BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100009852 


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 her disability rating for migraine headaches as well as her chronic jerking spells and assignment of the highest final disability rating applicable.

2.  The applicant states she would like her past and present medical records involving jerking spells that have turned into grand mal seizures and caused her to be hospitalized on many occasions reviewed and that she be assigned the highest possible final disability rating applicable.

3.  The applicant provides 21 enclosures identified in the continuation sheet included with her application in support of her request.

CONSIDERATION OF EVIDENCE:

1.  Chapter 61 of Title 10, U.S. Code, requires that disability ratings by the Secretary of the pertinent military departments be based on the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  At the time she was medically separated, the VASRD provided that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about a veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent for post-traumatic stress disorder (PTSD) with placement on the Temporary Disability Retired List (TDRL) for 6 months, and the physical evaluation board's (PEB's) failure to do so violated her legal right.  As a result, assignment of not less than 50 percent for unfitting PTSD retroactive to the applicant's active duty release date is also being considered in this case.

2.  On 30 August 2006, a medical evaluation board (MEB) referred the applicant's case to a PEB based on the following diagnosed medical conditions:

	a.  neck, degenerative disk disease,

	b.  low back pain,

	c.  right knee retropatellar pain syndrome,

	d.  left ankle chronic pain after inversion injury,

	e.  right shoulder pain,

	f.  undifferentiated somatoform disorder,

	g.  PTSD, and

	h.  left proximal humerus fracture.

3.  On 12 February 2007, a PEB convened and determined that the applicant was physically unfit and recommended a combined rating of 40 percent for the following conditions at the disability rate indicated:

	a.  limited left shoulder motion, 20 percent;

	b.  chronic low back pain, 10 percent;

	c.  chronic limb pain affecting right shoulder, left ankle and right knee, 10 percent;

	d.  PTSD, 10 percent; and

	e.  chronic neck pain.

4.  On 5 March 2007, the applicant was retired and placed on the Temporary Disability Retired List (TDRL) effective 6 March 2007 with a 40-percent disability rating.

5.  On 22 February 2010, another PEB convened and determined that the applicant was physically unfit and recommended permanent retirement with a combined rating of 90 percent.  Included in this rating were the following ratings for the conditions indicated:

	a.  50 percent, PTSD;

	b.  30 percent, limitation of motion of left (nondominant) arm (shoulder);

	c.  20 percent, limitation of motion of right (dominant) arm (shoulder);

	d.  10 percent, cervicalgia;

	e.  10 percent, lumbar strain;

	f.  10 percent, right knee patellofemoral pain syndrome; and 

	g.  10 percent, left ankle arthropathy.

6.  On 23 March 2010, the applicant was removed from the TDRL and permanently retired with a 90-percent disability rating.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Paragraph 3-9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

	b.  Paragraph 4-17 provides guidance for PEB's.  Specifically, it states that PEB's 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 recommendation may be revised.

8.  The VASRD, section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that 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 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

9.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.

10.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense for Personnel and Readiness directed that as a matter of policy, all three Boards for Correction of Military Records will apply VASRD, section 4.129, to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50 percent for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of the Department of Defense (DOD) or Army regulations or guidelines relied upon by the PEB will not be considered by the Army Board for Correction of Military Records to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to have merit.  

2.  The 2008 NDAA provided that the VASRD must be utilized during the medical evaluation of military personnel.  Subsequent DOD guidelines and general equitable principles extend this requirement to all Soldiers medically discharged since 11 September 2001.  The applicant's diagnosis of several conditions, including PTSD, warrants amendment of her PEB findings based on the application of the unmodified VASRD.

3.  The applicant should be retroactively placed on the TDRL for 6 months at no less than a 50-percent disability rating effective the date initially placed on the TDRL.
4.  Further, the U.S. Army Physical Disability Agency should reevaluate her medical conditions, including her migraine headaches/chronic jerking spells/
grand mal seizures, based on all available applicable medical evidence and/or records.

BOARD VOTE:

___x___  ____x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  retroactively placing the individual on the TDRL for 6 months at no less than a 50-percent disability rating effective the date initially placed on the TDRL and

	b.  the U.S. Army Physical Disability Agency reevaluating her medical conditions based on all available applicable evidence without regard to any DOD or Army regulations or guidelines that were inconsistent with the VASRD in effect at the time of the original adjudication to determine the appropriate final disability rating on the Permanent Disability Retired List.

2.  The Defense Finance and Accounting Service should audit the applicant's pay account and ensure appropriate payment as a result of the above corrections.



      ____________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)                                         AR20100010649



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (con