IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20080017158 


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 that his 22 February 2008 temporary disability retired list (TDRL) physical evaluation board (PEB) be corrected to show his disabilities were incurred in line of duty and increase the recommended disability percentage for his panic disorder medical condition from 10 percent to 50 percent.

2.  The applicant states that medical evidence was unavailable at the time of a scheduled formal PEB hearing and may have resulted in a different rating.

3.  The applicant provides a self-authored letter, dated 30 October 2008; a copy of a confidential psychological evaluation report, dated 25 February 2008; copies of various medical progress notes, dated on miscellaneous dates in 2008; and a copy of the Department of Veterans Affairs (VA) rating decision, dated 6 August 2004, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as an aviation second lieutenant in the U.S. Army Reserve with concurrent order to active duty and executed an oath of office on 10 June 1995.  He subsequently completed various military courses, served in various staff and leadership positions, and was promoted through the ranks to captain (CPT) on 1 July 1999.

2.  The applicant's records further show that subsequent to an overseas tour in Korea, he was reassigned to the Medical Hold unit at Walter Reed Army Medical Center (WRAMC), Washington, DC, in June 2002.
3.  On 22 May 2003, the applicant's clinical records, laboratory findings, and physical examinations were considered by a medical evaluation board (MEB) that convened at WRAMC.  The MEB found the applicant was diagnosed as having the medical conditions of panic disorder, depressive disorder, intervertebral disc syndrome, chronic low back pain, right unilateral weakness, and migraine.  The MEB also noted he had a current Global Assessment of Functioning (GAF) scale with a numeric value of 65 [indicating some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning well].  The MEB recommended his referral to a PEB.  The applicant agreed with the MEB’s findings and recommendations and elected to continue on active duty.

4.  On 2 July 2003, an informal PEB convened at WRAMC and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to panic disorder, chronic back pain, and migraine headaches.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 30 percent disability rating for code 9412 (panic disorder), a 10 percent disability rating for codes 5293, 5299, and 5295 (chronic back pain), and a 0 percent disability rating for code 8100 (migraine headaches). The PEB also considered his other medical conditions of depressive disorder and intervertebral disc syndrome but did not find them unfitting and therefore did not rate them.  The PEB recommended the applicant be placed on the TDRL with a combined rating of 40 percent and with a reexamination during March 2005.  

5.  On 14 July 2003, the applicant elected not to concur with the PEB’s finding and recommendation and demanded a formal hearing of his case.  Furthermore, on 17 September 2003, the applicant waived his right to a formal hearing and elected to submit additional documentation no later than 26 September 2003.  However, it is unclear if he did so.

6.  On 1 October 2003, an informal PEB convened at WRAMC and again found the applicant was physically unfit due to panic disorder, chronic back pain, and migraine headaches.  He was again rated under the VASRD and was granted a 30 percent disability rating for code 9412 (panic disorder), a 10 percent disability rating for code 5237 (chronic back pain), and a 0 percent disability rating for code 8100 (migraine headaches).  The PEB also considered his other medical conditions but did not find them unfitting.  The PEB recommended that the applicant be placed on the TDRL with a combined rating of 40 percent and with a reexamination during June 2005.  


7.  On 14 October 2003, the applicant elected not to concur with the PEB findings and submitted a written appeal with his supporting medical evidence.  On 23 October 2003, the U.S. Army Physical Disability Agency (USAPDA), after reviewing the applicant’s entire case, concluded that his case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The USAPDA found the PEB findings and recommendations were supported by substantial evidence and therefore were affirmed.  

8.  On 30 December 2003, the applicant was honorably retired, by reason of temporary physical disability, under the provisions of paragraph 4-24b of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 he was issued confirms he completed a total of 8 years, 6 months and 20 days of active military service and held the rank of CPT.  

9.  On 15 December 2005, a TDRL PEB convened at Fort Sam Houston, TX, and found the applicant's condition had not sufficiently stabilized to permit final adjudication of his case.  The PEB determined that his retention on the TDRL for an additional period of time was considered appropriate.

10.  On 28 January 2008, a TDRL PEB convened at Fort Sam Houston, TX, and found the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his condition was considered sufficiently stable for final adjudication.  He was rated under the VASRD and was granted a 10 percent disability rating for code 9412 (panic disorder), a 10 percent disability rating for codes 5299 and 5237 (chronic low back pain without motor neurologic deficits), and a zero percent disability rating for code 8100 (migraine headache).  The PEB recommended that the applicant be separated with entitlement to severance pay, if otherwise qualified.  

11.  On 8 February 2008, the applicant elected to not concur with the TDRL PEB’s finding and recommendation and demanded a formal hearing of his case.  

12.  On 22 February 2008, a TDRL PEB convened at Fort Sam Houston, TX, and found the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty.  His condition was considered sufficiently stable for final adjudication.  He was rated under the VASRD and was granted a 20 percent disability rating for codes 5299 and 5237 (chronic low back pain without motor neurologic deficits), a 10 percent disability rating for code 9412 (panic disorder), and a zero percent disability rating for code 8100 (migraine headache).  The TDRL PEB noted that the applicant’s disability was not incurred in line of duty in a combat zone or incurred during the performance of duty in combat-related operations.  The TDRL PEB recommended that the applicant be placed on the permanent disability retirement list (PDRL) with a 30 percent combined disability rating.  On 26 February 2008, the applicant concurred with the findings and recommendation of the TDRL PEB and waived his right to a formal hearing of his case.  

13.  On 22 March 2008, the USAPDA published Orders D082-02 removing the applicant from the TDRL and placing him on the PDRL with a 30 percent disability rating, in his rank of CPT, effective 22 March 2008.

14.  An advisory opinion was obtained on 4 February 2009, in the processing of the applicant’s case.  The USAPDA legal advisor recommended the applicant’s military records be corrected to reflect a 30 percent rating for his panic attacks with a subsequent total rating of 50 percent total permanent disability.  The legal advisor further states that:

	a.  the November 2007 psychiatric TDRL reevaluation provided little information as to the applicant’s occupational and social impairment and had only reported one panic attack in the past two months.  Based on the evidence of record, the PEB concluded that his condition only affected him in times of significant stress.  This equaled a 10 percent rating in accordance with the VASRD;  

	b.  the applicant provided additional evidence with his petition to support that his panic disorder should have been rated higher.  This evidence is contained in a civilian psychologist’s review of his mental history on 25 February 2008 (the applicant concurred with the 22 February 2008 TDRL PEB findings and recommendations on 26 February 2008), and DVA examinations from May and October 2008.  The VA examinations were conducted after the applicant was removed from the TDRL and they provide little evidence that would accurately reflect upon his condition at the time of his PEB.  The psychologist’s report does provide additional clarifying facts and was accomplished at the same time of the PEB; and

	c.  a review of all available information in February 2008 leads to the conclusion that a rating of 30 percent for the applicant’s panic disorder, versus 10 percent, would be the more appropriate rating.  A 30 percent rating reflects occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as panic attacks.  The applicant does not appear to meet the requirements for a 50 percent rating as clearly as he meets the criteria for a 30 percent rating as he does have reported panic attacks more than once a week.  

15.  The applicant was provided with a copy of this advisory opinion on 22 April 2009; however, he initially did not respond.  He was provided with a second copy of this advisory opinion on 6 May 2009.  He concurred on 11 May 2009.

16.  The applicant submitted the following documentary evidence in support of his request:

	a.  a self-authored statement, dated 30 October 2008, in which he states that he was initially awarded a 20 percent disability rating, 10 percent of which was for panic disorder.  When he reviewed the information on his PEB, he noticed that the psychiatric evaluation had discrepancies.  He requested a formal PEB.  However, to his surprise, a few days before the hearing, a revised PEB was issued where his back pain received a 20 percent disability rating and he was granted a 30 percent combined disability rating.  He adds that during the February 2008 TDRL PEB, he was going to present psychiatric and psychological reports that pointed out disagreements regarding the panic disorder with the TDRL PEB.  However, the medical review by his doctors took a long time and he was forced into accepting the TDRL PEB findings and recommendations.  He now presents the evidence that should have been reviewed by the TDRL PEB.  Specifically, the absence of a GAF rating which has been constant in the past 2 years; yet, it was inconsistent with the 10 percent rating.  Secondly, the VA gave him a 30 percent rating for this condition.  Finally, based on the VA review of the entire medical record, his chronic disorder began in 1997 but was not discovered until 2000, even though there was a mention of it in a 1999 medical summary.  

	b.  a confidential psychological report, dated 25 February 2009 (enclosed); and 

	c.  a copy of the VA rating decision, dated 6 August 2004, which shows he was awarded a 50 percent rating for panic disorder, major depression, and generalized anxiety disorder.   

17.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  
18.  Paragraph 3-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

19.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

20.  Paragraph 7-2, provides that an individual may be placed on the TDRL for the maximum period of 5 years which is allowed by Title 10, USC, section 1210, when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

21.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

22.  The VA established the VASRD, often referred to as the “disability rating schedule,” to aid in the evaluation of disabilities resulting from disease or injury incurred during or incidental to military service.  It contains a list of codes that correlates injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability.  Subpart 4-125 deals with mental disorders.  It states, in pertinent part, that when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.  Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition.  

23.  An occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication is rated at 10 percent. 

24.  An occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) is rated at 30 percent.

25.  An occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in 	establishing and maintaining effective work and social relationships is rated at 50 percent.

26.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for 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.  It awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his 22 February 2008 TDRL PEB should be corrected to show his disabilities were incurred in line of duty and increase the recommended disability percentage for his panic disorder from 10 percent to 50 percent.

2.  The applicant was diagnosed with illnesses that were determined to be in line of duty.  He subsequently underwent an MEB which recommended he be given a PEB.  He concurred with this recommendation.  The PEB found his panic disorder, chronic back pain, and migraine headaches prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB placed him on the TDRL with a 40 percent combined disability rating.

3.  A TDRL PEB convened and reconsidered the applicant's medical records.  Upon reexamination, again, he was found unfit for the same conditions of panic disorder (10 percent), chronic back pain (10 percent), and migraine headaches  (0 percent).  The PEB, again, found him to be unfit for further military service and recommended his separation with severance pay with 20 percent disability rating. The applicant did not concur.  Accordingly, a second TDRL subsequently convened and increased his chronic back pain from 10 percent to 20 percent.  The TDRL PEB placed him on the PDRL with a 30 percent combined disability rating.  He concurred.

4.  The applicant believes he should have received a greater percentage disability rating for his panic disorder because the psychological report he submitted and the VA rating decision clearly show a higher rating for this condition was justified.  

5.  With respect to the line of duty entry, the evidence of record shows that the applicant's medical condition was incurred in line of duty, while entitled to basic pay, and that such entry is indicated on his original PEB, dated 1 October 2003.  There is no requirement to re-list such entry on a TDRL PEB.  Furthermore, there is no evidence that his condition occurred in a combat zone or was incurred during the performance of duty in combat-related operations.  Therefore, the entry on his TDRL PEB is correct and requires no further action.

6.  With respect to the applicant’s request for an increase in the disability rating percentage of the panic disorder he was assigned by the PEB, the applicant's argument as well as the supporting evidence he provided were carefully considered and were found to have merit:

	a.  the civilian psychologist’s review of his mental history on 25 February 2008 was not considered by the TDRL PEB that convened on 22 February 2008.  Although he concurred on 26 February 2008, the psychologist’s report does provide additional clarifying facts that lead the conclusion that a rating of 30 percent for his panic disorder, versus 10 percent, would be the more appropriate rating.  According to the VASRD, a 30 percent rating reflects occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as panic attacks.  The applicant does not appear to meet the requirements for a 50 percent rating as clearly as he meets the criteria for a 30 percent rating as he does have reported panic attacks more than once a week; and

	b.  the VA examinations were conducted after the applicant was removed from the TDRL and they provide little evidence that would accurately reflect upon his condition at the time of his PEB.  Furthermore, an award of a higher VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  __X______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending the applicant's TDRL PEB, dated 22 February 2008, to show a 30 percent disability rating for VA code 9412 (panic disorder); 

	b.  amending item 9 of the TDRL PEB, dated 22 February 2008, to show a recommended combined disability rating of 50 percent; and

	c.  amending Orders D082-02, issued by the USAPDA on 22 March 2008, to show the percentage of disability as 50 percent on the effective date of removal from the TDRL.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of the 22 February 2008 TDRL PEB to show his disabilities were incurred in line of duty or to award him a 50 percent disability rating for his panic disorder condition.




      _______ _ 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)                                         AR20080017158





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017158



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1