IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090010266 


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 his Medical Evaluation Board (MEBD) and Physical Evaluation Board (PEB) be corrected to show his Post Traumatic Stress Disorder (PTSD). 

2.  The applicant states that the Balbao Naval Medical Center MEBD shows the PTSD condition.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 January 2006; a copy of an undated memorandum titled: Appeal of MEBD; copies of his DA Forms 3947 (Medical Evaluation Board Proceedings), dated 14 July 2005 and 17 May 2005; a copy of the MEBD Narrative Summary; a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 30 January 2005; a copy of the Department of Veterans Affairs (DVA) rating decision, dated 23 September 2008; and a copy of the San Diego Naval Medical Center Report of Medical Board, dated 12 May 2005, in support of his request.

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.  Having had prior service in the U.S. Marine Corps (USMC), U.S. Army Reserve (USAR), and the New Jersey Army National Guard (NJARNG), the applicant’s records show he enlisted in the California Army National Guard (CAARNG) for a period of 2 years on 26 November 1998.  He subsequently executed a 6-year extension in the CAARNG on 25 August 2000.  He held military occupational specialties (MOS) 63S (Heavy Wheeled Vehicle Mechanic) and 88M (Motor Transport Operator) and he was assigned to the 1498th Transportation Company, Riverside, CA.  He was promoted to staff sergeant (SSG)/E-6 on 1 June 2001 and sergeant first class (SFC)/E-7 on 1 December 2005.

3.  On 11 February 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom and subsequently served in Kuwait/Iraq from 5 April 2003 to 20 July 2003.

4.  On 18 July 2003, the applicant was involved in an Improvised Explosive Device (IED) explosion in Iraq.  The explosion caused the gas tank of his vehicle to ignite and he jumped out of the vehicle while it was still moving.  He suffered burns and he was evacuated through Landstuhl Army Regional Medical Center, Germany to Brooke Army Medical Center, Fort Sam Houston, TX, where he had skin grafts and debridement of multiple burns to the head, face, hands, and right lower extremity.  He was then transferred to remote care Balbao Naval Medical Center, San Diego, CA in September 2003 and then to Loma Linda Department of Veterans Affairs Hospital, Loma Linda, CA.  

5.  The applicant's MEBD Narrative Summary (NARSUM), dated 17 May 2005, shows he underwent a general physical examination on 14 May 2005 and was diagnosed as having non-insulin dependent diabetes, sleep apnea, chronic low back pain with herniated nucleus pulposus, rotator cuff tear, and chronic right ankle sprain with arthritis, conditions that did not meet medical retention standards.  He was also diagnosed with several other conditions that did not cause him to fall below retention standards: ruptured right tympanic membrane with hearing loss, thermal burn, chronic PTSD, gastroesophageal reflux disease, psoriasis, and chronic right knee pain.  The NARSUM further shows that he was found unfit for worldwide deployment and was recommended for entry into the Physical Disability Evaluation System (PDES).
6.  On 17 May 2005, an MEBD convened in Sacramento, CA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant was diagnosed as having the medical conditions of non-insulin dependent diabetes mellitus, sleep apnea, chronic low back pain with a herniated disc, chronic right shoulder pain with superspinatus tear, and chronic right ankle strain.  He was also diagnosed with a bilateral hearing loss, second degree thermal burns, and PTSD, but those conditions met retention standards.  The MEBD recommended that he be referred to a PEB.  The back page of the DA Form 3947 is not available for review with this case; however, it appears that the applicant did not agree with the MEBD’s findings and recommendation and submitted an appeal of the MEBD.

7.  In his appeal, the applicant stated that he did not agree with the diagnosis listed on his MEBD and indicated that he still suffered from pain and numbness to his right hand; folliculitis of his head due to his burns; and PTSD with symptoms of sleep difficulty, nightmares, and irritability.  He further included a copy of a Report of Medical Board at the Naval Medical Center, San Diego, dated 12 May 2005, which shows a diagnosis of chronic PTSD; major depression; and healing third degree burns on all extremities, face and scalp, and diabetes.

8.  On 14 July 2005, an MEBD convened in Sacramento, CA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant was diagnosed as having the medical conditions of non-insulin dependent diabetes mellitus, sleep apnea, chronic low back pain with a herniated disc, chronic right shoulder pain with supraspinatus tear, and chronic right ankle strain.  He was also diagnosed with a bilateral hearing loss, second degree thermal burns, major depression (single episode), carpal tunnel syndrome with right hand numbness, and chronic scalp folliculitis; however, those conditions met retention standards.  The MEBD recommended that he be referred to a PEB.

9.  On 25 July 2005, the applicant indicated that he did not agree with the MEBD's findings and recommendations and that he did not desire to continue on active duty.  However, on 5 October 2005, after considering the applicant's appeal, the approving authority approved the MEBD's findings and recommendations and forwarded the case to a PEB.

10.  On 29 August 2005, the applicant was referred to Madigan Army Medical Center (MAMC), Fort Lewis, WA, for a history of major depression and PTSD.  He was diagnosed as having a major depressive disorder single episode with improved syndromes.  The attending physician indicated that the applicant met 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and recommended his continuation on medications and counseling.

11.  The applicant’s MEBD NARSUM, dated 26 September 2005, shows that subsequent to the stress of extensive burns, the applicant was diagnosed with non-insulin dependent diabetes, sleep apnea, chronic low back pain with herniated nucleus pulposus, right rotator cuff tear, and chronic right ankle sprain.  He was also evaluated for PTSD but it was determined that he did not have this condition but rather a major depression single episode.  He was also diagnosed with other conditions (bilateral hearing loss, thermal burn, major depressive single episode, carpal tunnel, and chronic scalp folliculitis) but those conditions did not cause him to fall below medical retention standards.  It was determined that the applicant was not fit for worldwide deployment and failed retention standards of Army Regulation 40-501.

12.  On 26 October 2005, an informal PEB convened at Fort Lewis, WA, 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 back injury, chronic right shoulder pain, and chronic right ankle pain.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) and was granted a 10 percent (%) disability rating for code 5237 (back injury), a 10% disability rating for code 5304 (chronic right shoulder pain), and a zero-percent disability rating for codes 5099 and 5003 (chronic right ankle pain), for a combined rating of 20%.  The PEB also considered his other medical conditions (diabetes, sleep apnea, bilateral hearing loss, thermal burns, depression, carpal tunnel, and chronic scalp folliculitis) and found them not to be unfitting and therefore not ratable.  The PEB recommended that the applicant be separated with entitlement to severance pay, if otherwise qualified.  The applicant did not concur with the PEB’s findings and recommendations and demanded a formal hearing.

13.  On 29 November 2005, the informal PEB reconsidered its findings and recommendations.  The applicant was rated under the VASRD and was granted a 10% disability rating for code 5237 (back injury), a 10% disability rating for code 5304 (chronic right shoulder pain), a 20% disability rating for code 7800 (chronic folliculitis), a 10% disability rating for code 8175 (bilateral wrist pain), and a zero-percent disability rating for codes 5099 and 5003 (chronic right ankle pain), for a combined disability rating of 30%.  The PEB also reconsidered his other medical conditions (diabetes, sleep apnea, bilateral hearing loss, thermal burns, and depression) and found them not to be unfitting and therefore not ratable.  The PEB recommended that the applicant be placed on the Temporary 
Disability Retired List (TDRL) with reexamination in December 2006.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing.

14. On 16 January 2006, he was honorably released from active duty by reason of temporary disability and placed on the TDRL in his retired rank/grade of SFC/E-7.  

15.  On 19 September 2007, the applicant underwent a psychiatric TDRL reevaluation at MAMC, Fort Lewis, WA.  His reevaluation listed a diagnosis of adjustment disorder with depressed mood as manifested by being episodically stressed at work; and PTSD as manifested by hyper vigilance, avoidance of crowds, anhedonia, and frequent night sweats.  However, both conditions were determined to have met the medical retention standards of Army Regulation
40-501. 

16.  On 30 January 2008, a TDRL PEB convened at MAMC, Fort Lewis, WA, and found the applicant's condition did not improve to the extent that he was fit for duty.  However, upon reevaluation, although some change in his medical condition may have been anticipated for the purpose of adjudicating his disability compensation, his medical conditions were considered to have stabilized to a degree of severity that was equal to or greater than 30%.  He was rated under the VASRD and awarded a 30% disability rating for code 7800 (scar, scalp, disfigurement), a 30% disability rating for codes 8799 and 8715 (right carpal tunnel syndrome), a 20% disability rating for code 7801 (scars to right hand), a 20% disability rating for code 7801 (scars to left hand), a 10% disability rating for code 5010 (arthritis), a 10% disability rating for codes 5099 and 5003 (chronic pain to right knee and ankle), and a 10% disability rating for code 5242 (degenerative arthritis of the spine).  The TDRL PEB also considered other reevaluation diagnoses but found them not ratable since they were not listed on the original MEBD as not meeting retention standards and appear to be new conditions which were unrelated to any previously rated unfitting condition.  The PEB recommended the applicant be placed on the Retired List with a combined disability rating of 80%.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing on 4 February 2008.  

17.  On 14 May 2008, the U.S. Army Physical Disability Agency (USAPDA) published Orders D-135-3 directing the applicant’s removal from the TDRL effective 14 May 2008 and placement on the Retired List with an 80% disability rating.  

18.  On 23 September 2008, the DVA awarded the applicant a 10% service-connected disability rating for post traumatic brain injury with post concussive syndrome and approved continuation of his 70% disability rating for PTSD.

19.  In the processing of this case, an advisory opinion was obtained on 2 July 2009.  The USAPDA legal advisor recommended no change to the applicant’s military records.  He stated:

	a.  the applicant’s first MEBD, dated 12 May 2005, did not contain a diagnosis of PTSD listed on his DA Form 3947.  The PTSD was found to meet medical retention standards.  Additional medical treatment and evaluation after the first MEBD resulted in a new MEBD on 12 July 2005 with a NARSUM, dated
26 September 2005.  This new MEBD and the NARSUM contained a psychiatric addendum, dated 30 August 2005.  This psychiatric addendum noted the DVA’s and U.S. Navy’s psychiatric opinions regarding a diagnosis of PTSD.  However, the extensive Army psychiatric addendum did not concur and only listed a diagnosis of major depressive disorder.  The report found that the applicant had made significant progress in his psychiatric condition, no matter what it may have been diagnosed as.  It was the psychiatrist’s opinion that the condition met medical retention standards and that the applicant’s psychiatric condition would not keep him from working.  The applicant non-concurred with the PTSD not being listed on his MEBD.  The MEBD approving authority reviewed the applicant’s comments; however, it found the Army’s medical opinion to be supported by their evaluation.  The applicant’s 22 September 2005 physical profile listed depression as the only restrictive mental diagnosis and only placed a 2 in the psychiatric portion of the PULHES;  

	b.  on 26 October 2005, an informal PEB found the applicant unfit and separated him with severance pay.  The PEB did not find any psychiatric condition unfitting.  On 2 November 2005, the applicant non-concurred and requested a formal hearing.  On 29 November 2005, the informal PEB reconsidered and changed its findings to a 30% disability rating with placement on the TDRL.  Again, the PEB did not find any psychiatric condition unfitting.  The applicant concurred and waived his right to a formal hearing;

	c.  on 9 September 2007, the applicant underwent a psychiatric TDRL reevaluation.  The reevaluation listed a diagnosis of adjustment disorder—not a disability; not compensable - and PTSD.  The report indicated that notwithstanding this diagnosis, the applicant was still able to work at a civilian job for a 40-hour week, he was continuing to improve with treatment, and that even though the PTSD would have some impact on duty performance, it would not be so severe as to render him unable to meet medical retention standards.  The 
applicant non-concurred with his PTSD meeting retention standards as he felt his PTSD still made it difficult for him to perform his military duties.  The TDRL approving authority reviewed the applicant’s comments and concurred with the TDRL findings on 7 January 2008;

	d.  on 10 January 2008, an informal PEB found the applicant unfit for a variety of conditions and rated him at 80% and recommended permanent retirement (maximum retired pay is 75 percent in accordance with Title 10, U.S. Code, section 1401 and disability percentage above 75% results in no additional benefits or compensation).  The PEB did not find any psychiatric condition unfitting or compensable.  The applicant concurred with the PEB findings on       4 February 2008 and he was permanently retired at 80 % on 14 May 2008; and

	e.  the PEB correctly decided his case upon placement on and removal from the TDRL.  The medical evidence presented to the PEB by the MEBD clearly considered and mentioned the diagnosis of PTSD.  However, in all instances, the diagnosis was not considered to be so severe to require a finding that the applicant did not meet medical retention standards.  The applicant did not provide any evidence that his MEBD or PEB were incorrect.  The fact that other agencies may have also diagnosed his PTSD condition but chose to consider it more severe does not result in automatic error for either agency.  The findings by the PEB were supported by a preponderance of the evidence; they were not arbitrary or capricious; and they were not in violation of the law, directives, or regulation.  

20.  On 7 July 2008, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 20 July 2009, the applicant submitted a rebuttal to the advisory opinion and stated that he understands that his PTSD was found to meet medical retention standards at the time; however, he had no one to advocate for him or follow up on administrative matters at the time as he was not fully coherent to take care of this issue.  He adds that he continues to suffer from nightmares, flashbacks, detachment, and other PTSD symptoms.  He also added that after his injury in 2003, he had memory problems, anxiety attacks, panic attacks, depression, anger, isolation, and an overall struggle to cope with his injury.  He also submitted a statement, dated 20 June 2009, from a Readjustment Counseling Therapist, in which she states that she is the primary counselor for the applicant with respect to his treatment for chronic PTSD.  She essentially describes the applicant’s symptoms as social impairment that interferes with his ability to work and maintain a job; anger, frustration, memory loss, sleep apnea, depression, isolation, startle response, and distress. 

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 or her office, grade, rank, or rating.  It provides for MEBDs, 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 MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

22.  Army Regulation 40-501 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 Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

23.  The VASRD, Code 9411, Mental Disorders, 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.  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.

24.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA 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 DVA 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 PTSD should have been included on his MEBD and PEB.

2.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The applicant sustained an IED injury in Iraq.  He was evacuated to Fort Sam Houston, where he had skin grafts and debridement of multiple burns to the head, face, hands, and right lower extremity.  During the several physical examinations he underwent, he was diagnosed with various medical conditions that warranted his entry into the PDES.  However, his initial diagnosis did not contain a diagnosis of PTSD listed on his DA Form 3947.  A subsequent non-Army psychiatric addendum noted a diagnosis of PTSD.  However, the Army psychiatric addendum did not concur and only listed a diagnosis of major depressive disorder.  

4.  The report found that the applicant had made significant progress in his psychiatric condition, no matter what it may have been diagnosed as and that it was the psychiatrist’s opinion that the condition met medical retention standards and that the applicant’s psychiatric would not keep him from working.  The applicant did not concur with the PTSD not being listed on his MEBD; however, the MEBD approving authority reviewed the applicant’s comments, but found the Army’s medical opinion to be supported by their evaluation.  

5.  The informal PEB found the applicant unfit and separated him with severance pay.  The PEB did not find any psychiatric condition unfitting.  The PEB subsequently reconsidered and changed its findings to a 30% disability rating 
with placement on the TDRL.  Again, the PEB did not find any psychiatric condition unfitting.  The applicant concurred and waived his right to a formal hearing.

6.  The applicant underwent a psychiatric TDRL re-evaluation in September 2007 that listed a diagnosis of adjustment disorder, which is neither a disability nor compensable, and PTSD.  The report indicated that notwithstanding this diagnosis, the applicant was still able to work at a civilian job for a 40-hour week, he was continuing to improve with treatment and that even though the PTSD would have some impact on duty performance, it would not be so severe as to render him unable to meet medical retention standards.  The applicant did not concur with his PTSD meeting retention standards as he felt his PTSD still made it difficult for him to perform his military duties.  Nevertheless, the TDRL approving authority reviewed the applicant’s comments and concurred with the TDRL findings on 7 January 2008.

7.  In January 2008, an informal PEB found the applicant unfit for a variety of conditions and rated him at 80% and recommended permanent retirement.  Again, the PEB did not find any psychiatric condition unfitting or compensable.  The applicant concurred with the PEB findings on in February 2008 and he was permanently retired at 80% in May 2008.

8.  The applicant now believes PTSD should have been included on his MEBD and PEB partly because the DVA granted him a rating for PTSD.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.   A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  

9.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  The medical evidence presented to the PEB by the MEBD clearly considered and mentioned the diagnosis of PTSD.  However, in all instances, the diagnosis was not considered to be so severe to require a finding that the applicant did not meet medical retention standards.  The applicant did not provide any evidence that his MEBD or PEB were incorrect.  

10.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20090010266



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ABCMR Record of Proceedings (cont)                                         AR20090010266



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