IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003526 


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 that her records be corrected to show she was retired due to Post-Traumatic Stress Disorder (PTSD) rated as 50 percent disabling.

2.  The applicant states she was treated by three different professionals for PTSD while on active duty but the chairman of the Physical Evaluation Board (PEB) did not accept the diagnosis and required it to be changed to an anxiety disorder.  She signed off on this diagnosis because she was told that if she didn't she would have to stay for another year or longer and she was in no condition to fight the diagnosis change.  The Department of Veterans Affairs (DVA) has afforded her the PTSD diagnosis and granted her compensation for this and other conditions.

3.  The applicant provides copies of a 24 February 2005 Medical Evaluation Board assessment, a 7 November 2005 DVA Rating Decision, a PTSD criteria sheet, and two pages of a DVA regulation.

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 service medical and dental records are believed to be on permanent loan to the DVA and are not available for review.  Her integrated Personnel Electronic Management System file contains no medical documentation including no documentation of her MEB/PEB processing.

3.  The applicant enlisted in the Regular Army on 10 February 2002, completed training, and was awarded the military occupational specialty 25U (Signal Support Systems Specialist).

4.  She served in Kuwait/Iraq from 7 March 2003 through 18 February 2004. 

5.  Headquarters, 101st Airborne Division Orders 104-0709, dated 14 April 2005, directed that the applicant be discharged, effective 11 May 2005, with disability severance pay.  Her DD Form 214 shows she was honorably discharged on 11 May 2005 under the provisions of Army Regulation 635-40, paragraph 4-24B(3) for a physical disability with severance pay.

6.  The DVA rating decision provides the following information:

	a.  she was afforded a 20 percent rating for chronic lumbar strain and noncompensable (zero percent) ratings for bilateral chrondromalacia and bilateral shin splints;

	b.  she received a 50 percent disability rating for PTSD, effective 12 May 2005, with a subsequent reduction to 10 percent, effective 17 August 2005;

	c.  the stated reason for the PTSD diagnosis was that her service medical records showed treatment for PTSD due to sexual harassment;

	d.  her initial 50 percent rating was based on the findings in her service medical records and the required minimum rating for service members diagnosed with a mental condition that was the result of trauma resulting in the service member's discharge;

	e.  the 50 percent rating was to continue until completion of a DVA examination; and

	f.  based on that DVA examination, her PTSD evaluation was reduced to 10 percent, effective 17 August 2005.

7.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The opinion provides the following:

	a.  the initial MEB was completed on 13 July 2004 affording the applicant the diagnosis of PTSD that did not meet medical retention standards.  She was also found to have back pain and chronic shin splints; however, these conditions were not found to be unfitting.  The applicant concurred with the MEB and her case was forwarded to the PEB on the PTSD diagnosis;

	b.  on 5 August 2004, an informal PEB found the applicant unfit due to PTSD and rated her as 10 percent disabled.  On 16 August 2005, the applicant concurred with the PEB and waived her right to a formal hearing;

	c.  a subsequent review by the USAPDA opined that the PTSD diagnosis did not appear to be supported by the facts and did not meet the criteria found in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  Based on this opinion the case was returned to the MEB to review the facts and criteria relating to the PTSD diagnosis.

	d.  On 10 March 2005, the MEB determined that since the applicant was no longer in her unit in which her sexual harassment occurred, her level of disability had decreased and she was mainly predisposed to have a recurrence of her anxiety if she was subject to the rigors of military combat to be associated with members of the military that might renew any sexual harassment.  Based on these changes the MEB determined the applicant no longer met the criteria for PTSD but did meet the criteria for an anxiety disorder, not otherwise specified.  It did note that the applicant had a history of PTSD in addition to the anxiety disorder, not otherwise specified, diagnosis.  The applicant concurred with the MEB findings on 24 March 2005.

	e.  Her case was returned to the PEB with the revised diagnosis and she was found to be unfit due to a mild anxiety disorder warranting separation with severance pay.  The applicant concurred with the PEB and waived her right to a formal hearing.

	f.  The change in the diagnosis did not result in a change in the PEB disability rating as all psychiatric diagnoses are rated under the same impairment criteria regardless of the actual diagnosis.  The 10 percent disability rating was consistent with the finding under the revised diagnosis.  

	g.  It was stated that recent Department of Defense policy changes required that if a Soldier is separated for a mental disorder that was the result of a highly stressful event, the Soldier was to be placed on the Temporary Disability Retired List (TDRL) with a 50 percent disability rating and required to undergo a reevaluation after the six months.   

	h.  The applicant's other injuries or conditions were found to be not unfitting and as such were not considered to hinder her performance of duty.

	i.  It was recommended that the applicant's military records be changed to show, effective 11 May 2005, she was placed on the TDRL with a disability rated at 50 percent (for her anxiety disorder); removed from the TDRL after 6 months; and discharged with severance pay (with a disability rated at 10 percent), effective 11 November 2005.

8.  A copy of the advisory opinion was forwarded to the applicant.  The applicant did not response to the opinion within the allotted time frame.

9.  Army Regulation 634-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Paragraph 3-1 provides that the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

11.  Title 38, U.S. Code, sections 310 and 331, permit the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states she was treated by three different professionals for PTSD while on active duty but the chairman of the PEB did not accept the diagnosis and required it to be changed to an anxiety disorder.  She signed off on this diagnosis because she was told that if she didn't she would have to stay for another year or longer and she was in no condition to fight the diagnosis change. The DVA has afforded her the PTSD diagnosis and granted her compensation this and other conditions.

2.  The award of a DVA compensation rating does not mandate a change of, nor demonstrate an inequity in, a military disability rating.  The DVA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The DVA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the DVA, in its discretion, has awarded the applicant additional disability ratings is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

3.  The applicant's medical conditions of a lumbar strain, bilateral chrondromalacia, and bilateral shin splints were not found to be unfitting for retention on active duty and cannot be considered in meeting the minimum 30 percent disability requirement for entitlement to disability retirement. 

4.  The applicant's diagnosis of PTSD was questioned during the PEB review process and, in accordance with proper procedures, the case was returned to the MEB to verify that the applicant met the criteria for a diagnosis of PTSD.  This second review resulted in the change of diagnosis from the specific anxiety disorder of PTSD, to an anxiety disorder, not otherwise specified.  

5.  Whether the applicant's condition is diagnosed as the specific anxiety disorder of PTSD or the more generic anxiety disorder, not otherwise specified, does not affect her disability rating as the rating criteria for both are the same and in both cases it has been determined she met a 10 percent rating criteria.  The difference in specific name of her condition is a matter of medical opinion.  It is not appropriate for the Board to attempt to determine which anxiety disorder the applicant is suffering from at any given point.  The record does not contain and the applicant has not provided evidence that she meets the criteria for a permanent 50 percent rating warranting disability retirement.

6.  However, the current separation policy for separation of Soldiers with trauma related mental conditions was not complied with.  The applicant should have been placed on the TDRL at a 50 percent disability rating and then afforded a disability reevaluation after six months.  This was not done and correction of this error is warranted.

7.  At this point, over 6 years after her separation, it would not be appropriate to recall the applicant to active duty to afford her an examination to determine her disability rating as it would have been on or about 11 November 2005.  Therefore, it is appropriate to utilize the 2005 DVA examination and findings for this purpose as it renders a reasonable picture of her condition as it was at that time.

8.  Utilizing the 2005 DVA examination and findings, the applicant is shown to have warranted a 10 percent disability rating at the time she would have undergone her 6-month military reevaluation, on or about 11 November 2005. 

9.  Based on the above facts and findings, the applicant's records should be corrected by:

	a.  voiding her 14 April 2005 discharge orders;

	b.  showing she was placed on the TDRL with a 50 percent disability rating effective 12 May 2005;

	c.  showing she was removed from the TDRL effective 10 November 2005;

	d.  issuing her orders discharging her due to physical disability with severance pay, at a 10 percent rating, effective 11 November 2005; 

	e.  having the Defense Finance and Accounting Service audit the applicant's pay records, adjusting her records to reflect the above corrections, and affording her any retroactive retired pay to which she might be entitled; and

	f.  denying her any relief in excess of the above corrections.

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.  voiding her 14 April 2005 discharge;

	b.  showing she was placed on the TDRL effective 12 May 2005, with a 50 percent disability rating;

	c.  showing she was removed from the TDRL effective 10 November 2005;

	d.  issuing her orders discharging her due to physical disability with severance pay, at a 10 percent rating, effective 11 November 2005; and
 
	e.  having the Defense Finance and Accounting Service audit the applicant's pay records, adjusting her records to reflect the above corrections, and affording her any retroactive retired pay to which she might be entitled. 

2.  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 any relief in excess of the above corrections.



      _______ _ 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)                                         AR20110003526





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