IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090009205 


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 reconsideration of an earlier request for a medical retirement.

2.  The applicant states, in effect, that he was discharged from the U.S. Marine Corps (USMC) in 1991 for a knee condition only, not for Post Traumatic Stress Disorder (PTSD).  He contends that he suffered from PTSD while serving in the Army and that his service in the Army aggravated this condition.  He claims that after Operation Desert Storm he was sent to the behavioral clinic because he was not sleeping or eating, that he was treated overnight with sleep medication, and that he was sent back to his unit where he later hurt his knee.  He goes on to state that after getting out of the USMC he had problems but he was never treated, that he started having severe problems after the helicopter crash in Hawaii in February 2001 where he worked on the recovery team, and that he asked his first sergeant and platoon sergeant for help and he was told to "suck it up."  He claims that he was lied to and manipulated by the Army boards and that he has been in and out of Department of Veterans Affairs (DVA) hospitals trying to get back in the Army.

3.  The applicant states that his 1991 medical evaluation board (MEB) and DVA records clearly show he had a knee condition.  He claims that he should have been medically boarded for vertigo, back and feet problems, and migraines.  He also contends that he was examined by the DVA in 1996 and he was not found to have PTSD, just anxiety.

4.  The applicant provides documentation pertaining to his 1991 USMC physical evaluation board (PEB) and MEB; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 November 2003; an undated letter from his wife which describes his symptoms of PTSD; documentation and medical records pertaining to his Army PEB; service personnel records; and DVA documentation in support of his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070009889, on 15 May 2008.

2.  A majority of the documentation provided by the applicant is new evidence which will be considered by the Board.

3.  The applicant enlisted in the USMC on 12 May 1988, with prior service in the Army National Guard (ARNG).

4.  The applicant provided excerpts from his August 1991 MEB and his October 1991 PEB which show he was found unfit for duty due to chondromalacia left knee and patellofemoral pain syndrome left knee.

5.  The applicant was honorably discharged from the USMC on 26 November 1991, for physical disability (10 percent), with severance pay.

6.  The applicant provided a DVA record, dated 6 September 1995, which states, in pertinent part, "POST-TRAUMATIC STRESS DISORDER (NOT FOUND)."  He also provides a DVA record, dated 17 November 1996, which does mention PTSD.

7.  In 1999, the DVA granted the applicant 20 percent service-connected disability for chondromalacia of left knee with patellofemoral pain syndrome;
0 percent for fracture fifth metacarpal, left hand, minor; and 0 percent for fracture second metacarpal, right hand, major; for a combined rating of 20 percent.  He was also rated for several other service and non-service-connected conditions, which included PTSD, for which he was granted a combined rating of 0 percent.

8.  After a break in service, the applicant enlisted in the Regular Army (RA) on 3 May 2000.
9.  On 20 September 2002, the applicant received a permanent profile for PTSD, major depressive disorder with psychotic features, and obsessive compulsive disorder and he was recommended for an MEB.
 
10.  On 3 February 2003, an MEB diagnosed the applicant with PTSD (existed prior to service (EPTS) for this enlistment but did not exist prior to first enlistment in the USMC); major depressive disorder with psychotic features; history of dysthymia; obsessive-compulsive disorder.  He was also diagnosed with chronic knee pain, hiatal hernia, and urinary tract infection, resolved.  The MEB recommended referral to a PEB.  In a statement to the MEB, the applicant stated, in pertinent part, that "I know I have PTSD" and "I got this from the gulf war."

11.  On 1 May 2003, an informal PEB diagnosed the applicant with PTSD, said to be EPTS this Army enlistment.  His USMC records were not available for reference other than his DD Form 214 which indicated disability separation for code 5299-5003 (not psychiatric).  Army enlistment physical and DVA records indicated no PTSD from USMC service.  The PEB found the applicant physically unfit and recommended a rating of 0 percent and separation, without disability benefits.   The applicant nonconcurred with the PEB's findings and recommendation and demanded a formal hearing.

12.  On 4 August 2003, a formal PEB found the applicant physically unfit due to PTSD, said to be EPTS this Army enlistment.  The PEB recommended a combined rating of 0 percent and that the applicant be separated from the service without disability benefits.  On 22 August 2003, the applicant nonconcurred with the PEB’s findings and recommendation and he indicated that a rebuttal would be provided by counsel.

13.  On 25 August 2003, the applicant’s counsel submitted a rebuttal.  In his rebuttal, he requested that the PEB find that applicant’s condition had been permanently aggravated by service in accordance with Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2a.  He argued that the applicant’s PTSD originated from his prior USMC service in the Persian Gulf and it had been permanently aggravated because of events unique to this Army enlistment.  Counsel stated that before entering active duty, he was not experiencing any of the previously debilitating effects of PTSD.  His improvement was an important factor in his decision to return to active duty.  Counsel stated that routine military stress and training began to bring back many of the symptoms he had suffered from immediately after his service in the Persian Gulf.  Counsel stated that the overall nature of returning to military service affected the reoccurrence of the applicant's PTSD and it was his exposure to the aftermath of the helicopter crash which 
permanently changed his ability to cope with the disease.  Counsel concluded that because this is a service-connected event that had a direct impact on the applicant's disease, the presumption that his disease was aggravated in the line of duty was not overcome by the preponderance of the evidence.

14.  On 3 September 2003, the President, PEB, prepared a memorandum for the applicant, Subject:  Appeal of PEB Formal Proceedings.  In his memorandum, the President, PEB, informed the applicant that the PEB received his election, dated 22 August 2003, in which he did not concur with the findings and recommendations of his formal hearing.  The President, PEB, noted the personal statement and statement by counsel to have been considered by the board.  The President, PEB, stated that his appeal was carefully considered and his case reviewed. The PEB adhered to the original findings and recommendation of the formal hearing.  The PEB believed that his case had been properly evaluated in accordance with Army Regulation 635-40 and current US Army Physical Disability Agency (USAPDA) policies.  The President, PEB, stated that the PEB considered all relevant evidence in his case, to include the arguments presented in his appeal.  The President, PEB, concluded that his entire case, including his rebuttal, was forwarded to the USAPDA for further processing.

15.  On 11 September 2003, the USAPDA approved the formal PEB’s findings and recommendation.

16.  On 27 November 2003, the applicant was released from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(4), for disability, EPTS, PEB.

17.  Title 10, U. S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

19.  Army Regulation 635-40, appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will 
reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. 

20.  Army Regulation 635-40 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

21.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's contention that he was discharged from the USMC in 1991 for a left knee condition, not for PTSD.  His 1991 USMC PEB shows he was found unfit for duty due to chondromalacia left knee and patellofemoral pain syndrome left knee.

2.  The applicant's contentions pertaining to his PTSD were carefully considered.  However, in his statement to the Army MEB, the applicant admitted that "I know I have PTSD" and "I got this from the gulf war" which supported the fact that his PTSD existed prior to his service in the Army.  

3.  There is insufficient evidence to show the applicant's PEB findings were incorrect, that the applicant's PTSD did not exist prior to his service in the Army, that his PTSD was permanently aggravated by his Army service, and that the recommendation for separation without benefits was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant’s request for a medical retirement.

4.  The applicant's contention that he should have been boarded for vertigo, back and feet problems, and migraines was noted.  However, there is no evidence to show these conditions rendered him unfit to perform his military duties.
  
5.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070009889, dated 15 May 2008.



      __________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)                                         AR20090009205



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ABCMR Record of Proceedings (cont)                                         AR20090009205



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