BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090012832 


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 correction of his records to show all the conditions that were listed on his Medical Evaluation Board (MEB) are rated.

2.  The applicant states that the MEB stated throughout the proceedings that the bipolar disorder and the panic disorder were service-aggravated; yet, neither was given a rating.  Additionally, the coronary artery disease, hypertension, low back pain, and sinusitis were not rated either.

3.  The applicant provides a statement from his spouse, dated 21 July 2009; a copy of a letter from the Department of Veterans Affairs (DVA) to the applicant's Member of Congress, dated 6 April 2009; a copy of his DA Form 3947 (MEB Proceedings), dated 18 June 1997; a copy of the Narrative Summary (NARSUM), dictated on 14 May 1997; a copy of his Standard Form (SF) 93 (Report of Medical History), dated 13 March 1997; a copy of his SF 88 (Report of Medical Examination), dated 13 March 1997; a copy of his DA Form 3349 (Physical Profile), dated 11 March 1997; a copy of his DA Form 1506 (Statement of Service), dated 18 March 1997; a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 27 June 1997; a copy of the immediate commander's duty performance statement, dated 1 April 1997; a self-authored DVA summary of compensation; a copy of his Long Term Disability Retirement/Pension Questionnaire, dated 10 July 2008; a copy of his DVA rating decision, dated 16 June 2009; a listing of current medications, dated 10 July 2009; and internet printouts pertaining to heart failure and sleep apnea, 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.  With prior enlisted service in the Regular Army (RA) and the Army National Guard (ARNG), the applicant's records show he enlisted in the RA on 9 March 1995 and he held military occupational specialties (MOS) 12F (Engineer Tracked Vehicle Crewman) and 12B (Combat Engineer).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

3.  On 6 March 1997, subsequent to a medical examination, the applicant was issued a permanent physical profile for bipolar disorder II, anxiety disorder, atypical chest pain syndrome, and non-obstructive gastro esophageal reflux disease.

4.  On 1 April 1997, the applicant's immediate commander stated by memorandum that the applicant was unable to perform the duties as a combat engineer Soldier.  Although he had contributed to the unit work in another capacity, his physical profile precluded him from taking the physical fitness test or performing the duties of MOS 12B.  He added that the applicant had been diagnosed with bipolar disorder II and anxiety disorder and that although the effects of the condition were not directly evident in his duty performance, he had not been put under stressful field or simulated combat conditions due to his physical profile and that the effects were not fully known.  With his current physical and psychological conditions, the immediate commander's assessment was that the applicant could not perform then or in the future as a combat engineer and as such was non-deployable. 

5.  The applicant's NARSUM, dictated on 14 May 1997, shows that he complained of intermittent chest pain occurring since May 1994.  He also complained of heartburn in the past and he was previously prescribed medication.  He gave a vague history of bipolar disorder in the past and a history of alcoholism and heavy smoking.  He underwent a complete physical examination with X-rays and a psychiatric evaluation.  The psychiatric evaluation revealed a long history of emotional lability and frequent periods of feeling high/low with impulsive behavior and poor judgment that began in childhood.  The psychiatrist's final diagnosis was as follows:

	a.  Axis I, bipolar disorder II, "hyponotic" (i.e. hypomanic), mild severity, existed prior to service (EPTS) and manifested by periods of expansive moods, grandiosity, poor sleep, and racing thoughts, but not severe enough to require hospitalization; panic disorder without agoraphobia, EPTS and manifested by abrupt feelings of fear associated with chest pain, shaking, shortness of the breath, abuse and withdrawal symptoms; and alcohol dependence manifested by signs of tolerance, physical degeneration and recurrent withdrawal associated with drinking; 

	b.  Axis II, No diagnosis; and

	c.  Axis III, gastro esophageal reflux disease and possible coronary artery disease.

6.  The applicant's NARSUM further shows a final diagnosis of gastro esophageal reflux disease manifested by linear ulcerations not amenable to surgical therapy; mild non-obstructive pulmonary disease; early chronic pulmonary disease; chronic sinusitis; hypertension; colonic polyps; chronic low back pain; mild bipolar disorder (EPTS); panic disorder (EPTS); and alcohol dependence.  The attending physician indicated that the applicant did not meet the physical retention standards of Army Regulation 40-501 (Standards of Physical Fitness) and recommended his referral to the Physical Disability Evaluation System (PDES).

7.  On 18 June 1997, an MEB convened at Fort Benning, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant had the medical conditions of gastro esophageal reflux disease manifested by linear ulcerations not amenable to surgical therapy; mild non-obstructive pulmonary disease; early chronic pulmonary disease; chronic sinusitis; hypertension; colonic polyps; chronic low back pain; mild bipolar disorder (EPTS and service aggravated); panic disorder (EPTS and service aggravated); and alcohol dependence.  The MEB recommended that he be referred to a PEB.  The applicant agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

8.  On 27 June 1997, an informal PEB convened at Fort Sam Houston, TX, and after a review of the objective medical evidence of record, the PEB found the applicant's medical and physical impairment prevented reasonable performance 
of the duties required by his grade and MOS and determined that he was physically unfit due to gastro esophageal reflux disease manifested by linear ulcerations and atypical chest pain.  The PEB noted that with respect to his bipolar disorder/panic disorder, there was compelling evidence to support a finding that it had existed prior to service, and that it was not aggravated by service and thus not ratable.  Additionally, the PEB considered his other conditions of mild non-obstructive pulmonary disease; early chronic pulmonary disease; chronic sinusitis; hypertension; colonic polyps; chronic low back pain; and alcohol dependence, but did not find them unfitting and therefore they were not rated.  The applicant was classified under the Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 7739 and 7346 (gastro esophageal reflux disease manifested by linear ulcerations and atypical chest pain) and was awarded a 10-percent disability rating.  He was also found unfit under VASRD codes 9432 and 9412 (bipolar disorder II and panic disorder) but was not rated for this condition(s).  The PEB recommended the applicant be separated from the service with entitlement to severance pay, if otherwise qualified.

9.  On 16 July 1997, subsequent to receiving counseling on the findings and recommendation and on his legal rights, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.  On 21 July 1997, the PEB was approved on behalf of the Secretary of the Army.

10.  On 3 September 1997, the applicant was honorably discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay. This form further shows he completed 2 years, 5 months, and 25 days of creditable active military service during this period of enlistment and that he received $13,947.00 in disability severance pay.

11.  The applicant submitted internet printouts concerning congestive heart failure and sleep apnea and the following additional documentation:

	a.  A statement from his spouse, dated 21 July 2009, in which she chronicles his military service and her attempts over the years to obtain DVA disability compensation for the applicant.  She essentially questions the finding of no service aggravation with respect to the bipolar disorder and lack of rating for the other non-fitting conditions.  She also points out that his chest pains started in 1994, not 1995, as shown on the NARSUM.
	b.  A copy of the DVA letter, dated 6 April 2009, to the applicant's Member of Congress explaining why his previous DVA claim for disability compensation was denied.
	c.  A copy of the DVA rating decision, dated 16 June 2009, that awarded him disability compensation for coronary artery disease (10 percent), hypertension (10 percent), and reflux (10 percent).

12.  An advisory opinion was obtained on 10 December 2009 from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official at the USAPDA recommended no change to the applicant's military records and stated, in pertinent part:

	a.  The applicant's MEB listed a diagnosis of gastro esophageal reflux disease with no evidence of ischemia, early chronic pulmonary disease; chronic sinusitis; hypertension; colonic polyps; chronic low back pain; mild bipolar disorder, and mild panic disorder.  The MEB did not individually list which of the conditions did not meet medical retention standards in accordance with chapter 3 of Army Regulation 40-501.  However, the MEB cited chapter 3 dealing with psychological conditions and a section that dealt with miscellaneous conditions and deficits.  The MEB did not cite the spinal, pulmonary, orthopedic, cardiac, or intestinal sections found in Army Regulation 40-501 as not meeting any diagnosed conditions listed on his MEB.

	b.  His cardiac evaluation noted claims of chest pain but no abnormal findings that suggested any significant cardiac problems.  The applicant related a long history from childhood of emotional lability and frequent feelings of high and low. He also related decades of behavioral and impulsive problems.  The MEB's final diagnosis was bipolar disorder II that existed prior to service.  The MEB did not state that his condition was worse than when he entered the service and did not describe the basis of the opinion of service aggravation.  There was no mention of any psychiatric treatments or medications.  He had some polyps that were removed and had no further significant colonic symptoms.  He had some sign of early small airway disease but continued to smoke.  He was treated for minimal left maxillary sinusitis and was again urged to stop smoking.  His physical profile limitations only noted restrictions based on psychiatric and physical capacity systems.  He was authorized to perform all military functional activities and could perform all physical tasks and training as tolerated.  His commander indicated he could not perform all his combat engineer duties.  Although he had been diagnosed with psychiatric conditions, the commander noted that he had observed no duty limitations caused by any psychiatric condition.

	c.  The PEB found him unfit for reflux disease which caused his atypical chest pain and his bipolar and panic disorders.  The reflux disease was rated at
10 percent and his psychiatric conditions were also rated.  The PEB found that the preponderance of evidence supported a finding that his psychiatric conditions were not incurred while entitled to basic pay and the severity of these conditions was not increased by military service.  His psychiatric conditions at the time of his PEB were the result of a long standing natural progression of these decades' long conditions.  The PEB also found the remaining listed conditions were not unfitting as they did not significantly interfere with his assigned duties.  The mere presence of impairment or a diagnosed condition does not, of itself, justify a finding of unfitness.  Only conditions that are found to be unfitting are authorized military disability compensation.

	d.  The applicant has presented no timely request for correction of his records and has presented no evidence of error which would require a change in the PEB's findings.

13.  On 4 January 2010, the applicant was furnished with a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He responded with a rebuttal in which he provided a copy of his DVA rating decision and stated that when combining all the physical conditions together, not just the diagnosis, but also the symptoms he suffers from, the high blood pressure, feeling flushed, chest pain, shortness of breath, shoulder and neck pain, heartburn, frequent sinus infections, coupled with his bipolar disorder, it clearly shows that these conditions were listed throughout his active duty medical records and post active duty.  These symptoms interfered with his assigned duties as a member of the armed forces and as a husband and father.

14.  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.  It provides for MEBs, 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.

15.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which existed prior to service or incurred in the line of duty and not due to the Soldier's misconduct.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

16.  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 (DODI) 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.

17.  Army Regulation 635-40 states, in pertinent part, that 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.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.

18.  Appendix B of Army Regulation 635-40 states that Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Such decisions are to be made according to Title IV of the Career Compensation Act of 1949 (Title IV is now mainly codified in Title 10, U.S. Code, section 61.).  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from these diseases and injuries.  The ratings also represent the residual effects of these health impairments on civil occupations.  Not all of the general policy provisions of the VASRD apply to the Army.  Section I replaces or modifies paragraph 1–31 of the VASRD, which pertain to VA determination of service-connected disabilities, internal VA procedures or practices, and other paragraphs that do not apply to the Army.  Furthermore, Appendix B states:

	a.  B-4, pyramiding is the term used to describe the application of more than one rating to any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis, for rating purposes, unless specifically exempted.


	b.  B-10, rating of disabilities aggravated by service, 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.  This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time.  Therefore, it is necessary to deduct from the present degree of disability, if ascertainable, the degree of disability existing at the time of entrance into active service and also the natural progression that has occurred during active service in terms of the rating schedule.  Hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

	c.  B-11, EPTS condition not service aggravated, if the disability at the time of evaluation is not greater than the EPTS, the condition cannot be considered service aggravated and will be listed as (NR) (not ratable).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show all the conditions listed on his MEB were rated. 

2.  The evidence of record shows that the applicant underwent a medical evaluation that resulted in a diagnosis of the medically unacceptable conditions of gastro esophageal reflux disease manifested by linear ulcerations not amenable to surgical therapy; mild non-obstructive pulmonary disease; early chronic pulmonary disease; chronic sinusitis; hypertension; colonic polyps; chronic low back pain; mild bipolar disorder (EPTS service aggravated); panic disorder (EPTS service aggravated); and alcohol dependence.  He subsequently underwent an MEBD which recommended his referral to a PEB.  

3.  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 recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.
4.  After a review of the objective medical evidence of record, the PEB found his medical conditions prevented reasonable performance of the duties required by his grade and MOS and determined that he was physically unfit due to gastro esophageal reflux disease manifested by linear ulcerations and atypical chest pain and bipolar disorder/panic disorder.  

5.  The PEB noted that his bipolar disorder/panic disorder had existed prior to service and that it was not aggravated by service and thus not ratable.  During his medical evaluation, he related to a long history of emotional lability and frequent feelings of high and low and decades of behavioral and impulsive problems from childhood.  The MEB did not state that his condition was worse than when he entered the service and did not describe the basis of the opinion of service aggravation.  Additionally, there was no mention of any psychiatric treatments or medications.  EPTS conditions are not compensable under the PDES.  

6.  Additionally, the PEB considered all the other conditions listed on the MEB (mild non-obstructive pulmonary disease; early chronic pulmonary disease; chronic sinusitis; hypertension; colonic polyps; chronic low back pain) but did not find them unfitting and therefore they were not rated.  The applicant was rated under the VASRD and he was awarded a 10-percent disability rating.  The PEB recommended his separation with entitlement to severance pay.  

6.  The applicant presents several medical conditions; however:

	a.  His cardiac evaluation at the time noted claims of chest pain but did not note any abnormal findings such as heaves, thrills, extra sounds, murmurs, clicks, or anything out of the ordinary that suggested any significant cardiac problems.

	b.  He had some growths on the surface of the colon that were removed and he had no further significant colonic symptoms.  Additionally, the removed colon polyps were benign, which means they were not cancerous.

	c.  He had some sign of early small airway disease but continued to smoke. He was also treated for minimal left maxillary sinusitis and was again urged to stop smoking.

   d.  His physical profile limitations only noted restrictions based on psychiatric and physical capacity systems.  He was authorized to perform all military functional activities and could perform all physical tasks and training as tolerated. 
His commander indicated he could not perform all his combat engineer duties.  Although he had been diagnosed with psychiatric conditions, the commander noted that he had observed no duty limitations caused by any psychiatric condition.

7.  The applicant applied for service-connected disability compensation through the DVA and he was awarded service-connected disability compensation for several conditions.   He now believes that since the DVA is awarded him service-connected disability compensation, his PEB process was not done correctly.  However, an award of a service-connected disability rating and/or a service-connected compensation by another agency does not establish error in the rating assigned and/or the decision made by the Army's disability evaluation system.  Operating under different laws and its 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.  Any questions pertaining to the DVA's rules should be addressed to that agency.

8.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation.  The Army compensates only those conditions found to be unfitting.  The fact that the applicant had some certain conditions that were not rated does not automatically result in disability compensation since these conditions did not limit his ability to perform or impose any physical limitations on his assigned duties.

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.  In view of the circumstances in this case, there is insufficient evidence to grant him 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)                                         AR20090012832



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ABCMR Record of Proceedings (cont)                                         AR20090012832



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