IN THE CASE OF: 

		BOARD DATE:	    8 November 2012

		DOCKET NUMBER:  AR20110024315 


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 medical evaluation board (MEB) proceedings to include his diagnosis of Post Traumatic Stress Disorder (PTSD).

2.  He states:

	a.  his DA Form 3947 (MEB Proceedings) indicates he was moderately depressed with a low threshold for PTSD.  

	b.  he sought treatment and was diagnosed with PTSD.

	c.  he should have been rated for PTSD.

3.  He provides:

* his DA Form 2173 (Statement of Medical Examination and Duty Status)
* his DA Form 3947 and allied documents
* his DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* 7 pages of a Standard Form (SF) 502 (Clinical Record - Narrative Summary)
* 86 pages of progress notes from the Department of Veterans Affairs (VA)



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 enlisted in the Ohio Army National Guard (OHARNG) on 16 July 2002.  

3.  On 10 November 2004, he was ordered to active duty in support of Operation Iraqi Freedom with duty in Kuwait and Iraq from 6 January to 27 December 2005.  He was released from active duty on 1 February 2006 and reverted to the OHARNG.

4.  He submitted a DA Form 2173, dated 30 July 2005, which stated he incurred a hearing loss when an improvised explosive device exploded on his vehicle.  Item 31 (Formal Line of Duty (LOD) Investigation Required) is checked "NO" and item 32 (Injury is Considered to Have Been Incurred in the LOD) is checked "YES."

5.  On 17 April 2009, an MEB convened at the Ireland Army Community Hospital, Fort Knox, KY and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as having the medically-unacceptable conditions of:

* cognitive disorder, not otherwise specified
* left knee patellofemoral chondromalacia, symptomatic
* post-concussive headaches 

6.  The MEB found the applicant met the retention standards for:

* depressive disorder, not otherwise specified
* mild hearing loss
* hyperuricemia

7.  His SF 502 contains the accompanying psychiatric service evaluation notes, which state:
	a.  he has a permanent profile finding him unfit for duty due to his headaches and traumatic brain injury. 

	b.  he does not meet the criteria for PTSD symptoms, but appears to have some underlying anxiety and depressive symptoms which he (the psychiatrist) called depressive disorder, not otherwise specified.  

	c.  the depressive symptoms certainly were not disabling from a military or an occupational standpoint, but certainly contributed to some of his headaches which have worsened to some degree since his return from deployment and since his stressors increased, which is pretty common.  

	d.  he did not want to stay in the military.

	e.  he recommended that the neuropsychological testing along with his PTSD Checklist - Military version and Beck Depression Inventory be added to his MEB which finds him to be in moderate depression and below threshold for PTSD.

8.  The MEB referred his case to a PEB.  On 24 April 2009, he was informed of and agreed with the approved findings and recommendation of the board.

9.  On 6 May 2009, an informal PEB convened at Fort Lewis, WA to consider his case.  The PEB determined:

	a.  he was found unfit for continued military service by reason of cognitive disorder resulting from head trauma while deployed to Iraq and left knee traumatic patella femoral syndrome, evaluated as arthritis, degenerative.

	b.  his conditions listed by the MEB as numbers 4, 5, and 6 were determined to meet retention standards by the medical treatment facility and not to be unfitting and therefore, not ratable.  

	c.  as a result, the PEB recommended a combined 20 percent (%) disability rating percentage and separation with disability severance pay. 

	d.  his PEB proceedings do not mention PTSD.  

	e.  on 20 May 2009, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

10.  Orders D Number 152-02, issued by the U.S. Army Physical Disability Agency, Washington, DC, dated 1 June 2009, show he was discharged honorably from the ARNG, effective 5 July 2009, with a 20% disability rating.  

11.  He submitted pages 5 to 85 of progress notes from his VA medical record, which show he was rendered treatment from 29 March 2010 to 24 May 2010, at the Dayton Medical Center, which stated he had also been under the care of the Cincinnati/Fort Thomas, VA Medical Center residential and nonresidential facility and the clinical psychologist saw him for psychological care and a doctor saw him for psychiatric care.  The clinical psychologist also stated that he was diagnosed with PTSD.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  It states:

	a.  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.
	b.  Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	c.  Paragraph 4-17 provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:

* investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board
* evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating
* providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214
* making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability

13.  Army Regulation 40-501 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 uses the VASRD to rate unfitting disabilities.  Department of Defense Instructions 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100%, rising in increments of 10%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his MEB proceedings to include PTSD was carefully considered, but was determined to be without merit.  

2.  The applicant was considered by an MEB in April 2009.  He agreed with the findings and recommendation of the MEB.  There is no evidence which confirms he was diagnosed with or was unable to perform his duties due to PTSD at the time of his MEB.

3.  The applicant was considered by a PEB in May 2009, which found him unfit for military service by reason of cognitive disorder resulting from head trauma and left knee traumatic patella femoral syndrome.  As a result, he received a combined disability rating of 20% and separation with disability severance pay.  He concurred with the findings and recommendation and he waived his right to a formal PEB hearing.

4.  The VA diagnosis does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the disability based upon the agency's examinations and findings.

5.  The evidence of record does not indicate the applicant’s disability processing was in error or unjust or that his medical conditions were improperly evaluated by the MED or PEB.  There is no evidence at this time that links his PTSD to any military training or event; therefore, there is no basis for granting the applicant's request.

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)                                         AR20110024315





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ABCMR Record of Proceedings (cont)                                         AR20110024315



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