IN THE CASE OF:	  

		BOARD DATE:	        30 October 2008

		DOCKET NUMBER:  AR20080005855 


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 her disability rating be increased to 
30 percent or more (i.e. a medical retirement). 

2.  The applicant states, in effect, that she was supposed to be medically retired from the Army and that she should have been rated 30 percent for Post Traumatic Stress Disorder (PTSD) and rated 30 to 40 percent for her back.  She indicates that she went through two appeals to correct her Medical Evaluation Board (MEB); however, the Physical Evaluation Board (PEB) was never corrected.  She points out that she tried to stop the PEB but it was too late.  
 
3.  The applicant contends that her PTSD was supposed to be included on her PEB and rated at 30 percent according to a psychiatrist.  She points out that the statement/sentence, "She is able to flex her lumbar spine to within 1 foot of her hands to the floor" provided by her orthopedic doctor in his consultation to the PEB is incorrect.  She states that he dealt with her knees and right ankle only and that he had nothing to do with her back.  She claims that her physical therapist and back doctor performed the spine tests.  She also states that her back doctor provided an addendum along with her physical therapist's range of motion test to the PEB, which would have rated her at 30 to 40 percent.  

4.  The applicant points out that it took two years to get her Department of Veterans Affairs (DVA) claim completed (100 percent disabled), that it took about a year to receive Social Security, that she had surgeries and numerous medical 
appointments with the DVA, that she went through inpatient and outpatient programs for her PTSD, and that she went through a divorce before she could finally go to her Congressman's office.    

5.  The applicant provides service medical records; an addendum to an MEB; an excerpt from the Veterans Administration Schedule for Rating Disabilities (VASRD) pertaining to disability ratings; her MEB proceedings; a memorandum, dated 27 February 2004; her PEB proceedings; and discharge orders, in support of his application.  

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, the applicant enlisted in the U.S. Army Reserve on 
29 June 2000.  On 15 March 2003, she was ordered to active duty and deployed to Iraq.  In September 2003, she was evacuated from Iraq for back, ankle, and hip problems. 

3.  The advisory opinion from the Agency Legal Advisory, U.S. Army Physical Disability Agency (USAPDA) states that a DD Form 2807-1 (Report of Medical History), dated 17 October 2003, shows the applicant checked "No" to all nervous/mental sections except about receiving counseling in the past.  She cited her main complaints as being her back and lower extremities.

4.  The advisory opinion states that a DD Form 2808 (Report of Medical Examination), dated 23 October 2003, shows the applicant's psychiatric condition was "normal." 

5.  The advisory opinion states that on 24 February 2004 the applicant underwent an extensive psychiatric evaluation and the psychiatrist diagnosed her with alcohol dependence and PTSD (in remission).  The applicant was found to be "fit for duty" mentally.
6.  The applicant provided a memorandum for record, dated 27 February 2004, from the Department of Psychiatry, Madigan Army Medical Center, Tacoma, Washington.  The memorandum indicates the applicant has PTSD, that the condition was disabling, and that she would be medically retired.  The psychiatrist did not mention her documented alcohol dependence and treatment.

7.  On 17 March 2004, an MEB diagnosed the applicant as having chronic low back pain secondary to degenerative disk disease at L3-4, L4-5, and L5-S1.  Also noted is anterolisthesis of L5-S1, with significant endplate changes and degenerative disk disease; L5-S1 grade 1 spondylolisthesis with pain radiation into low back; bilateral intermittent knee pain consistent with retropatellar pain syndrome; and mild right ankle function instability.  The following diagnoses met retention criteria: alcohol dependence; PTSD, chronic, in remission; tinea versicolor; and mild right carpal tunnel syndrome.  She was referred to a PEB.  On 1 April 2004, the applicant agreed with the findings and recommendation.  The advisory opinion states that the applicant submitted a statement in her behalf after being fully counseled by the Physical Evaluation Board Liaison Officer.  Her statement mentioned some minor points and explained that she believed she had PTSD since being on active duty in 1996 to 1998.

8.  On 12 April 2004, an informal PEB found the applicant physically unfit due to "chronic low back pain due to multilevel degenerative disc disease and L5/S1 Grade 1 spondylolisthesis, was returned from Iraq for multiple complaints including low back pain.  No specific back injury recorded.  Radiculitis without radiculopathy, no spasm, range of motion limitations difficult to gauge in that they are restricted due to pain and mechanical block.  Flexion limited to 26 degrees by pain, combined range of motion, again limited by pain, 112 degrees.  Profile restrictions unfitting, VASRD code 5239, 20 percent; bilateral retropatellar pain syndrome limiting ambulation, full range of motion, no joint instability.  Rated as degenerative arthritis without significant loss of joint motion, VASRD code 5099-5003, zero percent; and mild right ankle instability without significant joint laxity or restricted motion, rated for pain - slight, intermittent.  Pain limits ambulation, VASRD code 5099-5003, zero percent."  The PEB recommended that the applicant be separated with a combined rating of 20 percent with severance pay.  Alcohol dependence; PTSD, chronic, in remission; tinea versicolor, and mild right carpal tunnel syndrome were found to be not unfitting and not ratable.  On 
26 April 2004, the applicant did not concur with the findings and demanded a formal PEB.

9.  The formal PEB is not available; however, the advisory opinion states that on 5 May 2004 a formal PEB found the applicant physically unfit for the same conditions as the informal PEB, but reduced her back rating to 10 percent based 
on tenderness to palpations being the only existing ratable criteria.  The formal PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 21 May 2004, the applicant nonconcured and submitted an appeal.  The appeal indicated that she had been "tricked" into concurring with her MEB findings and she wanted higher ratings for all three unfitting conditions and to also be rated for her PTSD.    

10.  The advisory opinion states that on 25 May 2004 the PEB responded to the applicant's appeal and explained that the different range of motions listed for the back was not the reason for the lower rating as no matter what the range of motion the preponderance of the evidence supported that there was no objective mechanical basis for such range of motions.  Accordingly, the only factor for rating her back was her tenderness to palpation at 10 percent.  Her ankle was properly rated at zero percent as the range of motion of the injured and non-injured ankle were the same.  The PEB did not find sufficient evidence to change their findings.  

11.  The advisory opinion states that on 1 June 2004 the USAPDA approved the formal PEB’s findings and recommendations.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available; however, the advisory opinion states that on 7 July 2004 the applicant was honorably discharged by reason of physical disability with severance pay.     

13.  There is no commander's statement in the available records.

14.  There is no profile which shows the applicant was unable to perform her military duties due to PTSD.

15.  In the processing of this case, an advisory opinion was obtained from the Legal Advisor, USAPDA.  The opinion recommended no change to the applicant’s military record.  The opinion points out that the PEB had all of the evidence related to her PTSD before them as they made their findings.  The applicant relies on the 27 February 2007 memorandum as support for her claim that she was entitled to disability retirement because of her PTSD.  However, although the PEB considered the memorandum, the memorandum was not accepted and included as an official part of the MEB by the MEB review physicians and the MEB approving authority.  The more detailed five-page report was considered the more accurate of the two by the MEB officials.  Further, only the PEB could decide if the applicant was unfit or not, and then it was their decision on whether her mental condition was so severe as to warrant disability 
retirement; the doctor's opinion on the 27 February 2007 memorandum as to whether she was entitled to disability compensation was irrelevant.  A review of the psychiatric evidence in the case file showed a clear preponderance of the evidence that in 2004 her PTSD was not a significant factor in any inability to perform her assigned duties.  It noted a DA Form 3349 (Physical Profile) indicated she had "mild PTSD" with a "2" in the psychiatric block.  

16.  The advisory opinion states that the applicant's "mild" ankle function instability was rated for pain under the Army's pain policy as it did not fit into any other VASRD code for rating purpose.  The ankle range of motion was not clinically limited when compared to her non-injured ankle and there were few physical findings.  Based on the findings in the Narrative Summary the ankle pain was best rated as slight-intermittent as the MEB documented that the ankle pain was intermittent and was relieved with rest.

17.  The advisory opinion states that the applicant's back pain was correctly rated as the applicant's ranges of motion of the back were considered to be limited by pain and not by an objective mechanical basis.  There was no spasm or guarding noted that resulted in an abnormal gait or spinal contour and only a localized tenderness could be ascertained.  Accordingly, VASRD 5239 only authorized a 10 percent rating.  

18.  The advisory opinion states that the applicant's bilateral knee condition could have been rated at 10 percent in accordance with VASRD 5003 for two or more major joints with x-ray evidence of arthritis.  The knees could not have been rated higher as the ranges of motion were considered normal and the intermittent knee pain that was aggravated by running could not be said to result in incapacitating exacerbations.  If the applicant's knees were rated at 10 percent, instead of zero percent, the total rating would be 20 percent.  However, all disability ratings from zero to 20 percent result in the same amount of severance pay; there would be no change to the applicant's benefits or disposition.

19.  The advisory opinion concluded that the applicant had not provided any evidence of PEB error and the documents provided to the ABCMR were not new evidence that has not been considered by the PEB or the USAPDA.    

20.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 20 August 2008, the applicant responded and granted permission for a staff member to request any of her medical records or any information pertaining to her case.


21.  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 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.

22.  Army Regulation 635-40 states the Narrative Summary to the MEB is the heart of the disability evaluation system.  In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.   

23.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, 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. 

24.  The VASRD states, in pertinent part, that VASRD Code 5239 (spondylolisthesis or segmental instability of the spine) is rated at 10 percent when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height; rated at 30 percent when forward flexion of the cervical spine is 15 degrees or less; or, there is favorable ankylosis of the entire cervical spine; and rated at 40 percent when unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine.

25.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

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.   Title 10, United States 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.

28.  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.

29.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 
the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that her diagnosis of PTSD should have been considered by the PEB, and the 27 February 2004 memorandum from the Department of Psychiatry at Madigan Army Medical Center states she has PTSD, that the condition was disabling, and that she would be medically retired, evidence of record shows the MEB only found that her PTSD was in remission and she agreed with the finding of the MEB.  

2.  Army Regulation 635-40 states that Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.  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. 

3.  The applicant was sufficiently advised on the appeals procedures to mention some points and to explain that she believed she had PTSD since being on active duty in 1996 to 1998.  She could have expanded her explanation to describe the severity of her PTSD or to dispute the MEB's finding that her PTSD was in remission. 

4.  Since there is no commander's statement which shows the applicant was unable to perform her duties due to her PTSD, and the advisory opinion noted that a DA Form 3349 indicated she had "mild PTSD" with a "2" in the psychiatric block, there is insufficient evidence which shows that PTSD was unfitting.  

5.  Although the applicant contends that she should have been rated 30 to 40 percent for her back, evidence of record shows the formal PEB reduced her back rating to 10 percent based on tenderness to palpations being the only existing ratable criteria.  There is no evidence of record which shows her back condition met the criteria for a higher rating.    

6.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the PEB or that her separation with severance pay was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant's requests.

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 for correction of the records of the individual concerned.



      _______XXXX_______________
               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)                                         AR20080005855



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ABCMR Record of Proceedings (cont)                                         AR20080005855



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