IN THE CASE OF:	  

		BOARD DATE:	  1 April 2011

		DOCKET NUMBER:  AR20110004927 


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 correction of records to show assignment of the highest final disability rating applicable and not less than 50 percent for unfitting Post-Traumatic Stress Disorder (PTSD) retroactive to the active duty release date.

2.  The applicant states Chapter 61 of Title 10 United States Code requires that disability ratings by the Secretary of the pertinent military departments be based on the Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD).  At the time the applicant was medically separated the VASRD provided that when a mental disorder develops in service as a result of a highly stressful event is severe enough to bring about a veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent for PTSD and the Physical Evaluation Board’s failure to do so violated the applicant's legal right.

3.  The applicant provides a two-page addendum to this application.

4.  The applicant elected to authorize release of their VA records for consideration with this application.






CONSIDERATION OF EVIDENCE:

1.  On 12 November 2003, a Medical Evaluation Board (MEB) convened and determined the applicant suffered from Schizo-affective disorder and PTSD and referred the applicant’s case to the Physical Evaluation Board (PEB) which were both identified as EPTS (Existed Prior to Military Service) conditions.  

2.  The applicant’s record contains a MEB Addendum that indicates the applicant was not physically injured while in the military and did not report nightmares of her combat experience in the Gulf War.   .  

3.  On 18 November 2003, a PEB convened and determined the applicant was physically unfit and recommended a combined rating of 30 percent for a schizoaffective disorder with PTSD.  The PEB found the applicant’s disability was an EPTS condition that was not permanently aggravated by military service.  The PEB recommended the applicant be placed on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating.  

4.  On 29 February 2004, the applicant was released from active duty and placed on the TDRL with a 30 percent disability rating, effective 1 March 2004.   

5.  On 9 January 2009, another PEB convened and recommended the applicant be placed on the Permanent Disability Retired List (PDRL) with a combined disability rating of 70 percent based on her schizoaffective disorder EPTS condition; and on 22 January 2009, the applicant was removed from the TDRL and permanently retired with a 70 percent disability rating.  

6.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability:

   a.  Paragraph 3–9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for PEBs.  Specifically, it states 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 recommendation may be revised.
   
7.  The Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that 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 the evaluation is warranted.

8.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.

9.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of Deportment of Defense or Army Regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is insufficient evidence to support her claim.  

2.  Section 4.129 of the VASRD stipulates that a 50 percent disability rating for PTSD is appropriate in cases where a mental disorder that develops in service was caused by a highly stressful event that is severe enough to bring about a veteran's release from active military service.  

3.  The MEB addendum on file in the applicant's record confirmed the applicant was not physically injured while in military service and that she suffered no nightmares from her deployment to the Gulf War; and the PEB determined the applicant’s unfitting mental disorder was not incurred on or aggravated by military service.  

4.  Absent evidence the applicant's PTSD was the result of a highly stressful event that occurred while she was on active duty and given the disqualifying mental disorder is categorized as an EPTS condition, there is an insufficient evidentiary basis to support changing the disability rating granted by the PEB under section 4.129 of the VASRD and/or to grant relief under the provisions of the 2008 NDAA.

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.




      _______ _ XXX  _______   ___
       	   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)                                         AR20110004927


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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