IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100015348 


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 his earlier request for a medical retirement.  

2.  He states it was an injustice to be medically discharged with a zero percent disability rating.  He contends the Department of Veterans Affairs (VA) awarded him:

* 70 percent disability rating for three of the same areas he was awarded zero percent from the military
* 120 percent combined disability rating for the same injuries the Army awarded him zero percent

3.  He states that:

* not much was known about Post Traumatic Stress Disorder (PTSD) after the war began 
* many health professionals couldn’t properly diagnose and treat this disorder
* the medical board staff told him that the VA would take care of him and he would be medically retired by the Army  
* the medical board process was initiated in September 2005 and was completed in January 2007 but should have only taken 4 to 6 months
* a spine doctor at Darnall Army Community Hospital wouldn’t let him stay in the military because of the severity of his injuries

4.  He also states:  

* the Adult Preventive and Chronic Care Flow Sheet indicates adjustment disorder with anxiety and depressed mood
* highlighted areas on his Noncommissioned Officer Evaluation Report (NCOER) indicate he had been in combat which the medical board failed to acknowledge

5.  He provides:

* Adult Preventive and Chronic Care Flow Sheet
* Standard Form 600 (Chronological Record of Medical Care), dated 13 October 2006
* DA Form 2166-8 (NCOER) for the period November 2003 through October 2004
* DA Form 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090002137 on 19 May 2009.  

2.  He provides new arguments and evidence that will be considered by the Board.  

3.  In Part IV (Army Values/Attributes/Skills/Actions) on his NCOER for the period ending October 2004, he highlighted the following comments to indicate he was in combat:

   a.  Item b (Competence):

* earned the Combat Infantryman Badge
* led section in over 75 combat patrols, tactical check points, and platoon missions in combat environment
* inspired all NCOs by completing the Basic NCO Course with a first time go

   b.  Item c (Physical Fitness and Military Bearing):
   
* excels during stressful situations showing extreme stamina and endurance during raids and combat mission

   c.  Item d (Leadership):
   
* awarded the Bronze Star Medal for Operation Iraqi Freedom service and an Army Commendation Medal with “V” device for actions on contact during a combat patrol engagement
* responsible for two enemy killed in action, recovery of rocket-propelled grenades and automatic weapons, during counterattacks of two ambushes while on patrol
* motivated Soldiers to perform beyond their abilities during rigorous combat operations 

4.  His DA Form 3349 shows he was given a temporary physical profile of 131111 for neck and arm pain.  His temporary profile expiration date was 21 September 2005.  

5.  On page 1 of his Adult Preventive and Chronic Care Flow Sheet, he highlighted his chronic illnesses diagnosed in May 2006:

* adjustment disorder with anxiety
* adjustment disorder with anxiety and depressed mood
* headache preceded by loss of all vision in one eye (anopsia)
* axis IV psychosocial and environmental problems
* psychiatric diagnosis or condition deferred on Axis II
* psychiatric diagnosis or condition deferred on Axis I

6.  On page 2 of his Adult Preventive and Chronic Care Flow Sheet, he highlighted his hospitalizations/surgeries during May and June 2006.  Four psychiatric therapy individual sessions; psychiatric therapy individual psychophysical with biofeed; psychiatric evaluation comprehensive examination; and psychiatric therapy group (interactive).

7.  On 13 October 2006, he was treated at the Hearing Conservation Tech Clinic for a Medical Evaluation Board.  This medical document lists several medical conditions he experienced during his military service.  He highlighted the following four conditions:

* axis IV psychosocial and environmental problems
* adjustment disorder with anxiety
* psychiatric diagnosis or condition deferred on Axis II
* adjustment disorder with anxiety and depressed mood



8.  On 11 December 2006, an informal Physical Evaluation Board (PEB) at Fort Sam Houston, TX, found him to be unfit for further service due to:

   a.  Chronic neck pain secondary to degenerative disc disease, without significant motor neurologic abnormality, range of motion (ROM) limited by pain under VA Schedule Rating for Disabilities (VASRD) codes 5299 and 5242 (0 percent)
   
   b.  Chronic back pain secondary to degenerative disc disease, without motor neurologic deficit, ROM limited by pain under VASRD codes 5299 and 5242 (0 percent).  
   
9.  The PEB recommended the applicant be separated with severance pay with a combined rating of 0 percent.  On 14 December 2006, he concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

10.  The applicant was discharged on 11 January 2007 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay after completing a total of 10 years, 10 months, and 7 days of creditable military service.

11.  On 14 May 2007, the VA granted the applicant service-connected disability compensation for:

* PTSD with major depressive disorder (50 percent)
* degenerative joint disease, cervical spine with right upper extremity radiculopathy (neck pain) (10 percent)
* degenerative joint disease, lumbar spine (back pain) (40 percent)
* right shoulder strain (20 percent)
* cold weather injury, left foot (20 percent)
* cold weather injury, right foot (10 percent)
* removal ganglion cyst, right wrist (0 percent); right ankle strain (0 percent); bilateral plantar fasciitis, post operative (0 percent); and carpal tunnel syndrome, bilateral wrists (0 percent) 

12.  The VA granted him an overall combined rating of 90 percent.

13.  His service record is void of any medical treatment records to show he was diagnosed or treated for PTSD.



14.  References:

   a.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth 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.  

   (1)  Paragraph 3-1 contains guidance on the standards of unfitness 
because of physical disability.  It states, in pertinent part, 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 his or her office, grade, rank, or rating.

   (2)  Paragraph 3-5 of the PDES regulation contains guidance on rating 
disabilities.  It states, in pertinent part, that 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.

   b.  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 rated at least 30 percent.

   c.  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 rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

   d.  Title 38, U.S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not indicate the applicant’s disability was improperly rated by the PEB, that the PEB failed to properly consider any other conditions, or that his separation with severance pay was not in compliance with law and regulation.

2.  His service record is void of evidence which shows he was diagnosed with PTSD during his tenure on active duty.

3.  An informal PEB found him unfit for military service for chronic neck pain and chronic back pain, both secondary to degenerative disc disease, at a zero percent disability rating.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay with 10 years, 10 months, and 7 days of creditable military service.

4.  He has provided no evidence which shows that his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than zero percent.  Therefore, there is no basis for granting him a medical retirement.  

5.  Even though he states he has received a 120 percent disability rating by the VA, the award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090002137, dated 19 May 2009.




      ____________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)                                         AR20100015348





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ABCMR Record of Proceedings (cont)                                         AR20100015348



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