RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 October 2007
	DOCKET NUMBER:  AR20070001054 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. John Meixell

Member

Mr. David Tucker

Member

	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 his disability rating be increased.  
 
2.  The applicant states, in effect, that his Physical Evaluation Board (PEB) disability ratings are incorrect and he alludes to his Department of Veterans Affairs (DVA) ratings as proof of error.  He states the 10 percent rating for somatization disorder is in error or is an incomplete diagnosis and points out that the DVA record shows Post Traumatic Stress Disorder (PTSD) at 100 percent disabling.  He also points out that he was rated 0 percent for chronic low back pain by the PEB and the DVA record shows degenerative disc disease at 
20 percent.  He further states that additional disabilities (conversion disorder, polyneuropathy left upper extremity, residual scar left ulnar, hiatal hernia, and chronic allergic rhinitis) are not noted in his Medical Evaluation Board (MEB) but are recorded by the DVA.    

3.  The applicant provides a DA Form 18 (Revised PEB Proceedings), dated 
6 December 2006; orders, dated 6 December 2006; a letter, dated 17 October 2006; an addendum to the Temporary Disability Retired List (TDRL) evaluation, dated 11 October 2006; a memorandum, dated 5 October 2006; DVA medical records; a DVA Rating Decision, dated 15 June 2005; two pages of his MEB, dated 3 July 2003; and a DVA Rating Decision, dated 6 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 December 1997 and served as a military police.  He reenlisted on 15 July 2002 for a period of 4 years.

2.  Records show the applicant was injured in November 2002 in Djibouti, Africa when he fell off military equipment at a height of about 70 feet down to a height of about 50 feet and was suspended by his arm when his watch caught on the equipment.

3.  On 17 March 2004, a MEB diagnosed the applicant with left ulnar nerve damage; pseudoseizures; conversion disorder; and chronic low back pain.  The following diagnoses were found medically acceptable: chronic headaches; mood disorder; history of botulism exposure; peptic ulcer disease; history of gastrointestinal bleed with external hemorrhoid; eczema; chronic sinusitis; and cognitive disorder.  The MEB recommended referral to a PEB.  On 5 April 2004, the applicant did not agree with the MEB’s findings and recommendation.  He submitted an appeal and stated that he disagreed with his profile due to the fact that he could not run and that his profile stated that he could do 3-5 second rushes under direct and indirect fire.  He stated that he disagreed with the intensity of the pain (minimal) for left ulnar nerve damage and that it should be moderate, that the psychiatric diagnosis of conversion disorder does not mention any memory impairment as evidenced by performance on the DVA report, dated 8 July 2003, page 33 with a score of 5/12 on memory portion, and that his problem with chronic headaches is not resolved.  He also stated that he could not understand why his peptic ulcer disease and gastrointestinal bleeding were found to be medically acceptable. 

4.  On 12 May 2004, an informal PEB found the applicant physically unfit due to left ulnar nerve damage (right dominant), moderate; conversion disorder manifested by history of pseudoseizures and symptoms of affecting voluntary motor/sensory function that is a test of neurologic condition; and chronic subjective low back pain.  All other conditions were found not unfitting and were not rated.  The PEB recommended a combined rating of 40 percent and that the applicant be placed on the TDRL.  On 17 May 2004, the applicant non-concurred with the findings and recommendations and requested a formal hearing.  On 
22 June 2004, the applicant concurred with the PEB findings and waived a formal hearing.

5.  On 22 September 2004, the applicant was released from active duty after completing 6 years, 8 months, and 23 days of creditable active service and placed on the TDRL the following day with a disability rating of 40 percent.

6.  The applicant appeared for a TDRL periodic physical examination on 8 May 2006 and was diagnosed with left ulnar neuropathy; delusional disorder, somatic type; and chronic low back pain.  It was recommended that he be removed from the TDRL and a permanent disability rating made for him.   

7.  On 26 June 2006, the applicant non-concurred with the TDRL evaluation findings and recommendations.  On 6 July 2006, the Deputy Commander of Clinical Services reviewed the applicant’s appeal to the TDRL evaluation and confirmed the findings as written.  On 19 July 2006, the TDRL evaluation was forwarded to the PEB.

8.  On 4 August 2006, the PEB found the applicant physically unfit due to left ulnar neuropathy, mild; conversion disorder, mild; and low back pain.  The PEB recommended a 20 percent disability rating, that the applicant be removed from the TDRL, and that he be separated with severance pay.  On 8 August 2006, the applicant non-concurred with the informal PEB findings, requested a formal hearing, and submitted an appeal and his DVA ratings as proof of his current conditions. 

9.  On 10 August 2006, the PEB responded to the applicant’s appeal and indicated that the DVA ratings were considered but were not controlling on the PEB’s findings.  Further, his DVA-diagnosed condition of PTSD was not diagnosed until after his placement on the TDRL, did not appear to have been affecting his performance while entitled to basic pay, and could not be considered, under those circumstances, for compensation at the TDRL PEB review.  On 29 August 2006, the formal PEB affirmed the findings of the informal PEB.  On 30 August 2006, the applicant non-concurred and provided an appeal and supporting documents.  On 5 September 2006, the PEB responded to the applicant’s rebuttal and reaffirmed their previous findings.  

10.  On 8 September 2006, the applicant’s Disabled American Veterans representative submitted an appeal to the PEB findings on behalf of the applicant.  On 18 September 2006, the U.S. Army Physical Disability Agency (USAPDA) returned the case to the PEB for additional review and clarification of the findings.  On 25 September 2006, the PEB returned the case to the Military Treatment Facility (MTF) for additional medical information.  

11.  On 6 October 2006, the MTF returned the case to the PEB with clarifying comments from the psychiatrist that the diagnosis of somatization disorder was the most accurate of his possible psychiatric conditions.  The psychiatrist stated that a conversion disorder is one or more symptoms or deficits that suggest a neurological deficit or other general medical condition.  The two diagnoses have overlapping criteria but the diagnosis of somatization disorder was more inclusive and accurate in the applicant’s case.

12.  On 11 October 2006, the applicant did not agree with the findings and recommendations.  On 29 November 2006, the PEB administratively corrected their findings to incorporate the MTF’s clarifications. 

13.  On 5 December 2006, the USAPDA reviewed the PEB’s findings and concurred, after further clarifying the rationale on the PEB’s DA Form 199.

14.  The applicant was removed from the TDRL and discharged with a 
20 percent disability rating on 6 December 2006.

15.  In support of his claim, the applicant provided a DVA Rating Decision, dated 15 June 2005, which shows that service connection was granted for conversion disorder with post traumatic head injury syndrome (30 percent); degenerative disc disease lumbar spine with lower extremity radiculopathy (20 percent); polyneuropathy, left upper extremity (10 percent); residual scar, status post surgical fusion of left ulnar nerve (10 percent); degenerative disc disease cervical spine (10 percent); hiatal hernia (claimed as peptic ulcer disease, heartburn, gastrointestinal bleeding) (10 percent); chronic allergic rhinitis (10 percent); external hemorrhoid (0 percent); left maxillary sinusitis (0 percent), early bony changes, left shoulder (0 percent); and bilateral ocular lens changes (0 percent). 

16.  The applicant also provided a DVA Rating Decision, dated 6 June 2006, which states, in pertinent part, that “Evaluation of conversion disorder by history, severe, chronic post traumatic stress disorder and depressive disorder, not otherwise specified, which is currently 30 percent disabling, is increased to 100 percent disabling effective July 29, 2005.” 

17.  In the processing of this case, an advisory opinion was obtained from the Deputy Commander, USAPDA.  The opinion recommended that the applicant’s military records remain unchanged.  The opinion states that the applicant was properly rated at zero percent for his back condition.  The physical examination for the applicant’s TDRL evaluation revealed mild diffuse pain with no focal tenderness or any radiating pain into his lower extremities.  He had full strength of all extremities, with no atrophy, no spasms, with normal grip strength.  He had some reduction in his lumbar flexion, but it was limited by complaints of pain.  To be compensated at more than zero percent there must be minimal findings of at least:  tenderness, guarding, muscle spasms or mechanical limitation of motion of the spine.  The applicant had none of these required criteria at the time of his TDRL evaluation.  The fact that he may have had some of these criteria in the past is irrelevant.  The PEB can only rate the applicant’s condition as reflected “at the time of the most recent periodic examination.” 

18.  The advisory opinion states the applicant was properly rated for left (non-dominant) ulnar nerve paralysis.  As indicated previously in the advisory opinion, the applicant’s physical examination revealed full strength in the left arm with only a very mild reduction in the left hand testing.  There was no atrophy, some pain, with subjective decreased sensation in his ulnar two fingers.  His condition was properly considered a mild neurological involvement in accordance with VA Schedule for Rating Disabilities (VASRD) 8516. 

19.  The advisory opinion states the applicant had a variety of different psychiatric diagnoses over the last several years.  The military only found one psychiatric condition to be present and unfitting when placed on the TDRL: conversion disorder, manifested by history of pseudoseizures.  The applicant agreed with the initial diagnosis and rating of that condition.  Although the DVA has subsequently diagnosed the applicant with PTSD, caused by an incident while on active duty, the military has not concurred in that diagnosis.  Further, even if the diagnosis is valid there is no evidence in the case file that the symptoms of PTSD manifested themselves to such a degree before being placed on the TDRL that he would have been diagnosed with said condition and found unfit for duty.  Only conditions diagnosed and found to be unfitting for duty while entitled to basic pay are eligible for compensation while on TDRL.  

20.  The applicant’s TDRL evaluation initially diagnosed him with delusional disorder, somatic type (with paranoid personality traits and pain disorder).  Upon a request for clarification the psychiatrist indicated the applicant’s diagnosis that causes him the most trouble would still be the conversion disorder, with his delusional disorder subsumed within the main diagnosis of conversion disorder.  The applicant’s main symptoms are delusions about what is causing his problems.  He no longer was having psuedoseizures.  His main complaint was he gets angry very easily over small things.  The conversion disorder symptoms had improved since he no longer was having psuedoseizures.  The PEB rated him at 
10 percent under VASRD 9421, somatization disorder, for use of medications to control the symptoms of that particular diagnosed condition.  The condition was not rated higher as the symptoms for this unfitting condition did not cause a reduced reliability and productivity or occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The applicant may have had problems working due to his rated physical problems and other conditions properly unrated by the Army, but the symptoms specifically related to his conversion disorder at the time of his TDRL evaluation were mild. 

21.  The advisory opinion further states that other conditions that the DVA may have rated were not found to be unfitting at the time of the applicant’s placement on the TDRL and were not eligible for compensation upon his removal from the TDRL.  The opinion concluded that the applicant had not provided any new evidence not previously considered by the PEB and the USAPDA.  His offering of DVA ratings as proof of PEB/USPDA error is not persuasive in the applicant’s case, as the rating are not reflective of the applicant’s condition at the time of his separation from the military and were not required to be found unfitting for duty while on active duty.  Further, the TDRL evaluation was quite clear in a diagnosis of conversion disorder, not PTSD.  Conditions that manifest after removal from the military are the proper province of the DVA exclusively.  The applicant has not submitted any direct evidence of PEB/USAPDA error.  The PEB findings are supported by a preponderance of the evidence, are not in violation of any regulations, directives, or statutes, and are not arbitrary or capricious.  

22.  On 31 July 2007, the advisory opinion was furnished to the applicant for his review and possible rebuttal.  He did not respond within the given time frame.

23.  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.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

24.  Army Regulation 635-40 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.    

25.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

26.  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.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

27.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a DVA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a DVA disability pension and the Board corrected the records to show the veteran was rated for physical unfitness, the veteran would have had to have chosen between the DVA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement.   

28.  Army Regulation 600-8-14 (Identification Cards, Tags, and Badges) states that honorably discharged veterans who are rated as 100 percent disabled from a service-connected injury or disease are entitled to a military identification card and commissary, exchange, and MWR (morale, welfare, and recreation) benefits. Medical benefits are received through the DVA. 
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that the rating for somatization disorder is in error or is an incomplete diagnosis and that the DVA rated him 100 percent for PTSD.  Evidence of record shows the military only found one psychiatric condition to be present and unfitting when he was placed on the TDRL (conversion disorder) and he agreed with the initial diagnosis and rating of that condition.  Evidence of record shows the conversion disorder was changed to somatization disorder based on a psychiatric re-evaluation in October 2006.  The psychiatrist pointed out that a conversion disorder is one or more symptoms or deficits that suggest a neurological deficit or other general medical condition.  The two diagnoses have overlapping criteria but the diagnosis of somatization disorder is more inclusive and accurate in the applicant’s case.

2.  There is no evidence to show that the applicant’s symptoms of PTSD manifested themselves to such a degree before being placed on the TDRL that the applicant would have been diagnosed with PTSD and found unfit for duty.  Only conditions diagnosed and found to be unfitting for duty while entitled to basic pay are eligible for compensation while on TDRL.  

3.  Although the applicant contends that he was rated 0 percent for chronic low back pain by the PEB and the DVA record shows degenerative disc disease at 20 percent, the physical examination for the applicant’s TDRL evaluation revealed mild diffuse pain with no focal tenderness or any radiating pain into his lower extremities.  He had full strength of all extremities, with no atrophy, no spasms, with normal grip strength.  He had some reduction in his lumbar flexion, but it was limited by complaints of pain.  To be compensated at more than zero percent there must be minimal findings of at least: tenderness, guarding, muscle spasms or mechanical limitation of motion of the spine.  The applicant had none of these required criteria at the time of his TDRL evaluation.  The PEB can only rate the applicant’s condition as reflected at the time of the most recent periodic examination. 

4.  The applicant’s contention that additional disabilities (conversion disorder, polyneuropathy left upper extremity, residual scar left ulnar, hiatal hernia, and chronic allergic rhinitis) are not noted in his MEB but are recorded by the DVA was noted.  However, the conversion disorder was noted on his MEB.  There is no evidence to show the other conditions rendered him unfit.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 
    
5.  There is insufficient evidence to show the applicant’s PEB disability ratings are incorrect or that his separation with a 20 percent disability rating was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

6.  The applicant may be under the misconception that, had he been retired by the Army for physical disability, he could have drawn both Army retired pay and a DVA disability pension.  That would not have been so.  The applicant would have been required to waive receipt of Army retired pay if he had wished to draw a DVA disability pension.  In addition, since his DVA disability rating is 100 percent, he is still entitled to a military identification card and benefits (minus medical benefits, which are received through the DVA).   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JS______  _JM_____  _DT____  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.




___John Slone________
          CHAIRPERSON




INDEX

CASE ID
AR20070001054
SUFFIX

RECON

DATE BOARDED
20071018
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0200
2.

3.

4.

5.

6.