IN THE CASE OF: BOARD DATE: 1 April 2021 DOCKET NUMBER: AR20200003020 APPLICANT REQUESTS: placement on the Permanent Disability Retired List (PDRL) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was honorably discharged/placed on the Temporary Disability Retired List (TDRL) for medical retirement in 2006. He was told he would have a reevaluation to be put on the PDRL. He went to Madigan Army Hospital in 2008 for a reevaluation appointment where the doctor told him his injury had not improved nor would it ever improve. b. Somewhere along the timeline he missed another reevaluation and was told in 2012 that his retirement had been taken away. It wasn’t until later that he found out that a certified letter had been sent to his home of address. He was never told it came. He thought he had already completed his requirements. c. He has a traumatic brain injury (TBI) with neurocognitive disorder and post- traumatic stress disorder. He is rated by the Department of Veterans Affairs (VA) with a total and permanent service-connected disability of 100 percent. He had no idea this Board was even an option and did not understand how to apply until he received the guidance of friends and his Congressman. He is requesting reinstatement of his medical retirement. 3. The applicant enlisted in the Regular Army on 28 August 2000 and was awarded the military occupational specialty (MOS) 11B (Infantryman). 4. He was deployed during the following periods of service: * Kosovo, from 6 November 2001 through 10 May 2002 * Iraq, from 3 September 2003 through 30 March 2004 5. A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) shows the following: a. An MEB convened on 13 July 2005 and found the applicant’s following conditions were unfitting, warranting his referral to the Physical Evaluation Board (PEB): * fragment wound of the left upper extremity resulting in severe contracture of the left wrist and left 2nd through 5th fingers * partial denervation of the left radial, median, and ulnar nerves b. The following conditions were found to meet retention standards: * mild bilateral hearing loss * mild instability of the right ankle * depressive disorder * left varicocele 6. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 11 August 2005, finding the applicant physically unfit with a combined rating of 60 percent and a recommended disposition of placement on the TDRL with reexamination in August 2006. b. The applicant’s unfitting condition was severe left non-dominant hand impairment (VA Schedule for Rating Disabilities (VASRD) codes 5307,5308,5125 and MEB diagnoses 1 and 2) with onset on 30 March 2004, from a near amputation after a blast injury from an improvised explosive device (IED) while deployed in Iraq. Imaging shows removal of the proximal carpal row and fusion of the distal row to the metatarsals. Status post many debridements, tendon transfers, and bone grafts, exam now shows severe scarring with contractures of the metatarsophalangeal joints and limited motion of the wrist. EMG documents peripheral nerve injuries of the distal radial and median branches; severe grip weakness; unable to make a fist. Lack of hand use and physical profile prevent duty in his primary MOS. He is rated for loss of use of non-dominant hand with sever muscle injuries – unstable. c. MEB diagnoses 3, 4, 5, and 6 were considered by the PEB and found to be not unfitting and therefore not ratable. d. As a Soldier on the TDRL, he was advised he must keep the APDA informed of his current mailing address and report for scheduled examinations where and when directed. Failure to do so would result in a termination of his retired pay. e. On 13 August 2005, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 7. A U.S. Army Physical Disability Agency (APDA) memorandum, dated 30 August 2005, addressed to the President of the Madigan Army Medical Center, U.S. Army Physical Evaluation Board, shows the APDA was returning the applicant’s case for reconsideration based on the following: a. The applicant was evaluated for residuals of a blast injury to his left, non- dominant hand with reference to VASRD code 5125, loss of use of hand. The evidence of record shows he is able to use his hand for a variety of things, to include using his hand to make a “hook fist.” His is able to move his fingers and his wrist. This does not equate to “loss of use of hand.” b. The evidence demonstrates the applicant has left ulnar and radial nerve injury and appears to support a rating under VASRD code 5215, wrist, limitation of motion (i.e. dorsiflexion less than 15 degrees). The record also does not appear to address the applicant’s ability to pronate or supinate his wrist (see VASRD code 5213). c. It is not clear from the report whether the applicant is entitled to additional ratings for individual finger impairments. Without violating the rule against pyramiding or the amputation rule, consider having the applicant re-examined and/or re-adjudicating his residual disability due to the blast injury. Upon completion of the above action, all documents and any new proceedings should be returned to this office for further processing. 8. A second DA Form 199, labeled as “Administrative Correction” on the top of the document shows: a. A PEB convened on 26 September 2005, finding the applicant physically unfit with a combined rating of 60 percent and a recommended disposition of placement on the TDRL with reexamination in November 2006. b. The first disability description again includes severe left non-dominant hand injury by blast on 30 March 2004, and lists the applicant’s various ranges of motion, grip weakness, tip pinch difficulty, etc. It was not considered stable for final rating at that time; rated for residuals (MEB diagnoses 1 and 2). It does not include a rating or VASRD code. c. The specific unfitting conditions falling under the above disability description and their ratings are listed as follows: * favorable ankyloses of four fingers (MEB diagnosis 1; VASRD code 5221), 30 percent * ulnar nerve injury, partial paralysis, moderate (MEB diagnosis 2; VASRD code 8516), 20 percent * radial nerve injury, partial paralysis, mild (MEB diagnosis 2; VASRD code 8514), 20 percent * median nerve, partial paralysis, mil (MEB diagnosis 2; VASRD code 8515), 10 percent d. The form again advises the applicant as a Soldier on the TDRL, he must keep the APDA informed of his current mailing address and report for scheduled examinations where and when directed. Failure to do so would result in a termination of his retired pay. 9. A DA Form 18 (Revised PEB Proceedings) shows: a. A PEB convened on 7 October 2005, finding the applicant physically unfit with a combined rating of 60 percent and a recommended disposition of placement on the TDRL with reexamination in November 2006. b. The first disability description again includes severe left non-dominant hand injury by blast on 30 March 2004, and lists the applicant’s various ranges of motion, grip weakness, tip pinch difficulty, etc. It was not considered stable for final rating at that time; rated for residuals (MEB diagnoses 1 and 2). It does not include a rating or VASRD code. c. The specific unfitting conditions falling under the above disability description and their ratings are modified as follows: * left ulnar nerve injury with complete denervation to intrinsic muscles of the hand, severe (VASRD code 8516), 30 percent * left radial nerve injury with sensory and motor abnormalities, mild (VASRD code 8514), 20 percent * left median nerve injury with motor abnormalities, mild (VASRD code 8515), 20 percent d. The form again advises the applicant as a Soldier on the TDRL, he must keep the APDA informed of his current mailing address and report for scheduled examinations where and when directed. Failure to do so would result in a termination of his retired pay. 10. A second APDA memorandum, dated 11 October 2005, advised the applicant his PEB Proceedings were corrected as reflected on his attached DA Form 18 and that there was no change to his disposition or rating. 11. Headquarters, I Corps and Fort Lewis Orders 348-0004, dated 14 December 2005, released the applicant from assignment and duty because of physical disability and placed him on the TDRL effective 19 January 2006, with a disability rating of 60 percent. 12. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired effective 18 January 2006 due to disability, temporary, after 5 years, 4 months, and 21 days of net active service. 13. The applicant’s available records for review are void of any documentation, and he has not provided any, pertaining to post-service medical reevaluations of his disabling conditions or his removal from the TDRL. 14. The applicant’s VA ratings are not in his available records for review. 15. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 16. 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. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 18. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting reinstatement of his disability retirement. He states: “I was honorably discharge / temporarily medically retired in 2006. I was told I would have a reevaluation to be put on the permanent retirement list. I went to Madigan Army Hospital in 2008 for reevaluation appointments. The doctor said my injury hadn’t nor would it ever improve. Somewhere along the timeline, I missed another reevaluation and was told in 2012 that my retirement had been taken away.” b. The Record of Proceedings outlines the applicant’s service and the circumstances of the case. The applicant’s DD 214 show he entered the regular Army on 28 August 2000 and he was honorably discharged on 18 January 2006, being placed on the temporary disability retirement list (TDRL) under the authority provided by paragraph 4-24b(2) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). c. The applicant sustained a near amputation of his left hand in an IED blast on 30 March 2004. In July 2005, a medical evaluation board (MEB) determined the damage sustained to the extremity resulted in it falling below medical retention standards. The applicant concurred with the findings on 5 August 2005 and his case was sent to a physical evaluation board for adjudication. d. The PEB found the condition unfitting for continued service, and that it consisted of three disabilities; left ulnar nerve injury with complete denervation of the intrinsic muscles of the hand (30%); Left radial nerve injury with sensory and motor abnormalities (20%); and left median nerve injury with motor abnormalities (20%). His combined rating was 60% and the PEB recommended placement on the TDRL. e. At this time of this applicant’s placement on the TDRL, Soldiers could remain on the TDRL for a maximum of five years. During this time, they are directed to remain in contact with the United States Army Physical Disability Agency, and required to attend their TDRL reevaluation(s). Soldiers who fail to do so are removed from the TDRL when they reach the five-year mark and considered over-tenure. Their retirement pay stops at this time. There are no means for returning to a disability retirement other than thru ARBA. f. AHLTA shows that in December 2008 he drove to Madigan for his TDRL reevaluation. He had plain radiographs taken of the left hand on 3 December 2008, underwent evaluation and range of motion testing by occupational therapy on 4 December 2008, and evaluation with peripheral nerve testing by physical medicine on 5 December 2008. The applicant was to see orthopedics as well, and the orthopedic provider directed the out of town applicant be scheduled for the “next available Wednesday MEB/FFD evaluation.” It appears this appointment with orthopedics failed to materialize. g. Though likely imperfect, the applicant clearly made an effort to comply with the requirements of his TDRL placement. Review of his records in JLV show he continues to maintain a 60% disability rating for “Loss of use of hand.” h. It is therefore the opinion of the ARBA Medical Advisor that the applicant should be referred to the DES for reevaluation and/or utilization of the current VA ratings for permanent retirement for physical disability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined partial relief was warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was sufficient evidence to refer the applicant’s medical records to the IDES system for further evaluation for possible medical retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal 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. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority 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 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 to changing the narrative reason for separation. 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. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. 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. a. The Temporary Disability Retired List (TDRL) is used in the nature of a “pending list.” It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him/her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. b. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his/her office, grade, rank, or rating at the time of the evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service. In addition, the condition must be determined to be temporary or unstable. c. Soldiers will be placed on the TDRL when they would be qualified for permanent disability retirement and the preponderance of evidence indicates one or more conditions will change within the next 5 years so as to result in a change in rating or a finding of fit. The Army Disability Evaluation System will re-evaluate each Soldier placed on the TDRL at least once every 18 months. Evaluation may be sooner. Once the PEB finds each condition is stable upon evaluation, the PEB will assign a final rating that includes the ratings for the disabilities determined to be permanent and stable when the Soldier was placed on the TDRL or during preceding TDRL adjudications. d. A final determination of the case of each Soldier on the TDRL will be made at the latest upon the expiration of 5 years after the date when the Soldier was placed on the TDRL. If, at the time of that determination the physical disability for which the Soldier was placed on the TDRL still exists, it will be considered to be permanent and stable. Placement on the TDRL confers no right to remain on the TDRL for the entire 5- year period. e. If upon reexamination, Soldiers whose disabilities have stabilized and who are not determined fit for duty and meeting medical retention standards for the conditions for which they were placed on the TDRL will be removed from the TDRL and placed on the PDRL if the physical disability rating remains 30 percent or greater. If upon reexamination, the Solider is found unfit for duty and not meeting medical retention standards but the stabilized physical disability percentage is rated at below 30 percent, the Soldier will be removed from the TDRL and separated with severance pay if the Soldier has less than 20 years of active Federal service. f. When the recommendation of the PEB is placement or retention on the TDRL, failure to report for a scheduled periodic examination or to inform U.S. Army Human Resources Command of a change in address will result in the suspension of retired pay. 3. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003020 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1