BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130001658 


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, consideration by a Medical Evaluation Board (MEB) and/or Physical Evaluation Board (PEB). 

2.  The applicant states, in effect, she wants an MEB and/or PEB to review her medical records and rate her for major depression.  She feels that only one visit with a doctor is an injustice.  She has struggled with major depression since 2001 and has been receiving treatment at the Meier Clinic since 2006.  She struggles with daily functions.  The Army never requested her treatment records from the Meier Clinic.  It was very hard for her to continue on active duty to appeal the board decision.  She believes the disability rating she received from the PEB was unjust because she was not rated for major depression.

3.  The applicant provides:

* Department of Veterans Affairs (VA) rating decision, dated 4 January 2012
* Orders Number 154-0010, dated 3 June 2009
* Letter from the Meier Clinic, dated 21 November 2008
* Stay alive contract, dated 21 November 2008
* Letter from the Meier Clinic, undated
* Self-rating test, dated 7 May 2009
* Note, undated
* Fax coversheet, dated 9 June 2009
* Health Net Federal Services Tricare Service Request/Notification Form, dated 9 June 2009
* 35 pages of progress notes and comments
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.  After having had previous enlisted service, the applicant enlisted in the Regular Army on 28 January 1998 and held military occupational specialty 44C (Financial Management Technician).  The highest rank/grade she attained while serving on active duty was sergeant (SGT)/E-5.

3.  Her record contains a psychiatric Narrative Summary (NARSUM) addendum, dated 8 January 2009, which shows the source documents used for the psychiatric NARSUM addendum came from her treating psychiatrist, treating therapist, and her medical records.  The psychiatric NARSUM addendum states, "Patient has symptoms of Major Depression, she has just started treatment a month and half ago and her symptoms are improving gradually.  She has been seeing her therapist and psychiatrist... She is encouraged to continue treatment.  Her condition is medically acceptable."

4.  Her record contains an MEB NARSUM, dated 12 March 2009, which shows the following diagnoses and prognosis:

* Bilateral foot pain, compression arthralgia - medically unacceptable per paragraph 3-14g(2) of Army Regulation 40-501 (Standards of Medical Fitness)
* Major depression, recurrent - mood disorder is medically acceptable
* Classic migraine headaches - medically acceptable
* Mild compartmental osteoarthritis of both knees - Medically acceptable
* Chronic mechanical low back pain/sprain - Medically acceptable
* Moderate Obstructive Sleep Apnea - Medically acceptable
* History of right foot ganglion cyst - Medically acceptable
* Obesity with body mass index (BMI) = 37 - Medically acceptable
* History of Gestational Diabetes with all three pregnancies - Medically acceptable
* Periodic Limb Movement Disorder - Medically acceptable
* Right cervical rib by chest x-ray - Medically acceptable
* Subjective sensory hand and foot neuropathy - Medically acceptable
* Stress urge incontinence - Medically acceptable

5.  Her record contains a DA Form 3947 (MEB Proceedings), dated 13 March 2009, and shows:

	a.  After the consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant had the following medical conditions/defects and referred her to a PEB for those that were considered medically unacceptable:

* Bilateral foot pain, compression arthralgia - medically unacceptable per paragraph 3-14g(2) (Joints - Bony or fibrous ankylosis, with severe pain involving major joints or spinal segments in an unfavorable position, and with marked loss of function) of Army Regulation 40-501
* Major depression, recurrent - medically acceptable
* Classic migraine headaches - medically acceptable
* Mild compartmental osteoarthritis of both knees - medically acceptable
* Chronic mechanical low back pain/sprain - medically acceptable
* Moderate obstructive sleep apnea - medically acceptable
* History of right foot ganglion cyst - medically acceptable
* Obesity with BMI = 37 - medically acceptable
* History of gestational diabetes with all three pregnancies - medically acceptable
* Periodic Limb Movement Disorder - medically acceptable
* Right cervical rib by chest x-ray - medically acceptable
* Subjective sensory hand and foot neuropathy - medically acceptable
* Stress urge incontinence - medically acceptable

	b.  The applicant agreed with the MEB's findings and recommendations.

6.  Her record contains a DA Form 199 (PEB Proceedings), dated 23 April 2009, which shows the PEB considered her for bilateral foot pain, recommended she receive a 20 percent (%) disability rating, found she was physically unfit, and recommended she be separated with severance pay.

	a.  On 5 May 2009, she indicated that she did not concur with the informal PEB, demanded a formal PEB, and requested counsel.

	b.  Her records contain a memorandum issued by the U.S. Army Physical Evaluation Board, Walter Reed Army Medical Center, Washington DC, on 6 May 2009, showing she was going to be scheduled for a formal PEB.

	c.  Her records contain a memorandum, dated 14 May 2009, which shows she waived her right to a formal PEB and agreed with the informal PEB decision.

7.  On 17 August 2009, she was honorably discharged by reason of a disability, severance pay, non-combat related.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 11 years, 10 months, and 16 days of net active service.

8.  During the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official stated:

	a.  The applicant requests that her military records be corrected to reflect that her condition of depression was unfitting and compensable as a military disability when she was separated from the military.

	b.  On 13 March 2009, an MEB was completed, listing 13 conditions that the applicant had.  The only one which was found to not meet medical retention standards in accordance with Army Regulation 40-401, chapter 3, was bilateral foot pain.  The diagnosis of major depression disorder, recurrent, and the remainder of the diagnosed conditions, were all found to meet medical retention standards.  The psychiatric NARSUM/Addendum indicated that the applicant had depressive episodes since 2001 and had a variety and series of treatments and counseling since that time.  The applicant stated that she was "very depressed, doing slightly better now."  After reviewing the past medical documentation of the applicant's depression, and observing the applicant's condition and statements during the examination, the psychiatrist opined that the applicant's symptoms were gradually improving and that her condition was medically acceptable.  The applicant's Physical Profile did not contain any listing or limitations of her assigned or functional activities caused by her condition of depression.  Her company commander did not indicate that she had any specific limitations regarding her depression except for the loss of work because of all of her medical appointments.  On 19 March 2009, the applicant concurred with the MEB findings and submitted no appeals or rebuttals. 

	c.  On 23 March 2009, an informal PEB found the applicant unfit for her bilateral foot pain and rated her at a 20% disability rating and recommended she be separated with severance pay.  All other conditions were found to not be unfitting individually and in combination with all.  On 14 May 2009, after being fully counseled regarding her rights to a formal hearing and to file an appeal, the applicant concurred with the PEB findings and waived her right to a formal hearing.

	d.  As a part of her request for correction of her military records the applicant submitted documents from the VA which indicated that in 2009 the VA rated her for depression.  She also provided some mental health treatment/counseling notes made during that same time period.  These documents do not provide sufficient evidence to indicate that the MEB and PEB findings that she was not unfit for her depression at that time, findings she concurred with, were not correct or not supported by a preponderance of the evidence.  A review of the evidence in the case file supports that the applicant did not meet any of the criteria found at Army Regulation 40-50, paragraph 3-32, indicating that she did not meet medical retention standards.  Her symptoms did not require extended or recurrent hospitalizations, her symptoms were not so persistent or recurrent that they required limitations to duty or in a protected environment, and/or her symptoms did not result in interference with effective military performance.

	e.  The applicant has not provided sufficient evidence to mandate a change in her military records.  The MEB/PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Recommend that the applicant's military records remain unchanged.

9.  The applicant responded to the advisory opinion on 7 March 2013 and stated:

	a.  She only saw the mental health professional at Fort Belvoir, VA once.  However, her military medical records clearly illustrate that various doctors wrote in her records about her depression.  She even committed to a "stay alive contract."  She has also included her records from the Meier Clinic, where she received treatment for 4 years.  The Meier Clinic recommended that her depression be included as part of her MEB/PEB.

	b.  In May 2009 she told her commander that she was emotionally unable to continue working in the finance office and was afraid what she might do if she had to stay there one more day.  Her commander removed her from the finance office and she assured her commander she would continue therapy.  

	c.  She had been working in a finance office where her supervisor belittled her and said she was a broken Soldier, unfit for the Army, riding the system, and lying about her medical conditions.  She was constantly told that the best thing she could do was to leave the Army because the Army is not a place for broken Soldiers.

	d.  Her home life was filled with domestic violence, which impacted her children and herself.  Additionally, she failed the University of Phoenix, Argosy University, and Capella University doctoral programs.  She was once an excellent student who belonged to the Phi Theta Kappa society; however, now she is unable to focus on her studies. 

10.  She provided various letters and 35 pages of progress notes and comments from her therapist at the Meier Clinic ranging in date from 7 November 2008 to 
8 June 2009 that show she was being treated for depression.

11.  She provided a VA rating decision dated 4 January 2012 which shows the VA awarded her a 70% service-connected disability rating for a major depressive disorder.

12.  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 office, grade, rank, or rating.  The regulation stated that:

   a.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

13.  Army Regulation 40-501, chapter 3, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  This regulation defines major depressive disorder or depression as a mood disorder.  Paragraph 3-32 of this regulation states that the causes for referral for a mood disorder are 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 a 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.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a new or corrected MEB/PEB to show that her condition of depression was unfitting.

2.  Her records contain a psychiatric NARSUM addendum which shows the source documents used for the psychiatric NARSUM addendum came from her treating psychiatrist, treating therapist, and her medical records.  At the time the psychiatric NARSUM was conducted, the NARSUM indicated she had just started treatment for depression a month prior and her symptoms were improving.  At the time her NARSUM was completed her depression was found to be medically acceptable because at that point in time she did not suffer from:  

* 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 a protected environment; or 
* persistence or recurrence of symptoms resulting in interference with effective military performance.

3.  The evidence of record shows she had a physical profile; however, this profile did not contain any listing or limitations of her assigned or functional activities caused by her condition of depression.  Additionally, her company commander did not indicate that she had any specific limitations regarding her depression except for the loss of work because of all of her medical appointments.  It appears that the only reason she could not continue to work in her finance office is because in that particular office her supervisor belittled her.  It was not that she could not perform the duties of her MOS, but she could not perform them under that supervisor.

4.  The evidence of record shows that the MEB did not find her depression to be medically unacceptable.  She concurred/agreed with the MEB’s assessment and submitted no appeals or rebuttals.  The PEB considered her depression but also determined it not to be medically unfitting.  Additionally, after being fully counseled regarding her rights to a formal hearing and to file an appeal, the applicant concurred with the PEB findings and waived her right to a formal hearing.

5.  She submitted her VA rating decision and showing she receives a 70% service-connected disability rating for depression and numerous treatment/counseling notes from the Meier Clinic.  However, these documents do not provide sufficient evidence to show that the MEB and PEB findings were not correct or not supported by a preponderance of the evidence.  

6.  Additionally, the award of a VA rating does not establish entitlement to a disability rating, medical discharge and/or medical retirement from the Army.  The VA operates under its own policies and regulations and awards ratings because a medical condition is related to service, i.e., service-connected.  However, the VA does not have the authority to determine weather or not a medical condition, that existed at a service member was discharged, was considered medically unfitting for military duty.

7.  She has not provided sufficient evidence to show that the MEB/PEB findings were inaccurate, incorrect, in violation of any statute, directive, or regulation.  As such, there is insufficient evidence to grant the requested relief in this case.

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)                                         AR20130001658





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ABCMR Record of Proceedings (cont)                                         AR20130001658



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