 1 0 =K1" / 8 : ; > 0 > : B 9 l B : : B ; 2 3 : 4 <5 2 2 2 {> {> : p 2 2 2 > 7 7 7 7 p p p ( p p p ( 4 , RECORD OF PROCEEDINGS IN THE CASE OF: mergerec BOARD DATE: 3 May 2007 DOCKET NUMBER: AR20060011428 mergerec 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. Gerard W. SchwartzActing DirectorMs. Loretta D. GulleyAnalyst The following members, a quorum, were present: Mr. Richard T. DunbarChairpersonMr. Michael J. FlynnMemberMs. Rose M. LysMember The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that her physical evaluation (PEB) rating be increased. 2. The applicant states, in effect, that her disability should have been rated at a higher percentage since she has chronic headaches and Chronic Mylogenous Leukemia (CML) which are still under treatment. The applicant also states, in effect, that she is still undergoing chemotherapy and is being treated with Imatinib, resulting in chronic side effects. Finally, she states that the Physical Evaluation Board (PEB) failed to consider her chronic daily headaches in the rating decision. 3. The applicant provides a copy of her Medical Evaluation Board (MEB), a copy of her Physical Evaluation Board (PEB), a coy of orders discharging her from United States Army Reserve, a memorandum subject: appeal of PEB proceedings, and copies of her service medical records. CONSIDERATION OF EVIDENCE: 1. The evidence of record shows that on 18 August 2004, the applicant enlisted in the United States Army Reserve serving in Military Occupational Specialty (MOS) 92G (Cook). On 16 August 2005, the applicants unit was mobilized and deployed to Afghanistan. The highest grade she held was sergeant (SGT), pay grade (E-5). 2. A DA Form 2173 (Statement of Medical and Duty Status), dated 9 August 2005, shows the applicant reported to and was admitted to the Bagram, Afghanistan Treatment Facility complaining of pain in her abdomen and inability to move. She was diagnosed with Thrombocytosis and Leukocytosis, Amemia, and Recutus Muscle Hematoma. 3. On an undisclosed date the applicant was transferred to the Landstuhl Regional Hospital in Germany and on 2 August 2005 she was transferred to the Walter Reed Army Medical Center. 4. On 31 October 2005, the applicant underwent a Medical Evaluation Board (MEB) for Anxiety Disorder due to a General Medical Condition (CML), Chronic Myelogenous Leukemia, chronic phase, and Chronic Daily Headaches. The MEB proceedings indicated the applicant has been on therapy with Imatinib since 11 August 2005. The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB) and she concurred with the findings and recommendations of that board. 5. On 23 May 2006, a PEB found that the applicant was physically unfit due to CML that was diagnosed in August 2005 and in remission. The applicant was treated with chemotherapy with good response. She remained on therapy with Imatinib and had chronic side effects of therapy to include fatigue and intermittent gastrointestinal upset. The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 7716 and granted a 10% disability rating. The applicant was rated at 0% under VASRD codes 5399 and 5323 for chronic daily tension headaches and recommended for separation with severance pay. 6. The applicant did not concur with the findings and recommendations made by the PEB. The applicant did not submit a copy of her rebuttal with this application. 7. The PEB reviewed the applicant's rebuttal on 19 June 2006. After careful consideration, the PEB affirmed the decision of the formal hearing that found the applicant unfit with a disability rating of 10 percent since no new evidence or diagnosis was provided. The PEB added the applicants headaches as part of her service connection. The PEB considered the fact that the applicant's rebuttal contained no objective medical information which would warrant any change to her PEB rating. The PEB believed the applicants case was properly evaluated in accordance with AR 635-40 and current US Army Physical Disability Agency (USAPDA) policies. Finally, the PEB recommended that the applicant apply to the Department of Veterans Affairs (DVA). The PEB forwarded the applicants case file to the USAPDA for final processing. 8. On 14 September 2006, the applicant was honorably discharged under the provisions of AR 135-178. 9. On 27 February 2007, the Chief, Operations Division, USAPDA, advised the applicant that after a review of her entire case, the Agency concluded that her case was properly adjudicated by the PEB. The Chief stated that the PEB correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination. The findings and recommendations of the PEB were supported by substantial evidence; therefore, they were affirmed. The applicant was informed that she may be eligible for medical care through the DVA, if they determine that her illness or injury was service-connected. Furthermore, she may apply for a disability rating through the DVA for any of those service-connected illnesses or injuries. The DOD PDES, however, operating under a different set of laws than the DVA, may only compensate Soldiers for any service-connected or permanently aggravated condition that caused their separation and only for the degree of impairment at the time of their separation. 10. On 12 March 2007, the applicant was provided a copy of the USAPDA advisory opinion in order to have the opportunity to reply to its contents. The applicant did not respond. 11. Army Regulation (AR) 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating. It 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 AR40-501 (Standards of Physical Fitness), chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 12. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that her physical disability rating for chronic headaches and CML should be increased because she is still undergoing daily treatment. 2. The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that her disability was properly rated in accordance with the VASRD. Her separation with severance pay was in compliance with law and regulation. The applicant rebutted the PEB rating decision that resulted in her headaches being service connect but no rating was awarded nor did it change the 10 percent disability rating for the CML. 3. The applicant has not provided sufficient documentation to support her contention that the evaluation and the rating rendered by the PEB were incorrect. Therefore, she is not entitled to change in her disability rating. 4. The applicant is advised that her medical condition has been documented as having occurred on active duty and she is, therefore, entitled to treatment for that condition at her nearest Department of Veterans Affairs (DVA) hospital. She is also entitled to a disability rating from the DVA with possible benefits. She should contact her local DVA office to file a claim. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___RTD__ ___MJF _ ___RML_ 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. ___Richard T. Dunbar__ CHAIRPERSON INDEX CASE IDAR20060011428SUFFIXRECONYYYYMMDDDATE BOARDED2007/05/03TYPE OF DISCHARGE(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)DATE OF DISCHARGEYYYYMMDDDISCHARGE AUTHORITYAR . . . . . DISCHARGE REASONBOARD DECISIONDENYREVIEW AUTHORITYMr. SchwartzISSUES 1.2.3.4.5.6. ABCMR Record of Proceedings (cont) AR20060011428 PAGE 2 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS1901 SOUTH BELL STREET, 2ND FLOORARLINGTON, VA 22202-4508 . / 8 9 J T t u ~ = f g i } " o 8 9 6 _ ` ѽѵ hv6 hCej ht- h:b h]^ hR> h[ hJ hJ >*h