BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20120002724 


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 diabetes, sleep apnea, and Post Traumatic Stress Disorder (PTSD) be added to his unfitting conditions and his disability rating be increased to at least 30% (a medical retirement).  

2.  The applicant states:

* he has ischemic chest pain, diabetes, sleep apnea, and PTSD
* his PTSD was not added to his case
* his chest pains continue to give him problems 

3.  The applicant provides: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter, dated 24 August 2010, from a social worker
* Department of Veterans Affairs (DVA) Proposed Rating Decision, dated 13 September 2010
* Several thousand medical documents

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty from the Texas Army National Guard on 3 July 2009 in support of Operation Iraqi Freedom.  He served as a petroleum supply specialist in Iraq from 15 August 2009 to 2 November 2009.

2.  On 15 June 2010, a Medical Evaluation Board (MEB) diagnosed the applicant with:

* Diabetes mellitus type 2 (medically unacceptable)
* Non-ischemic atypical chest pain (medically unacceptable)
* Nonobstructive coronary artery disease (medically acceptable)
* Exertional dyspnea with mild hyperreactive airways (medically acceptable)
* Hypertension (systemic) (medically acceptable)
* Hypertensive heart disease (medically acceptable)
* Hyperlipidemia (medically acceptable)
* Patellofemoral syndrome and degenerative joint disease bilateral (medically acceptable)
* GERD (Gastroesophageal reflux disease) (medically acceptable)
* Hiatal hernia (medically acceptable)
* Severe obstructive sleep apnea (medically acceptable)
* Erectile dysfunction (medically acceptable)
* Lumbago (medically acceptable)
* Obesity (condition does not constitute a physical disability)

3.  The MEB recommended referral to a PEB.  On 26 July 2010, the applicant agreed with the findings and recommendations.  Item 30 (Continuation) of the applicant's DA Form 3947 (MEB Proceedings) states:

	a.  "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947."

	b.  "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards."

	c.  I agree that this MEB accurately covers all my current medical conditions." 

4.  On 30 July 2010, a PEB found him fit for duty.  On 13 August 2010, the applicant did not concur with the findings and requested a formal hearing.

5.  On 20 September 2010, a PEB found the applicant physically unfit due to non-ischemic atypical chest pain since 2003.  The proceedings state:

	a.  type 2 diabetes mellitus is not found to be separately unfitting by the PEB.  His diabetes mellitus was diagnosed in January 2010 during his latest cardiology work-up, and he is under treatment with oral medication, diet modification and exercise with reasonable glycemic control (fasting blood glucose = 72, HgbA1c = 7.5 in March 2010).  He has no evidence of end-organ damage or functional limitations from this condition.  There is no evidence in the case file that this condition has adversely affected his duty performance.

	b.  he has also been diagnosed with non-obstructive coronary artery disease; exertional dyspnea; hypertension; hypertensive heart disease; hyperlipidemia; bilateral patellofemoral syndrome; GERD; hiatal hernia; severe obstructive sleep apnea; erectile dysfunction; lumbago; degenerative lumbar disease; diastolic dysfunction; and right shoulder sprain.  These conditions were found to be medically acceptable by the MEB, and there is no evidence in the case file that these conditions have adversely affected his duty performance.

	c.  obesity is a condition not constituting a physical disability. 

	d.  his informal findings were reconsidered based on additional review of the medical evidence of record.  The DA Form 199 (PEB Proceedings), dated 
30 July 2010, is superseded. 

6.  The PEB recommended a combined 20 percent (%) disability rating percentage and separation from the service with severance pay.  On 4 October 2010, the applicant concurred with the findings and recommendations and waived a formal hearing.  

7.  The U.S. Army Physical Disability Agency is not available.

8.  On 29 December 2010, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability, severance pay, non-combat (enhanced).

9.  He provided a letter, dated 24 August 2010, from a social worker who indicates the applicant has a phobia of Toyota Corolla automobiles stemming from his experience in Afghanistan.  "He has intense anxiety when driving and scans the surroundings to identify old Corolla cars who he thinks may be car bombs."  His working diagnosis is PTSD and phobia. 

10.  He also provided a DVA proposed rating decision, dated 13 September 2010, which indicates the proposed Disability Evaluation System service connected disabilities were:

* Obstructive sleep apnea – 50%
* Diabetes mellitus, type 2 – 20%
* Degenerative arthritis lumbar spine with strain – 10%
* Degenerative joint disease right knee – 10%
* Degenerative joint disease left knee – 10%
* Hypertensive heart disease – 10%
* Hypertension – 0%
* GERD and hiatal hernia – 0%
* Erectile dysfunction – 0% 

11.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

12.  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 of less than 30 percent.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

14.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that diabetes, sleep apnea, and PTSD be added to his unfitting conditions.  However, he provides no evidence to show these conditions rendered him unfit to perform his military duties.  Since his diabetes was controlled by medication and his sleep apnea was found to be medically acceptable, there is insufficient evidence on which to add diabetes and sleep apnea as unfitting conditions.  
2.  His MEB did not list PTSD and he agreed that the MEB accurately listed all of his current medical conditions.  Therefore, there is insufficient evidence on which to add PTSD as an unfitting condition.   

3.  Evidence shows he concurred with the PEB findings and recommendation on 4 October 2010.  

4.  It is acknowledged the DVA has granted him a proposed 50% disability rating for obstructive sleep apnea and 20% rating for diabetes mellitus, type 2.  However, the rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  It is noted the DVA did not find him service connected for PTSD.    

5.  There is insufficient evidence to show his disability was improperly rated by the PEB in 2010.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

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)                                         AR20120002724





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ABCMR Record of Proceedings (cont)                                         AR20120002724



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