IN THE CASE OF:	  

		BOARD DATE:	       9 JULY 2009

		DOCKET NUMBER:  AR20080008617 


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 rating for Post-Traumatic Stress Disorder (PTSD) be changed from 10 percent to 70 percent and that his disability rating for patellar tendonitis (chronic knee pain) be changed from zero percent to 10 percent, with disability retirement.  

2.  The applicant states that based on Department of Veterans Affairs Schedule for Rating Disability (VASRD) Code 9411, his PTSD should be rated at
70 percent and his chronic left knee pain should be rated at 10 percent.

3.  The applicant submitted additional documentary evidence through counsel in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel's requests that the applicant be granted a personal appearance
hearing.  Counsel further requests that the applicant's disability rating for PTSD be changed from 10 percent to 70 percent and that his disability rating for chronic left knee patellar tendonitis be changed from zero percent to 10 percent.  

2.  Counsel states, in effect, that the applicant witnessed the injury of a close friend from a mine explosion in Afghanistan.  A Medical Evaluation Board (MEB) addendum from the applicant's psychiatrist noted that he met the “A” criteria with exposure to a traumatic event.  The addendum further indicated the applicant suffered nightmares, flashbacks, and other symptoms.  The psychiatrist rated the applicant with a global assessment of functioning (GAF) of 50 and later rated him at a GAF of 45.

3.  Counsel states the applicant's case was referred to the Physical Evaluation Board (PEB).  On the first and second reviews, the PEB completely disregarded the analysis and the facts found by the MEB for PTSD.  On the third review, the PEB left intact the incorrect evaluation and rating of the PTSD.

4.  Counsel states that the PEB described the applicant's PTSD as:

		a.  Soldier was exposed to combat action in "Iraq”;

		b.  Main stressor was attending to a Soldier who was wounded in a range training accident;

		c.  Rated for mild industrial impairment; 

		d.  Performed his assigned duties to standard; and 

		e.  Recently presented for treatment of symptoms of anxiety, sleep disturbance, anger, and avoidance.

5.  Counsel states this description completely missed the psychiatric addendum the PEB claimed to have evaluated.  The MEB addendum described the PTSD as Soldier who was exposed to combat stressor in Afghanistan, near the Pakistan border, an area they called "Hell's Kitchen."  The MEB addendum described the main stressor as "While in Hell's Kitchen, the applicant observed, a very close friend get shot." (The applicant informed counsel that the injury to his friend was the result of a claymore mine).  The MEB addendum stated that the applicant moved to his friend and held him until medical help could be arranged.  Looking at and holding his friend in his arms, the applicant believed he was looking at what death would be.

6.  Counsel states that the incident was glossed over when it was mischaracterized as simply "attending to a fellow Soldier who was wounded in a range training accident."  The addendum describes the applicant's industrial impairment ability as severe, not mild as described by the PEB.  Moreover, this shows what appears to be a pattern of disregarding the applicant's evaluation and support documents.  Counsel states, in addition, when evaluating the applicant's duties, the PEB did not take into consideration his commanding officer's memorandum.  The commander informed the board the applicant was not working in his assigned MOS of 11B.  Moreover, it was the opinion of his command that he met expectations because he worked alone, in his own office, and was practically unsupervised.  It was the opinion and observation of his command that he would not be able to function in a more supervised or cooperative environment (with no workers) as he was slow to adapt to change or was easily distracted or disturbed.  However, counsel states that these facts were assessed by the MEB addendum which assigned a GAF of 50 to the applicant.  

7.  Counsel states that the PEB erred by rating the applicant at zero percent for chronic patellar tendinitis.  As a result of the applicant's chronic left shoulder and left knee pain, he is unable to perform Soldiering activities.  This does affect his ability to work and he will need a job that does not require heavy lifting, repetitive impact activity, and overhead work.  The facts above show a limitation of motion combined with chronic pain.  38 Code of Federal Regulations (CFR) S4.7 states; "Where there is a question as to which two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."  As such under VASRD Code 5003, the applicant would be rated at a minimum of 10 percent.

8.  Counsel provides the following 10 exhibits in support of the applicant's request:  

	a.  Exhibit 1 containing a 20-page brief in behalf of the applicant and an email, dated 21 November 2007;  

	b.  Exhibit 2 containing a six-page MEB Addendum, dated 1 August 2006; 

	c.  Exhibit 3 containing two memoranda from the applicant's military psychiatrist, dated 22 September and 21 November 2006, and an email,
dated 13 September 2006;

	d.  Exhibit 4 containing an undated letter of support from the applicant's girlfriend;

	e.  Exhibit 5 containing two DA Forms 3947 (MEB Proceedings), dated
14 June and 3 August 2006;

	f.  Exhibit 6 containing three DA Forms 199 (PEB Proceedings), dated 
29 June, 29 August, and 13 September 2006;

	g.  Exhibit 7 containing a Commander's Statement, dated 7 August 2006;

	h.  Exhibit 8 containing a schedule of rating-mental disorders;

	i.  Exhibit 9 containing a Commander's Statement, dated 8 September 2006; and 

	j.  In addition, Counsel provides a Department of Veterans Affairs (DVA) letter, dated 6 October 2008, and a DVA Rating Decision, dated 9 October 2008. 

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the U.S. Army Reserve (USAR).  He enlisted in the Regular Army on 26 November 1997 after successfully completing training.  He was awarded military occupational specialty (MOS) 11B (Infantryman).  The applicant served in Afghanistan from 26 October 2003 through 18 September 2004.

2.  A DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)) with the through period September 2004 shows the applicant performed duties as Team Leader in primary MOS 11B.  The rater indicated that the applicant performed well under pressure and that he was mentally and physically able.  The applicant's DA Form 2166-8 with the through period ending September 2005 shows that he performed duties as the Commanding General's Driver.  The rater indicated that the applicant displayed the mental and physical toughness to accomplish all missions above standard with little or no guidance.

3.  A Commander's Statement, dated 9 June 2006, shows the applicant's commander stated that the applicant had served as the Personal Security Detail NCO/driver for the Commanding General and Deputy Commanding General at the U.S. Army Intelligence Center, and as the Retention NCO for his unit.  The commander further stated that during the applicant's assignment he had been able to perform all his primary duties to an exceptionally high standard.  However, the applicant was not able to participate in numerous required training events and he was not medically able to perform his duties as an 11B.

4.  The commander stated that the applicant was assigned a permanent profile on 16 May 2006 for his left shoulder and left knee.  The commander continued that the applicant had not worked in his primary MOS since October 2004 and that he was currently the retention NCO for the unit.  The applicant's permanent profile prohibited him from performing push-ups, sit-ups, participating in ruck-marches, constructing a fighting position, performing individual movement techniques such as 3-5 second rushes, lifting more than 30 pounds, biking, swimming, or walking on uneven terrain to carry on the mission.



5.  On 14 June 2006, an MEB was completed on the applicant at which time he was diagnosed with:
	
	a.  Left shoulder chronic acromioclavicular (AC) separation; and 

	b.  Left knee chronic patellar tendonitis.

6.  On 22 June 2006, the MEB referred the applicant's case to a PEB for evaluation.

7.  On 29 June 2006, a PEB found the applicant unfit based on chronic left shoulder pain which prevented him from full duty function as an infantryman and chronic left knee pain secondary to patellar tendonitis.  The PEB rated the applicant as 10 percent disabled for left shoulder pain and his left knee chronic patellar tendonitis was found to be not unfitting.  The PEB recommended separation with severance pay.  The applicant non-concurred with the PEB findings on 30 June 2006 and requested a formal hearing.

8.  On 6 July 2006, the MEB requested that the applicant's case be returned.  The PEB voided the 29 June 2006 findings and returned the case to the MEB.

9.  On 1 August 2006, an MEB addendum was prepared by the applicant's psychiatrist who stated that the applicant met the "A" criteria with exposure to a traumatic event.  The applicant had witnessed the threatened death of a colleague in Afghanistan which provoked a significant and intense fear of helplessness.  The applicant had experienced "flashbacks" of the event with no memory.  In the past, he had kept guns and knives in his bedroom.  Previously, he slept with a knife, but with hyper-arousal the weapons were then locked up by his ex-wife.  In addition, the applicant had made efforts to avoid thoughts, feelings, and conversations associated with trauma.  The applicant avoided people in order not to arouse recollections of trauma.  The applicant had noted a marked diminished interest in significant activities and rarely participated in activities other than taking care of his children.  The psychiatrist indicated the applicant noted feelings of detachment and a restricted range of affect which led up to his divorce.  In addition, the applicant had symptoms of arousal, difficulties falling asleep, irritability, hyper-vigilance, as well as an exaggerated startle response.  The symptoms had gone on for more than 1 month and had caused significant impairment in the applicant's interpersonal relationships.

10.  On 3 August 2006, a new MEB was completed on the applicant with an additional diagnosis of PTSD.  The applicant concurred with the MEB and the case was forwarded to the PEB.

11.  A Commander's Statement, dated 7 August 2006, shows the applicant's commander stated that the applicant served as a fire team leader in his company during ten months of combat operations in Afghanistan.  The commander stated that the applicant was instrumental in providing for a fellow Soldier who was wounded during range training.  The commander continued that the applicant's conduct during the deployment was excellent and he did not recall any issues with the applicant's execution of duties or his interaction with his subordinates, peers, and supervisors.  The commander stated that he changed command within 2 weeks of his return from Afghanistan and that he was not aware of any issues with the applicant's home life or reintegration back into garrison life.

12.  A DA Form 3349 (Physical Profile), dated 10 August 2006, shows the applicant was issued a permanent profile for left shoulder, left knee, and PTSD.  The assignment limitations imposed by the physical profile stated no running, no jumping, no impact activities, no push-ups, no sit-ups, no squatting, no ruck marching, no lifting more than 30 pounds, no walking on uneven terrain or surfaces, and no overhead work.

13.  On 29 August 2006, an informal PEB found the applicant unfit based on PTSD, due to being exposed to 10 months of combat action in "Iraq" (sic) and rated him at 10 percent disabled for this condition.  His left shoulder pain and left knee pain were both rated zero percent disabling.  The PEB recommended separation with severance pay.  The applicant non-concurred with the PEB findings on 30 August 2006 and requested a formal hearing.

14.  A DA Form 2166-8 with the through period August 2006 shows the applicant performed duties as the Unit Retention NCO.  His rater indicated that the applicant performed his duties in a calm manner, despite his difficult personal situation and that he aggressively pursued Soldiers in their reenlistment windows and he never gave up on meeting the retention standards.

15.  A Commander's Statement, dated 8 September 2006, shows the applicant's commander stated that the applicant was not working in his assigned MOS of 11B, but was the company's retention/reenlistment noncommissioned officer in charge (NCOIC).  The commander further stated that the applicant maintained acceptable standards of personal appearance as well as a clean working environment, he was reliable and he was never late for work “calls as much as medical appointments, and his mental condition allow for it.”

16.  The commander stated that the applicant met all expectations of his assigned duty; however, this was due to the fact that he worked alone and practically unsupervised.  The commander stated that it was the opinion and observation of the command that the applicant would not be able to function in a more supervised or cooperative work environment as he was slow to adapt to changes or was easily distracted or disturbed.  So far the applicant was able to control his feelings, but observing him one could discern that it took a tremendous amount of self-control on his part to stay in control.

17.  In an email dated 13 September 2006 from the applicant's psychiatrist addressed to the PEB, the psychiatrist stated "a GAF score of 50 is considered serious that there are symptoms which do not cause impairment for this individual.  The case is interesting in that he came to our clinic as the time grew near for his MEB so quite frankly he had not received a great deal of treatment on the psychotherapy side but he was taking psychotropic medication.  As you know these combat connected vets will continue to have symptoms indefinitely.  SSG C________ describes significant unprovoked anger outbursts at home with his girlfriend.  At work, he is on his own as a retention NCO so he has the luxury of booking his own appointments or going to talk to Soldiers when he feels like it. He does not have anyone necessarily checking on him and he tends to leave work early and can avoid interaction with others.  He will in all likelihood have difficulties adjusting to the civilian world as he is an Army Ranger used to a certain mindset.  The board should keep in mind Soldiers like SSG C_________ will often display symptoms of hyper arousal and seem distant which will impact how they will be with co-workers in a civilian setting."

18.  On 13 September 2006, a formal PEB rated the applicant at 10 percent for PTSD and increased his disability rating for the left shoulder from zero percent to 10 percent, for a total of 20 percent.  His left knee chronic patellar tendonitis remained at zero percent.  The PEB stated "Exam shows tenderness over the infrapatellar tendon, the medial patellar facet, and the patella femoral region; range of motion full."  The PEB recommended separation with severance pay.  The applicant non-concurred with the PEB findings on 30 August 2006 and requested a formal hearing.

19.  In a memorandum written to the United States Army Physical Disability Agency (USAPDA), dated 22 September 2006, the applicant's psychiatrist stated that the applicant was diagnosed with PTSD, chronic with delayed onset and “that his long-term social and industrial adaptability was definite in accordance with DODI 1332.29.”  The applicant required medication and psychotherapy and had occupation impairment that was masked by a flexible work schedule and isolated behaviors.  The psychiatrist further stated the applicant's girlfriend reported that the applicant was moody, aggravated, and isolative.  The girlfriend further stated that she talked to the applicant's father and high school friends who told her that the applicant had changed since his deployment to Afghanistan.

20.  On 28 September 2006, the PEB responded to the applicant and his psychiatrist by adhering to the original findings and recommendations of the formal hearing.  The PEB further stated "This Board believes that your case has been properly evaluated in accordance with AR 635-40 and current USAPDA policies.  Please be assured that the Board members considered all relevant evidence in your case, to include the arguments presented in your appeal.  You were appropriately rated at 10% for your PTSD in that you have demonstrated the ability to independently work in the civilian sector by your performance as a retention NCO."

21.  By a memorandum, dated 13 October 2006, the USAPDA informed the applicant that his disagreement with the findings of the PEB had been considered, that his entire case had been reviewed and that it was concluded that his case was properly adjudicated by the PEB and that the rules that govern the Physical Disability Evaluation System (PDES) had been appropriately applied in making a determination.  The findings and recommendations of the PEB were supported by substantial evidence and was therefore affirmed.

22.  In a memorandum dated 21 November 2006 written to the USAPDA, the applicant's psychiatrist stated that the applicant continued to experience symptoms of PTSD that was from hyper arousal.  The psychiatrist stated that the applicant had difficulties falling asleep and staying asleep due to nightmares.  In addition, the applicant experienced irritability, hyper vigilance and he was easily startled.  His girlfriend observed unprovoked anger outbursts at home and spoke to him about them.  The psychiatrist further stated that initially the applicant's GAF was listed at 50 and that he was now no higher than 45.  The psychiatrist stated that the applicant's symptoms would in all likelihood cause him significant impairment in the civilian work force.  

23.  On 9 February 2007, the applicant was discharged for physical disability with severance pay.

24.  In processing of this case, an advisory opinion was obtained from the USAPDA's Legal Advisor, who recommended disapproval of the applicant's request.  The legal advisor stated that the applicant's initial MEB diagnosed him with left knee and left shoulder pain.  An informal PEB found the applicant unfit for those two conditions and awarded him 10 percent for left shoulder pain, zero percent for left knee pain, and separation with severance pay.  The applicant non-concurred with the PEB findings and the MEB requested that the applicant's case be returned.

25.  A new MEB was completed with an additional diagnosis of PTSD.  The MEB described the applicant’s knee pain as only occurring when walking, running, or jumping.  There was no swelling, mechanical deficits, or tenderness.  He had full range of motion (ROM) and strength.  MRI and x-ray findings revealed no degenerative joint disease.  The applicant complained of having problems falling asleep with frequent nightmares.  He was stressed and preferred not to be around people.  His mental status review noted some psychomotor agitation, but few demonstrable/observed psychiatric symptoms.  His judgment was fair and he was alert and oriented in all spheres with no noted gross cognitive deficits.  Based on these factors the psychiatric evaluation opined that the applicant had severe impairment for industrial adaptability.  

26.  The legal advisor stated that the psychiatric review failed to consider or comment on the applicant's three previous commander's reports on his performance ability, dated 9 June 2006 [not available], 8 August 2006, and 
8 September 2006, in which all three different officers stated the applicant was "able to perform all his primary duties to an exceptional high standard."  The last commander's statement of 8 September 2006 opined that the nature of the position may have made it easier for the applicant to succeed because he worked alone much of the time, but he was always able to perform to standard and never lost control.

27.  The legal advisor stated that an informal PEB found the applicant unfit due to PTSD, left shoulder, and left knee pain and rated those conditions at 10 percent, zero percent, and zero percent respectively.  The PEB rated his PTSD as “mild” because the preponderance of the objective evidence clearly supported that he only had occupational impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress.  The PEB found that his objective performance did not support a higher rating as there was insufficient evidence to establish that he had an occasional decrease in work efficiency and intermittent periods of inability to perform occupational task.  The applicant non-concurred with the findings and requested a formal hearing.

28.  A formal PEB increased the applicant’s left shoulder rating from zero percent to 10 percent for a total of 20 percent, and separation with severance pay.  The applicant submitted an appeal requesting a higher rating for his PTSD.  He enclosed the 22 September 2006 memorandum from his psychiatrist that indicated the applicant was still being treated and that he had a “definite” industrial deficit in accordance with DODI 1332.29.  The legal advisor stated that the psychiatrist failed to recognize that the definitions that remained in the DODI were no longer used to assist in adjudicating cases as the VASRD that supported them was changed significantly in October 1996.  The PEB responded to the applicant's appeal and indicated that the actual objective evidence of his performance abilities overcame any subjective opinions about how he might be affected industrially.

29.  The USAPDA reviewed the applicant’s case file in October 2006 and found that the PEB’s findings were supported by a preponderance of evidence.  The legal advisor stated that a 21 November 2006 memorandum from the applicant’s psychiatrist again mentioned the applicant’s ongoing treatment and the GAF was now lower.  However, the psychiatrist again failed to comment on or consider the actual observable performance history of the applicant and the fact the GAFs were not used in the 1996 VASRD rating criteria.  The psychiatrist report did not provide any new significant evidence that required a change to the applicant’s disability rating.

30.  The legal advisor concluded that the PEB closely reviewed all the evidence, compared it, and assigned to each the appropriate weight as was warranted.  Subjective clinical opinions based on office comments and observable office behaviors were an important part of the PEB’s consideration.  However, so were the numerous first hand objective reports of satisfactory duty while the MEB and PEB were being processed.  The PEB considered all facts and appropriately decided that the objective evidence outweighed the subjective evidence and found that the actual industrial impairment was mild and only affected the applicant in a significant manner when over stressed.  “(See VASRD 4-126 which indicates ratings should be based on all evidence rather than solely on the examiner’s assessment of the level of the disability at the moment of examination).”  The finding resulted in a correct rating of 10 percent.

31.  The legal advisor stated that the applicant’s left knee was rated in accordance with VASRD Code 5024, chronic patellar tendonitis.  The medical findings revealed no pain except upon movement, with no ROM limits, or x-ray evidence.  VASRD Code 5024 was rated in accordance with the criteria found at VASRD Code 5003 for ROM limits or x-ray findings.  Since there was neither in the findings for the applicant’s knee, he could not be rated at the 10 percent level and had to be rated at zero percent.
 
32.  In a rebuttal to the advisory opinion, the applicant’s counsel stated, in effect, that the PEB was not pro-claimant when it rated the applicant's PTSD at 
10 percent.  Counsel stated that the National Defense Authorization Act (NDAA) of 2008 is moving the PEB process towards a more uniformed process using the DVA ratings and case law from the Court of Appeals of Veterans Clams.  Counsel stated that Army Regulation 635-40, paragraph 4-21(c) states that any implication of an adversary with the proceeding must be voided.  That correlates well with the case of Hunt vs. Nicholson, 20 Vet App. 519 523 (2006) which stated that veterans compensation system is "non-adversarial, paternalistic, [and] uniquely pro-claimant."  Counsel stated that the PEB was not pro-claimant when it ignored CFR, Title 38 concerning Mental Disorders Due to Traumatic Stress which states that when a mental disorder develops in service as a result of a highly stressful event which is severe enough to bring about the veteran's release from active duty, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6 month period following the veteran's discharge to determine whether a change in evaluation is warranted. 

33.  Counsel stated that the applicant had a mental disorder that was developed in the service as a result of a highly stressful event and a memorandum from the applicant's psychiatrist indicates that after the MEB he was evaluated and there was no indication that a change in a 50 percent evaluation was warranted.  Counsel stated the applicant's PEB occurred in August 2006 and he was discharged in February 2007.  There has been no evaluation since February 2007 that would indicate a change in a 50 percent rating that would be warranted.  As such, at a bare minimum the PEB should have followed the law and assigned a 50 percent rating since his mental disorder developed in service as a result of a highly stressful event that was severe enough to bring about his release from active military service. 

34.  Counsel stated that the advisory opinion relied heavily on the fact that the applicant's duty MOS was reenlistment NCOIC and failed to consider his MOS was 11B and that the conclusion should have shown that he could not function as an 11B.  Counsel further stated that the advisory opinion exaggerated and mischaracterized the Commander's Statements dated June, August, and September 2006.  Counsel stated that the advisory opinion provides emphatically that the GAF was not used in the 1996 VASRD rating criteria.  Counsel further stated that the advisory opinion did not share with the Board that Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) states that a multi-axial system of diagnosis is used for all psychiatric conditions that are subject to the MEB.  Counsel states that the applicant's psychiatrist rated him with the GAF 50 in the MEB addendum and rated the applicant at 45 as of        21 November 2006.

35.  Counsel stated that in accordance with Army Regulation 635-40, paragraph 4-21(m), proceedings of the PEB are administrative and not judicial in nature; therefore, a board is not bound by rules of evidence prescribed for trials by court-martial or for court proceedings generally.  Under best evidence the regulation goes on to state that "hearsay evidence may always be accepted."  It would appear that if the regulation states that the PEB can accept hearsay and anything which in the opinions of reasonable persons are relevant and material to an issue may be accepted, then the PEB should review and accept a psychiatrist's opinion as to GAF when a Soldier is diagnosed  with PTSD, as well as the preponderance of evidence that shows he cannot function in his MOS.  Counsel concludes that the advisory opinion and the PEB state that the applicant should be rated at 10 percent, ignoring the law that states he should be rated at not less than 50 percent.  

36.  Counsel provided an undated statement from the applicant's commander who authored the 8 September 2006 statement.  The author stated that he read the advisory opinion that was submitted to this Board.  The author stated "I believe the advisory statement quoted me by the reference "he is punctual, reliable and has never been late for work."  “My statement was taken out of context by the advisory opinion."  The author continued that the applicant's mental condition caused him to be routinely late.  The command team was used to his regimen and the fact that he showed up late in the day and left early and quite frequently for treatment, it therefore appeared that he was punctual and on time since they got used to his schedule.  The author stated that the applicant was not working in his assigned MOS and in his opinion the applicant was not able to function in an environment with co-workers or when he was closely supervised.  The author stated that the applicant got aggravated by people easily and therefore tended to avoid them.  In his observation he could see it took a tremendous amount of control for the applicant not to have outbursts due to the aggravation.  

37.  Counsel provided a DVA Disability Rating Decision, dated 9 October 2008, that shows the applicant's PTSD was increased from 30 percent to 70 percent and he was granted an overall or combined disability rating of 90 percent for this service connected disabilities.

38.  DODI 1332.39 implements policy, assigns responsibility, and prescribes procedures for rating disabilities of service members determined to physically unfit and who are eligible for disability separation or retirement.  Enclosure 2 provides special instructions and explanations for VASRD codes.  Paragraph E2.A1.5.1 contains guidance on series codes 9200-9511 (Mental Disorders).  It states, in pertinent part, that loss of function is the principal criterion for establishing the level of impairment resulting from mental illness.  Loss of function is reflected in impaired social and industrial adaptability.  

39.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth the 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  
40.  Army Regulation 635-40 provides guidance on the Army application of the VASRD.  It states, in pertinent part, that percentage ratings in the VASRD represent the average loss in earning capacity resulting from these diseases and injuries.  The ratings also represent the residual effects of these health impairments on civil occupations.  Not all of the general policy provisions of the VASRD apply to the Army.  Paragraph B-107 contains guidance on mental disorders.  It states that the loss of function is the principal criterion for establishing the level of impairment resulting from mental illness.  Loss of function is reflected in impaired social and industrial adaptability.  When assessing loss of function, refer to the Soldier's social and industrial adjustment before his or her diagnosed psychiatric illness.  Carefully review all pertinent information provided by the MEB examining physicians and other competent medical authorities before arriving at a final determination.  When there are differences in the information, resolve the differences before making a rating decision.  Show clearly in the record of proceedings the action taken to resolve these differences.

41.  Army Regulation 635-40 defines a mild mental disorder as one which displays minimal signs of symptoms with probing, may require medication or psychotherapy, especially during times of stress, adequate job adjustment, and adequate social adjustment.  Mild cases are rated at 10 percent.

42.  Army Regulation 635-40 provides guidance on zero percent ratings and minimum ratings.  It states, in pertinent part, that occasionally a medical condition which causes or contributes to unfitness for military service is of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD.  Apply a zero percent rating even though the lowest rating listed is 
10 percent or more, except when "minimum ratings” are specified or unless the minimum rating is for a “by analogy rating.”  In all instances where a zero rating is applied to a principle cause of disability, include a rationale explaining the exact reasons for unfitness.  

43.  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.  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.

44.  Title 38, U. S. Code, sections 1110 and 1131, 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.

45.  The 2008 National Defense Authorization Act (NDAA), section 1642, revised paragraph 3.8 of Department of Defense Directive (DODD) 1332.18 to show that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the DVA.  The current VASRD shows that individuals who have been diagnosed with PTSD or mental conditions caused by a severe emotional event which make them unfit to perform military duties are given a 50 percent disability rating.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for the applicant to be granted a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant’s contention that his PTSD disability rating should be changed from 10 percent to 70 percent and his chronic left knee pain be changed from zero percent to 10 percent, with disability retirement, was carefully considered.  However, there is insufficient evidence to support this claim.  

3.  Counsel states that the NDAA of 2008 is moving the PEB process towards a more uniformed process using the DVA ratings and case law from the Court of Appeals of Veterans Clams.  However, evidence of record shows the applicant was discharged in February 2007 and therefore he was under the rules of Army Regulation 635-40 for PEB processing due to PTSD.  

4.  The applicant's demonstrated ability to perform his assigned duties to standard, while being limited due to physical reasons based on his shoulder and knee condition, were not limited by his PTSD.  As a result, the 10 percent rating based on his limited loss of function appears to have been the appropriate rating. Therefore, the evidence is insufficient for increasing his disability rating for this condition.

5.  Counsel and the applicant further contend that the applicant's left knee chronic pain should be changed from zero percent to 10 percent.  His medical findings revealed no pain except upon movement with no ROM limits.  The applicant's knee condition was rated in accordance with the criteria found at VASRD Code 5003 for ROM limits.  His knee condition was of such a mild degree that it did not meet the criteria for even the lowest rating provided in the VASRD.  Therefore, a rating of zero percent appears to have been appropriate and the applicant has provided no evidence sufficient to support an increase in his disability rating for this condition.

6.  The evidence of record confirms the applicant was properly processed through the PDES in accordance with the applicable laws and regulations.  It further shows that a formal PEB ultimately determined the applicant was unfit for service, and granted him a combined disability rating of 20 percent for PTSD and left shoulder pain and recommended discharge with severance pay.  The USAPDA reviewed the PEB findings and recommendations and determined they were supported by substantial evidence.  As a result, the USAPDA affirmed the findings and recommendations of the PEB.

7.  The PEB findings and recommendations, to include the assigned disability rating, were based on a comprehensive medical evaluation of the applicant’s disabling medical conditions by competent medical authorities during the PDES process.  A subsequent change or worsening of those conditions would not call into question the validity of the disability ratings that were assigned during the PEB process, and there is absolutely no evidence suggesting the PEB findings and recommendations were arbitrary or capricious.

8.  The DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

9.  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 provide any new medical evidence that would call into question the original decision of the PEB, or the affirmation of that decision by a formal PEB.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  
10.  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.  

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.




      _______ _   __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)                                         AR20080008617



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ABCMR Record of Proceedings (cont)                                         AR20080008617



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