IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120020076 


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, correction of his Physical Evaluation Board (PEB) proceedings to show a disability rating for Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI).

2.  He states:

	a.  while he was medically discharged for his back injuries, he was not rated by the Army nor was he discharged for PTSD or TBI.

	b.  he suffers daily as a result of PTSD/TBI and he believes it should be included in his medical discharge from the Army.

	c.  the injustice in his medical discharge is the result of four factors:

		(1)  he was medically discharged from a remote location (San Francisco) through the Medical Evaluation Board (MEB) office at Fort Lewis.  As a result of this off-site discharge method he never actually saw an Army physician as a part of any of the MEB/PEB process.  The only interaction he had was over the phone.  If he had seen the Army physician in person, he would have received recognition for his PTSD/TBI.

		(2)  his MEB/PEB physician from Madigan Medical Center at Fort Lewis didn't take the time or interest to learn the details of his PTSD/TBI problems.  The physician chose not to have any evaluations at all outside of the Department of Veterans Affairs (VA) where he was awarded a 30 percent (%) service-connected rating for PTSD and a 30% service-connected rating for TBI.

		(3)  he had none of the required support every Soldier is entitled to have as they go through the MEB/PEB process.  He did his best, but he never had a Judge Advocate General (JAG) review of his documents, he never had any support for where he should ask for more help, and he had none of the help every Solder gets in a Warrior Transition Unit or similar unit.  As the junior officer in his unit, he felt uncomfortable trying to ask his leaders about getting all of these resources provided to him.  He feared that if his MEB resulted in continued service, he would have ruined his career.

		(4)  his chain of command at the U.S. Army Corps of Engineers was running out of funding for his position.  The MEB/PEB process was rushed through so he didn't have any support to receive mental health and TBI appointments.  Additionally, there was no financial support for him to fly to Fort Lewis to see the physician.  He felt that if he was retained and not medically discharged, the mention of PTSD in his file could ruin the rest of his career as an infantry officer.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* PEB Proceedings
* VA Rating Decision
* DA Form 5893 (Soldier's MEB/PEB Board Counseling Checklist)

CONSIDERATION OF EVIDENCE:

1.  On 26 May 2007, the applicant was appointed as a commissioned officer in the rank of second lieutenant, infantry, and entered active duty that date.  He served in Iraq from 19 October 2008 to 20 October 2009.  He was promoted to captain on 1 June 2010.

2.  On 12 May 2011, he was evaluated by an MEB and diagnosed as having the following conditions:

   a.  item 1, degenerative joint disease of the lumbosacral spine with left nerve root irritation of L5 with associated low back pain (fails retention standards)

   b.  item 2, bilateral rotator cuff tendonitis of the shoulders with some subdural type bursitis on the left (meets retention standards)


   c.  item 3, bilateral patellofemoral syndrome of the knees (meets retention standards)

   d.  item 4, bilateral ankle tendonitis of peroneal tendons (meets retention standards)

   e.  item 5, bilateral plantar fasciitis with pain into the medial arches (meets retention standards)

   f.  item 6, adjustment disorder, not otherwise specified with sleep disturbance (meets retention standards)

   g.  item 7, bilateral tinnitus (meets retention standards)

   h.  item 8, threshold shift in hearing, which meets H1 Army hearing standards

3.  The MEB proceedings indicated the applicant's medical conditions were incurred while entitled to base pay and they did not exist prior to service.  The applicant agreed with the findings and recommendation of the MEB.  He was referred to a PEB.  

4.  On 9 June 2011, an informal PEB determined the applicant was physically unfit due to degenerative joint disease of the lumbosacral spine.  His VA Schedule for Rating Disabilities (VASRD) code was 5242.  Comments on the PEB proceedings indicated:

	a.  the applicant's condition was non-combat related but aggravated from running and wearing gear while deployed to Iraq in August 2009.  

	b.  despite conservative treatment including epidural steroid injections, the applicant's back pain was not resolved and was preventing him from performing physical tasks.

	c.  the applicant's condition was exacerbated by prolonged standing, carrying heavy weight, wearing IBA (individual body armor) and LBE (load bearing equipment), and performing any of the standard events for the APFT (Army Physical Fitness Test) required as a Company Grade Infantry Officer.  The commander did not recommend retention.  

	d.  conditions 2 through 8 were determined to meet retention standards by the MEB.  Further consideration by the PEB found the conditions to be not unfitting and therefore not ratable.  

5.  The 9 June 2011 informal PEB recommended the applicant be separated with severance pay at a combined disability rating of 10%.  The applicant's elections are not available.  

6.  His service record does not indicate he was diagnosed with PTSD/TBI while he was on active duty.

7.  He was honorably discharged on 26 November 2011 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability with severance pay.  He completed 4 years, 6 months, and 1 day total active military service.

8.  He provided a copy of his VA Rating Decision, dated 10 January 2012, which indicates he was granted service-connection for:

* migraines (30%)
* TBI and adjustment disorder (also claimed as sleep disturbances) (30%)
* left plantar fasciitis (claimed as bilateral foot pain) (10%)
* right plantar fasciitis (claimed as bilateral foot pain) (10%)
* left shoulder rotator cuff tendonitis and bursitis (claimed as bilateral shoulder pain) (10%)
* degenerative disc disease of the lumbosacral spine (10%)
* left knee patellofemoral syndrome (claimed as bilateral knee pain (10%)
* right knee patellofemoral syndrome (claimed as bilateral knee pain) (10%)
* left ankle tendonitis (claimed as bilateral ankle pain) (10%)
* right ankle tendonitis (claimed as bilateral ankle pain) (10%)
* recurrent tinnitus
* left nerve root irritation (0%)

9.  The available evidence does not indicate the VA granted him service-connection for PTSD.  

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

11.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was evaluated by an MEB on 12 May 2011.  Although the applicant's service record is void of evidence which shows he agreed with the findings and recommendations of the MEB, there is no evidence which confirms he was diagnosed with or was unable to perform his duties due to PTSD/TBI at the time of his MEB.

2.  A 9 June 2011 informal PEB found the applicant unfit for military service due to degenerative joint disease of the lumbosacral spine at a 10% combined disability percentage.  As a result, the applicant was honorably discharged under the provisions of Army Regulation 635-40 due to disability with severance pay.  

3.  The applicant was granted service-connection for several medical conditions by the VA in January 2012.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, 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.

4.  The evidence of record does not indicate the applicant’s disability processing was in error or unjust or that his medical conditions were improperly evaluated by the PEB.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20120020076





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ABCMR Record of Proceedings (cont)                                         AR20120020076



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