BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100030407 


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 an increase in his disability percentage; that he be given a disability rating for Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI); and that he be medically retired.   

2.  The applicant states he received a disability rating of 90 percent (%) from the Department of Veterans Affairs (VA) and only received a 20% rating from the Army at the time of his discharge.  He further claims the Army failed to evaluate and grant a disability percentage for all of his injuries.  

3.  The applicant provides a Neuropsychological Evaluation; VA Rating Decision; and DD Form 2808 (Physical Profile) in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 October 2003, and he was trained in, awarded, and held military occupational specialty (MOS) 11B (Infantryman).  

2.  On 1 January 2006, while serving in Iraq, the applicant sustained an improvised explosive device (IED) related injury while a gunner in a HUMVEE.  He sustained head trauma and shrapnel injuries to his right upper and lower extremities and nasal bridge.   


3.  On 16 July 2007, a Medical Evaluation Board (MEB) convened at Fort Campbell, Kentucky and considered the applicant's case.  The MEB referred the applicant to a PEB based on his diagnosed conditions of "right lower extremity pain due to IED blast" and "right upper extremity pain due to IED blast."  The MEB also noted that the evaluated conditions of "post concussive disorder due to TBI" and "cognitive disorder" and "adjustment disorder" were medically acceptable for retention.  

4.  The narrative summary (NARSUM) completed during the MEB process confirm the applicant's headaches and residuals of TBI were thoroughly evaluated including Neuropsychiatric testing.  

5.  On 14 December 2007, a Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas to consider the applicant's case.  

6.  Twice the PEB returned the applicant's case to the medical treatment facility (MTF) for additional information or clarification of information already provided.  

7.  The PEB determined the applicant was physically unfit for further service based on his diagnosed conditions of "chronic pain from shrapnel wounds" and "muscle group IX injuries."  Each of these conditions were disability rated at 10% and the PEB assigned a combined disability rating of 20%.  The PEB also evaluated the "post concussive disorder," "cognitive disorder," and "adjustment disorder" conditions noted by the MEB and determined these conditions were not unfitting and as such were not ratable.  The PEB recommended the applicant be separated by reason of physical disability with severance pay.  

8.  On 17 December 2007, the applicant concurred with the findings and recommendations of the PEB; and on 1 March 2008, the applicant was discharged by reason of physical disability with severance pay. 

9.  The applicant provides a VA Rating Decision, dated 23 June 2010, which shows he was granted increased disability ratings for the following service connected conditions effective 16 November 2009:

* Vascular/migraine headache associated with residuals of TBI, 30% (Original 10%)
* Residuals IED fragment wound, right forearm, 10% (Original 0%)
* Residuals TBI, 40% (Original 10%)
* PTSD, 50% (Original 30%)

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.  Paragraph 3-2 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  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.  

11.  Paragraph 3-5 of the same 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.

12.  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 applicant's contention he should have received a disability rating for PTSD and TBI and as a result should have been medically retired has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  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 applicant's rights were fully protected throughout the PDES process.  It 


further shows that a PEB ultimately determined the applicant was unfit for further service based on a low back pain condition and granted him a 20% disability rating.  The PEB recommended the applicant's discharge by reason of disability with severance pay, and the applicant concurred with the findings and recommendations of the PEB.

3.  The evidence of record is void of any medical treatment records indicating the applicant was diagnosed with PTSD during his processing through the PDES or prior to his discharge.  It contains a NARSUM completed during MEB processing that confirms his headaches and TBI and cognitive deficits were thoroughly evaluated including Neuropsychiatric testing.  The NARSUM also shows the applicant was injured in January 2006, but did not seek care for post-concussive headache and TBI-related memory and concentration deficits prior to arrival for MEB processing.  In spite of no prior treatment history, the applicant received appropriate Neuropsychiatric testing which revealed no disabling condition.  A psychiatric evaluation did result in a finding of mild cognitive deficit that was not unfitting.  This psychiatric evaluation also failed to diagnose PTSD.  As a result, there is no evidence the applicant was told not to claim PTSD or that his TBI was improperly evaluated.  

4.  The record further confirms the PEB showed due diligence in its evaluation of the applicant.  Twice the PEB returned the applicant's case to the MTF for additional information or clarification of information already provided.  The PEB issued revised findings (administrative changes) and in addition to conditions referred to by the MEB as unfitting, the PEB also considered post concussive disorder, cognitive disorder, and adjustment disorder, and noted these conditions met retention standards and were not unfitting and therefore, were not ratable by the PEB.   

5.  The rating decision shows the applicant is properly being treated and compensated for his service-connected PTSD and other conditions by the VA, which is the appropriate agency to provide these services for service-connected conditions not determined to be unfitting at the time of discharge.  

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)                                         AR20100030407



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ABCMR Record of Proceedings (cont)                                         AR20100030407


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