BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100017044


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 his 3 May 2006 Physical Evaluation Board (PEB) be corrected as follows:

* increase his disability rating percentage for post traumatic stress disorder (PTSD) from 10% to a minimum of 30%
* add traumatic brain injury (TBI) to Item 8 (Disabilities)
* add right knee, moderate instability to Item 8

2.  The applicant states he received a 10 percent disability rating for PTSD and he was discharged by reason of disability with severance pay.  After speaking with his counsel, he found out about his rights to appeal his PEB.

3.  The applicant provides:

* his MEB with Narrative Summary (NARSUM)
* his PEB
* service medical records
* Department of Veterans Affairs (VA) medical records and rating decisions

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's PEB in Item 8 as follows:

* VA Code 8045 – TBI (Post Traumatic Concussive Syndrome)
* VA Code 5257 – Moderate Instability, Right Knee
* VA Code 5258-5024 – Internal Derangement and Tendon Calcification, Limitation of Flexion, Right Knee
* VA Code 9411 – PTSD – increased disability rating to 50%

2.  Counsel states:

* The applicant's Medical Evaluation Board (MEB) never even considered TBI even though the MEB NARSUM mentioned "History of multiple concussions"
* The applicant had a history of ankle and knee surgery and the VA has rated him 20% for knee instability
* The 2008 National Defense Authorization Act (NDAA) mandated that PTSD be evaluated at 50%

3.  Counsel provides a 26 May 2010 memorandum in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he served as an infantryman in the Regular Army from 3 January 1997 through 9 June 2006.  He was promoted to staff sergeant (SSG)/E-6 on 1 May 2003.  He was reduced to sergeant (SGT)/E-5 as a result of a field grade nonjudical punishment (NJP) on 27 January 2006.

2.  The applicant served two tours of duty in Southwest Asia (Iraq) during Operation Iraqi Freedom (OIF).  On 31 December 2005, he self-referred to mental health while in Iraq complaining of PTSD.  He was seen by health professionals who determined he should be returned to the United States for MEB/PEB proceedings.  He was returned to Fort Wainwright, AK.

3.  The applicant underwent medical evaluation for PTSD at Bassett Army Community Hospital, Fort Wainwright.  A NARSUM was dictated which said:

	a.  He began experiencing recurring stress during OIF in 2004.  His stress became aggravated upon his return to Iraq in 2005 and manifested in worry, insomnia, nightmares, hypervigilance, intrusive thoughts, and panic attacks.  His mental state was further degraded when he was charged with steroid use and threatened with trial by court-martial.  

	b.  His past medical history alluded to numerous concussions occurring as a result of a pre-military, civilian traffic accident, high school football, and "during military training."  He underwent right ankle surgery for ligament damage, and left knee anterior cruciate ligament (ACL) repair.  He had a right meniscus issue and was contemplating surgery.  He had intermittent back pain.

	c.  The attending physician determined he was incapable of performing his military duties due to PTSD, and he had a "guarded" prognosis. 

4.  On 20 April 2006, an MEB convened at Bassett Army Community Hospital and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of PTSD.  The MEB recommended that he be referred to a PEB.  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

5.  The applicant's record contains a DA Form 199 (PEB Proceedings) that shows a PEB evaluated the applicant's case at Fort Lewis, WA on 3 May 2006.  The PEB determined the applicant was unfit for further service as a result of PTSD due to combat stressors related to his service in Iraq.  The PEB awarded the applicant a 10% disability rating under the VA Schedule for Rating Disabilities (VASRD) code 9411 and recommended that he be separated with severance pay.

6.  On 5 May 2006, the applicant concurred with the PEB findings and recommendation and waived his right to a formal hearing.  The PEB findings and recommendation were approved on behalf of the Secretary of the Army and, on 9 June 2006, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant at the time of his discharge shows he was separated under the provisions of chapter 4, Army Regulation 635-40, by reason of disability with $43,237.80 in severance pay.

8.  The applicant provides VA Rating Decisions, dated 6 and 9 March 2007.  They show he was granted service connection with a combined disability rating of 70% for:

* PTSD at 10% 
* head injury (concussions) at 10%
* moderate instability, right knee at 20%
* internal derangement & tendon calcification, right knee at 10%
* slight instability, left knee at 10%
* status post surgery with scar, right ankle at 10%
* status post ACL repair with scar, left knee at 10%
* tinnitus at 10%
* kidney stones at 10%
9.  A VA Rating Decision, dated 18 February 2010, increased his combined rating to 100% for:

* PTSD at 70% (increase)
* TBI (concussions) at 40% (increase)
* moderate instability, right knee at 20% (increase)
* lumbar spine degenerative disc disease (DDD) at 20% (new)
* right knee limitation of extension at 10% (new)
* cervical strain at 0% (new)
* hearing loss at 0% (new)
* internal derangement & tendon calcification, right knee at 10% (same)
* slight instability, left knee at 10% (same)
* status post surgery with scar, right ankle at 10% (same)
* status post ACL repair with scar, left knee at 10% (same)
* tinnitus at 10% (same)

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  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.  Separation by reason of disability requires processing through the PDES.

	a.  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.  Paragraph 3–9 provides guidance for the temporary disability retired list (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 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

	c.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

12.  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 six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.
13.  The 2008 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 VA.  

14.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs 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% 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 ABCMR 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 partial 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 PTSD warrants amendment of his PEB findings based on the application of the unmodified VASRD.

3.  The applicant should be retroactively placed on the TDRL with no less than a 50% disability rating effective the day after he was medically separated.

4.  Based on the available applicable evidence, the U.S. Army Physical Disability Agency (USAPDA) should reevaluate the applicant's medical condition 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 if the applicant’s condition 6 months after placement on the TDRL warrants placement on the PDRL.

5.  The applicant's request for adding TBI and his right knee instability to his PEB was also carefully considered.  These issues were discussed in his MEB NARSUM, so they were known to medical authorities.  However, medical authorities obviously determined they were not sufficiently disabling to warrant evaluation; therefore, they were not placed on the MEB as medical conditions or defects to be evaluated.  Consequently, these conditions were not within the scope of his PEB.  All of this was known to the applicant and he concurred with the PEB findings.

6.  The VA rating decision and medical treatment records provided by the applicant confirm he is being treated for several service-connected conditions that support the higher disability rating and permanently disabled determination of the VA.  However, the VA is not required by law to determine medical unfitness for further military service.

7.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

8.  The Army rates only conditions that are determined to be physically unfitting for further military service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  __x_____  ___x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 at no less than 50% disability rating effective the day after he was medically separated; and

	b.  the USAPDA reevaluating his medical condition 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 if the applicant’s condition now warrants placement on the PDRL.

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.  

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adding additional medical conditions to his MEB/PEB.  



      _______ _   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)                                         AR20100017044



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ABCMR Record of Proceedings (cont)                                         AR20100017044



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