IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100014950 


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 percentage be increased.

2.  The applicant states the medical evaluation board (MEB) and physical evaluation board (PEB) failed to address all of his medical issues, to include post-traumatic stress disorder (PTSD), irritable bowel syndrome, gastric volvulus, obstructive sleep apnea, hypertension, rosacea, cervical spondylosis, migraine headaches with arachnoid cysts, and chronic prostatitis.  As a result he has been denied a medical retirement.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a 5 December 2003 Walter Reed Army Medical Center Outpatient Psychiatry Service memorandum, a 26 February 2004 DA Form 3349 (Physical Profile), a 24 February 2004 DD Form 2807-1 (Report of Medical History) and a DD Form 2808 (Report of Medical Examination), a DA Form 3947 (MEB Proceedings and Summary, a 22 April 2004 DA Form 199 (PEB Proceedings), 7 July 2004 medical progress notes, an 11 May 2005 Department of Veterans Affairs (VA) Rating Decision, an 18 May 2005 VA service-connected compensation entitlement letter, and 20 pages of post-service medical documents.

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.  The applicant's service medical and dental records are believed to be on permanent loan to the VA and are not available for review.

3.  The applicant served on active duty in the Regular Army from 30 October 1992 through his discharge for physical disability with severance pay.

4.  On 5 December 2003, the applicant was afforded a psychiatry evaluation.  He was reported to have psychiatric factors that affected his general medical condition, but no psychiatric condition was found warranting disposition through medical or administrative channels and no psychiatry MEB was warranted.

5.  A 25 February 2004 MEB addressed six medical issues.  Two were considered medically unacceptable for retention (post-operative abdominal pain and irritable bowel syndrome).  The other four (gastroesophageal reflux disease (GERD), migraine headaches, recurrent acute sinusitis, and lactose intolerance) were found not to impair his ability to perform his duties.

6.  The MEB recommended that the applicant be permitted to remain on active duty with an appropriate physical profile and duty limitations.  The applicant concurred with the findings of the MEB.  The case was referred to a PEB.

7.  The 22 April 2004 PEB addressed the unfitting conditions, combining them into a single issue.  The PEB determined this condition, though medically unfitting, warranted a zero disability rating.

8.  On 5 May 2004, the applicant concurred with the PEB proceedings.

9.  An initial consultation for a sleep study was made on 1 June 2004 with completion of the preliminary study on that same date.  He was found to have minor obstructive sleep apnea with minimal sleep disturbance.  The initial test showed several periods of sleep disturbances, but no indication of complete awakening.  A follow-up sleep study with a constant positive air pressure (CPAP) device was completed on 7 July 2004 with the recommendation that the applicant be placed on a trial use of a night time breathing unit with a follow-up study in 1 to 2 months.

10.  The applicant was discharged with severance pay on 1 August 2004.

11.  On 11 May 2005, the VA granted the applicant service-connected disability benefits for the following conditions:

* 50 percent - obstructive sleep apnea [due to his use of a CPAP machine]
* 40 percent - prostatitis [due to sleep interruption of eight times per night]
* 30 percent - GERD and irritable bowel syndrome
* 10 percent - migraine headaches with benign arachnoid cysts
* 10 percent - hypertension
* 10 percent - rosacea of the face
* 10 percent - residual of a right ankle sprain with degenerative joint disease
* 10 percent - myocardial irritability with mitral valve prolapse
* 10 percent - a dysthymic disorder
* 0 percent - cervical spondylosis
* 0 percent - bilateral blepharitis [a chronic inflammation of the upper and lower eyelids that develops as a result of bacterial infection, inflammation, skin conditions, or allergic reactions]
* 0 percent - sinusitis

12.  On 14 April 2006, the applicant underwent surgical intervention for his GERD and irritable bowel syndrome.  It was found that he was suffering from gastric volvulus, a rare clinical entity defined as an abnormal rotation of the stomach of more than 180 degrees.

13.  On 23 June 2006, a VA medical examination evaluated his service-connected disabilities and added a diagnosis of PTSD separate from dysthymic disorder.

14.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency which noted the conditions of obstructive sleep apnea, PTSD, prostatitis, hypertension, rosacea, cervical spondylosis, and arachnoid cysts were at issue.  It opined that there was insufficient evidence to show the applicant was unfit for continued active duty because of any condition other than as awarded by the PEB that at the time of separation.  Denial of a medical retirement was recommended.

15.  A copy of the advisory opinion was forwarded the applicant, but no response was received.

16.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.  Further, performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  It 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.

17.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the MEB and PEB failed to address all of his medical issues and as a result he has been denied a medical retirement.

2.  The applicant is correct in that the majority of the medical conditions for which the VA granted him disability ratings were not addressed by the MEB or PEB.  However, he did not question these conditions at the time of either his MEB or PEB.


3.  His GERD, migraine headaches, recurrent acute sinusitis, and lactose intolerance were not found to be unfitting at the time of the MEB/PEB.

4.  His obstructive sleep apnea was not diagnosed until after the PEB determined he was unfit for retention and his discharge had been initiated.  His sleep apnea was determined to be minimal at that time.

5.  The applicant provided no evidence that medical conditions he contends the MEB failed to address were unfitting at the time of his MEB/PEB.

6.  The applicant's VA diagnosis of PTSD was made over 2 years after his separation and there is no evidence of its existence while the applicant was on active duty.

7.  Although he had a number of medical conditions at the time of separation, there is no evidence that they were unfitting.  The fact that the VA awarded him a disability rating and compensation does not establish that these conditions impacted negatively upon his performance of duty and does not indicate either the VA or the Army is in error in its ratings.  As such, his discharge with severance pay, not medical retirement, is appropriate.

8.  Since the applicant's medical conditions were not found to be medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement.

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)                                         AR20100014950



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ABCMR Record of Proceedings (cont)                                         AR20100014950



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