IN THE CASE OF:	  

		BOARD DATE:	    29 January 2013

		DOCKET NUMBER:  AR20120010815 


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), knee problems, back problems, tremors, seizure like jerks, and Sickle Cell disease be added to his unfitting conditions and his disability rating be increased to at least 30% (a medical retirement).  

2.  The applicant states:

* He was only given 20% severance pay and then kicked out
* He was inappropriately discharged without the benefit of a medical board
 
3.  The applicant provides:

* DD Form 294 (Application for a Review by the Physical Disability Board of Review of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States)
* Psychological Evaluation

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 August 2008 and was awarded military occupational specialty (MOS) 92A (automated logistical specialist).  He served in Afghanistan from 15 January 2009 to 27 June 2009.  



2.  On 15 December 2010, a Medical Evaluation Board (MEB) diagnosed him with:

* Chronic postoperative right knee pain with contracture and muscular atrophy
* Chronic grade I lumbar spondylolisthesis and lumbar degenerative disc disease
* Unstable postoperative keloid right knee scar
* Postoperative peripheral nerve damage at right knee
* History of mild concussions and cognitive disorder (meets retention standards)
* Petit mal generalized seizure disorder and tremors (meet retention standards)
* Adjustment disorder (meets retention standards)
* Essential hypertension (meets retention standards)
* Left ear sensorineural hearing loss (H2 profile) (meets retention standards)

3.  The MEB recommended referral to a PEB.  On 16 December 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 25 February 2011, a Physical Evaluation Board (PEB) found him physically unfit due to degenerative arthritis listed as right knee pain without unfitting muscular atrophy and right knee scar.  The proceedings state:

	a.  degenerative arthritis of the lumbar spine was considered by the PEB.  Non-combat related, non-combat zone.  Although the Military Treatment Facility (MTF) determined this condition falls below retention standards, it was not found independently unfitting and therefore not ratable, as Soldier has negative straight leg raise, minimal midline lumbar tenderness  to palpation, flexion exceeding 
85 degrees, and no indication that it prevented performance of MOS duties.  The Physical Disability Evaluation System (PDES) is a performance-based system, and the mere presence of a condition does not constitute a physical disability.
	b.  peripheral nerve damage of the right knee was considered by the PEB.  Non-combat related, non-combat zone.  Although the MTF determined this condition falls below retention standards, it was not found independently unfitting and therefore not ratable, as there is no indication that it has prevented performance of MOS duties.  The PDES is a performance-based system, and the mere presence of a condition does not constitute a physical disability.

	c.  the conditions (history of mild concussions and cognitive disorder, petit mal generalized seizure disorder and tremors, and essential hypertension) were determined to meet retention standards by the MTF. Further consideration by the PEB found the conditions to be not unfitting and not ratable as they are not listed on the physical profile as limiting any of the Soldier's functional activities, the commander does not consider conditions to hinder Soldier's performance and the case file contains no evidence that these diagnoses independently, or combined, render the Solder unfit for assigned duties. 

	d.  the condition (left ear sensorineural hearing loss (H2 profile)) was determined to meet retention standards by the MTF.  Further consideration by the PEB found the condition to be not unfitting and not ratable as it meets medical retention standards, is not commented upon by the commander as hindering the Soldier's performance, and the case file contains no evidence that this diagnosis independently, or combined, renders the Soldier unfit for assigned duties.

	e.  the condition (adjustment disorder) was considered by the PEB and found to be not compensable, as it is not deemed to constitute a physical disability although it may be administratively unfitting.  

5.  The PEB recommended a combined 20% disability rating and separation from the service with severance pay.  On 28 February 2011, he concurred with the PEB findings and recommendations and waived a formal hearing.  

6.  On 4 March 2011, the U.S. Army Physical Disability Agency approved the PEB's findings.

7.  On 27 April 2011, 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, combat related.





8.  He provided a psychological evaluation, dated 23 January 2012  to 
1 February 2012, from a licensed psychologist who diagnosed the applicant with:

	a.  PTSD, chronic, severe.

	b.  severe uncontrollable jerking movements of his entire body, severe headaches, GI problems, injure to right knee while on active duty, hypertension, joint pain and shooting pains in his back from compression of L-5 to S-1, shin splints, hearing loss in the left ear and left knee has begun causing problems making it difficult to ambulate.

9.  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.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was inappropriately discharged with the benefit of an MEB.  However, evidence shows an MEB convened on 15 December 2010.  

2.  He requests that PTSD, knee problems, back problems, tremors, seizure like jerks, and Sickle Cell disease be added to his unfitting conditions.  However, evidence shows the PEB found him physically unfit due to knee problems (degenerative arthritis listed as right knee pain without unfitting muscular atrophy and right knee scar).  He provides no evidence to show the other above-mentions conditions rendered him unfit to perform his military duties.  Since his degenerative arthritis of the lumbar spine, petit mal generalized seizure disorder, and tremors were found to be not unfitting and not ratable, there is insufficient evidence on which to add back problems, tremors, and seizure like jerks as unfitting conditions.  

3.  His MEB did not list PTSD or Sickle Cell disease and he agreed that the MEB accurately listed all of his current medical conditions.  Therefore, there is insufficient evidence on which to add PTSD or Sickle Cell disease as unfitting conditions.   

4.  Evidence shows he concurred with the PEB findings and recommendation on 28 February 2011.  

5.  There is insufficient evidence to show his disabilities were improperly rated by the PEB in 2011.  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)                                         AR20120010815





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ABCMR Record of Proceedings (cont)                                         AR20120010815



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