IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120006550 


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 his record to show he was medically retired instead of medically separated and that his eligibility for retirement pay be reinstated.

2.  The applicant states changes in the law have increased the rating for post-traumatic stress disorder (PTSD); therefore, his disability rating should be increased accordingly so he can be medically retired.  He requests his retirement be granted at age 60 based on his notification of eligibility for retired pay at age 60 (20-year letter) and repayment of his severance pay.

3.  The applicant provides:

* Self-authored statement, dated 7 March 2012
* Response to the advisory opinion, dated 8 June 2012
* Numerous personnel records
* Numerous medical records
* Numerous Department of Veterans Affairs (VA) 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.  After having had prior enlisted service, the applicant enlisted in the West Virginia Army National Guard (WVARNG) on 30 December 1992 and he held military occupational specialty 92G (Food Service Specialist).  The highest rank/grade he attained was sergeant first class (SFC)/E-7.

3.  On 6 January 2006, he was seen by a physician at Walter Reed Army Medical Center (WRAMC), Washington, DC.  His chief complaints were lower back pain, painful joints, sinusitis, hearing, and PTSD.  The examination notes stated he had a history of lower back pain dating back to 1989 when he had a difficult parachute landing while on active duty and he had to be medically evacuated out.  The physician who examined him at the time told him he did not have a fracture.

4.  On 20 January 2006, he was seen by a psychiatrist at WRAMC.  His chief complaint was PTSD.  The examination notes stated he had been engaged in intermittent mental health treatment since 1995 for treatment of anxiety symptoms consistent with PTSD.  Over the past 12 months his symptoms had increased in severity despite medication management and weekly psychotherapy.

5.  His record contains an undated narrative summary (NARSUM), issued by the WRAMC, Reserve Component (RC) Medical Board Office, and an accompanying WRAMC - Psychiatric Medical Evaluation Board Addendum, dated 20 January 2006.

	a.  The NARSUM listed his chief complaints as lower back pain, painful joints, sinusitis, hearing, and PTSD.  The medical official who completed the NARSUM diagnosed him with chronic low back pain secondary to L4-5, L5-S1 with degenerative changes.  This condition was determined to be medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3-39h.  The NARSUM further stated the medical condition was considered to be in line of duty (LOD).

	b.  The accompanying WRAMC - Psychiatric Medical Evaluation Board Addendum listed his chief complaint as PTSD.  The medical official who completed the addendum diagnosed him with chronic PTSD manifested by reacting with extreme terror and emotional numbing following exposure to combat horror, with disturbed sleep, frequent nightmares, flashbacks to traumatic events, social withdrawal, and heightened anxiety.  This condition was determined to be medically unacceptable in accordance with Army Regulation 40-501, chapter 3-33.  The addendum further stated the medical condition was considered to be in LOD.

6.  On 6 January 2006, a medical evaluation board (MEB) convened at WRAMC. After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of chronic low back pain secondary to L4-5, L5-S1 with degenerative changes and PTSD.  The MEB recommended his referral to a physical evaluation board (PEB).  He was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

7.  On 25 February 2006, an informal PEB convened at WRAMC.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to symptoms of anxiety similar to PTSD and chronic lower back pain.

	a.  The PEB noted, for symptoms of anxiety similar to PTSD, that:

* His symptoms of anxiety are similar to those of PTSD, chronic, and secondary to multiple periods of active service in various combat operations 
* His anxiety is manifested by panic attacks, flashbacks, irritability, depression, nightmares and avoidance behaviors that have shown minimal improvement with antidepressants and psychotherapy
* He is competent for legal, financial, and medical decisions and currently works a 40-hour week for the state of West Virginia in building and maintenance

	b.  The PEB noted, for chronic lower back pain, that:

* His chronic lower back pain was secondary to an injury in 1989 in a parachute landing fall
* His pain was described as consistent which disturbs his sleep, and of an intensity of between 5-8 on a pain scale of 0-10
* His back pain is not relieved by physical therapy, stretching, and non-opioid pain medications
* Physical examinations were remarkable for 1/5 Waddell signs that show he has tenderness to palpitations and spasms of the lumbar spine
* His range of motion of the back was noted to be 42 degrees flexion and 8 degrees extension, measurements were limited by pain 
* Radiographic studies in April 2003 showed no spondylolisthesis with well-maintained disk space

8.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 9499 and 9411 for symptoms of anxiety similar to PTSD and code 5237 for chronic lower back pain with tenderness to palpitations, spasms of lumbar spine, and a limited range of motion of 42 degrees flexion and 8 degrees extension but was not given a rating for either condition.  The PEB also considered his other conditions of right knee pain, right ankle pain, bilateral hearing loss, allergic rhinitis with cephalgia, and acne but they were determined to have met retention standards.  As they were not unfitting, they were not ratable.  The PEB recommended the applicant be separated without entitlement to severance pay.  He nonconcurred with the informal PEB's findings and waived his right to a formal hearing.  Additionally, he submitted a written appeal in his own behalf.

9.  On 25 February 2006, an informal PEB convened at WRAMC to reconsider his case based on his letter of appeal.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due nonspecific anxiety disorder and chronic lower back pain. 

	a.  The PEB noted, for his nonspecific anxiety disorder:

* His anxiety is manifested by panic attacks, flashbacks, irritability, depression, nightmares and avoidance behaviors that have shown minimal improvement with antidepressants and psychotherapy
* He is competent for legal, financial, and medical decisions and currently works a 40-hour week for the state of West Virginia in building and maintenance
* His psychological disorder has a mild impact on his industrial adaptability 

	b.  The PEB noted, for chronic lower back pain:

* His pain was described as consistent which disturbs his sleep, and of an intensity of between 5-8 on a pain scale of 0-10
* His back pain is not relieved by physical therapy, stretching, and non-opioid pain medications
* Physical examinations were remarkable for 1/5 Waddell signs which show he has tenderness to palpitations and spasms of the lumbar spinal
* His range of motion of the back was noted to be 42 degrees flexion and 8 degrees extension, measurements were limited by pain 
* Radiographic studies in April 2003 showed no spondylolisthesis with well-maintained disk space

10.  He was rated under VASRD code 9413 for nonspecific anxiety disorder and granted a 10% disability rating, and under VASRD code 5237 for chronic lower back pain and granted a 10% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay.  

11.  Orders Number D167-03, issued by the U.S. Army Physical Disability Agency (USAPDA), WRAMC, dated 27 June 2006, discharged him from the ARNG on 15 July 2006 with a 20% combined disability rating.  This order further authorized him disability severance pay in the rank/grade of SFC/E-7.

12.  Orders Number D245-02, issued by the USAPDA, WRAMC, dated
31 August 2006, shows that effective 30 September 2006, he was discharged from the U.S. Army Reserve.  He was authorized disability severance pay in the rank/grade of SFC/E-7 based on 10 years, 1 month, and 11 days of service.  This order further indicated he received a 20% disability rating due to disabilities that resulted from a combat-related injury.

13.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the WVARNG on 30 September 2006 because he was medically unfit for retention.  This form listed his total service for retired pay as 18 years.

14.  On 29 May 2012, an advisory opinion was obtained from the USAPDA.  The advisory official noted:

	a.  The available records reveal the 2006 MEB listed only the conditions of PTSD and chronic lower back pain as conditions that did not meet medical retention standards.  The MEB indicated his social and industrial impairment due to his condition of PTSD was, at the time, best described as "definite":  ratable at 30% in accordance with Department of Defense Instruction (DODI) 1332.39 (Application of the VASRD), appendix B; Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation); and VASRD 4.130 (Mental Disorders), occupational and social impairment with occasional decrease in work efficiency.  His back pain limited his spinal flexion to 42 degrees that is ratable at 20% disability in accordance with VASRD 5237 for flexion between 30 to 60 degrees.

	b.  There were no other conditions listed by the military that did not meet medical retention standards or that were considered to be unfitting at the time.  He concurred with the listings of his medical conditions in 2006.  Although the PEB substituted anxiety disorder of the listed condition of PTSD based upon an addendum from the MEB, either condition would have been rated at a level of impairment listed in the MEB "definite."  Either psychiatric condition would have been considered to be caused by a stressful event; therefore, VASRD 4.129 (Mental Disorders Due to Traumatic Stress) would have been applied.

	c.  Based on the above, it is recommended the applicant's military record be changed to reflect a rating of 30% for PTSD and a 20% rating for chronic lower back pain.  A 30% and 20% rating combined in accordance with the VASRD rating table equals 44% which equals 40%.  However, the application of VASRD 4.129 requires placement on the temporary disability retired list (TDRL) at a minimum of 50% for 6 months.

	d.  He would have been placed on the TDRL at 50% on 30 September 2006, and his conditions reviewed again 6 months later in March 2007.  There are no VA records in the case file presented for a review that indicate he was medically evaluated in the spring of 2007.  The best record available indicates that in the spring of 2007 he would likely have remained at the rating levels for both unfitting conditions that were provided by the military in 2006.  Accordingly, his records should be corrected to indicate he was removed from the TDRL on 30 March 2007 with a total combined rating of 40% and permanently retired.

15.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 8 June 2012, he responded to the advisory opinion by stating he is willing to concur with the MEB/PEB advisory opinion; however, he has several questions/issues he would like addressed related to time in service.

	a.  Will he be able to collect his retirement pay and benefits now or will he have to wait until he is age 60?

	b.  Will he be able to reinstate his Servicemen's Group Life Insurance (SGLI) and transfer it to the Veteran's Group Life Insurance (VGLI)?

	c.  In July 2004, his Battalion Commander notified the WVARNG headquarters of actions that needed to occur in regard to his medical discharge; however, no action was taken until December 2005.  He waited for his unit to inform him of what they were going to do with him (medical hold, transfer, or allow him to continue to drill for points only) from July 2004 up until the time he received travel orders to the MEB in December 2005 and the PEB in January 2006.  He had 18 years of service as of 15 July 2004 and he would have completed a full 20 years of service on 15 July 2006 had he been assigned to a position where he could continue drilling for retirement points while waiting on the medical proceedings.  This inaction was not his fault and he does not feel he should be denied the service time due to the WVARNG headquarter's mistake.

16.  Under VASRD code 5237 (Lumbosacral or cervical strain), forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or is abnormal kyphosis is rated at 20%.

17.  The VASRD code 9413 (Anxiety Disorder) falls under Title 38, U.S. Code, section 1155, chapter 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% and schedule an examination within the 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

18.  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 rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10%.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

19.  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%.  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 at less than 30%.

DISCUSSION AND CONCLUSIONS:

1.  The evidence supports the recommendation made by the USAPDA to correct the applicant's records to reflect a rating of 30% for PTSD and a 20% rating for chronic lower back pain.  Therefore, it would be appropriate to correct his military record to show he was placed on the TDRL at 50% on 30 September 2006 and later placed on the Retired List on 30 March 2007 by reason of permanent disability with a total combined rating of 40%.

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

3.  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 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. 

4.  With regard to the questions/ issues he requested be addressed in his response to the advisory opinion:

	a.  Once he is placed on the Retired List he should begin to receive his retirement pay and benefits immediately, he will not have to wait until he is age 60; therefore, he will not receive a notification of eligibility for retired pay at age 60 (20-year letter).

	b.  The VGLI program is a VA program and not within the purview of the ABCMR.  Therefore, he is advised to address his questions regarding the VGLI to a VA representative.

	c.  He has not provided significant evidence to show he would have attained the points necessary to retire at 20 years of service nor that the reason for his inability to do so was solely through no fault of his unit.  Either he was medically unfit to perform his duties or he wasn’t.  In addition, he could have taken correspondence courses for points if he had wished to earn additional points for retirement.  Therefore, there is an insufficient evidentiary basis for granting any additional service time, thereby showing he retired with 20 years of service for a Reserve retirement.


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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  amending Orders Number D245-02, dated 31 August 2006, by:

* Showing he was found unfit for duty on 9 June 2006 for PTSD with a disability rating of 30% and chronic lower back pain with a disability rating of 20%
* Transferring him to the TDRL effective 30 September 2006 with a combined disability rating of 50%
* Showing his retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict
* Showing the disability resulted from a combat-related injury

	b.  Transferring him to the Retired List effective 30 March 2007 with a combined disability rating of 40% based on permanent disability 

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

3.  The Board further determined 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 granting him additional service time and retiring him with 20 years of service.



      ___________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)                                         AR20120006550



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ABCMR Record of Proceedings (cont)                                         AR20120006550



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