RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070010223 


	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.  


 

Director

 

Analyst

      The following members, a quorum, were present:


 

Chairperson

 

Member

 

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 separation for physical disability severance pay be changed to physical disability retirement and that he be afforded a total disability evaluation. 

2.  The applicant states, in effect, that he was not given a proper medical evaluation and that the Physical Evaluation Board (PEB) did not address several conditions, including his post traumatic stress disorder (PTSD).  His command was threatening him with false charges of being absent without leave (AWOL) and he had to get out as fast as possible.

3.  The applicant provides a tabbed and annotated packet that consists of copies of a 2005 Department of Veterans Affairs (VA) disability rating decision, two DA Forms 2823 (Sworn Statements), and a DA Form 1000 (Developmental Counseling Form) related to his absence from his place of duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 7 August 1997 and served in that capacity until he enlisted in the Regular Army on 24 May 2001.

2.  The applicant's service medical records are believed to be on indefinite loan to the Department of Veterans Affairs (VA) and are not available for review.  Copies of the applicant's Medical Evaluation Boards (MEBs) and PEBs were obtained from the Physical Disability Agency for review.

3.  On 4 June 2004, a PEB found the applicant medically unfit due to chronic left ankle pain.  The condition was rated at a 0 percent disabling with a recommendation the applicant be separated with severance pay.

4.  A Medical Record Report, dated 23 August 2004, recorded additional diagnoses of degenerative disc and joint disease with bilateral radicular pain secondary to a herniated L5-S1 disc, mild neurocognitive deficits, mild to moderate right ear hearing loss, moderate to severe left ear hearing loss, bilateral symptomatic pes cavus (flat feet) with plantar fasciitis, bilateral medial tibial stress syndrome; left 1st metatarcsophalangeal degenerative joint disease, post traumatic migraine headaches; and bilateral occipital neuralgias.  All conditions except the last two were considered unfitting.


5.  On 2 September 2004 a Medical Evaluation Board (MEB) found that the applicant was suffering from 12 medical conditions; mechanical and myofasical low back pain with radicular involvement of the S-1 distribution; multiple pelvis girdle enthesopathies (an enthesopathy is an inflammation peripheral ligamentous or muscular attachments [entheses]); bilateral greater trochanteric (hip) and ischial (lower pelvis) bursitis.; bilateral patellofemoral syndrome, bilateral medial tibial stress syndrome; bilateral planter fasciitis; left 1st metatarcsophalangeal degenerative joint disease, bilateral high frequency hearing loss; symptomatic bilateral pes cavus; a cognitive disorder; post traumatic migraine headaches; and bilateral occipital neuralgias.  The last two conditions were considered to meet retention standards.  The MEB recommended that applicant be referred to a PEB.

6.  On 17 September 2004 the applicant agreed with the MEB findings and recommendations. 

7.  A PEB convened on 27 September 2004 and afforded the applicant a 10 percent evaluation for mechanical and myofasical low back pain with no radicular involvement and zero (0) percentage evaluation for pelvis girdle enthesopathies; knee, ankle, and foot pain which limited his ambulation; and found the remainder of the conditions listed on the MEB to not be unfitting and therefore not rateable.  The PEB determined the applicant's conditions rendered him unfit and afforded him a 10 percent disability evaluation and recommended he by discharged with severance pay.

8.  On 4 October 2004 the applicant nonconcurred with the PEB and requested a formal hearing with a personal appearance.

9.  A 5 October 2004 DA Form 1000 (Developmental Counseling Form) shows that the applicant was counseled about his failure to report for duty on 30 September 2004 and 1 October 2004.  The applicant was warned that had the personnel office been open he would have been charged with being AWOL (absent without leave) and if this behavior continued, he could receive nonjudicial punishment that could result in a bar to reenlistment, or be administratively discharged under other than honorable conditions with a loss of veteran’s benefits.

10.  On 5 November 2004, the applicant submitted a conditional concurrence with the findings and recommendations of the PEB and withdrew his request for a personal appearance.


11.  The PEB findings were approved for the Secretary of the Army on 12 November 2004.  The applicant was found not physically qualified for retention due to chronic back pain with degenerative disc disease and facet arthritis; stress-related pelvis girdle enthesopathies; and knee, ankle, and foot pain which limited his ambulation but did not result in a loss of range of motion.  The PEB determined the applicant's conditions rendered him unfit and afforded him a 10 percent disability evaluation and recommended he be discharged with severance pay.

12.  The applicant was honorably discharged on 2 January 2005 for disability with severance pay.  He had 3 years, 7 months, and 9 days of creditable active Federal service with no lost time reported.

13.  On 5 August 2005 VA granted the applicant a 50 percent disability rating for PTSD (Post Traumatic Stress Disorder); a 20 percent disability rating for degenerative disc disease of the lumbar spine; 10 percent disability ratings for cervical spine strain, bilateral tinnitus, left shoulder cuff tear, right and left tibial periostitis, right and left retropatellar pain syndrome, left foot planter fasciitis with degenerative arthritis of the great toe; and noncompensable evaluations for right foot planter fasciitis, residuals of a closed head injury with posttraumatic cephalgia, recurrent pyrosis (a painful burning sensation in the chest caused by gastroesophigeal reflux (backflow from the stomach irritating the esophagus); symptomatic of an ulcer or a diaphragmatic hernia or other disorder), and bilateral hearing loss.  

14.  PTSD is an anxiety disorder that can develop after exposure to one or more terrifying events in which grave physical harm occurred or was threatened.  It is a severe and ongoing emotional reaction to an extreme psychological trauma.  This stressor may involve someone's actual death or a threat to the patient's or someone else's life, serious physical injury, or threat to physical and/or psychological integrity, to a degree that usual psychological defenses are incapable of coping.

15.  Title 38, United States 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available service medical records do not contain a diagnosis of PTSD nor is there an indication of any psychological stressor that would lead to PTSD.  The applicant was shown to be suffering from post-traumatic migraine headaches and mild neurocognitive deficits that were not found to be unfitting.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA evaluations are based on physical finding at the time of the VA examination and the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

3.  Further, while both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions which are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  The VA, however, may rate any service-connected impairment, thus compensating for loss of civilian employment.  Therefore, it is not unexpected that these two different systems would produce different evaluations.  

4.  The differences in the VA evaluation and disability rating level and that of the PEB are not inconsistent when taking all available factors into consideration.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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
ABCMR Record of Proceedings (cont)                                         AR20070010223



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508