IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090014879 


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 DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and DA Form 199 (Physical Evaluation Board (PEB) Proceedings), both dated in March 1996, by including Post Traumatic Stress Disorder (PTSD) as one of his disabling conditions and increasing the combined disability rating for his service-connected permanent disability retirement from 40 percent (%) to 100% in order to match the findings of a Department of Veterans Affairs (VA) Rating Decision, effective 23 June 2008.

2.  The applicant states he is requesting, once again, that the VA Schedule for Rating Disabilities (VASRD) code 9411 [for PTSD] be added to his MEB and PEB proceedings, both dated in March 1996 to match the findings for PTSD from the VA.  He is also requesting he be rated at a 100% disability rating for PTSD code 9411, effective 23 June 2008.

3.  The applicant attests, in effect, immediately following his separation the VA diagnosed him with "adjustment disorder with depressed mood and sleep disturbance" on 6 July 1996 and awarded him a 30% disability rating under VASRD code 9433 as it relates to being service-connected and that was incurred during the Gulf War.  He states this code was subsequently changed to PTSD under VASRD code 9411 in his VA Rating Decision, effective 23 June 2008.

4.  The applicant contends this was not rated by the Army during his MEB even though it is in his medical records and it was noted on his MEB that he had poor sleep hygiene and subjective memory complaints consistent with benign 

forgetfulness.  He also contends he was told during his MEB processing that only those medical conditions that would render him incapable of performing in his MOS would be evaluated and rated and any other conditions would be rated by the VA.

5.  For clarification, the applicant states he was injured when his tracked vehicle flipped over during a training exercise a Fort Hood, TX; not at the National Training Center.

6.  The applicant provides copies of

* a letter from the VA Regional Office located in Waco, TX, dated 7 November 2008
* a Compensation and Pension Examination Consult, dated 6 September 2008
* six pages extracted from a 25-page psychiatric evaluation rendered by Dr. J----h L. E------n on 6 June 2009
* a VA Rating Decision from the VA Regional Office located in Waco, dated 27 October 2008
* three pages extracted from a Medical Record Report dictated by Dr. S----a Z_ on 30 May 1996
* a letter from Dr. A---n E. P---e, dated 12 November 1996
* a letter from Major D----l W. P------n, dated 9 May 1996
* a VA Rating Decision from the VA Regional Office located in Waco, dated 20 April 1998
* two DA Forms 1594 (Daily Staff Journal or Duty Officer's Log), covering portions of 20 and 21 August 1993

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.  Although the applicant states he is requesting, once again, that the PTSD disability rating code 9411 be added to his MEB and PEB proceedings, there is no evidence he previously requested consideration of this action by the ABCMR.
Therefore, his request is not a reconsideration by this Board of a previously denied application.

3.  The applicant enlisted in the Regular Army on 21 February 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained while serving on active duty was staff sergeant (SSG)/E-6.

4.  On 1 September 1994, a physician at Darnall Army Community Hospital (DACH), Fort Hood, prepared an MEB Narrative Summary (NARSUM) to evaluate the applicant's chief complaint of bilateral hip pain (left greater than right).  Following his examination, the applicant's final diagnosis was moderately severe degenerative joint disease of bilateral hips (left greater than right) and a nonspecific rash on his chest.  The attending physician recommended separation from the Army in accordance with Army Regulation 40-501 (Standards of Medical Fitness).

5.  Physicians from three additional clinics at DACH and Wilford Hall U.S. Air Force Medical Center, Lackland Air Force Base, TX, prepared subsequent MEB NARSUM Addenda following the applicant’s additional examinations that were rendered on the following dates with the diagnoses as indicated:

	a.  10 November 1994 - L5/S1 herniated nucleus pulposus; moderate hearing loss documented by Ears, Nose, and Throat (ENT); and headache, etiology undetermined;

	b.  29 November 1994 - severe degenerative joint disease of the hips, poor sleep hygiene, probable sleep apnea, and gastroesophageal reflux disease;

	c.  31 August 1995 - moderate to severe obstructive sleep apnea with significant sleep fragmentation and mild oxygen desaturation, history consistent with psychophysiologic insomnia, and other diagnoses by primary care physician; and

	d.  7 September 1995 - migraine headaches, noncompliance with recommendations, and subjective memory complaints consistent with benign forgetfulness.

6.  A DA Form 3947, initiated on 19 October 1994, shows an MEB conducted at DAHC considered each of the applicant's aforementioned diagnosed medical conditions and recommended his referral to a PEB.  The MEB findings and recommendation were approved by proper authority and, on
29 November 1995, the applicant agreed with the approved findings and recommendation.  During the course of his MEB, the applicant's case included consultations from

* Psychiatry
* Neurosurgery
* Sleep Lab
* Orthopedics
* Neurology
* Allergy and Immunology
* Neuropsychiatry
* Behavioral Psychology

7.  On 4 December 1995, in a memorandum addressed to the President of the PEB based at Fort Sam Houston, TX, the applicant acknowledged he had been counseled by the PEB Liaison Officer (PEBLO), he had reviewed his MEB, and he agreed with the findings and recommendations.  He also concurred that the findings were current and unchanged and that no new condition needed to be addressed at the time.

8.  On 8 January 1996, the President of the PEB returned the MEB proceedings to the DACH PEBLO to be revised for clarification purposes.

9.  On 7 February 1996, a revised MEB NARSUM was prepared on the applicant which consolidated the previously rendered NARSUM and addenda and contained the following diagnosed conditions:

* Severe degenerative joint disease, hip, left greater than right
* L5/S1 herniated nucleus pulposus mild
* S1 radiculitis, left greater than right, mild
* Severe to profound sleep apnea
* Sleep fragmentation, severe, with mild oxygen desaturation
* Psychophysiologic insomnia
* Migraine headache syndrome, moderate, with incapacitating attacks, frequent
* Benign forgetfulness
* Gastroesophageal reflux disease, moderate with mild peptic ulcer disease
* 
Atypical chest pain
* Hypercholesterolemia
* Nonspecific chest wall rash
* Moderate hearing loss
* Left wrist de Quervain's syndrome
* Left tibiotalar joint, degenerative joint disease, mild
* Symptomatic erectile dysfunction with negative urologic evaluation and provocative urologic testing
* Migratory joint pain in knees and interphalangeal joints with negative physical exam findings
* Bilateral tibial stress reactions, mild

10.  A revised DA Form 3947 was prepared on 13 February 1996.  The revised MEB findings and recommendation were approved by the proper authority on 20 February 1996.  The MEB, once again, recommended referral of the applicant to a PEB.  The applicant was informed and agreed with the findings and recommendation of the MEB on 1 March 1996.  There is no indication the applicant was diagnosed with PTSD during his MEB process.

11.  A DA Form 199 shows the applicant's case was considered by a PEB at Fort Sam Houston on 8 March 1996.  The PEB considered the applicant's pain associated with severe degenerative joint disease, hip, left greater than right; L5/S1 herniated nucleus pulposus and S1 radiculitis, left greater than right, both mild (diagnoses 1-3); profound obstructive sleep apnea with severe sleep fragmentation and mild oxygen desaturation (diagnoses 4-5); and migraine headache syndrome, moderate with incapacitating attacks, frequent (diagnosis 7) as unfitting and recommended permanent disability retirement with a combined disability rating of 40%.  The PEB further determined that diagnoses
6 and 8-18 were not unfitting and, therefore, not rated.

12.  The PEB also determined that the applicant's retirement was not based on disabilities from injuries or diseases received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law and that the disabilities did not result from a combat-related injury as defined in Title 26, U. S. Code, section 104.

13.  On 20 March 1996, the applicant concurred with the PEB’s findings and recommendations, and waived his right to a formal hearing.  The PEB's findings were approved on behalf of the Secretary of the Army on 8 April 1996.  There is no indication the applicant was evaluated for a diagnosis of PTSD during his PEB process.

14.  On 5 July 1996, the applicant was honorably retired from active duty.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time confirms he was retired by reason of permanent disability.  It also shows he completed a total of 17 years, 4 months, and 15 days of active military service.

15.  The applicant provides two DA Forms 1594 covering portions of 20 and
21 August 1993 that show he was injured when his vehicle flipped over during a training exercise.  His injuries consisted of a cut on his right leg, sore back, and migraine headaches the following morning.

16.  The applicant provides a letter rendered by his physician at DACH, Major
P------n, dated 9 May 1996.  The physician indicated the applicant had recently completed an MEB and a PEB and would be medically retired from active military service on 5 July 1996.  He stated that in addition to the conditions for which he would be separated, he also had several additional diseases which would be evaluated and rated by the VA upon release from active military service.  He concluded the applicant would be undergoing medical treatment and evaluations through the VA on a continuing basis requiring him to be away from home at times for extended periods.

17.  The applicant provides three non-sequential pages extracted from a Medical Record Report dictated by Dr. Z_ of the Olin E. Teague VA Medical Center located in Temple, Texas on 30 May 1996, wherein he diagnosed the applicant with forgetfulness, chronic fatigue, and depression.

18.  The applicant provides a letter rendered by Dr. P---e of the Olin E. Teague VA Medical Center on 12 November 1996, wherein he stated the applicant was a veteran from the Persian Gulf War and opined the applicant was probably exposed to nerve gas in southern Iraq and noted he now had multiple neurological and orthopedic disabilities.

19.  The applicant provides a VA Rating Decision from the VA Regional Office located in Waco, dated 20 April 1998, showing he was evaluated for service- connection for a myriad of conditions which included "adjustment disorder with depressed mood and sleep disturbance."  The VA granted him service-connection for this condition with a 30% disability rating under VASRD code 9433, effective 6 July 1996.

20.  The applicant provides a Compensation and Pension Examination Consult, dictated by a board certified psychiatrist at the Olin E. Teague VA Medical Center on 6 September 2008 for the applicant's initial evaluation for PTSD.

	a.  The cited sources of information were the applicant's clinical file, VA computer records, and information from a family friend who accompanied the applicant to the exam.

	b.  The psychiatrist noted the applicant had no previous psychiatric hospitalizations.

	c.  The "Past medical history" portion of this form states, in pertinent part, "The patient served in the Gulf War.  He was in the war theater from January 1991 for nine months.  During this time he was in the infantry.  The patient came under attack from enemy sources.  His half-track however was hit by friendly fire and during this attack the patient was injured.  His sergeant and friend were killed.  The patient's PTSD symptomatology relates back to this unfortunate event.  The patient was also exposed to the oil fires in Kuwait which caused him to have numerous physical difficulties.  The patient has been unable to work since leaving the military due to his physical and mental difficulties."

	d.  The present medical history portion of this form describes the frequency, severity, and duration of the applicant's medical and psychiatric symptoms which manifested in unusual behavior on his part.

	e.  The psychiatrist diagnosed the applicant with PTSD and opined he had total occupational and social impairment due to his symptoms and would require continuous medication.

21.  The applicant provides a revised VA Rating Decision from the VA Regional Office located in Waco, dated 27 October 2008, which now showed the VA granted the applicant service-connection for PTSD with an evaluation of 100% disability rating under VASRD code 9411, effective 23 June 2008, based upon the results of his psychiatric exam at the Olin E. Teague VA Medical Center on 6 September 2008 and the receipt date of his claim for PTSD.  This form also shows a review of the applicant's service treatment records was negative for a diagnosis of or treatment for PTSD and his service separation indicated a normal psychiatric examination.  A review of his DD Form 214 indicated an award of the Combat Infantryman Badge; therefore, a stressor of exposure to combat was conceded.  On 24 July 2008, the VA requested additional evidence from the applicant in support of his claim and he did not provide a response, so a determination was made based upon the VA examiner's clinical diagnosis for PTSD.

22.  The applicant provides a letter from the VA Regional Office located in Waco, dated 7 November 2008, which served as a cover letter for the aforementioned revised VA Rating Decision, dated 27 October 2008.

23.  The applicant provides six pages extracted from a 25-page psychiatric evaluation rendered by Dr. E------n on 6 June 2009 in order to determine the cognitive and psychiatric residuals of the applicant's claimed Traumatic Brain Injury (TBI).  The applicant complained of migraine headaches, depression, inability to sleep, nightmares, flashbacks, poor eyesight, and an inability to get along with other people as the result of a TBI he suffered when his Bradley [Fighting] Vehicle rolled over sometime in 1993.  The psychiatrist noted "There are no medical records concerning this accident and by his report it does not appear that he was taken to a hospital for treatment.  He did not report it and there were no indications in the medical records of skull fracture, loss of consciousness > 30 minutes, or intracranial bleeding."

24.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army's decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive (DODD) 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

25.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  The regulation states 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.

26.  Army Regulation 635-40, paragraph 4-10 (The MEB), provides that MEBs 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 qualification for retention based on the criteria in Army Regulation
40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

27.  Army Regulation 635-40, paragraph 4-17 (PEBs), provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:

	a.  investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board;

	b.  evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating;

   c.  providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214; and

	d.  making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

28.  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 uses the VASRD to rate unfitting disabilities.  Department of Defense Instructions (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%, rising in increments of 10%.

29.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30%.

30.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the disability rating for his MEB and PEB proceedings should be corrected by including PTSD as one of his disabling conditions and increasing the combined disability rating for his service-connected permanent disability retirement from 40% to 100% in order to match the findings of the VA Rating Decision, effective 23 June 2008, was carefully considered.

2.  There is no medical evidence of record and the applicant failed to provide any evidence sufficient to show he was suffering from PTSD at the time of his discharge.

3.  Evidence shows the applicant was evaluated by an MEB and recommended for referral to an informal PEB.  The record shows the applicant concurred with the findings and recommendations of the MEB and he made no mention of any additional medical conditions that should have been considered by the MEB.

4.  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.

5.  Evidence shows a PEB determined the applicant to be physically unfit for retention in the Army and recommended that he be placed on the Retired List with a combined disability percentage rating of 40%.  The record shows the applicant concurred with the findings and recommendations of the PEB and he made no mention of any additional medical conditions that should have been considered by the PEB.

6.  Army Regulation 635-40 provides, in pertinent part, that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, awarded the applicant a higher disability rating than that which he received from the Army, is a prerogative exercised within the policies of that agency.

7.  An award of a VA rating does not establish error in the rating assigned by the Army's PDES.  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.  

8.  The record contains no evidence, and the applicant provides insufficient evidence, to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  He has not shown that either the MEB or the PEB proceedings were inaccurate or unjust at the time of preparation.  As a result, it would not be in the interest of justice to amend either of the proceedings.

9.  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.  The applicant has not shown error, injustice, or inequity for the relief he requests.





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)                                         AR20090014879



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ABCMR Record of Proceedings (cont)                                         AR20090014879



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