IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120020668 


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 her records to show she had the condition of major depressive disorder at the time of her discharge in 2003. 

2.  The applicant states she was diagnosed with major depressive disorder and acute stress reaction on 16 December 1999, 21 August 2002, and 12 September 2002.  These dates were during the time she served on active duty.  The chain of command was notified of the diagnosis on several occasions.  Celexa, Trazadone, Abilify, and Topiamate were some of the medications she was taking in 1999, 2001, 2002, and is currently taking.  She was low-balled in the medical evaluation board (MEB) by not having a full physical.  It was annotated several times in her service records that she was having mental issues.  What needs correcting is her diagnosis of major depressive disorder which was given on      21 August 2002 and 12 September 2002 with acute stress reaction.  She would like the Board to correct her records to reflect the major depressive disorder and backdating it to 12 September 2002.  

3.  The applicant provides:

* DA Form 4700 (Medical Record - Supplemental Medical Data)
* Standard Form 513 (Medical Record - Consultation Sheet)
* Psychological Report and List of Medications
* Standard Form 600 (Chronological Record of Medical Care)
* DD Form 2807-1 (Report of Medical History)
* DD Form 2808 (Report of Medical Examination)
* Department of Veterans Affairs (VA) rating decision
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.  The applicant's records show she enlisted in the Regular Army on 24 January 1996 and she held military occupational specialty 92Y (Unit Supply Specialist).  She served through a reenlistment (25 January 2000) in a variety of stateside or overseas assignments. 

3.  Her records also show she served in Germany from May 1998 to April 2000 and in Greece from June 2002 to April 2003.  She attained the rank/grade of sergeant (SGT)/E-5. 

4.  Her medical records are not available for review with this case.  However, it appears that in September 2002 she complained of low back pain.  Her narrative summary (NARSUM), dictated on 3 October 2002, states:

	a.  She was presented for evaluation for a history of midline lumbosacral back pain.  The pain is described as constant, sharp, and non-radiating.  Medications had minimal to no relief of symptoms.  On physical examination, she was in no apparent distress.  Her range of motion was at 40 degrees forward flexion, 30 degrees extension, and 35 degrees of right and left lateral lumbar flexion.  

	b.  Her diagnosis was that of mechanical low back pain secondary to chronic pain at the L5-S1 interspinous ligament which was medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  

5.  On 5 December 2002, an MEB convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of mechanical low back pain secondary to chronic pain at the L5-S1 interspinous ligament.  The MEB recommended her referral to an informal physical evaluation board (PEB).  On 5 December 2002, she was counseled and agreed with the MEB's findings and recommendation.

6.  On 6 January 2003, an informal PEB convened and found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to chronic low back pain.  The PEB rated her under the VA Schedule for Rating Disabilities (VASRD) codes 5299/5295 and granted her a 10-percent disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

7.  Throughout the disability process, she was counseled by a PEB Liaison Officer (PEBLO) and informed of her rights at each step of the process.  Her counseling culminated on 14 January 2003 when she was counseled by a PEBLO regarding her medical condition, the findings of the MEB, the PEB process, and her rights under law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

8.  She was honorably discharged on 23 April 2003 in accordance with paragraph 4-24b(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, with entitlement to severance pay.  

9.  She provided the following documents:

	a.  DA Form 4700, dated 16 December 1999, which shows she was referred to a psychological evaluation because she felt emotionally stressed and had not slept in the previous 24 hours.  

	b.  Standard Form 513, dated 29 July 2002, which shows she was diagnosed with status post hysterectomy, depression, obesity, and persistent back pain.  An MEB was recommended.  She had undergone a hysterectomy in August 2001 which was believed to have caused several return visits due to complications. 

	c.  Psychological report, dated 2 August 2002, which shows she was referred on 18 August 2002 due to personal and psychological difficulties.  Her tests showed she suffered from a high level of depression and anxiety.  She was also prescribed sleeping pills due to her sleep disturbances.  She was recommended for weekly psychotherapy for a year.  

	d.  Standard Form 600, dated 21 August 2002, which shows a diagnosis of depression with recommended coping strategies, medications, and therapy routine. 
	e.  Standard Form 600, dated August 2002, in the form of a medical history screening form.  She complained of high blood pressure, heart disease, dizziness, stress, and allergies/asthma, and she listed her medications. 

	f.  DD Form 2807-1, dated 27 August 2002, which shows she underwent a physical examination for MEB purposes.  She listed her chief complaints as chest pain, hysterectomy, cyst, cold, flu, and bronchitis.  She indicated she had been experiencing numbness in the arm and pain under her left breast.  She also indicated she was not having any nervous or anxiety/panic attack problems, trouble sleeping, and had not been evaluated or treated for a mental condition or attempted suicide.  She indicated she had some depression or excessive worry issues and had undergone some counseling for those issues.

	h.  DD Form 2808, dated 3 September 2002, which qualified her for an MEB.  She was assigned a "4" in the "L" factor of her PULHES.  Her defects were summarized as hiatal hernia, depression, endometriosis, calcified lesion to the lung, and atypical left side chest pain.  The physician noted that the applicant's psychiatric conditions were considered "normal" with respect to continued military service

	i.  VA rating decision, dated 16 June 2009, which shows she was awarded service-connected disability compensation, effective 19 June 2008, for hysterectomy, major depressive disorder, anatomical loss of creative organ, history of pericarditis, and history of endometriosis. 

10.  An advisory opinion was obtained on 21 December 2012 from the U.S. Army Physical Disability Evaluation Agency (USAPDA) in the processing of this case.  A USAPDA official recommended denial of her request.  The official stated:

	a.  The applicant was referred into the military disability system in August 2002, when she continued to complain of her back pain which was hindering her assigned military duties.  On 27 August 2002, the applicant filled out a Report of Medical History, DD Form 2807-1, providing information concerning physical and mental complaints that she was experiencing at that time.  She indicated that she was not having any nervous or anxiety/panic attack problems, trouble sleeping, had not been evaluated or treated for a mental condition, nor had attempted suicide.  She did indicate that she had some depression or excessive worry issues and had undergone some counseling for those issues.  Her military medical records included a couple of referrals for mental health counseling for her complaints of depression and excessive worrying since December 1999.  She had received occasional counseling sessions regarding those complaints, and medications to assist in the treatment of those conditions over the years from that initial referral in 1999 until the date of her MEB in December 2002.
	b.  The physician who completed the applicant's medical evaluation on the DA Form 2807-1 noted that she had a diagnosis of depression, but found that the condition continued to meet medical retention standards in accordance with paragraph 3-33, Army Regulation 40-501, as she did not have:

		(1)  Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalizations (applicant never hospitalized); 

		(2)  Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment (no profile limits required and commander noted that her back condition was the only one that was limiting her performance of assigned duties, as indicated on the DA Form 3349 (Physical Profile) and the 9 September 2002 commander's memorandum); or,

		(3)  Persistence or recurrence of symptoms resulting in interference with effective military performance (no evidence that during the 2-3 year history of depressive symptoms that those symptoms interfered with the applicant's duties). The physician noted on the DD Form 2808 that the applicant's psychiatric conditions were considered "normal" regarding continued military service.  The applicant's MEB indicated that she had only one condition that did not meet medical retention standards: mechanical low back pain.  On 5 December 2002, she concurred with the MEB findings and did not file an appeal.

	c.  On 6 January 2003, a PEB found that her back condition was unfitting and rated it at 10 percent, separate with severance pay.  On 13 January 2003, after being counseled on her rights, the applicant concurred with the PEB findings and waived her right to a formal hearing.

	d.  Even if the condition of depressive disorder had been included in the MEB it would still have met medical retention standards and not been listed on the applicant's physical profile limiting her duties.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are compensable in the military disability system (paragraph 3-1, Army Regulation 635-40 and DOD Instruction, 1332.38, section E.2.1.7.).

	e.  The applicant has provided insufficient evidence that the condition of depressive disorder was unfitting at the time of her separation from the military in 2003.  The fact that the VA decided to award her compensation for her depressive symptoms in 2008 is not evidence of any error in the military disability system in 2003.  The PEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Based upon the existing military medical and performance evidence reviewed, and the criteria for retention standards in 2003, there is no basis to conclude that the condition of depressive disorder should have been included in the applicant's MEB as a condition that did not meet medical retention standards.  

11.  She was provided with a copy of this advisory opinion but she did not respond. 

12.  Army Regulation 635-40 establishes the Army 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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

13.  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 VA schedule of rating disabilities. Paragraph 3-33 (anxiety, somatoform, or dissociative disorders) states the causes for referral to an MEB under this paragraph require persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistence or recurrence of symptoms resulting in interference with effective military performance.

14.  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.  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 contends she should have been diagnosed with the medical condition of major depressive disorder at the time of her disability separation in 2003 and thus an additional finding of unfitness and compensation.  

2.  Her complete medical records are not available for review with this case.  However, the available evidence shows she complained of back pain that led to a finding of a medically unacceptable condition related to her back pain.  When she underwent a medical examination in 2002, she indicated she was not having any nervous or anxiety/panic attack problems, trouble sleeping, had not been evaluated or treated for a mental condition, nor had attempted suicide.  She did indicate that she had some depression or excessive worry issues and had undergone some counseling for those issues.  

3.  She was considered by an MEB in December 2002 that referred her to a PEB. Her MEB indicated that she had only one condition that did not meet medical retention standards: mechanical low back pain.  On 5 December 2002, she concurred with the MEB findings and did not file an appeal.  The MEB referred her to a PEB.

4.  In January 2003, an informal PEB found her back condition was unfitting and rated it at 10 percent.  The PEB recommended her separation with entitlement to severance pay.  On 13 January 2003, after being counseled on her rights, the applicant concurred with the PEB findings and waived her right to a formal hearing.

5.  According to the review conducted by the USAPDA, her DA Form 2807-1 noted she had a diagnosis of depression, but found that the condition continued to meet medical retention standards in accordance with paragraph 3-33, Army Regulation 40-501.  She did not have persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalizations (she was never hospitalized);  she did not have persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment (no profile limits required and commander noted her back condition was the only one that was limiting her performance of assigned duties); and she did not have persistence or recurrence of symptoms resulting in interference with effective military performance (no evidence that during the 2-3 year history of depressive symptoms that those symptoms interfered with her duties).  Her psychiatric conditions were considered "normal" with regards to continued military service.  

6.  But even if the condition of depressive disorder had been included in the MEB it would still have met medical retention standards.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are compensable in the military disability system.

7.  She has provided insufficient evidence that the condition of depressive disorder was unfitting at the time of her separation in 2003.  The fact that the VA awarded her service-connected disability compensation for depressive symptoms in 2008 is not evidence of any error in the military disability system in 2003.

8.  The PEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Based upon the existing military medical and performance evidence reviewed, and the criteria for retention standards in 2003, there is no basis to conclude that the condition of depressive disorder should have been included in the applicant's MEB as a condition that did not meet medical retention standards.

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)                                         AR20120020668





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ABCMR Record of Proceedings (cont)                                         AR20120020668



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