IN THE CASE OF: BOARD DATE: 8 May 2020 DOCKET NUMBER: AR20160017126 APPLICANT REQUESTS: reconsideration of his previous request for an increase of his Army disability rating from 10 percent (%) to 30% for a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Reconsideration request letter * doctor’s medical statement * two DA Forms 2173 (Statement of Medical Examination and Duty Status) * Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) Proceedings * Department of Veterans Affairs (VA) Rating Decision (page 1) * The El Paso Orthopaedic Surgery Group letter * Pain & Spine Center office visit documentation FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140018830 on 18 November 2015. 2. The applicant defers request and statements to counsel. 3. Counsel states: a. On 19 November 2015, this Board denied the applicant's request to upgrade his 10% disability rating assigned by the PEB at the time of his discharge and concurrently denied his request to appear before a PEB. The applicant requests reconsideration and requests to be medically retired as the additional evidence provided demonstrates that at the time of his discharge, he was improperly diagnosed with deep peroneal neuropathy (moderate). His diagnosis should have been for deep peroneal palsy (complete paralysis). Such a diagnosis requires a 30% disability rating and medical retirement. b. The applicant submits a line of duty (LOD) investigation and a letter from Dr. J_. V_. On 15 March 1992, the applicant was injured during a physical training (PT) test. His injury was documented and a LOD investigation determined his injury was incurred in the LOD and the nature and extent of his injury was a "cerebrovascular accident." The LOD was completed and approved on 9 October 1992. His diagnosis was later changed after additional medical tests and treatment. A second LOD was completed and correctly updated his diagnosis to "lower left extremity nerve palsy." For unknown reasons, this second LOD was not properly made part of his records and was never considered by the MEB or PEB. c. On 27 May 1993, Dr. M_. J_. M_. summarized the applicant's diagnosis at the time. He diagnosed the applicant with "incomplete left deep peroneal neuropathy." He noted that the para lysis was incomplete," because he expected ''further improvement to occur." Today, over 23 years later, his condition still has not improved, confirming that he was misdiagnosed with an incomplete paralysis and should have been diagnosed as a compete paralysis. Further supporting this point are letters from Dr’s. J_. and V_, the applicant current treating physicians. They recently confirmed the applicant's diagnosis from the PEB was incorrect based on his condition and he has a "permanent and total paralysis." The MEB and PEB diagnosed and rated him in accordance with the first LOD, dated 9 October 1992 and the memorandum from Dr. M_. in doing so, the PEB limited his diagnosis to "left deep peroneal neuropathy, with weakness of muscles of foot and foot drop, rated as moderated!” His VA Code was 8523 and his condition was "moderate," resulting in a 10% disability rating under Title 34, Code of Federal Regulation, section 124a. d. In reviewing disability appeals, any reasonable doubt regarding the degree of disability must be resolved in the claimant's favor. Reasonable doubt exists as to the accuracy of the diagnoses identified in the first LOD and Dr. M_’s_ memorandum. Had the MEB and PEB considered the second LOD and a proper diagnosis, they would have rated the applicant based on complete paralysis of the left peroneal nerve at 30% and he would have been medically retired. The first LOD was completed based on a rushed and preliminary diagnosis of a "cerebrovascular accident." Indisputably, that is not and was never a proper diagnosis as the applicant's subsequent treatment and medical history do not support it. In fact, the second LOD was conducted to correct the first LOD and properly identify his diagnosis of left deep peroneal palsy, or complete paralysis. e. There is no explanation as to why a second LOD would have been conducted other than to correct the diagnosis in the first. Accordingly, reasonable doubt exists as to the accuracy of the first LOD and the diagnosis of the second LOD is supported by the applicant's medical records. This board should only consider the second LOD. Dr. M_. diagnosed with applicant with incomplete left deep peroneal neuropathy." He based this diagnosis on the assumption the applicant's paralysis would improve over time and he would regain control of his left foot. That never happened. Dr. M’s opinion that the paralysis was "incomplete" was specifically contingent upon at least some recovery from the applicant's paralysis. Without any recovery, the applicant would remain completely paralyzed in his left foot (a complete paralysis). Accordingly, as he still today, 23 years later, has a complete paralysis and Dr. M’s diagnosis of an incomplete paralysis was clearly incorrect. f. Had the second LOD been considered, along with an updated diagnosis reflecting his condition had not improved, the PEB would have rated him for a complete paralysis or palsy of the left deep peroneal nerve. Under VA Code 8523, he should have received a 30% rating. He has not regained any use of his left foot and the complete paralysis has not improved at all in 23 years since his injury. His rating by the PEB was in error because it failed to reflect this complete paralysis of the deep peroneal nerve. Accordingly, he respectfully requests to be medically retired based on a 30% disability rating that should have been assigned by the PEB. 4. The applicant provided his: a. Doctor’s medical statement, dated 27 May 1993, wherein Dr. M_. stated, it seemed by the history, the applicant’s deep perineal neuropathy began at the time of his 2-mile run and he diagnosed the applicant with "incomplete left deep peroneal neuropathy.” b. Two DA Forms 2173, dated 9 October 1994, stating: * while on active duty for training, the applicant had a cerebrovascular accident on 15 March 1992, during PT * he reported to sick call on 15 March 1992, for a complaint unrelated to the incident that occurred during the Army Physical Fitness Test * he was admitted to the William Beaumont Army Medical Center (WBAMC) on 31 March 1992 c. MEB/PEB Proceedings, dated 24 March and 19 October 1994, respectively. d. VA Rating Decision (page 1), dated 28 March 1997, stating the evaluation of left lower extremity deep perineal nerve palsy was increased to 40% disabling, effective 23 February 1993. e. Letter, dated 26 January 2016, wherein Dr. J_. J_., The El Paso Orthopaedic Surgery Group, diagnosed the applicant with paralysis secondary to complete peroneal nerve palsy on the left lower extremity, post-traumatic arthritic changes of both knees secondary to gait abnormalities, and post traumatic and degenerative disc disease of the lumbar spine resulting in sciatic neuropathy of the right lower extremity. He stated: * in reviewing the medical records, he noted the diagnosis given by the medical board showed left deep peroneal neuropathy with weakness of the muscles of the foot and foot drop rated as moderate * that was a misdiagnosis because he had a permanent and total paralysis of that nerve, so it should not be rated as moderate * in all medical likelihood those above problems were directly related to his injury he sustained while on active duty in 1992 * the above findings contribute to new evidence that should be evaluated by the Army Review Boards Agency in consideration for his disability and impairment f. Pain & Spine Center office visit documentation, showing he was seen 27 September 2016, for knee and low back pain. A treatment plan was established to decrease pain, improve mobility, and increase social and physical activities. 5. Review of the applicant’s service records show: a. Having had prior U.S. Navy Reserve and Texas Army National Guard enlisted service, he enlisted in the U.S. Army Reserve (USAR) on 10 January 1988. b. A DA Form 1559 (Inspector General Action Report), dated 28 April 1992, stated in March 1992, he was participating in a Muta 5 (multiple unit training assemblies) with his unit when he was injured on Sunday 15 March 1992. He was authorized to go to Army Medical Center (WBAMC), where he was seen and given an appointment for the Troop Clinic. When he went to the appointment on 31 March 1992, he was admitted to the WBAMC that same day. c. A DA Form 2173, dated 9 October 1992, stated he was admitted to the hospital on 31 March 1992, for a Cerebrovascular Accident while running a PT on 15 March 1992. d. On 28 January 1994, he underwent a psychologic examination for inclusion in an MEB. The examining psychologist diagnosed him with Malingering, Personality Disorder (Not Otherwise Specified) (Avoidant, Narcissistic, Compulsive Traits) Borderline Intellectual Functioning (provisional), and Numbness, reduced strength and burning sensations around left leg with diagnosis of peripheral nerve palsy, moderate. She recommended conservative medical treatment with appropriate interventions for confirmed diagnoses. It was also recommended that appropriate disciplinary action be considered. e. On 16 March 1994, he was assigned a permanent profile for partial paralysis due to nerve injury in the left foot. His limitations were no running, jumping, marching, pushups, or sit-ups. An MEB was initiated. f. On 18 March 1994, an MEB convened and referred him to a PEB for left deep peroneal neuropathy; weakness, parathesias, and dysesthesias to the left limb, and personality disorder (avoidant). He stated he did not desire to continue on active duty and he concurred with the findings and recommendation of the MEB. g. In a Performance Statement memorandum, dated 23 August 1994, the Career Advisor, Logistics Branch, Combat Service Support Division, stated the applicant had not performed duty for that Branch. He was a Skip Code 49 on RDMS which meant he was overweight and not allowed to train. He was currently incapacitated and was not able to complete a tour of any type. He had no PT Card on record and had not taken a PT test as of this date due to his profile limitations. h. On 19 October 1994, an informal PEB convened and determined he was physically unfit for left deep peroneal neuropathy, with weakness of the foot and foot drop, rated moderate. The PEB recommended a disability rating of 10% and his disposition of separation with severance pay. He did not concur with the PEB's findings and recommendations and requested a formal hearing, with a personal appearance and counsel representation. i. On 11 May 1995, he submitted a self-authored statement waiving his formal hearing and his informal PEB was subsequently approved. j. Orders Number, issued by the U.S. Total Army Personnel Command on 2 October 1995, discharged him the from the USAR with a 10% disability rating, effective 16 October 1995, with severance pay. k. Orders, issued by the USAR Personnel Center on 16 January 1996, honorably discharged him from the USAR, effective the same date. l. On 18 November 2015, the ABCMR determined the following: * subsequent to the 19 October 1994 PEB determination, the applicant initially requested a formal hearing and was twice scheduled to appear before a formal PEB on 15 November 1994 and again on 25 April 1995. * on 11 May 1995, he applicant submitted a self-authored statement waiving his hearing and the informal PEB's recommendation was approved by the Secretary Army; accordingly, the record confirmed he was properly processed through the Army's Disability Evaluation System (DES) * all requirements of law and regulation were met and the applicant's rights were fully protected throughout that process * there was an insufficient evidentiary basis for changing the 10% disability rating assigned by the PEB at the time of his discharge; accordingly, there was no basis upon which to grant the applicant appearance before a PEB more than 20 years after his discharge from the USAR 6. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: While NARSUM notes describe some exam findings and complaints not consistent with deep peroneal nerve palsy, NARSUM notes do show “the anterior tibia, peroneal, posterior tibia, toe flexor/extensor muscles were all 0/5 in strength”, which suggests ‘complete’ or at a minimum ‘severe’ involvement of the nerve. Moreover, NARSUM notes indicate the applicant had several EMGs since 1992 which confirmed persistent left deep peroneal neuropathy and demonstrated palsy (or paralysis) on exam. The PEB used VASRD Code 8523 at 10% for ‘moderate’ paralysis. Given the exam findings at the time as recorded in the NARSUM notes, the reviewer’s recommendation is referral to Army DES for review. 7. By AR 40-501 (Standards of Medical Fitness), a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 and awarded a disability rating assigned by the Army’s disability system. 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. An award of a rating by another agency does not establish error in the rating assigned by the Army's disability system. 8. By law, the VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The findings of the VA as to disability conditions are not binding on the Army. BOARD DISCUSSION: After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, the military record, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged at a higher percentage or retired by reason of physical disability under the Army Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated at a higher percentage or retired under the IDES, these proceedings will serve as the authority to void his current separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing the medical rating without evaluation under the IDES. 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. REFERENCES: 1. Army Regulation (AR) 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the Physical Evaluation Board would rate all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). Ratings can range from 0% to 100%, rising in increments of 10%. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, prescribed policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, USC. The regulation stated: a. The mere presence of a medical impairment did not in and of itself justify a finding of unfitness. In each case, it was 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. A Soldier was physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. b. Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay. c. The VASRD was 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. Because of differences between Army and VA applications of rating policies, differences in ratings could result. Unlike the VA, the Army must first determine whether or not a Soldier was fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting conditions from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 3. Title 10, USC, section 1201 provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. 4. Title 38, USC, sections 1110 and 1131, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017126 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1