IN THE CASE OF: 

		BOARD DATE: 13 December 2012

		DOCKET NUMBER:  AR20120010568 


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 the disability rating assigned by the 1978 physical evaluation board (PEB) be increased to 100%.  

2.  The applicant states that a Department of Veterans Affairs (VA) psychiatrist states she believed his post-traumatic stress disorder (PTSD) existed at the time of his discharge, but may have been overlooked because the Army doctors were focused on his Schizophrenia diagnosis.

3.  The applicant provides:

* VA letter, dated 25 February 2012
* VA Form 10-5345a (Individual's Request for a Copy of Their Own Health Information), dated 22 November 2011
* VA Progress Notes (16 pages), dated 25 February 2012 

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.  He served two tours in Vietnam and was awarded the Purple Heart.

3.  A Medical Evaluation Board convened at Dwight David Eisenhower Army Medical Center, Fort Gordon, Georgia.  The DA Form 3947 (Medical Board Proceedings) shows the applicant was present for the board and did not present any views in his own behalf.  This form further indicates the following:

	a.  he was medically unfit for further military service in accordance with current medical fitness standards.  

        (1)  he had schizophrenia, paranoid type, acute, severe which was manifested by labile affect, very concrete thinking, questionable history of auditory hallucinations, minimal association looseness, but marked tangentiality, inappropriate behavior and thought content, obsessions, and a delusional system described previously in addition to thoughts of a persecutory nature;
   
        (2)  he showed minimal stress of routine military duty, mild predisposition of an underlying personality best described as schizoid in nature; and 
   
        (3)  he was treated and partially improved with marked impairment for further military duty and definite impairment for social and industrial adaptability.

	b.  item 21 (Brief Summary of Medical Conditions) "mental illness."

	c.  item 22 (The Board Recommends That the Patient Be) "Presented to a Physical Evaluation Board."

4.  A PEB was convened on 15 February 1978.  The DA Form 199 (Physical Evaluation Board Proceedings) shows the applicant was found unfit for continued military service by reason of schizophrenia.  The board recommended a combined rating of 30% and placement on the Temporary Disability Retired List (TDRL) with reexamination in August 1979.   The applicant concurred and waived a formal hearing on his case.

5.  U.S. Military Personnel Center, Alexandria, Virginia, Orders D42-9, dated 
1 March 1978, show he was placed on the TDRL, effective 8 March 1978, with a disability percentage of 30%.

6.  A PEB convened on 31 October 1979.  The DA Form 199 shows the board found him physically unfit and recommended he be permanently retired from the service with a combined rating of 30%. 

7.  U.S. Military Personnel Center Orders D230-29, dated 28 November 1979, show he was removed from the TDRL and permanently retired due to physical disability effective 30 November 1979.  The percentage of disability is shown as 30%.

8.  In support of his application, he provides a 16-page document “Progress Notes,” dated 25 February 2012, which shows the following:

	a.  page 1 an initial VA evaluation of PTSD on 29 July 2011.

	b.  page 2 in item 2 (Current Diagnoses):

		(1) Diagnosis #1:  Schizophrenia, Paranoid Type

		(2) Diagnosis #2:  PTSD, Chronic

	c.  page 6 states he worked full-time doing clerical work for the Department of Agriculture from 1985-2004, which was his most recent employment.  Prior to that, he worked for the Marine Corps Finance Center from 1981-1985. 

	d.  page 7 states:  

During his military service, Veteran was started on psychotropic medications and was hospitalized three times for mental treatment. Veteran recalls that he 'eventually realized my military career was over' due to the schizophrenia.  He has followed with Kansas City VA for MH treatment since Army discharge, to include follow up with psychiatrist Michael G. S____ for past 10+ years.  Veteran's most recent psychiatric hospitalization was the KCVAMC from October 1, 2004 – November 12, 2004, following a period of homelessness starting September 21, 2004....  This author found no documentation of a formal PTSD assessment in Veteran's medical record, and it is likely that the PTSD condition was not assessed due to the prominence of the known Schizophrenia condition.


	e.  page 15, item 8 (Remarks) states:

It is the opinion of this author that Schizophrenia, Paranoid Type is the Veteran's primary diagnosis, and that he has a comorbid chronic PTSD condition resulting from combat trauma experienced in the line of duty in Vietnam.  Rationale follows:  This author found no documentation of a formal PTSD assessment in Veteran's medical record, and it is likely that the PTSD condition was not assessed due to the prominence of the known Schizophrenia condition.
  
9.  Title 10, U.S. Code (USC), 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, USC, 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 percent.

10.  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 or her office, grade, rank, or rating.

11.  Army Regulation 40-501 (Standards of Medical Fitness) 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 physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100%, rising in increments of 10%.

12.  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 Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability and/or social adjustment.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

2.  The available evidence shows the applicant has been under VA medical care for mental health issues since his discharge and he has held employment for over 20 years.  Although he was previously diagnosed with Schizophrenia, there was no PTSD assessment until 29 July 2011. 

3.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendations of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20120003593



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ABCMR Record of Proceedings (cont)                                         AR20120010568



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