IN THE CASE OF:	  

		BOARD DATE:	  	  19 May 2009

		DOCKET NUMBER:  AR20080015600 


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 he be medically retired.

2.  The applicant states, in effect, that he believes that he was medically discharged for migraine headaches and lower back pain.  He also states, 
in effect, that after his Department of Veterans Affairs (VA) examination he was diagnosed with post traumatic stress disorder (PTSD) and given a rating of 
30 percent for migraine headaches and 20 percent for lumbosacral spine arthritis. 

3.  The applicant provides the following documents in support of this application:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);

	b.  80 pages of medical records from June 2003 to November 2004;

	c.  a copy of his DA Form 3947 (Medical Evaluation Board [MEBD] Proceedings), dated 18 January 2005;

	d.  a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 28 March 2005, and

	e.  copies of his VA, St. Petersburg VA Regional Office, Rating Decisions.


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.  The applicant's DD Form 214 shows he enlisted in the Regular Army on
30 July 2002.  He was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was Specialist (SPC)/E-4.

3.  The applicant submitted 80 pages of his medical records from 29 June 2003 to 19 November 2004, which show he received treatment for migraine headaches and chronic bilateral lower back pain.

4.  On 18 January 2005, the applicant underwent an MEBD for chronic prostrating migraine headaches and chronic low back pain status-post concussive syndrome.  The MEBD recommended that the applicant be referred to a PEB.  On 25 January 2005, the applicant non-concurred with the findings and recommendations of the MEBD.  On 31 January 2005, the applicant submitted a memorandum to the Board with his reasons for noncurring with MEBD and another memorandum, same date, requesting return to duty.

5.  On 28 March 2005, the PEB found the applicant physically unfit due to post-concussive headaches, status post head injury, without cognitive disorder.  He was rated under the VA Schedule for Rating Disabilities (VASRD) codes 8045 and 9304 and granted a 10 percent rating.  He was also found unfit due to chronic subjective low back pain without directly-related motor neurologic abnormality.  The applicant was rated under VASRD code 5237 and granted a
10 percent disability rating.  The applicant was recommended for a combined rating of 20 percent and separation with severance pay, if otherwise qualified.  On 29 March 2005, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 15 May 2005, the applicant was honorably discharged from active duty in accordance with the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4- 24b(3), by reason of disability with severance pay.  The applicant completed 2 years, 9 months, and 16 days of active service this period and 4 years, 6 months, and 29 days of total prior active service, for a total of 7 years, 4 months, and 15 days of creditable active service.

7.  The applicant submitted a copy of his VA, St. Petersburg VA Regional Office, Rating Decision, dated 2 June 2006, which shows that he was rated for a service-connected disability at 30 percent for PTSD; service-connected at
10 percent for lumbosacral spine arthritis with disc protrusion L5-S1; service-connected at 10 percent for migraine headaches, status post concussive head injury; service connected at 10 percent for left peroneal nerve injury status post left ankle sprain; service connected at 10 percent for tinnitus; and service connected at 0 percent for gastroesophageal reflux disease.  

8.  The applicant also submitted a copy of his VA, St. Petersburg VA Regional Office, Rating Decision, dated 26 April 2008, which shows that his evaluation for PTSD was increased to 70 percent; his evaluation of migraine headaches, status post concussive head injury was increased to 50 percent; and his evaluation of lumbosacral spine arthritis with disc protrusion L5-S1 was increased to
20 percent.  

9.  On 5 January 2009, an advisory opinion was obtained from the Agency Legal Advisor, U.S. Army Physical Disability Agency (USAPDA), Washington, DC.  The advisory official stated that the applicant claims he should have been medically retired and cites as evidence of error the subsequent diagnosis and rating of other conditions by the VA.  The advisory official stated that on
18 January 2005, an MEBD was completed with diagnoses of chronic prostrating migraine headaches and chronic low back pain.  The MEBD noted forward flexion of his back at 105 degrees with lower lumbar spine tender to palpation.  His straight leg-raising test was negative with normal reflexes and full extremity strength.  His headaches were daily in the mild to moderate range and were more of an "aggravating, annoying thing" than prostrating.  He was reported to have stronger headaches about once every two weeks that required taking Maxalt.  The applicant's PTSD was discussed on his DD Form 2807-1 (Report of Medical History) and DD Form 2808 (Report of Medical Examination), but it was found to meet retention standards, was not a condition that he stated affected his 

performance of duty, did not require any current medications, was not listed on his physical profile as a limiting condition, and was not listed on his 9 August 
2004 commander's performance statement as a limiting factor regarding his ability to perform his military duties.  The opinion states that on 31 January 2005, the applicant non-concurred with the MEBD's findings and recommendations indicating that his headaches no longer required any prescription medications to control the pain, that he thought that his back could be alleviated through continued therapy, and that he was of the opinion he could continue to be an 11B Infantryman.

10.  The opinion further stated that on 28 March 2005, an informal PEB found the applicant unfit for post-concussive headaches and rated the pain under VASRD 8045, lumbosacral pain, at 10 percent; and low back pain at 10 percent in accordance with VASRD for tenderness for palpation.  The PEB recommended a rating of 20 percent and separation with severance pay.  On the 29 March 2005, the applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing.  The advisory opinion concluded by stating that the applicant has not provided any evidence of PEB error.  The PEB properly rated the two listed conditions of his MEBD and even if a separate psychiatric condition had been listed on the MEBD, it would not have been found unfitting, as all performance evidence in the case file would not have supported such a finding.  Only conditions that are found unfitting can be found compensable in accordance with Department of Defense Instruction (DoDI) 1332.39, paragraph 6.1.7 (Disabilities Not Unfitting for Military Service).  Subsequent VA findings are not evidence of PEB error just as prior PEB findings are not evidence of VA error. The PEB's findings and recommendations were supported by a preponderance of evidence; were not arbitrary or capricious; and were not in violation of any statue, directive, or regulation in existence at the time of the applicant's separation.  The advisory opinion recommended no change to the applicant's record.

11.  On 7 January 2009, a copy of the advisory opinion was sent to the applicant for his information and to allow him the opportunity to submit comments or a rebuttal.

12.  On 23 January 2009, the applicant rebutted the advisory opinion and requested an extension to develop his refutation.  In his rebuttal, the applicant states that in regards to his PTSD it was not beneficial for him to be released from active duty for mental disorders due to traumatic stress because in 

accordance with 38 CFR 4.129 (Mental Disorders Due to Traumatic Stress) which states that when a mental disorder develops as a result of a highly stressful event severe enough to bring about the veteran's release from active 
military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted. The applicant also states that the Board cited the fact that he had stated that his PTSD did not affect his performance; however, he argues that a layperson does not have the capability to offer evidence that requires medical knowledge.  Although the issue of PTSD was discussed, no evaluation was conducted to determine his mental health status.  He continues in his rebuttal that he was treated for PTSD but stopped going for treatment because he wanted to remain in the Army.  In regards to not being listed on the 9 August 2009 commander's performance report, he stated that he does not dictate what his commander writes.  He further stated in his rebuttal that again on 31 January 2005, he non-concurred with the findings and recommendations of the MEBD because he wanted to remain in the Army.  He concluded by stating that on 28 March 2005, the informal PEB found him unfit for post-concussive headaches rated at 10 percent according to VASRD which were actually the residuals of traumatic brain injury.  His argument is that soon after his release from active duty and a thorough examination from the VA medical personnel he was rated at 50 percent according to VASRD and this was the same rating used by the Army.  He also states that he was given a 20 percent evaluation for low back pain by the VA.  He again argues in his rebuttal that the PEB improperly rated the two listed conditions in accordance with VASRD and if a psychiatric condition had been listed on his MEBD it was up to a professional to determine if it would have been unfitting for performance of duty.  

13.  Army Regulation 635-40 provides, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

14.  Army Regulation 635-40 further provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both 
from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments. 

15.  Army Regulation 635-40 provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent; if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208; and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

16.  Title 38, U.S. Code, 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

17.  The VASRD (1 July 2004 edition) provides a general rating formula for delirium, dementia, amnesia, and other cognitive disorders.  Head trauma is shown under diagnostic code 9304 and traumatic brain injury is found under 8045.

18.  The VASRD (1 July 2004 edition) provides a general rating formula for diseases and injuries of the spine.  Lumbosacral or cervical strain is shown under diagnostic code 5237.  Note 1 to the general rating formula indicates that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his VA rating decision supports a medical retirement along with the documents he provided was carefully considered. However, these documents are insufficient to provide a basis to grant the requested relief.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not entitled to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical 

conditions is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran during his lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

3.  The applicant's contention that he was so unfit that he should have been medically retired directly contradicts his noncurrence with the findings of the MEBD because he wanted to remain in the Army.  While it may be true that as a layperson he may not have had the medical knowledge to understand his PTSD, it is also true that such lack of medical knowledge had no impact on his ability to perform his duties.  The evidence of record indicated that his PTSD did not affect his performance.  Again, in his rebuttal to the advisory opinion, he admitted that he stopped being treated for PTSD because he wanted to remain in the Army.  The only reasonable presumption is that his PTSD did not render him unable to perform his duties..

4.  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.  The applicant has failed to provide any new medical evidence that would call into question the original decision of the PEB, the decision of the formal PEB, or the affirmation of the PEB findings and recommendations by the USAPDA.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20080015600



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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