IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100015873 


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 his Physical Evaluation Board (PEB) proceedings to show a disability rating for:

* Post Traumatic Stress Disorder (PTSD)
* Bipolar Disorder
* Muscular Myopathy
* Traumatic Brain Injury
* Carpal Tunnel Syndrome

2.  He states:

	a.  He was incorrectly given a diagnosis of a personality disorder.

	b.  He was never tested for PTSD when he returned from Iraq in 2003.

	c.  His diagnoses of PTSD (diagnosed before his discharge) and bipolar disorder accounted for much of what was misdiagnosed.

	d.  He has muscular myopathy [a muscular disease in which the muscle fibers do not function for any one of many reasons] and it was not recognized or highlighted in his record.

	e.  The Army understated his bipolar disorder.


	f.  The psychiatrists documented records of his illness very well.  

3.  He provides a letter and a CD disc containing documents from the Department of the Veterans Affairs (DVA).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 March 2000.  After completion of the required training, he was awarded military occupational specialty 94L (Avionics Communications Equipment Repairer).  He served in Iraq from 6 March 2003 to 29 September 2003.

2.  On 17 January 2008, he was evaluated by a Medical Evaluation Board (MEB) (Corrected Copy).  After consideration of clinical records, laboratory findings, and physical examination, the MEB found he had the following medical conditions:


DIAGNOSIS
APPROXIMATE DATE
OF ORIGIN

PERMANENTLY AGGRAVATED BY SERVICE
(1)  chronic axial lower back pain
2005
N/A
(2)  mood disorder NOS [not otherwise specified]
Existed prior to service (EPTS)
No
(3)  personality disorder (NOS), with cluster B traits, meets retention
EPTS
No
(4)  rhabdomyolysis [a condition in which skeletal muscle (rhabdomyo) tissue breaks down rapidly (lysis) as a result to damage to the muscle], meets retention
2005
N/A
(5)  chronic hand pain and paresthesis, bilaterally, meets retention
2004
N/A
3.  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He disagreed with the findings and recommendation of the MEB.

4.  He was referred to a PEB.  


5.  On 21 February 2008, a formal PEB determined he was medically unfit due to chronic low back pain, traumatic onset, preventing heavy lifting and strenuous common Soldier tasks.  The PEB recommended separation with severance pay with a combined 10 percent (%) disability rating percentage.  He did not concur with the PEB's findings and recommendation and he submitted a rebuttal.  During recess of formal PEB, he underwent comprehensive psychological testing and psychiatric re-evaluation, which showed that the primary psychiatric impairment was due to personality disorder (NOS).  The PEB did not find sufficient evidence that revised MEB diagnosis number 2, mood disorder (NOS), was independently unfitting.  Since unfitness due to personality disorder was considered an administrative unfitness, it was not compensable through the Physical Disability Evaluation System (PDES) and it was not rated.  

6.  The PEB stated that conditions listed as medical board diagnoses number 3 and 4 were determined to meet retention standards by the Medical Treatment Facility.  Consideration by the PEB found the conditions to be not unfitting and therefore, not rated.  The Department of Defense PDES may only rate an illness or injury that was service-incurred or permanently aggravated by military service and, by itself, would cause the Soldier to be separated or retired.  Although the PDES could not compensate him for these conditions, he could still apply for a disability rating for them through the DVA, since they operate under different regulations and guidelines and could compensate any service-connected condition even if not unfitting at the time of separation.

7.  In his rebuttal, he stated he was never diagnosed with any conditions prior to military service concerning “sociopathic thoughts or actions” and that there was not any document anywhere to suggest he had any of the ideas or have ever committed such actions before joining the U.S. Army.  He also stated he had no criminal record and was diagnosed three times in the U.S. Army with being bipolar or a form of bipolar in 2000, 2006, and 2008.  The PEB finding of personality disorder was determined to have existed before he joined the service.  He stated he had no Article 15’s on his record as well as no record of fights or physical altercations during his tenure as an active duty Soldier.  

8.  In a 10 March 2008 memorandum, the PEB indicated he had not provided any new documentation and adhered to the original findings and recommendation of the formal hearing.  The PEB indicated that his psychiatric examination, dated 10 January 2008, noted his personality disorder was his primary psychiatric disorder.  It was not listed as failing medical retention standards as it was specifically excluded from consideration by the PDES.  The PEB also stated his mood disorder was not found to be unfitting as his unfitting behavior was best 


explained by his personality disorder.  Accordingly, he was not given a psychiatric rating.  His case was forwarded to the U.S. Army Physical Disability Agency (USAPDA) for further review and processing.  The USAPDA’s final adjudication is not available for review.

9.  He was honorably discharged on 6 July 2008 under the provisions of Army Regulation 635-40, in accordance with the National Defense Authorization Act (NDAA) of 2008, by reason of physical disability with severance pay, non-combat related.  He had completed 8 years, 3 months, and 8 days of total active service.

10.  He provided DVA Progress Notes, printed on 30 November 2009, which show his diagnoses as bipolar disorder and PTSD.  The Progress Notes also listed his other medical problems as low back pain; anemia (NOS); muscle disease or syndrome; dehydration; concussion with loss of consciousness of unspecified duration; personal history of other injury; hypomanic [episode is characterized by a distinct period of persistently elevated, expansive, or irritable mood]; and rhabdomyolysis.

11.  In a 25 January 2011 letter, a DVA licensed psychologist stated he had been treating the applicant since July 2009.  The psychologist also stated the applicant:

* suffered from the bipolar disorder which was reportedly diagnosed during his active military service
* remained actively involved in treatment
* asked him to initiate contact with his office to verify his ongoing care for the bipolar disorder

12.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

13.  Army Regulation 635-40 also states 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.  

14.  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 an error or injustice in the Army rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was incorrectly given a diagnosis of a personality disorder is acknowledged.  However, his service record is void of evidence to support his claim.  The evidence of record shows the PEB determined his diagnosis of a personality disorder was not unfitting.  Therefore, it was not rated.  

2.  His service record does not contain evidence which indicates he was diagnosed with or was unable to perform his duties due to PTSD, muscular myopathy, or bipolar disorder at the time of his MEB.

3.  The evidence of record does not support his contention that the Army (MEB) understated his bipolar disorder.

4.  A 21 February 2008 formal PEB found him unfit for military service for chronic low back pain at a combined 10% disability rating percentage.  He did not concur with the PEB's findings and recommendation and he submitted a rebuttal.  However, the PEB indicated he had not provided any new documentation and adhered to the original findings and recommendation of the formal hearing.

5.  As a result, he was honorably discharged under the provisions of Army Regulation 635-40, due to disability with severance pay at a combined 10% disability rating percentage.

6.  Although his Progress Notes from the DVA show his medical conditions of PTSD, bipolar disorder, and muscle disease, any rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, 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.

7.  The evidence of record does not indicate his disability processing was in error or unjust or that his medical conditions were improperly evaluated by the PEB.

8.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100015873



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015873



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1