IN THE CASE OF:	   

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110006400 


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 reconsideration of his earlier petition requesting an increase in his disability rating from 40 percent (%) to 100%. 

2.  The applicant states the enclosed brief from the Texas Veterans Commission outlines his new argument.  

3.  The applicant provides in support of this application a brief from the Texas Veterans Commission, dated 31 March 2011; statement from the Chief, Brooke Army Medical Center, dated 24 February 2011; Standard Form 513 (Medical Record), psychiatric evaluation, dated 6 September 1995; Certificate of Training; an initial evaluation for post-traumatic stress disorder, dated 6 September 2008; Progress Notes, dated 3 December 2010; benefit verification statement from the Social Security Administration (SSA), dated 31 March 2011; and a Department of Veterans Affairs (DVA) Rating Decision.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be granted a 100% disability rating effective upon the date he was released from active duty (REFRAD).  

2.  Counsel states either the DVA and SSA got it wrong, or the Physical Evaluation Board (PEB) got it wrong.  He claims both of these agencies rated the applicant 100% disabled as of the date he left the military.  Counsel further states the system failed this Soldier and the Board should given him the same compassion and understanding with a disability rating of at least 100%.    
3.  Counsel provides a five-page brief and the documents identified therein in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090014879 on 13 May 2010.  

2.  During the original review of the case, the Board found the medical evidence of record and independent evidence provided by the applicant failed to provide sufficient evidence to show the applicant was suffering from a Post Traumatic Stress Disorder (PTSD) at the time of discharge.  It also determined the applicant was evaluated by a Medical Evaluation Board (MEB) that recommended that he be referred to a PEB and he concurred with the findings and recommendations of the MEB.  He made no mention of any additional medical conditions that should have been considered by the MEB.  

3.  The Board also concluded that the basis for any disability rating by the Army is unfitness for duty.  Conditions that do not render a Soldier unfit for further service are not ratable by the PEB.  The Board finally concluded there was no evidence showing the Army misapplied either the medical factors involved or the governing regulation in evaluating the applicant during disability processing.  It also concluded there was no evidence that the MEB or PEB proceedings were inaccurate or unjust at the time they were prepared.  

4.  The applicant now provides a counsel brief from a Texas Veterans Commission Veterans Counselor as new evidence.  In this brief, the counselor provides background information on Department of Defense disability processing policy, information on the medical conditions evaluated by the Army, and the DVA rating decision.  He concludes that based on the applicant being granted a 100% disability rating by the DVA and SSA effective the date of his separation from military service, the Army, or PEB, got it wrong in granting only a 40% disability rating.  

5.  A DA Form 3947 (MEB Proceedings), dated 19 October 1994, shows an MEB evaluated the applicant’s 18 diagnosed medical conditions which are listed on the form and recommended referral to a PEB.  



6.  On 4 December 1995, the applicant notified the President of the PEB that he had been counseled by the PEB Liaison Officer (PEBLO), reviewed his MEB, and agreed with the findings and recommendations of the MEB.  The applicant also confirmed the MEB findings were current and unchanged and that no new conditions needed to be addressed at that time.  

7.  On 8 January 1996, the PEB returned the applicant’s case to the MEB for clarification.  A revised DA Form 3947 was prepared on 13 February 1996.  These revised findings were approved by proper authority on 20 February 1996.  The MEB again recommended the applicant’s case be referred to the PEB.  The applicant concurred with the findings and recommendations of the revised MEB findings and recommendations.  PTSD was not included as a diagnosed condition.  

8.  On 8 March 1996, a PEB considered the applicant’s case and determined he was unfit for further service based on the following diagnosed unfitting conditions and assigned the disability rating indicated:

* Pain associated with severe degenerative joint disease, hip, left greater than right, L5/S1 herniated pulpous and S1 radiculitis, left greater than right both described as mild, 20 percent (%)
* Profound obstructive sleep apnea with severe sleep fragmentation and mild oxygen desaturation, 10%
* Migraine headache syndrome, moderate with incapacitation attacks, frequent, 10%

9.  The PEB indicated of the myriad of medical conditions only those indicated above rendered him incapable of performing duties in his military occupational specialty (MOS).  The PEB also determined that conditions 6 and 
8-18 were not unfitting and therefore not ratable.  The PEB assigned the applicant a combined disability rating of 40% and recommended that the applicant be retired by reason of disability, permanent. 

10.  On 20 March 1996, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.  On
8 April 1996, the PEB findings were approved on behalf of the Secretary of the Army.  The record is void of any medical records or documents indicating the applicant had been diagnosed with PTSD at this time. 

11.  On 5 July 1996, the applicant was honorably retired from active duty by reason of physical disability, after completing 17 years, 4 months, and 15 days of active military service.  

12.  A DVA Rating Decision, dated 20 April 1998, shows the applicant was granted service connection for “adjustment disorder with depressed mood and sleep disturbance” and assigned a 30% disability rating for this condition.  

13.  On 6 September 2008, the applicant was initially evaluated and diagnosed with PTSD by a VA psychiatrist.  A revised DVA Rating Decision, dated 
27 October 2008, shows the DVA granted the applicant service connection for PTSD with a 100% disability rating, effective 23 June 2008.  

14.  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.  It stipulates that 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.  Separation by reason of disability requires processing through the PDES.  Paragraph 3-5 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.

15.  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 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/counsel's request for an adjustment of the applicant’s disability rating to 100% 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 three diagnosed conditions and granted him a combined disability rating of 40%.  It further found the remaining diagnosed medical conditions for the applicant were not unfitting for further service and as a result were not ratable.  The PEB recommended the applicant's retirement and the applicant concurred with the findings and recommendations of the PEB.

3.  The record further shows the applicant was granted service connection with a 30% disability rating by the DVA in 1998, and that more than 12 years after the fact the applicant was diagnosed with PTSD and granted a revised VA service connected disability rating of 100%.  There is no evidence of record or independent evidence submitted by the applicant that shows he was suffering from PTSD at the time he was processed through the PDES, or that this PTSD or any of the other diagnosed conditions that were not rated by the PEB were unfitting for further service at the time of his disability retirement.  

4.  A PTSD diagnosis and disability rating awarded 12 years after the fact does not call into question the findings and recommendations of the PEB with which the applicant concurred.  Further, it does not support a retroactive award of a higher disability rating at the time of his discharge.  As a result, this VA rating decision does impact the original PEB assigned disability rating. 

5.  The VA rating decision shows the applicant is properly being treated and compensated for service-connected PTSD by the VA, the appropriate agency to provide these services for service-connected conditions not determined to be unfitting at the time of release from active duty.  Absent any evidence of error or injustice in the PDES process there is an insufficient evidentiary basis to support granting the requested relief or amendment of the original Board findings 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 to amend the decision of the ABCMR set forth in Docket Number AR20090014879, dated 13 May 2010.  



      _______ _   __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)                                         AR20110006400



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ABCMR Record of Proceedings (cont)                                         AR20110006400



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