IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100024446 


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, an increase in the combined disability rating granted by the Physical Evaluation Board (PEB). 

2.  The applicant states he received a combined 10 percent (%) disability rating percentage from the PEB based on his shoulder.  He states the Medical Evaluation Board (MEB) and PEB never evaluated him for depression and a sleeping disorder that was documented in his medical records at the time.  He states when he left the Army he was depressed and he didn’t know what was wrong with him.  He states he wanted to die and hurt people.  He states it took years of help to get better after he sought help from the Department of Veterans Affairs (VA).

3.  The applicant states he was informed by his unit an evaluation of these conditions should have been part of the Physical Disability Evaluation System (PDES) process but he was not in a condition to apply.  He claims all the information is in his VA files and he was in fact receiving treatment for depression when doing the paperwork to be boarded.  He was told at the time he needed no more evaluations, only to discover he needed another operation.  He also discovered he had a major depressive disorder and a sleep disorder the whole time.

4.  The applicant provides military and VA medical treatment records and VA rating decisions.


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 record shows that on 4 January 2005, while serving as a member of the Pennsylvania Army National Guard, he was ordered to active duty for a period not to exceed 389 days.

3.  On 25 May 2005, he was medically retained on active duty in order to undergo medical processing.

4.  On 16 June 2005, the applicant completed a DD Form 2807-1 (Report of Medical History).  On this form, he noted he had trouble sleeping because of stress and shoulder pain and that he was depressed/worried because of his injury and inability to deploy with his unit.  The examining physician reviewed the applicant’s comments and discussed the sleep and depression issues with him.  The examining physician opined that these medical conditions met medical retention standards.

5.  On 6 June 2005, a memorandum completed by the applicant’s unit commander regarding the applicant’s performance of duty also indicates the only limiting condition the applicant suffered from was physical and related to shoulder pain.

6.  The record also contains a DD Form 2808 (Report of Medical Examination), dated 16 June 2005, which documented a complete medical examination completed on the applicant on that date.  During the clinical evaluation, the examining physician evaluated the applicant as normal in the psychiatric area.

7.  On 20 June 2005, an MEB convened at Fort Knox, KY, to evaluate the applicant.  The MEB diagnosed the applicant with “right shoulder pain S/P clavicle resection.”  The MEB found the condition originated in October 2002, 


was not incurred while entitled to basic pay, and existed prior to service; however, it was permanently aggravated by service.  The MEB referred the applicant to a PEB based on this sole condition.

8.  A DA Form 3349 (Physical Profile) completed on the applicant on 22 June 2005 listed only the applicant’s shoulder condition as limiting to his performance of duty.  

9.  On 28 June 2005, the applicant agreed with the MEB’s findings and recommendation.

10.  On 6 July 2005, a PEB held at Fort Lewis, WA, considered the applicant's case.  The PEB found the applicant was physically unfit for further service due to a diagnosed condition of “chronic right shoulder pain.”  The PEB noted the applicant was rated for pain (slight/frequent) and recommended a combined rating of 10% and separation with severance pay.

11.  On 7 July 2005, the applicant indicated he did not concur with the PEB's findings and recommendation and demanded a formal hearing.  On 21 July 2005, after meeting with his counsel, the applicant elected not to contest the PEB's findings and recommendation and waived his right to a formal hearing.

12.  On 11 August 2005, the applicant was honorably discharged in the rank/grade of sergeant (SGT)/E-5 under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 4 years, 8 months, and 26 days of creditable active service and that he received disability severance pay in the amount of $22,053.00 in conjunction with his separation.

13.  On 17 February 2011, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  This advisory official outlines the applicant’s processing through the PDES and indicates the conditions referred to by the applicant were not unfitting and/or evaluated by the MEB or PEB; however, after being raised by the applicant during his separation medical examination, the examining physician evaluated them and determined they did not rise to a regulatory level requiring a physical profile limitation and/or referral to the MEB.

14.  The advisory official further indicates the medical conditions in question would not have been found independently unfitting by either the MEB or PEB at 


the time.  The fact these conditions, along with his shoulder condition, may have worsened since separation from the military is not a valid basis to find that the PEB committed any errors in their findings at the time of separation.  Subsequent exacerbations are the responsibility of the VA.  The advisory official finally opines the MEB/PEB findings are supported by a preponderance of the evidence, are not arbitrary or capricious, and are not in violation of any statutes, directive, or regulation.

15.  On 25 March 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant provided a rebuttal to the USAPDA advisory opinion in which he claims his unfitting shoulder condition was worse than evaluated by the PEB and within a few months of his separation, he received a 40% rating for his shoulder from the VA.  He also states he never said he was depressed, he was told he was and he was diagnosed with depression and sleep disorder.  He claims the Army failed to treat him for depression but admitted he had it.  He claims he ultimately concurred with the PEB findings and recommendation because he was told he could lose the 10% rating and he should go to the VA because they just wanted him out of there.  He claims he did finally get proper treatment from the VA which he still receives today.  He concludes by stating he just does not understand how depression, a sleep disorder, and two shoulder operations equals only 10%.

16.  The applicant provides VA rating decisions, dated 9 September 2008 and 
29 December 2009.  These decisions show the applicant’s 10% rating for his shoulder condition was increased to 20% on 16 January 2009, and that he received a 20% rating for multiple scars and for right shoulder strain and adhesive capsulitis status post-right acromioclavicular reconstruction, effective 
27 January 2009.  They also show he received a disability rating for major depressive disorder, effective 9 July 2008.

17.  Army Regulation 635-40 establishes the Army's PDES according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

18.  Army Regulation 635-40, chapter 3, provides the standards of unfitness and states the mere presences 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.

19.  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 or her 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.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant that he should have received a higher disability rating from the PEB and that his depression and sleep disorder conditions should have been evaluated has been carefully considered.  However, the evidence does not support granting this claim.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the PDES process.

2.  The PEB determined the applicant was unfit due to a diagnosed shoulder condition and slight/frequent pain associated with this condition.  Based on its findings, the PEB granted a 10% disability rating percentage and recommended the applicant's separation with severance pay.  The applicant ultimately concurred with the findings and recommendation of the PEB.

3.  The VA subsequently, under its own regulations and policy, increased the applicant’s rating for his shoulder condition in 2009, and issued a disability rating for major depressive disorder in 2008, based on a VA medical examination completed in July 2008.  This rating and decision was based on the applicant’s condition as it existed at the time of the examination and did not rely on military medical records.

4.  The PEB properly found the only thing limiting the applicant's duty performance was the residual pain from the applicant’s diagnosed shoulder 


condition.  The fact the VA, in its discretion, decided to increase the applicant’s disability rating for his shoulder and to assign a disability rating for a major depressive disorder based on the applicant’s condition at the time, some three years after his separation, is not evidence of a PEB error in the assignment of the disability rating for his shoulder condition, or not evaluating conditions that were not unfitting at the time of his separation.  

5.  Absent any error or injustice related to the PEB process or any evidence that the PEB's final findings and recommendation were arbitrary or capricious, it would not be appropriate for this Board to substitute its judgment for that of a properly constituted PEB.  It is evident the PEB findings were based on the existing medical evidence and properly applied the applicable law and regulation.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement or that would support amendment of the original Board decision in this case.

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)                                         AR20100024446



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ABCMR Record of Proceedings (cont)                                         AR20100024446



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