IN THE CASE OF: 

		BOARD DATE:	    29 November 2012

		DOCKET NUMBER:  AR20120007828 


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 Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) be added to his unfitting conditions and his disability rating be increased.

2.  The applicant states:

* his PTSD was misdiagnosed as depression while he was at Fort Lewis, WA
* his TBI was overlooked
* the medical evaluation board (MEB) refused to re-look his appeal and stated the Department of Veterans Affairs (VA) would take care of all his needs
* he was given a low percentage and he was cheated
* he was given a 50% rating for PTSD and he also has a higher percentage for his TBI from the VA
* he does not believe he was properly diagnosed and from what he has seen on the news, he knows a lot of Soldiers were screwed over at Madigan Army Medical Center

3.  The applicant provides:

* medical records extracts
* VA disability rating extract
* Permanent Orders 037-03, issued by Headquarters, 81st Brigade Combat Team, Logistical Support Area Anaconda, Balad, Iraq, dated 6 February 2005
* Orders 109-45, issued by Headquarters, Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, dated 19 April 1999
* case processing concurrence letter, dated 20 May 2012  
* DA Form 3947 (MEB Proceedings), dated 25 January 2006 
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 11 December 2008

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.  On 18 March 2004, the applicant enlisted in the Washington Army National Guard (WAARNG).  He held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained specialist (SPC)/E-4.

3.  Orders Number 148-335, issued by Headquarters, Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, dated 27 May 2004, ordered the applicant to active duty in support of Operation Iraqi Freedom, with a reporting date of 1 June 2004.

4.  On 5 February 2005, the applicant sustained injuries from an improvised explosive device (IED) that exploded 10 feet away from his military vehicle.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 February 2005, shows the applicant sustained a concussion, scalp, neck, eye, thoracic, and lumbar spine injuries.


6.  A DA Form 3947, dated 25 January 2006, shows an MEB evaluated the applicant's 8 diagnosed medical conditions and recommended referral to a PEB.  His 8 diagnosed medical conditions are as follows:

	a.  Degenerative disk disease of the cervical spine;

	b.  Degenerative disk disease of the lumbar spine;

	c.  Severe obstructive sleep apnea;

	d.  Right shoulder impingement;

	e.  Left ear high-frequency hearing loss;

	f.  Left Horner Syndrome;

	g.  Left facial nerve palsy;

	h.  Axis 1:  Depressive disorder.

This form further shows the applicant did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

7.  On 3 February 2006, the applicant disagreed with the board's findings and recommendations and submitted an appeal.  In his appeal, he indicated his narrative summary failed to state any conditions related to his depression, nervous trouble, or sleep problems (nightmares).

8.  In response to the applicant's appeal, a memorandum to the applicant, dated 19 April 2006, indicates his DA Form 3947 and Narrative Summary was corrected in reference to his depression.  On 21 April 2006, the applicant acknowledged he was informed of the response to his MEB appeal.

9.  On 1 May 2006, a PEB considered the applicant's case and determined he was unfit for further military service based on the following diagnosed unfitting conditions and assigned the disability rating indicated:

* Chronic non-radiating low back pain, 10%
* Chronic neck pain, 0%
* Obstructive sleep apnea; present symptoms represent natural progression of a pre-existing condition and the presumption of service aggravation is overcome (no assigned rating)
10.  His PEB Proceedings, dated 1 May 2006, also show the conditions listed as medical board diagnoses 4 through 8 on his DA Form 3947 were considered by the PEB and found to be not unfitting and, therefore, not ratable.  The PEB recommended a combined disability rating of 10% and separation with severance pay.

11.  On 22 May 2006, the applicant disagreed with the PEB's findings and recommendations and requested counsel and a formal hearing.

12.  On 7 November 2007, the formal PEB rated the applicant as follows:

* Chronic non-radiating low back pain, 10%
* Chronic neck pain, 0%

13.  The formal PEB decision, dated 7 November 2006, also contained the following with regard to the applicant's sleep apnea, which was not assigned a disability rating:

Symptoms worsened after mobilization and 50 pound weight gain; persistent after bariatric surgery and weight loss.  Exam shows significant upper airway obstruction from elongated palate and enlarged tonsils.  Evidence presented at formal PEB indicated significant drowsiness despite CPAP (continuous positive airway pressure); on further evaluation, it was found that effectiveness has been compromised by poor mask fit, poor compliance, and poor follow-up.  Is being considered for surgery that will not likely eliminate need for CPAP.  Considered unfitting for an Infantryman.  The present symptoms represent natural progression of a pre-existing condition and the presumption of service aggravation is overcome.

14.  On 14 November 2006, the applicant requested postponement of his formal PEB due to a scheduled surgery.

15.  On 21 November 2006, a recall of the applicant's case was submitted.  He was found to have an enlarged adenoid pad that was abnormal and required surgery to be evaluated.

16.  On 7 December 2006, the President of the PEB provided a memorandum to the applicant indicating recall of his case was not warranted and accordingly, processing of the case would continue.  Further, as an exception to policy, he was given until 7 December 2006 to submit his election to the formal findings, dated 7 November 2006.  


17.  On 8 December 2006, the applicant provided a memorandum to the President of the PEB requesting postponement of his PEB for various reasons.

18.  On 8 December 2006, the applicant was advised that his appeal had been carefully considered and reviewed; however, the board adhered to the original findings and recommendations of the formal hearing.  He was also advised his case was being forwarded to the U.S. Army Physical Disability Agency (USAPDA) for further review and processing.

19.  On 20 December 2006, the USAPDA advised the applicant:

* his case had been properly adjudicated by the PEB
* the findings and recommendations of the PEB were supported by substantial evidence and were affirmed
* he could apply to the VA for a disability rating

20.  On 3 February 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-40, by reason of disability with severance pay.  He completed 2 years, 8 months, and 3 days of net active service this period.

21.  Records show the VA granted the applicant a 100% combined disability rating.  His ratings are as follows:

* sleep apnea, 50%
* PTSD, 70%
* Left facial nerve palsy, 20%
* Right shoulder impingement, 20%
* lumbar spine degenerative disc disease, 10%
* Degenerative disc disease cervical spine with intermittent peripheral neuropathy of both forearms, 20%
* TBI resulting in facial paralysis and subjective complaints of dizziness and headaches, 20%
* Bilateral tinnitus, 10%

22.  Army Regulation 635-40 establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.

23.  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%.

24.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to add PTSD and TBI to his unfitting conditions and increase his disability rating was carefully considered.

2.  Although operating under different rules and authority, he provides a copy of his VA rating decision.  However, he does not provide any evidence to overturn the decisions reached by the original informal and formal PEBs.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  There is insufficient evidence to show the applicant was diagnosed with PTSD or TBI at the time of his discharge or that these conditions made him unfit to reasonably perform his duties based on his office, grade, rank, or rating.  The applicant was properly rated for his conditions at the time.  There is no evidence to support a different rating.

4.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There is no error or injustice in this case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20120007828



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ABCMR Record of Proceedings (cont)                                         AR20120007828



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