IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080005612 


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 his disability with severance pay discharge of 22 April 2005 be voided and that he be retired by reason of disability with at least a 30 percent (%) disability rating on that same date.  

2.  The applicant states, in effect, that he is currently rated at 60% disabled by the Department of Veterans Affairs (VA) and is considered totally disabled by the Social Security Administration.  He claims he should at least have been rated at 30% disabled and granted a disability retirement by the Army based on medical conditions that were incurred or aggravated by military service.  

3.  The applicant provides combat awards documentation, VA and military medical treatment records and rating decisions, a letter from the Disabled American Veterans (DAV), a Social Security Administration letter, and his separation document (DD Form 214) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having served in the United States Army Reserve (USAR), the applicant entered active duty in the Regular Army in an enlisted status on 3 November 1998.  It further shows he was appointed a USAR warrant officer on 12 January 1999, and remained on active duty in that status.  The record further shows he was promoted to chief warrant officer two (CW2) on 12 January 2001.  


2.  On 10 September 2004, a Report of Medical Examination (DD Form 2808) completed on the applicant showed the applicant was found to be normal in the clinical evaluation areas of lungs, extremities, neurologic, and psychiatric.  The form did note the applicant had marked kyphosis (curvature of the spine/hunchback).  

3.  On 13 December 2004, a Medical Evaluation Board (MEB) convened at Tripler Army Medical Center, Hawaii, and determined the applicant's diagnosed condition of Charcot-Marie-Tooth (CMT) was unfitting.  The MEB determined the applicant's diagnosed conditions of kyphosis, neck pain, hyper-inflated lungs and bilateral knee pain were not unfitting and met medical retention standards.  The MEB referred the applicant's case for evaluation by a Physical Evaluation Board (PEB).  

4.  On 16 December 2004, the applicant concurred with the MEB findings.

5.  On 29 December 2004, an informal PEB convened at Fort Lewis, Washington, to consider the applicant's case.  The PEB found the applicant's CMT condition was hereditary, was following its natural course, and was not aggravated by service.  As a result, it recommended the applicant's separation without severance pay.  The PEB evaluated the other diagnosed conditions listed by the MEB and found they were not unfitting and therefore were not ratable.  

6.  On 30 December 2004, the applicant non-concurred with findings of the informal PEB.

7.  On 28 January 2005, the applicant's attorney provided several documents to the PEB and requested reconsideration, and the applicant requested to be rated for the injuries to his left foot/ankle as it had been injured separately from any CMT or progressive pes cavus.  

8.  On 1 February 2005, a PEB convened at Fort Lewis, Washington, and reconsidered the applicant's case.  It determined the applicant's left ankle/foot pain was compensable separate from CMT, and recommended the applicant's separation with severance pay.  The applicant concurred with the new PEB findings and recommendations, and waived his right to a formal hearing.  

9.  On 22 April 2005, the applicant was honorably discharged by reason of disability with severance pay.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 6 years, 11 months, and 29 days of active military service.  It also shows he received $48,132.00 of disability severance pay.  


10.  In connection with the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA) Agency Legal Advisor.  This official outlines the sequence of events connected with the applicant's processing through the Physical Disability Evaluation System (PDES).  He also indicates that the applicant's CMT condition is a hereditary disease and was not incurred while the applicant was entitled to basic pay.  He further states that there is no evidence in the medical files that indicate that his disease progress had been advanced beyond that normally expected at the time of his discharge, and as such it was not compensable.  He further states that the other conditions listed by the MEB all met medical retention standards, and there were no reports that they had a significant adverse impact on his ability to perform his military duties.  As a result, they were properly not found to be unfitting or compensable.  He states the PEB rated the applicant in accordance with his 2005 appeal/request, and the applicant concurred in the findings and recommendations of the 2005 PEB and waived his right to a formal hearing.  He concludes by stating that the applicant has failed to provide new objective medical or performance evidence which would support his request for findings of unfitness and compensability for those additional conditions.  He finally finds that the PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive or regulation.  

11.  On 18 June 2008, the applicant responded to the USAPDA advisory opinion.  He stated that he was saddened by the advisory opinion given his disabilities were incurred in service, and his outstanding evaluation has been held against him.  He further states he is disheartened by the fact the Board would think his PTSD was not from the war trauma he suffered, and his Operation Enduring Freedom/Operation Iraqi Freedom counselors have concluded that his work ethic and dedication was a way for him to escape his feelings by staying busy and never letting down and doing all he could do for his country.  

12.  The applicant provides a DAV letter, dated 22 March 2006, which indicates he received a combined VA rating of 60% based on his service connected conditions of CMT, pes cavus, and range of motion loss.  He also provides VA medical progress notes that show he was diagnosed with a Post Traumatic Stress Disorder (PTSD), and a VA Rating Decision, dated 24 April 2008, which shows his PTSD disability rating of 30% was increased to 100%, effective 
17 January 2008.  He also provided a Social Security Administration letter that indicates he would receive social security disability benefits beginning in July 2008. 


13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

14.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities. It states, in pertinent part, 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.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM).  The condition is described in the current DSM-IV, pages 424 through 429.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge. The specific diagnostic label given to an individual’s condition after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

16.  Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he suffered from multiple medical conditions that should have resulted in his receiving at least a 30 % disability rating and medical retirement from the Army was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that a formal PEB ultimately determined the applicant was unfit for service, and granted him a 20% disability rating for ankle/foot pain.  The PEB recommended the applicant's discharge by reason of disability with severance pay, and the applicant concurred with the findings and recommendations of the formal PEB.  

3.  Although the evidence of record confirms the applicant was treated for multiple medical conditions while serving on active duty, his CMT, which is a hereditary condition, was determined to be following its natural course without any documented duty related permanent service aggravation, and there is no evidence that the other four conditions listed in the applicant's MEB were unfitting for further service, as is required in order for them to contribute to the disability rating assigned by the PEB.  As a result, there is an insufficient evidentiary basis to change the 20% disability rating assigned the applicant at the time of his discharge.  

4.  Although the applicant did not provide an actual VA Rating Decision, the 
VA Progress Notes and other treatment documents he provided do confirm his treatment for multiple service connected medical conditions, which includes a PTSD, that would support a higher disability rating from the VA.  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.  

5.  The VA may rate any service connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  


6.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly compensated with severance pay at the time of his discharge, and he is now properly being rated, treated, and compensated for all his service connected conditions by the VA.

7.  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
      
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)                                         AR20080005612



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ABCMR Record of Proceedings (cont)                                         AR20080005612


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