IN THE CASE OF BOARD DATE: 3 January 2013 DOCKET NUMBER: AR20120009642 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that a brain injury/mental health condition be added to his unfitting condition and his disability rating be increased to at least 30 percent (a medical retirement). 2. The applicant states: a. He and the American Legion believe his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) were inadequate. He suffered multiple injuries while serving in the Army and some of those injuries happened during deployment overseas. His MEB narrative summary was inadequate in respect to acknowledging his brain injury. His assigned PEB liaison officer should have ensured the narrative summary identified and included his mental health condition. Instead, the applicant's lack of understanding of the MEB/PEB process led him to agreeing with the Army's decision to only look at one unfitting medical condition related to his knee. b. Today he is service connected for his mental health condition at 100 percent. He has many other service connected disabilities rated by the Department of Veterans Affairs (VA) to include a major back condition caused by his service. c. He believes his mental condition should have been identified by the MEB/PEB because the condition was annotated in his service treatment records (June 1997, October 1997, April 2004, January 2008). His condition should have been rated as an unfitting condition. His disability was diagnosed as 100 percent disabling by the VA within 1 year of separation from the service. He believes if he was going through the MEB/PEB today with the new Integrated Disability Evaluation System his disabilities would have been addressed by both the Department of Defense and the VA. 3. The applicant provides numerous medical records. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 29 April 2004. He completed his training and was awarded military occupational specialty 63B (wheeled vehicle mechanic). 3. On 27 July 2007, he was issued a permanent "3" profile for chronic left knee pain (chondromalacia patella). 4. On 27 September 2007, an MEB diagnosed the applicant with chronic left knee pain. The MEB recommended referral to a PEB. 5. Section III (Counseling) of a DA Form 5893-R (PEB Liaison Officer (PEBLO) Counseling Checklist/Statement) shows the PEBLO counseled the applicant on 3 October 2007 as follows "Inquired of the soldier whether all medical conditions and physical defects are covered in the narrative summary and whether they are adequately described." 6. On 3 October 2007, he agreed with the MEB's findings and recommendation. 7. On 15 October 2007, a PEB found him physically unfit due to chronic left knee pain which began in January 2006. The PEB recommended a combined 0% disability rating and separation from the service with severance pay. On 16 October 2007, he concurred with the PEB findings and recommendations and waived a formal hearing. 8. On 23 October 2007, the U.S. Army Physical Disability Agency approved the PEB's findings. 9. On 22 January 2008, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability, severance pay. 10. He provided service medical records which show he was treated for: * Mid back pain in 2005 * Muscle spasm in 2006 * Atypical chest pain and anxiety in 2006 * Anxiety disorder and adjustment disorder in 2006 * Head trauma in 2006 (while attempting to remove a lug nut from a tire with a ratchet and cheater bar, the ratchet broke and he hit his head on the side of a 5 ton truck) * Low back pain in 2007 * Sleep disorder in 2007 11. He provided VA documentation which shows he was granted service connection for: * Sleep apnea (50 percent) * Degenerative changes of the cervical spine (10 percent) * Degenerative arthritis of the left knee (10 percent) * Bilateral tinnitus (10 percent) * Status post closed head injury with residual headaches (10 percent) * Lumbar degenerative disc disease, status post fusion (20 percent) * Psychotic disorder, not otherwise specified (100 percent) 12. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 13. Title 10, U.S. Code, 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%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%. 14. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability. Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 15. Title 38, U.S. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his MEB narrative summary was inadequate because it did not address his brain injury and that his assigned PEBLO should have ensured the narrative summary identified and included his mental condition. However, the evidence shows his PEBLO counseled him on 3 October 2007 with regard to whether all medical conditions and physical defects were covered in the narrative summary and whether they were adequately described. 2. Since his MEB did not list a brain injury/mental health condition, it appears he agreed all medical conditions and physical defects were adequately described in the MEB narrative summary. 3. The evidence shows he concurred with the MEB and PEB findings. 4. He requests that a brain injury/mental health condition be added to his unfitting condition. However, he provides no evidence to show this condition rendered him unfit to perform his military duties. Therefore, there is insufficient evidence on which to add a brain injury/mental health condition as an unfitting condition. 5. It is acknowledged the VA has granted him a 100% disability rating for a psychotic disorder. However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different laws and its own policies and regulations, the VA, has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 6. Regrettably, there is insufficient evidence to show his disability was improperly rated by the PEB in 2007. Therefore, there is no basis for granting the applicant's request to increase his disability rating. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X____ ___X___ 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. _______ _ X______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20120009642 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120009642 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1