BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090017851 


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 that his disability rating be changed to 50 percent disability for combat-related post-traumatic stress disorder (PTSD).

2.  The applicant states that he was placed on the Temporary Disability Retired List (TDRL) at 30 percent disability.  He is currently receiving 70 percent disability through the Department of Veterans Affairs (VA) and he feels the Army unjustly gave him 30 percent disability for anxiety disorder.

3.  The applicant states he was diagnosed with generalized anxiety/PTSD.  The applicant states after returning from Iraq he had a failing marriage coupled with nightmares, night sweats [of dead bodies and firefights], and having a sniper shoot so close to his ear that it perforated his eardrum.  He even had homicidal thoughts and wanted to hurt people afterwards until he sought help and went to mental health for his problems.  Instead, he was put out of the Army because they thought he could not handle the stress of his marriage.

4.  The applicant states when he signed his Medical Evaluation Board (MEB)/
Physical Evaluation Board (PEB) he was on medication and not in his right frame of mind and was of the understanding that he was not being rated for his combat tour.  He was told by the Physical Evaluation Board Liaison Officer (PEBLO) to take the money and run.  He feels he deserves a 50 percent rating for combat related PTSD.  The applicant states the new regulation states that a Soldier getting out for any mental disability will have no less than 50 percent disability.


5.  The applicant provides his MEB/PEB findings and his entire military medical and VA medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the U.S. Army Reserve (USAR).  He enlisted in the Regular Army on 12 August 2003 and successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  

2.  An MEB Narrative Summary (NARSUM) indicates a military psychiatrist evaluated the applicant on 9 May 2008.  The NARSUM shows that the applicant was treated for a form of PTSD.  However, the NARSUM does not show he was treated for combat-related PTSD.  The applicant stated that while deployed his main trauma was in June 2006 when a sniper shot a bullet which whizzed by his ear and, per his report, burst his eardrum.  The applicant was diagnosed with anxiety disorder, not otherwise specified (NOS).  The NARSUM indicated that the applicant did not meet the medical standards for retention and that he had the capacity to handle all financial affairs and to participate in board proceedings.

3.  On 29 May 2008, an MEB referred the applicant to a PEB for anxiety disorder NOS.  On 1 July 2008, the applicant concurred with the MEB findings and recommendations.

4.  A DA Form 3349 (Physical Profile), dated 18 July 2008, shows the applicant was issued a permanent profile for anxiety disorder NOS and mid back pain.  

5.  On 29 July 2008, a PEB found the applicant to be unfit due to anxiety disorder, NOS with onset in context of marital discord during deployment to Iraq with a 30 percent disability rating and recommended the applicant be placed on the TDRL.  On 4 August 2008, the applicant concurred with the finding and recommendations. 

6.  On 27 August 2008, the applicant was honorably retired after completing 
4 years, 2 months, and 18 days of creditable active service and was placed on the TDRL on 28 August 2008 with 30 percent disability.  

7.  In the processing of this case, an advisory opinion was obtained from the 
U.S. Army Physical Disability Agency (USAPDA), which recommended disapproval of the applicant's request.  The advisory opinion stated that the 

applicant's MEB diagnosed him with anxiety disorder.  His psychiatric evaluation noted the applicant's combat activities, but found his symptoms best supported a diagnosis of anxiety disorder.  The advisory opinion noted that all Soldiers placed on the TDRL are paid at a minimum of 50 percent (Title 10, U.S. Code, section 1401).  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond to the opinion.

8.  The applicant submitted his entire VA medical records that show he is being treated for PTSD.  However, there is no evidence to show he being rated at 
70 percent disability for PTSD.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (PDES) and sets forth the 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

10.  Army Regulation 635-40 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.  

11.  The 2008 National Defense Authorization Act (NDAA), section 1642, revised paragraph 3.8 of Department of Defense Directive (DODD) 1332.18 to show that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) in use by the VA.  

12.  The current VASRD, section 4.129, states when a mental disorder that develops in service as a result of a highly-stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran's discharge to determine whether a change in evaluation is warranted.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his anxiety disorder disability rating should be changed from 30 percent to 50 percent for combat-related PTSD was carefully considered.  However, there is insufficient evidence to support this request.  

2.  Evidence shows that the MEB and PEB properly considered the applicant's medical condition, and he was found unfit due to an anxiety disorder that had been diagnosed by competent military medical personnel.  There is no evidence of record and the applicant has not provided evidence that shows he was found unfit due to combat-related PTSD or that it was any symptoms of PTSD that resulted in his being unfit to perform his duties.

3.  There was no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which was not in itself considered disqualifying for military service when the applicant was found unfit because of his anxiety disorder.  Only the unfitting conditions or defects and those which contributed to his unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Since there is no evidence to show that combat-related PTSD rendered the applicant unfit, it was properly not rated by the PEB.

4.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his placement on the TDRL was not in compliance with law and regulation.  The current VASRD states when a mental disorder that develops in service as a result of a highly-stressful event is severe enough to bring about the veteran's release from active duty, the rating agency shall assign an evaluation of not less than 50 percent.  It is acknowledged that the VASRD does not distinguish between one type of mental disorder or another.  However, the applicant has provided insufficient evidence to show that his anxiety disorder was caused by a highly-stressful event.  Inasmuch as the applicant is paid at the 50 percent rate while he remains on the TDRL, it does not appear that he is being unduly harmed by the action taken by the PEB.

5.  Therefore, there is insufficient evidence on which to change his anxiety disorder disability rating from 30 percent to 50 percent. 

6.  The VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition 

is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

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)                                         AR20090017851





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ABCMR Record of Proceedings (cont)                                         AR20090017851



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