IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011 


		DOCKET NUMBER:  AR20110004279 


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, correction of his records to show he appealed the decision of the Physical Evaluation Board (PEB), dated 13 December 2010.

2.  The applicant states he thought the decision from the PEB took into consideration all his Department of Veterans Affairs (VA) medical records including those from when he was on the Temporary Disability Retired List (TDRL).  However, the PEB did not review his medical records and he believes they came to an incorrect result.  The VA rated his post-traumatic stress disorder (PTSD) at 50 percent which is 40 percent higher than the rating from the PEB.  The progress notes from the VA verify a diagnosis of migraine headaches and residuals of traumatic brain injury (TBI) which was not taken into consideration by the PEB.

3.  The applicant provides a DA Form 199 (PEB Proceedings), a VA rating decision, a letter from the VA, and six pages of medical progress notes.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 14 February 2001 and he held military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He served in Iraq from 1 May 2003 to 20 July 2004.  He served in Iraq again from 23 September 2006 to 29 June 2007 and was awarded two awards of the Purple Heart for wounds/injuries he received from improvised explosive devices (IED), in March and June 2007. 
2.  On 9 June 2008, a medical evaluation board (MEB) convened and diagnosed him with cognitive and anxiety disorders.  The MEB recommended that he be referred to a PEB and the applicant concurred with the MEB findings.

3.  On 2 July 2008, an informal PEB convened at Fort Lewis, WA, and confirmed his two unfitting disabilities.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to TBI which included headaches and anxiety disorder.  Subjective complaints of headaches and dizziness were not to be rated separately.  He was rated under the VA Schedule for Rating Disabilities (VASRD) codes 8045 and 9304, and assigned a 30 percent disability rating.  The PEB recommended he be placed on the TDRL with a 30 percent disability rating.  On 7 July 2008, after being counseled on his rights, he waived his right to a formal hearing.

4.  On 31 August 2008, he was honorably retired by reason of temporary disability and transferred to the TDRL.  He completed 7 years, 6 months, and 17 days of creditable active service.

5.  On 26 February 2009, the VA rated the applicant 30 percent for PTSD, 10 percent for TBI, 10 percent for gastro-esophageal reflux disease, and 10 percent for bilateral knee degenerative arthritis. 

6.  On 29 September 2010, the applicant's TDRL medical re-evaluation was completed and all of his records were considered to include those from the VA that were provided by the applicant.  His anxiety disorder (or PTSD) was found to be well controlled with the applicant successfully working full time, and the applicant himself indicated he had only minor problems.  His psychiatric condition was considered to be under control with continuous medications, and neuropsychological testing indicated he no longer had any measurable cognitive defects.  On 25 October 2010, he concurred with the contents and opinions in his re-evaluation.  

7.  On 13 December 2010, a TDRL PEB convened at Fort Lewis, WA.  The PEB found the applicant's cognitive disorder had resolved and he had no limitations.  He worked 40 hours a week, had not missed work since March 2009, and had only one psychiatric visit.  He had residual symptoms of an anxiety disorder to include episodes of anger and difficulty in public places that required medication.  He continued to have military occupational impairment that prevented a return to duty in his MOS, and he was prohibited from carrying and firing a weapon.  He was rated for anxiety disorder under the VASRD codes 9413 and 9304 and assigned a 10 percent disability rating.  He was determined not to be fit for duty and the PEB recommended he be separated with severance pay, if otherwise qualified.  On 22 December 2010, he concurred with the PEB's findings and waived his right to a formal hearing.

8.  On 30 December 2010, he was separated from the Army with severance pay.

9.  In the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency, Washington, DC.  The advisory official recommended disapproval of the applicant's request.  The official stated that on 13 December 2010, a TDRL PEB found the applicant unfit for his anxiety disorder and properly rated him at 10 percent based on symptoms that posed difficulties during periods of significant stress that were controlled with continuous medication.  There were no other unfitting conditions found and only unfitting conditions are ratable.  After being counseled on his rights, the applicant concurred with the PEB's findings and waived his right to a formal hearing.  

10.  On 14 June 2011, the applicant was provided with a copy of the advisory opinion for comment, but he did not respond.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  It states 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.  Army Regulation 40-501(Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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.

DISCUSSION AND CONCLUSIONS:

1.  On 26 February 2009, the VA awarded the applicant a 30 percent rating for rating for PTSD, 10 percent for TBI, 10 percent for gastro-esophageal reflux disease, and 10 percent for bilateral knee degenerative arthritis effective 1 September 2008.

2.  The evidence of record confirms his medical re-evaluation was completed on 29 September 2010 and all of his records were considered to include those from the VA that he provided.  His anxiety disorder (or PTSD) was found to be well controlled with the applicant successfully working full time and the applicant himself indicated he had only minor problems.  He concurred with the contents and opinions in his re-evaluation.  

3.  On 13 December 2010, the PEB found him unfit for anxiety disorder that posed difficulties during periods of significant stress and were controlled with medication.  The PEB reviewed all the available and appropriate evidence.  There were no other unfitting conditions found.  The PEB recommended separation with entitlement to severance pay with a 10 percent disability rating.  He agreed with the PEB's recommendation.

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated at 10 percent for his anxiety disorder.  There is no evidence to support a higher rating for anxiety disorder or for any other medical condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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 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)                                         AR20110004279





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ABCMR Record of Proceedings (cont)                                         AR20110004279



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