IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080001289 


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 reconsideration of an earlier appeal to change his Post-traumatic Stress Disorder (PTSD) disability rating from 10 percent to 
30 percent.  He also requests placement on the Retired List with a 40 percent disability rating given his 10 percent disability rating for a back condition.

2.  The applicant states, in effect, that he was discharged without consideration of migraine, PTSD, and back pain.  He states at his medical board he was told that he had 12 days to gather more medical information from his doctors but instead was discharged.  In doing so, the documents were not reviewed.  The applicant continues that he was discharged wrongfully without all his medical problems being addressed.

3.  The applicant provides 24 pages of medical progress notes from the Veterans Affairs (VA) Medical Center, Richmond, Virginia, with various treatment dates from May 2006 to October 2007, prepared on 5 December 2007.

CONSIDERATION OF EVIDENCE:

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 AR20060007977, on 27 March 2007.

2.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, all the evidence provided is new evidence which will be considered by the Board.

3.  The applicant enlisted in the U.S. Army Reserve on 26 March 2001 for an 
8 year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

4.  The applicant was ordered to active duty and deployed to Iraq in February 2004.  In September 2004, he was returned to the United States without his unit due to injuries to his back and left leg, and was assigned to the Medical Holding Company, Walter Reed Army Medical Center, Washington D.C.  

5.  On 17 February 2006, a Medical Evaluation Board (MEB) was completed on the applicant and resulted in his being diagnosed with PTSD; major depressive disorder-single episode; obstructive sleep apnea; and chronic low back pain, these conditions did not meet medical retention standards.  Other medical conditions were diagnosed and were found to be medically acceptable, but his migraine was not a listed condition.  The MEB referred the applicant's case to a Physical Evaluation Board (PEB) for evaluation.  

6.  On 21 February 2006, the applicant concurred with the MEB findings and recommendations. 

7.  On 9 March 2006, a PEB found the applicant unfit based on his PTSD associated with a major depressive disorder and his low back pain.  The PEB rated each of these conditions at 10 percent, for a total of 20 percent, and recommended separation with severance pay.  His sleep apnea was found to be not unfitting.

8.  On 20 March 2006, the applicant non-concurred with the findings and recommendation of the informal PEB and requested a formal hearing.  

9.  On 12 April 2006, after consulting with legal counsel, the applicant waived his right to a formal hearing and elected not to submit additional information at that time; however, he still non-concurred with the PEB findings.  

10.  On 13 April 2006, the applicant's case was reviewed by the United States Army Physical Disability Agency (USAPDA), which determined the PEB findings were supported by a preponderance of the evidence.  


11.  On 5 May 2006, the USAPDA again reviewed the applicant's case based upon new evidence and found the new information submitted did not require a change to the PEB's findings.  On 15 May 2006, the applicant was separated with severance pay.  

12.  The applicant provided 24 pages of medical progress notes from the VA Medical Center, Richmond, Virginia, with various treatment dates from May 
2006 to October 2007.  The majority of the progress notes that he provided show he was being treated for PTSD, chronic cervicalgia, and low back pain.  The progress notes further shows he attended group counseling in coping with PTSD. A clinical psychologist indicated after a session that the applicant's medical problems included sleep apnea, PTSD, hepatitis B, migraine, depression, male erectile disorder, chronic low back pain, cervicalgia, and eczema.   The document noted he was granted a combined 50 percent disability rating for sleep apnea syndrome – 30 percent, degenerative arthritis of the spine – 20 percent, residual hepatitis – zero percent, and PTSD – 10 percent.

13.  Army Regulation 635-40 (Physical Evaluation), chapter 3 provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

14.  Army Regulation 635-40 states that 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.  The Veterans Administration Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

16.  Department of Defense Instruction (DODI) 1332.39 (Application of the VASRD) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

17.  DODI 1332.39 states, for VASRD code 8100 (Migraine), that "prostrating" means that the Service member must stop what he or she is doing and seek medical attention.  The number of prostrating attacks per time period (day, week, month) should be recorded by a neurologist for diagnostic confirmation.  Estimation of the social and industrial impairment due to migraine attacks should be made.

18.  DODI 1332.39 states, for VASRD code 6847 (Sleep apnea syndromes), there are four percentage rating options:  zero percent, 30 percent, 50 percent, and 100 percent, corresponding to assessed levels of disability relative to civilian earning capacity due to sleep apnea.  It states the following interpretation will apply:

	Total industrial impairment			100 percent
	Considerable industrial impairment	  50 percent
	Definite industrial impairment		  30 percent
	Mild industrial impairment			    0 percent

19.  Title 38, U. S. Code, 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.  

20.  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 VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA 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.  




DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his medical conditions were not properly considered by the medical board and that he was not given adequate time to provide medical information to the board from his doctors but was discharged, he has not provided any evidence to show his medical conditions were not properly considered.  Evidence shows that the PEB and USAPDB properly considered the applicant's medical conditions.  He was found unfit due to PTSD associated with a major depressive disorder and low back pain.  His sleep apnea was found to be not unfitting.  The PEB did not consider his migraine; however, the MEB did not diagnosis him with migraine, and he concurred with the findings of the MEB.  

2.  There was no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which was not in itself considered disqualifying for military service when the applicant was found unfit because of his PTSD and back pain, which was disqualifying.  Only the unfitting conditions or defects and those which contributed to his unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Since there is no evidence to show that the applicant’s migraines rendered him unfit, it was properly not considered by the MEB/PEB.

3.  Although the VA determined that he met the VASRD standard for a 
30 percent disability rating for his sleep apnea, there is no evidence to show that the applicant was unfit to perform his military duties because of sleep apnea.  However, the VA is free to apply VASRD as it sees fit.  

4.  The PEB granted him a 10 percent disability rating for PTSD.  The VA, also, has granted him a 10 percent rating for PTSD.  There is insufficient evidence to show it should have been rated at 30 percent.  

5.  There is no evidence that the USAPDB failed to give the applicant adequate time to provide medical information.  However, the progress notes provided by the applicant as medical information not seen by the USAPDB when his case was being reconsidered are all dated after his separation from active duty and had no bearing on his case at that time.  

6.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to change his disability rating. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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 to amend the decision of the ABCMR set forth in Docket Number AR20060007977, dated 27 March 2007.




       _    __xxx__   ___
       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)                                         AR20080001289



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ABCMR Record of Proceedings (cont)                                         AR20080001289



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