IN THE CASE OF:	  

		BOARD DATE:  13 March 2012

		DOCKET NUMBER:  AR20110016272 


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, that his discharge for disability with severance pay be changed to a disability retirement and to receive any back pay and allowances as a result.

2.  The applicant states his Medical Evaluation Board (MEBD) is based solely on knee injuries and it neglected to reflect other medical injuries sustained as combat-related.  Such injuries are medically pertinent and should be considered as supportive information in the rating disposition.  He was diagnosed with post-traumatic stress disorder (PTSD) and sleep apnea prior to his MEBD and his rating designates a 10 percent rating for knee injuries only.

3.  The applicant provides:

* 17 pages of medical records from Bayne-Jones Army Community Hospital, Fort Polk, LA
* 5 pages from the Lake Charles Memorial Hospital Sleep Disorder and Neurophysiology and Epilepsy Monitoring Centers, Lake Charles, LA
* Department of Veterans Affairs (VA) Rating Decision, dated 31 July 2009
* 16 pages from his VA medical 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.  He enlisted in the Regular Army on 4 October 1993.  He had 5 months and 
11 days of previous active duty.  He was awarded the military occupational specialty (MOS) 21B (Combat Engineer).   

3.  He served in Kuwait and Iraq from 9 April 2003 to 8 April 2004.

4.  On 19 February 2004, an MEBD referred the applicant to a Physical Evaluation Board (PEB) for chronic right knee tendonitis.  The chief complaint shown on his Narrative Summary (NARSUM) was pain in right knee.

5.  The applicant did not agree with the findings and recommendation of the MEBD.  He indicated that he did not desire to continue on active duty.  He submitted a statement in appeal.  He stated his diagnosis should be chronic left and right knee tendonitis.  He had also been diagnosed with Osgood-Schlatter's Syndrome.

6.  An MEBD NARSUM Addendum, dated 15 March 2004, stated the records showed he was last seen for chronic left knee tendonitis on 20 September 1999, and since then there was no mention of this medical condition in the chart for ongoing treatment or follow-up.  It was presumed to be resolved.  The diagnosis of Osgood-Schlatter syndrome was just an impression on examination and requires an x-ray diagnosis.  Since no there was no x-ray finding to support the impression the diagnosis was not acceptable.  

7.  On 22 March 2004, an informal PEB found him unfit for duty for chronic right knee pain, rated as slight/constant.  The PEB recommended a disability rating of 10 percent and that he be separated with severance pay if otherwise qualified.  The PEB also found his disability was not based on an injury or disease received as a direct result of armed conflict or caused by an instrumentality of war, incurred during a period of war as defined by law.

8.  On 30 March 2004, the applicant acknowledged he had been advised of the findings and recommendations of the PEB and he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

9.  On 25 May 2004, he was discharged by reason of disability with severance pay.  His percentage of disability was 10 percent.  He completed 10 years, 
7 months, and 23 days of active service that was characterized as honorable.

10.  A statement of understanding, dated 26 January 2004, concerning confidentiality with the mental health directorate indicates he sought mental health counseling as early as 26 January 2004.

11.  He provided medical records from Baynes-Jones Army Community Hospital that show during his disability processing he was referred for a sleep study and began to seek mental health counseling.

	a.  26 January 2004 - he admitted to anxiety at times and very brief episodes of sadness and crying for no apparent reason.  A part of the treatment plan was a consult with a psychiatrist.

	b.  19 February 2004 - Memory problems persisted.  Continued to have daily episodes of near tearfulness for no apparent reason.  Tending to be less sociable and outgoing.

	c.  4 March 2004 - Only on direct questioning did he admit some symptoms of depression and anxiety to a mild degree.  This included worrying about his pending MEBD.

	d.  18 May 2004 - He reported some symptoms of PTSD but did not seem to meet full diagnostic criteria.  He may have been too well defended to fully recognize feelings.  Episodic increased distress for no apparent reason may occur when there is increased vulnerability to awareness of these feelings.

	e.  Diagnosed with PTSD on 26 May, 24 June, 21 July, and 29 July 2004.  On 30 July 2004 he was placed on medication for PTSD.  

12.  He provided records from Lake Charles Memorial Hospital Sleep Disorder and Neurophysiology  and Epilepsy Monitoring Centers.  These records show he was evaluated on 5 May 2004 and was diagnosed with obstructive sleep apnea syndrome.

13.  The VA Rating Decision, dated 31 July 2009, continued his 100 percent disability rating for PTSD.  The 100 percent evaluation has been continuous since May 2004 and is determined to be total and permanent.
14.  A letter, dated 21 November 2011, from the Army Review Boards Agency advised the applicant he had the option of applying to the Department of Defense Physical Disability Board of Review (PDBR).  He was advised the PDBR was established to reassess the accuracy and fairness of the disability rating assigned to service members who were discharged since 11 September 2001 as unfit for continued military service with a combined rating of 20 percent or less and found ineligible for disability retirement.  He was advised he could apply to either the ABCMR or the PDBR; however, the decision of either board is final.  He was also advised that if he failed to respond with his election of which board he desired, the ABCMR would proceed with the processing of his case.  On 
28 November 2011, he elected to continue with his application for disability review to the ABCMR.

15.  An advisory opinion, dated 2 December 2011, was received from U.S. Army Physical Disability Agency (USAPDA).  The USAPDA recommends that his records be corrected to show his PTSD was unfitting and compensable at the time of his separation.  However, the USAPDA does not recommend his sleep apnea be found unfitting at time of separation.  

	a.  A review of the available documents showed that during the military disability process he was referred for a sleep study and began to seek mental health counseling.  The referrals and evaluation were not actually completed until after he was separated.  However, by 30 July 2004 he had been diagnosed with PTSD and major depressive disorder and was prescribed medication and psychiatric therapy.

	b.  Evidence after separation from the military appears to support he was suffering from symptoms of PTSD before his separation date that would have resulted in an unfit finding if the condition had been presented to a PEB.  The VA Schedule for Rating Disabilities (VASRD) section 4.129 would have required a minimum of a 50 percent rating and placement on the Temporary Disability Retied List (TDRL).  It can be safely assumed that this would have been the result if all the evidence had been available to the PEB.  He was later rated 100 percent by the VA effective the day after his separation.

	c.  There is little to no evidence to support that his sleep apnea ever directly caused any deficiencies in regard to his ability to perform his assigned military duties.  There is some evidence that some of the sleeping concerns were actually related to the later psychiatric diagnoses.  It is unlikely that the PEB would have found him unfit for sleep apnea even if it had been listed on his MEBD.


16.  The USAPDA recommended his records be changed to show:

	a.  He was found unfit for duty for PTSD, in addition to his right knee pain, upon his separation on 26 May 2004 and that he was rated 50 percent for PTSD in accordance with VASRD 4.129.  His PTSD is a direct result of armed conflict.

	b.  He was placed on the TDRL effective 26 May 2004, with a combined disability rating of 60 percent, 50 percent for PTSD and 10 percent for his right knee pain.

	c.  Upon review of his case 6 months later, based upon the VA rating in effect at the time, he was placed on the Retired List effective 26 November 2004, with a combined disability rating of 100 percent, based on his VA disability rating in effect at that time.  His disability is a direct result of armed conflict.

17.  The applicant was provided a copy of the USAPDA opinion and given the opportunity to submit comments.  No response was received.

18.  VASRD 4.129 (Mental disorders due to traumatic stress) states when a mental disorder that develops in service as a result of a highly stressful
event is severe enough to bring about the veteran’s release from active
military service, the rating agency shall assign an evaluation of not less
than 50 percent and schedule an examination within the six month period
following the veteran’s discharge to determine whether a change in evaluation
is warranted.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states in Chapter 7 that a Soldier may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10 United States Code (USC), Section 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.

20.  Title 10 USC 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 
30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The evidence supports the recommendation made by the USAPDA to find the applicant unfit for duty for PTSD at the time of his separation.  Therefore, it is appropriate to correct his military records to show he was placed on the TDRL and later placed on the Retired List for disability.

2.  The evidence does not show his obstructive sleep apnea syndrome was unfitting at the time of his separation.  Therefore, there is an insufficient basis to add this condition to his PEB.

3.  The Defense Finance and Accounting Service (DFAS) should review his pay records and provide any retired pay that may be due as a result of this correction.

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant should be directed to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. 


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.  Showing he was found unfit for duty on 22 March 2004 for:

* PTSD with a disability rating of 50 percent
* chronic right knee pain with a disability rating of 10 percent

	b.  Transferring him to the TDRL effective 27 May 2004 with a combined disability rating of 60 percent.  Showing his retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict.  The disability did result from a combat-related injury as defined in 26 USC 104.

	c.  Transferring him to the Retired List effective 26 November 2004 with a combined disability rating of 100 percent.  Showing his retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict.  The disability did result from a combat related injury as defined in 26 USC 104.

2.  DFAS should audit his pay records and provide him any retired pay that may be due based on the above corrections.

3.  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 obstructive sleep apnea syndrome.  



      _______ _  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)                                         AR20110016272



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ABCMR Record of Proceedings (cont)                                         AR20110016272



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