IN THE CASE OF:	  

		BOARD DATE:	    13 September 2011

		DOCKET NUMBER:  AR20110002853 


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 disability rating be increased to include a valid diagnosis for post-traumatic stress disorder (PTSD).

2.  He states a medical evaluation board (MEB) found him unfit for duty with a 20-percent disability rating for chronic ankle and back pain.  He offers that his mental health condition was misdiagnosed as either mild depression and/or adjustment disorder with anxiety (treated with Prozac).  He maintains that the Department of Veteran Affairs (VA) diagnosed him with PTSD with service connection to Iraq while still on active duty.  He states he was granted a 
70-percent disability rating and unemployability for PTSD by the VA.

3.  He provides the following:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2648 (Preseparation Counseling Checklist)
* DD Form 93 (Record of Emergency Data)
* Servicemembers' Group Life Insurance Election and Certificate
* Enlisted Record Brief
* Post-Deployment Health Reassessment
* DA Form 3947 (MEB Proceedings), dated 4 April 2007
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 23 May 2007
* Physical Disability Information Report, dated 8 June 2007
* 
Orders 159-0610, dated 8 June 2007
* DA Form 31 (Request and Authority for Leave), dated 13 June 2007
* Orders 178-0618, dated 27 June 2007
* VA Rating Decisions, dated 30 April 2009 and 3 September 2009
* VA Progress Notes
* support statement
* active duty health records

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 he enlisted in the Regular Army on 1 May 2002. 
He served in Iraq on two occasions from 10 March 2003 to 1 August 2003 and from 22 September 2005 to 23 August 2006.

3.  His medical records dated as early as March 2007 and throughout his military service identify him as having an adjustment disorder with anxiety.

4.  On 2 April 2007, an MEB was convened and diagnosed him with left ankle pain and low back pain.  He was referred to a PEB.

5.  On 23 May 2007, a PEB was convened and considered the applicant's condition of left ankle pain and chronic back pain.  The PEB found that his medical and physical impairment prevented reasonable performance of his duties as required by his grade and military specialty.  The board also found that he was physically unfit and recommended a 10-percent disability rating for each condition with a combined disability rating of 20 percent.  He was recommended for separation with severance pay if he was otherwise qualified.  The reverse portion of the form indicating his election and/or concurrence with the board recommendation is not contained in the available files.

6.  On 13 June 2007, he underwent a VA Compensation and Pension Examination at the VA Tennessee Valley Healthcare System.  One of his complaints was recorded as depression/anxiety/insomnia related to Operation Iraqi Freedom.  The examination shows the onset of his condition occurred in June 2003.  The symptoms were listed as:  intermittent depression lasting 
1-2 days, does not feel suicidal anxiety when in crowds, cannot be around his own family members and needs to get away into a separate room or goes outside and stays alone, and has vivid dreams about the war.  Aggravating factors were listed as stress and lack of sleep.  His treatment in Iraq was listed as tramadol and Prozac.

7.  On 18 June 2007, he was scheduled for a VA Compensation and Pension examination at Athena Consulting and Psychological Services, Nashville, TN.  The physician noted that he would be released from military service on 2 July 2007.  The physician diagnosed him with PTSD.  He stated the applicant said he suffers from insomnia, depression, and anxiety.  He added that he spent 4 days in a combat stress unit and upon his return he started drinking in 2005 to 2006.

8.  On 22 July 2007, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay.  He was credited with 5 years, 2 months, and 22 days of active service.  He received $26,056.80 disability severance pay.

9.  The VA Rating Decision, dated 30 April 2009, shows he received a disability rating of 70 percent for service connection for PTSD effective 8 October 2008.  Additionally, the VA Rating Decision, dated 3 September 2009, shows he was granted entitlement to unemployability effective 1 July 2009.

10.  He provided numerous VA Progress Notes from the VA hospital in St. Louis, MO.  These notes verify he was being treated for PTSD and attended ongoing therapy sessions.  These notes also indicate he had significant problems with alcohol abuse.

11.  He also provides a support statement from his spouse who maintains his behavior has changed since his return from Iraq in August 2001.  She offers that this change is attributed to his PTSD.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  PEB's 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 states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

14.  Army Regulation 635-40 states that the findings and recommendations of the informal PEB are recorded on DA Form 199.  Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include the following:

* concurrence with the findings and recommendations and waiver of a formal hearing 
* nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing
* demand for a formal hearing with or without personal appearance
* choice of counsel if a hearing is demanded
* Soldiers indicate their elections by placing a checkmark in block 13 and signing and dating the original and the medical treatment facility copies

15.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36, provides guidance for adjustment disorders.  It states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

16.  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.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his disability rating be increased to include a valid diagnosis for PTSD.  However, the evidence of record shows he underwent an MEB and a PEB and there was no diagnosis of PTSD.

2.  Although he failed to provide a signed copy of his PEB election and a copy could not be obtained that shows he either concurred or nonconcurred with the findings and recommendations of the board, it is reasonable to presume that if he was not satisfied with the findings and recommendations rendered by the boards, he would have nonconcurred with the board findings and either submitted an appeal or requested a formal hearing.  There is no evidence and he has not provided any to show this action occurred.  The fact that he now states, 4 years later, that the MEB/PEB erred and misdiagnosed his condition is not sufficient evidence to justify granting him an increase in his disability rating and/or including PTSD in his MEB/PEB diagnosis.

3.  Further, the VA rating decision submitted indicates he was not rated for PTSD until 2 years after his discharge.  Medical records show he was diagnosed with an adjustment disorder in 2007.  However, during his VA Compensation And Pension Examination on 18 June 2007 he stated he was diagnosed with an adjustment disorder in 2003.  Nevertheless, an adjustment disorder is not compensable.

4.  The evidence of record also shows that during his VA Compensation And Pension Examination conducted prior to his discharge from active duty, PTSD was discussed; however, PTSD had not surfaced during his MEB or PEB.  On 30 April 2009, he received a disability rating of 70 percent for service connection for PTSD effective 8 October 2008.

5.  The applicant offers the fact that he was awarded a 70-percent disability rating from the VA for PTSD as proof that he should have been diagnosed with PTSD and received an increase in his disability rating while serving on active duty.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to a higher percentage for a medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  No medical evidence has been presented by the applicant to demonstrate an injustice in the disability ratings received in service.

8.  In view of the evidence in this case, there is no basis for granting his 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 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)                                         AR20110002853



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ABCMR Record of Proceedings (cont)                                         AR20110002853



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