IN THE CASE OF:	  

		BOARD DATE:	  14 July 2009

		DOCKET NUMBER:  AR20080017423 


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, correction of his Army Medical Records and Physical Evaluation Board (PEB) records.   

2.  The applicant states, in effect, his medical and PEB records should be corrected to reflect numerous medical conditions he suffers from. 

3.  The applicant provides the following documents in support of his application: DA Form 18 (Revised PEB Proceedings), Department of Veterans Affairs (VA) letters, Temporary Disability Retirement List (TDRL) Removal Orders, United States Army Physical Disability Agency (USAPDA) letter, and DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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 record shows he enlisted in the Army National Guard (ARNG) for six years on 9 May 2002.  He was trained in and awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  

3.  On 20 February 2004, while serving as a sergeant in the ARNG, the applicant entered active duty, and he served in Iraq from 20 March through 20 June 2004.  

4.  On 23 February 2005, a Medical Evaluation Board (MEB) completed its evaluation of the applicant and diagnosed the applicant with the following unfitting conditions:  lower back pain, anxiety disorder, major depressive disorder, and irritable bowel disease.  The MEB also diagnosed the applicant with right knee retropatellar pain syndrome, right elbow lateral epicondylitis, status post laparotomy, and possible traumatized liver, which were determined to have met retention standards.  

5.  On 15 March 2005, an informal PEB found the applicant unfit for further service based on shrapnel wounds to his right side pain at 10%, chronic low back pain at 10%, and anxiety disorder at 0%.  All other conditions evaluated were determined to be fitting for duty.  

6.  On 23 March 2005, the applicant non-concurred with the findings and recommendations of the informal PEB and requested a formal hearing.  

7.  On 13 April 2005, the PEB reconsidered the applicant’s case and changed the 0% rating for anxiety disorder to 10%, which resulted in the applicant being rated at 30% and a recommendation that he be placed on the TDRL.  The applicant concurred with these findings and recommendations made by the PEB.  

8.  On 9 May 2005, the applicant was released from active duty (REFRAD) and under the provisions of Army Regulation 635-40, by reason of temporary disability, and placed on the TDRL in the rank of sergeant (SGT).  The DD Form 214 he was issued at the time confirms he completed 1 year, 2 months, and     20 days of active military service during the period and 4 years, 1 month, and    21 days of prior active military service.  It also confirms he completed a total of   5 years, 1 month, and 17 days of prior inactive military service.   

9.  On 19 May 2006, the applicant underwent a periodic TDRL medical reexamination.  He complained of various gastrointestinal conditions.  The examination revealed no significant physical findings, but the examiner continued with his diagnosis of irritable bowel which the examiner indicated could be occurring based upon intraabdominal adhesions.  

10.  During the 19 May 2006 reexamination, the applicant also still complained of anxiety and depressive symptoms and stated there was no change from before.  His right elbow, back, and right knee pain was essentially unchanged from when he was placed on the TDRL.  The applicant denied any cardiac chest pain or shortness of breath and there were no complaints of traumatic brain injury (TBI) symptoms.  An additional psychiatrist evaluation in November 2006 found that the applicant’s psychiatric condition had minimal effect on his ability to work and that his main problem with civilian employment was his physical conditions.  The applicant was not under psychiatric care or medications at the time and his industrial impairment caused by his psychiatric condition was considered mild.  

11.  On 28 December 2006, the PEB continued the applicant on the TDRL.

12.  On 18 December 2007, a second reexamination on the applicant was completed and approved.  The TDRL medical report was provided to the applicant for his approval, but the applicant failed to respond.  The examination revealed that the applicant continued to report periods of depression and symptoms related to post-traumatic stress disorder (PTSD).  He was not taking any psychiatric medications and only had therapy at the VA every six weeks.  He was not working due to his physical problems and had been rated at 100% by the VA.  The applicant expressed a desire to do more than take care of his two children while his spouse worked.  His psychiatric conditions were noted to be considerable for industrial impairment, but the examiner noted that based on the lack of any real therapy or medication it was difficult to ascertain how impairing the psychiatric conditions were.  The physical findings related to the applicant’s back, elbow, right knee and abdominal pain remained essentially unchanged with back flexion of 80 degrees, with full strength, range of motion (ROM) and reflexes of all extremities.  Examination and testing regarding his complaints of abdominal pain revealed normal findings except for some abdominal tenderness.  The examiner again diagnosed possible irritable bowel syndrome, but could not rule out pain from past injury and surgery to the abdominal area.  The applicant informed the examiner the VA began to rate him for cardiomyopathy effective   22 March 2007 and that he had been also diagnosed with mild TBI which had resulted in perceived mild personality change.  

13.  On 30 January 2008, a PEB found the applicant unfit for his back pain, and rated him at 10% for tenderness to palpations; unfit for irritable bowel syndrome (abdominal pain) and rated him at 10%, moderate with frequent episodes, but no constant abdominal distress; and unfit for PTSD, rated at 0% as the condition was not being treated and the applicant was able to care for his two children full time and the main unfitting component of the condition was the danger of exacerbation should he be placed in a stressful combat situation again.  This resulted in separation with severance pay.  
14.  The 30 January 2008 PEB determined all other conditions suffered by the applicant to include the TBI and cardiomyopathy were not unfitting or compensable as they had not, and would not, significantly affect his ability to perform his military duties and/or they were not unfitting at the time of placement on the TDRL and were not caused by a condition for which the applicant was found unfit at placement on the TDRL.  

15.  On 4 February 2008, the applicant received the 30 January 2008 PEB findings; however, he failed to respond or to file an appeal and, on 1 May 2008, he was removed from the TDRL and discharged with severance pay. 

16.  On 21 April 2008, a PEB convened and administratively corrected the proceedings at the direction of the USAPDA based on the disability rating guidance in the 2008 National Defense Authorization Act (NDAA).  The revised PEB proceedings show no change to the unfitting conditions, disability rating percentages, and/or recommendation for separation with severance pay.  The revised proceedings indicate the applicant’s right knee, right elbow, history of liver laceration, and mild TBI were not ratable since they were not considered unfitting conditions on the applicant’s original PEB; and that the re-evaluation diagnosis of cardiomyopathy and seasonal allergies were not ratable since they were not listed on the original MEB as not meeting retention fitness standards and appear to be new conditions which are unrelated to any previously rated unfitting conditions.  These revised PEB proceedings were approved by the proper authority on behalf of the Secretary of the Army on 21 April 2008.

17.  During the processing of this case, an advisory opinion was obtained from the Agency Legal Advisor for the USAPDA.  This official outlines the applicant’s processing through the Army’s Physical Disability Evaluation System (PDES) and concludes the applicant has presented no evidence of error in the PEB findings.  

18.  The USAPDA legal advisor further indicates that the applicant’s back, abdominal pain, and PTSD were properly rated by the PEB.  He states the applicant’s back had only tenderness to palpation and ROM at 80 degrees which supported a maximum 10% rating.  There was no other medical evidence to support a higher rating for this condition.  He also states the applicant’s abdominal distress was ratable at 10% for pain/adhesions or 10% for moderate/frequent episodes of bowel disturbance and abdominal distress (i.e., irritable bowel syndrome (IBS)).  There was insufficient evidence of constant abdominal distress to warrant a higher rating.  

19.  The USAPDA legal advisor further indicates the applicant’s PTSD was not the main reason for his inability to perform in an industrial/employment situation; it was his physical problems that caused his inability to work.  The applicant refused full treatment for his psychiatric conditions and the main unfitting rationale for this condition remained a possible exacerbation should he be subjected to combat stressors in the future.  He also states that the rating of the PTSD at 50% upon placement on the TDRL in accordance with Section 4.129 of the VA Schedule for Rating Disabilities (VASRD) was not applicable in 2005 based on the guidance contained in USAPDA policy memorandum number 7 and the VASRD for mental disorders, dated 28 February 2005.  Further, section 4.129 is not applicable under any circumstances at removal from the TDRL.  

20.  The USAPDA official concludes by stating that as indicated by the 
30 January 2008 PEB, the conditions of TBI and cardiomyopathy were not conditions that were existing or causing the applicant to be unfit at placement on the TDRL.  As a result, they were properly not rated at the time of his removal from the TDRL and if they subsequently became unfitting while he was on the TDRL, they would still be noncompensable.  

21.  On 9 April 2009, the applicant was provided a copy of the USAPDA advisory opinion in order to have the opportunity to reply to or rebut its contents.  To date, he has failed to respond.  

22.  The applicant provides a VA Rating Decision, dated 22 June 2007, which granted service connection for the following conditions at the disability rating indicated:  Cardiomyopathy, 60%; PTSD, 50%; Residuals of Liver Injury, 30%; Low Back Syndrome with Residuals of Shrapnel Wound, 20%; Shrapnel Wound Right Elbow, 10%; Abdominal Scar, 10%; Patellofemoral Syndrome Right Knee, 10%; and Scar Right Chest, 0%.  

23.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

24.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his numerous medical problems was carefully considered.  However, by regulation, 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.  

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that after a comprehensive TDRL reexamination, a PEB ultimately determined the applicant was unfit for service based on a back condition (lumosacral strain), IBS, and PTSD, and granted him a combined disability rating of 20%.  This resulted in his removal from the TDRL and discharge with severance pay.  His case was reevaluated by a PEB at the direction of the USAPDA based on the policy guidance published in the 2008 NDAA and resulted in no change to the final findings and recommendations.  

3.  The medical evidence of record, as outlined in the USAPDA advisory opinion, also confirms there was no medical evidence to support a higher rating for the unfitting conditions.  Further, the revised PEB proceedings confirm the applicant’s  right knee, right elbow, history of liver laceration, and mild TBI were not ratable by the PEB since they were not considered unfitting conditions on the applicant’s original PEB; and that the re-evaluation diagnosis of cardiomyopathy and seasonal allergies were not ratable since they were not listed on the original MEB as not meeting retention fitness standards and appear to be new conditions which are unrelated to any previously rated unfitting conditions.  

4.  The evidence also confirms the VA awarded the applicant disability ratings for several service connected conditions, which included cardiomyopathy and TBI.  However, while both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army.  

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

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

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080017423



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ABCMR Record of Proceedings (cont)                                         AR20080017423



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