IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100014502 


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, in effect, correction of her records to show she was found medically unfit and separated from the U.S. Army due to physical disability.

2.  The applicant states, in effect, she was evaluated and found physically fit.  As a result, she remained on active duty in a limited capacity.  She adds that she has chronic problems related to her left shoulder, depression, and other medical conditions that the Department of Veterans Affairs (VA) rated as disabling.

3.  The applicant provides copies of her medical records, including her Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings, and VA examinations and ratings.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, a complete review of the applicant's medical treatment records, along with the MEB and PEB findings and recommendations.  

2.  Counsel states the applicant underwent an MEB on 2 December 2008.  She was evaluated for depression, and chronic left shoulder supraspinatus tendinopathy [the muscle and tissue responsible for elevating the arm and moving it away from the body].  Additionally counsel states:

   a.  The final prognosis for the applicant's left shoulder was the injury limits her ability to perform the duties associated with her military occupational specialty (MOS).  She was assigned an American Medical Association pain rating of Moderate and Constant.
   
   b.  On 2 December 2008, Doctor P___ found that the applicant's depression was medically acceptable for MEB purposes.  On 12 December 2008, the applicant disagreed with the MEB findings and requested an extension for the MEB to obtain her behavioral health records from the treating provider at her last duty station.  The MEB denied the applicant's request based on Doctor P___'s assessment.

   c.  A PEB that convened on 15 January 2009 found her physically fit and the Department of the Army memorandum, dated 27 January 2009, advised her that she had no legal recourse.  He adds she was sent to a new duty location and discharged a few months later.

   d.  On 29 May 2009, prior to leaving active duty, the applicant filed a compensation claim with the VA.  She was rated 30% for chronic Post Traumatic Stress Disorder (PTSD) and depression secondary to sexual trauma, and 10% for left shoulder degenerative joint disease.  She was also determined to be entitled to compensation for other injuries with a combined rating of 70%.

   e.  The applicant consistently maintained to both the MEB and VA that she was suffering from chronic left shoulder pain that caused a decreased range of motion (ROM), weakness and weakened movement, uncertainty of movement, and fatigability of the joints after repetitive use.
   
   f.  The VA Compensation and Pension (C&P) examination, conducted on 
10 July 2009, provides a clear description of the factors attributed to the applicant's PTSD, including her chronic symptoms, medication, and psychotherapy.

   g.  The applicant's disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body due to damage or infection in parts of the system.

   h.  The evidence shows the applicant's chronic disability affects the ROM of her left shoulder to the point that a compensable evaluation is warranted.

   i.  The MEB did not take into account the symptoms and complete effect of the applicant's PTSD/depression and failed to provide her due process by not obtaining vital psychiatric treatment records.  He adds the VA C&P examination occurred while the applicant was on active duty and granted her a rating of 30% for PTSD with depression and insomnia.
   
   j.  Counsel concludes by requesting a careful review of the medical evidence in the applicant's case.
   
3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for a period of 6 years on
20 October 2003.  Upon completion of training she was awarded MOS 35F (Intelligence Specialist):

   a.  She was promoted to specialist/pay grade E-4 on 30 October 2005, and this was the highest rank that she attained while serving on active duty.  

   b.  She served overseas in U.S. Army Europe (Germany) from 30 November 2005 to 21 May 2008.

2.  A DA Form 3947 (MEB Proceedings), dated 2 December 2008, shows the applicant presented views in her own behalf.  Item 13 (Diagnosis) shows the MEB found the applicant had chronic left shoulder supraspinatus tendinopthy and she suffered from depression (that was medically acceptable).

	a.  On 12 December 2008, the applicant submitted a letter to the MEB expressing concerns about her MEB packet.  In her note she cited Doctor P____'s statement in regards to her depression and PTSD from sexual assault (i.e., "it does not seem to matter if you get treatment or not)."  The applicant indicated, "[a]lso, I am getting back into counseling.  I request an extension while my social work records from Katterbach, Germany [arrive]."

	b.  An annotation on the note, dated 15 December 2008, shows the Medical Board Physician indicated the information had been reviewed (i.e., "Psychiatry assessed, 2 December 2008)" and that the applicant's physical profile and the MEB Narrative Summary were changed.

	c.  On 19 December 2008, the Board recommended referral to a PEB.

	d.  On 23 December 2008, the applicant acknowledged with her signature that she had reviewed the MEB packet; she understood that for her diagnosis to be considered by the PEB it should be recorded on the documents; that she had been counseled on the MEB findings; and she agreed with the Board's findings and recommendation.
3.  A DA Form 199 (PEB Proceedings) show a PEB evaluated the applicant's case at Fort Sam Houston, Texas, on 15 January 2009.

   a.  The PEB Proceedings, Disability Description section, shows the PEB found the applicant fit for duty within the limitations of her profile; and that she continued to perform her military duties despite intermittent left shoulder pain since 2006.  Her commander indicated she was performing her duties and she was able to complete a temporary duty tour in Honduras from 2 September to 
17 October 2008:
   
   b.  The PEB advised her that a member of an armed force may not be required to sign a statement relating to the origin, occurrence, or aggravation of a disease or injury that he/she has.

   c.  The PEB determined the applicant was physically fit and directed her return to duty as fit.

   d.  On 20 January 2009, the applicant indicated with her initials and signature that she concurred with the findings and recommendations of the PEB and waived her right to a formal hearing.

   e.  On 27 January 2009, the PEB findings and recommendation were approved on behalf of the Secretary of the Army.

4.  U.S. Army Physical Disability Agency, Washington, DC, memorandum, dated 27 January 2009, Subject:  Approval of the PEB Action Under Provisions of Army Regulation 635-40 [Physical Evaluation for Retention, Retirement, or Separation] notified the Commander, Brooke Army Medical Center, Fort Sam Houston, TX, that the PEB findings pertaining to the applicant were approved:

   a.  It provided instructions on the modification of the applicant's physical profile and stated her ability to deploy remained the commander's decision.

   b.  It also advised that if the applicant's medical condition was determined to have deteriorated, the applicant's commander or medical treatment facility should initiate a new MEB and forward the findings to the PEB for a new fitness determination.

5.  A DA Form 4980-14 (The Army Commendation Medal) certificate shows the applicant was awarded the Army Commendation Medal for exceptionally meritorious service displayed by her professionalism, selfless-service, dedication, and technical skills while assigned as an all-source analyst from 30 May 2008 to 29 October 2009.
6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably released from active duty on 29 October 2009, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 4, based on completion of required active service.  At the time she had completed 6 years of net active service.  The applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete her Reserve obligation.

7.  There is no evidence the applicant was found unqualified for military service based on medical unfitness.

8.  In support of her application, the applicant provides her VA Rating Decision, dated 17 December 2009, which was based on her disability claim filed under the pre-separation program (received on 29 May 2009) and an examination conducted on 10 July 2009.  It shows she was granted service connection for PTSD with depression and insomnia with a 30% disability rating effective 
30 October 2009; and service connection or Left shoulder strain status post arthroscopic surgery; Left wrist strain; Right wrist strain; Right ankle sprain; Dermatitis; Left arm cubital tunnel syndrome; and Right arm cubital tunnel syndrome each with a 10% disability rating effective 30 October 2009.  It also shows she was granted service connection for the following three conditions, all with a 0% disability rating:  Left abdomen scar status post mole removal; Left anterior shoulder scar status post arthroscopic surgery; and Left lateral shoulder scar status post arthroscopic surgery.  

9.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.

	a.  Chapter 3 provides policies governing standards of unfitness because of physical disability.

	    (1)  Paragraph 3-1 (Standards of unfitness because of physical disability), 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.

	    (2)  Paragraph 3-2 (Presumptions), subparagraph b (Processing for separation or retirement from active service), states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that:

       (1)  the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

	    (2)  an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty. 

10.  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 and her counsel contend that her records should be corrected to show she was found medically unfit and separated from the U.S. Army due to physical disability.

2.  The applicant's and her counsel's contentions were carefully considered:

	a.  The applicant's MEB was held on 2 December 2008, she offered additional information which was considered by the MEB, and she concurred in the MEB findings of referral to a PEB.

   b.  The applicant's PEB was approved on 27 January 2009 and authorized the applicant to be returned to duty as fit.
   
   c.  There is no evidence of record and the applicant and her counsel failed to provide evidence that shows the applicant challenged the findings of the PEB, including the consideration of any additional medical conditions.
   
   d.  The applicant continued to serve on active duty for an additional 
9 months after the PEB.  She was then honorably released from active duty and transferred to the USAR to complete her Reserve obligation.

3.  The available evidence does not support the applicant's contention that she had medical conditions that kept her from performing her assigned duties up through the date of her release from active duty on 29 October 2009.  In fact, on the occasion of her separation from active duty, the applicant was awarded an Army Commendation Medal for her exceptionally meritorious service based upon her professionalism, selfless-service, dedication, and technical skills.

4.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  As a result, the applicant is not entitled to correction of her PEB proceedings to show she was found unfit for duty.  Thus, the applicant's PEB proceedings are presumed proper and equitable.  Therefore, the applicant is not entitled to correction of her records to show she was medically discharged.

5.  The VA report, dated 17 December 2009, noted the applicant was not fit for duty.  This was a disability claim filed under the pre-separation program that granted service connection for PTSD with depression and insomnia with a
30% disability rating effective 30 October 2009; the date following her separation.   However, the VA has neither the authority nor the responsibility for determining physical fitness for military service.
6.  Statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  On the other hand, the VA and some other Government agencies provide 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 to give the veteran the benefit of any reasonable doubt.  The fact that the VA or any other Government agency, in its discretion, awarded the applicant a disability rating for a condition that was determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

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)                                         AR20100014502



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ABCMR Record of Proceedings (cont)                                         AR20100014502



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