BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120021576 


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 his Army discharge disability rating be changed from zero percent to 50 percent.

2.  The applicant states his physical disabilities will not get better, just worse with age and the weather.  He states his disabilities as anxiety and stress disorder, post-traumatic stress disorder (PTSD), and flat feet that are painful.

3.  The applicant provides 

* excerpts from his Army Military Human Resource Record (AMHRR)
* service medical records
* Department of Veterans Affairs (VA) medical records

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 previously served 8 years in the Regular Army, 1 year, 4 months, and 
6 days in the Army National Guard (ARNG), and 3 years, 1 month, and 23 days in the Air National Guard.

3.  On 27 August 1991, he enlisted in the Pennsylvania ARNG (PAARNG).  On
8 April 2001, he was notified he had completed the required years of service to be eligible for retired pay upon application at age 60.  On 26 August 2004, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

4.  On 27 October 2004, he enlisted in the PAARNG.  On 25 October 2006, he was ordered to active duty as a member of his unit, the 131st Transportation Company, in support of Operation Iraqi Freedom (OIF).

5.  A letter, dated 1 November 2006, from the William Beaumont Army Medical Center (WBAMC), El Paso, TX stated the applicant was fit for duty.

6.  On 29 November 2006, he was retained on active duty to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 January 2007, indicated that on or about 21 November 2006 while mobilized at Fort Bliss, TX in support of OIF the applicant began to experience pain, cramps, and inflammation in the bottom of both feet while in training.  His diagnosis was congenital foot deformity plantar fasciitis.  His injury was determined to have been incurred in line of duty.

8.  A DA Form 3349 (Physical Profile), dated 14 February 2007, assigned him a permanent profile of P3 for lower extremities (L) due to bilateral plantar fasciitis, pes planus.

9.  On 31 January 2007, he received a physical examination for a Medical Evaluation Board (MEB).  He was diagnosed with:

* plantar fasciitis, bilateral
* congenital foot deformity, pes planus

10.  His prognosis was fair.  Given his current symptoms, it was likely that his pain would improve over time with rest and activity modifications.  He currently could not fulfill the requirements for military service.

11.  On 22 February 2007, an MEB determined the applicant did not meet retention standards and referred him to a Physical Evaluation Board (PEB) for:

* plantar fasciitis, bilateral
* congenital foot deformity, pes planus

12.  The MEB also determined he met retention standards for anxiety.

13.  On 27 February 2007, the applicant agreed with the findings and recommendation of the MEB.  He indicated that he did desire to continue on active duty.

14.  A DA Form 3349, dated 30 March 2007, assigned him a permanent profile of P3 under L due to bilateral plantar fasciitis, pes planus.

15.  The findings and recommendations of the applicant's informal PEB were not available for review.

16.  A letter, dated 11 April 2007, from the U.S. Army Physical Disability Agency (USAPDA) to the applicant's Congressional Representative provided information concerning the findings of his informal PEB.

	a.  An informal PEB held on 9 March 2007 found the applicant unfit for duty due to bilateral foot pain.  The PEB recommended he be separated from the service with severance pay at a zero percent disability rating.  The amount of severance pay is the same for disability ratings of zero, 10, and 20 percent.

	b.  The applicant disagreed with the finding and requested a formal hearing.  

17.  On 24 April 2007, a formal PEB evaluated the applicant for bilateral foot pain and determined he was fit for duty.  A review of the records provided insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty by a Soldier of his rank and primary specialty.  Based on a finding of fit for duty no percentage of disability was assigned.

18.  On 3 July 2007, his unit requested that he be released from active duty.  On 
5 July 2007, the U.S. Army Human Resource Command approved the request and directed that he be released from active duty no later than 19 July 2007.
19.  On 19 July 2007, he was released from active duty and transferred to the 131st Transportation Forward 2, Williamstown, PA.  On 25 September 2009, he was discharged from the PAARNG and transferred to the USAR Control Group (Reinforcement).  On 29 July 2010, he was transferred to the Retired Reserve.

20.  Both his service and VA medical records show treatment for bilateral plantar fasciitis, pes planus, and anxiety disorder, not otherwise specified.  His VA medical records from 30 January 1995 to 24 October 2011 show a positive PTSD screen test on 20 August 2007.  However, negative PTSD screening tests were dated 18 February 2005, 18 January 2006, 16 October 2008, 22 October 2009, and 24 October 2011.

21.  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.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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, and the Army’s rating is dependent on the severity of the condition at the time of separation.

22.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA; however, is not required by law to determine medical unfitness for further military service.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  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 that anxiety and stress disorder, PTSD, and flat feet have gotten worse and his Army discharge disability rating should be changed from zero percent to 50 percent.

2.  His VA records show one positive PTSD screening test and five negative PTSD screening tests.  The records do not show diagnoses of PTSD.

3.  The MEB found he did not meet retention standards for plantar fasciitis and bilateral congenital foot deformity, pes planus and he was referred to a PEB for these medical conditions.  The MEB determined he met retention standards for anxiety.  He concurred with the findings and indicated he desired to continue on active duty.

4.  The results of the informal PEB were not available for review.  However, the USAPDA stated he was found unfit for duty due to bilateral foot pain and recommended him for separation with a zero percent disability rating and severance pay.  He disagreed with the finding and requested a formal PEB.

5.  The formal PEB found the applicant fit for duty.  Upon a finding of fit for duty, there is no disability rating assigned by the Army.  Therefore, there is no basis for relief in this case.

6.  Only the unfitting conditions or defects and those which contribute to unfitness (in this case, bilateral foot pain) will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability, and the Army’s rating is dependent on the severity of the condition at the time of separation.
Disabilities which occur or which worsen after a Solder is separated are treated by and compensated for by the VA.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

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)                                         AR20120021576



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ABCMR Record of Proceedings (cont)                                         AR20120021576



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