IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130002808 


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 records to show he was retired due to a disability vice discharged with severance pay.

2.  The applicant states:

	a.  He had several disorders that developed while he was serving on active duty to include post-traumatic stress disorder (PTSD), a back condition that caused radiating nerve pain down his right leg, migraine headaches, tinnitus, a right kidney cyst, erectile dysfunction (ED), and defective hearing of the left ear.  However, the military only evaluated him for his back condition and assigned him a 10 percent (%) disability rating and he was given a disability separation.

	b.  The Department of Veterans Affairs (VA) assigned him a 50% disability rating for PTSD and a 20% rating for lower back that was effective the day following his discharge from active duty.  Those rating have since increased but the records show he met the 30% rating requirement for a disability retirement effective the day he was discharged.  

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders
* his Enlisted Record Brief, dated 3 October 2005
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and 44 pages of various documents relating to the MEB 
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* ten memoranda, dated between 31 August 2004 and 18 October 2005
* a VA Rating Decision 
* a statement of support
* a letter
* DD Form 4 (Enlistment/Reenlistment Document) and 33 pages of various enlistment documents
* two DD Forms 2808 (Report of Medical Examination)
* DD Form 2807 (Report of Medical History)
* eleven pages of medical records dated between 9 August 2004 and 16 March 2005
* DA Form 3349 (Physical Profile)
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* a Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement)
* his social security card  

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 enlisted in the Regular Army on 6 March 2002 and he held military occupational specialty 91W (Health Care Specialist).  He was assigned to the 3rd Armored Cavalry Regiment, Fort Carson, CO, on or about 1 November 2002.  He served in Kuwait/Iraq from 5 April 2003 to 27 March 2004.

3.  In a document titled MEB, dated 16 November 2004, a psychologist with the Behavioral Health Clinic, Evans Army Community Hospital (EACH), Fort Carson, CO, stated:

	a.  The applicant's medical history showed while in Iraq his vehicle was hit by an improvised explosive device (IED) and he sustained a concussion.  The applicant reported this was when he "snapped."  He reported seeing a burning body and a young Iraqi girl who had been shot several times.  He was treated by a psychiatrist in the EACH Behavioral Health Clinic but it had not helped. 

	b.  He had been hospitalized in October 2004 at Penrose - St Francis Hospital, Colorado Springs, CO, for suicidal ideation but he was not feeling any better.  He reported that he had trouble sleeping, nightmares, problems concentrating, and he felt like a failure.  He was diagnosed with PTSD, migraines, a compression fracture, and a herniated disc.  He was given a permanent (P) 3 Profile for his PTSD.  The examining psychologist stated his psychiatric condition was unfitting for military duty and recommended he go before an MEB.

4.  In an MEB Narrative Summary (NARSUM), dated 22 September 2005, a physician stated this was a physician-directed MEB and, in part:

	a.  The applicant's first problem was PTSD.  The applicant reported that in April 2004, after he returned from Iraq, he was getting into arguments, had trouble sleeping, and he was irritable.  He sought counseling and was subsequently diagnosed with PTSD.  In October 2004, his medications were changed after he was hospitalized for suicidal ideation.  In November 2004, he was given a P3 Profile due to PTSD and recommended for an MEB.

	b.  His second problem was lower back pain.  The applicant reported that in July 2004, while competing for an Expert Field Medical Badge at Fort Carson, CO, he had lower back pain after doing a fireman's carry.  He was initially diagnosed with a pulled muscle but continued to have persistent pain.  A magnetic resonance imaging (MRI) showed he had L4-L5 level disc protrusions resulting in significant lateral recess narrowing affecting the right L5 nerve root and the forearm nerve root.  He was a candidate for extensive intervertebral disc surgery but elected to be treated with epidural steroid injections instead.  He was currently reporting having lower back pain 99% of the time with his average pain rated at level 7.  His U.S. Air Force neurologist's impression was chronic lower back pain with desiccation and two level disc protrusion with intermittent right lower extremity radicular symptoms.  The neurologist believed that he was unfit for duty and recommended he be given a P3 Profile for his lower extremities.  

	c.  His third problem was headaches.  The applicant reported his headaches started in Iraq after an IED exploded and his headaches got worse after he retuned home.  An MRI of his brain was unremarkable and he was prescribed medication that did not help.  His U.S. Army neurologist noted he was suffering from post-traumatic headaches and post-concussive headaches and that he was not fit for active duty.  

	d.  His examining physicians stated he also experienced an anxiety disorder and they felt he had a severe personality disorder.  However, he was diagnosed with Axis I PTSD versus anxiety disorder.  He was found to be mentally competent to understand/participate in the MEB/PEB proceedings, manage his own affairs, and he could be discharged to his own care. 

5.  A page titled Spine Ranges of Motion was included with the NARSUM but the printing on the page was very light and rendered it unreadable.

6.  On 28 September 2005, an MEB convened at Fort Carson, CO, and found the applicant was diagnosed as having the medically-unacceptable conditions of PTSD, chronic lower back pain with two level disc protrusions, and post-traumatic headaches/post-concussive syndrome.  The MEB also found the applicant was diagnosed with the medically-acceptable conditions of personality disorder and dyslipidemia.  The MEB recommended referral to a PEB.  On 3 October 2005, the applicant agreed with the board's findings and recommendations.

7.  On 12 October 2005, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's chronic lower back pain prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to this condition.  The PEB rated him under the VA Schedule of Rated Disabilities (VASRD) Code 5243 with a 10% disability rating.  His conditions of PTSD, post-traumatic headaches/post-concussive syndrome, personality disorder, and dyslipidemia were not found unfitting and therefore were not ratable.  The PEB assigned him a 10% disability rating and recommended separation with entitlement to severance pay.  

8.  The applicant's DA Form 199 shows in:

	a.  Item 10A "The Soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law."

	b.  Item 10C "The disability did not result from a combat related injury as defined in 26 U.S. Code (C.) 104."

9.  On 14 October 2005, he checked the block on the DA Form 199 to indicate he did not concur with the PEB's findings but he waived his right to a formal hearing.

10.  The applicant provides a memorandum, dated 18 October 2005, issued by the U.S. Army Physical Disability Agency (USAPDA), wherein it stated his disagreement with the PEB was noted and his entire case was reviewed.  It was determined the PEB correctly applied the rules that governed the Physical Disability Evaluation System (PDES) in making it's determination and the findings/recommendations of the PEB were supported by substantial evidence and were therefore affirmed.

11.  Orders 292-0024, dated 19 October 2005, issued by Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, CO, discharged him from active duty by reason of disability effective 16 November 2005 with a 10% disability rating and entitlement to disability severance pay.

12.  He was honorably discharged on 16 November 2005 in the rank/grade of private first class (PFC)/E-3 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph
4-24b(3) with entitlement to severance pay.  He completed 3 years, 8 months, and 11 days of creditable active service.  He received $13,128.00 in severance pay.

13.  The applicant provides a VA Rating Decision, dated 5 December 2012, wherein it shows he was granted service-connected disability for the following conditions:

* PTSD with major depressive disorder - rated at 50% from 17 November 2005, 30% from 27 February 2008, and 70% from 24 September 2012
* herniated disk L4-5 and L5-S1 with mild degenerative changes - rated at 20% from 17 November 2005 and 40% from 23 October 2007
* migraine headaches (previously rated as frequent headaches) - rated at 0% from 17 November 2005 and 30% from 7 April 2008
* radiculopathy, right lower extremity associated with herniated disk L4-5 and L5-S1 with mild degenerative changes - rated at 0% from 23 October 2007 and 20% from 24 September 2012
* tinnitus - rated at 10% from 24 September 2012
* bilobed cyst, right kidney - rated at 0% from 17 November 2005
* ED associated with herniated disk L4-5 and L5-S1 with mild degenerative changes - rated at 0% from 27 January 2010
* hearing loss, left ear - rated at 0% from 24 September 2012

14.  The applicant provides a statement of support, dated 30 March 2013, wherein a representative from the American Legion stated the applicant served in Iraq for a full year during the initial ground phase of the war.  He was later separated from the Army for a disability with severance pay.  He has bona fide documentation of his PTSD and other medical conditions while in the service to include his back condition with radiating nerve pain in his right leg, migraine headaches, tinnitus, a right kidney cyst, ED, and defective hearing in his left ear.  He should have been given a higher rating for his medical conditions and he should have been given a disability retirement as opposed to being separated for disability with severance pay.

15.  In the processing of this case an advisory opinion, dated 28 April 2013, was received from the USAPDA.  The advisory official recommended approval of the applicant's request that his records be corrected to show he was retired for disability and opined:

	a.  The applicant's MEB found he did not meet medical retention standards for PTSD, chronic lower back pain, and post-traumatic headaches.  Personality disorder and dyslipidemia were found to meet medical retention standards.  There were no other conditions listed on his MEB and on 3 October 2005 he concurred with the MEB findings.

	b.  An informal PEB found the applicant unfit due to lower back rated 10% disabling and recommended that he be separated with severance pay.  All other conditions were found not to be unfitting or compensable as a military disability.  On 14 October 2005, he non-concurred with the PEB's findings but offered no appeal or rebuttal and waived his right to a formal hearing.

	c.  Only conditions that are found unfitting by the military are compensable and just because a condition may exist at the time of separation from active duty does not, of itself, justify a finding of unfitness for those conditions.  Further, just because the VA subsequently rates a condition after a Soldier is discharged does not provide a preponderance of evidence that the VA-rated condition was unfitting and compensable for military disability.  The applicant's only evidence/rationale that the PEB erred that he offered was that the VA subsequently rated additional conditions the PEB had not.  This is not sufficient evidence of a PEB error.

	d.  However, a review of the MEB evidence and PEB findings does reveal errors that should be corrected.  His PTSD should have been found to be unfitting, rated under VASRD 9411 at 50% disabling and he should have been placed on the Temporary Disability Retired List (TDRL).  A reevaluation within 6 to 18 months would appear to support a subsequent rating for PTSD of 30% based on occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

	e.  His back condition should have been rated at 20% and not 10% based on the forward flexion of 40 degrees.

	f.  His headaches should have also been found to be unfitting and rated as VASRD 8045-9304.  A review of his records revealed his headaches were the result of trauma from an explosion.  At the time of his discharge, the existing VASRD guidance found in VASRD 8045 stated, brain disease due to trauma was that "purely subjective complaints such as headache…will be rated 10% and no more under diagnostic code 9304."  "Ratings in excess of 10% for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma."  Accordingly, notwithstanding the VA rating of 30% for this condition, the PEB should have rated the headaches at 10% in 2005.  

	g.  Although the VA rated his radiculopathy 20% disabling for his lower extremity, the evidence found in the NARSUM did not support that his complaint of leg pain was independently unfitting beyond 20% disabling provided for the back pain.

	h.  Additional conditions subsequently rated by the VA do not warrant any changes to the applicant's records as those conditions were not listed on his MEB or physical profile.  There is no evidence that shows these conditions were of such severity that they did not meet medical retention standards at that time or were unfitting.

16.  The advisory official recommended the applicant's records be corrected to show:

	a.  The PEB found his conditions of PTSD as unfitting and rated 50% disabling; chronic lower back pain as unfitting and rated 20% disabling, and his post-traumatic headaches as unfitting and rated 10% disabling,  

	b.  He was removed from the TDRL on 16 June 2007 and retired by reason of permanent disability with PTSD rated 30% disabling, chronic lower back pain rated 20% disabling, and post-traumatic headaches rated 10% disabling for a combined rating of 50%.

17.  On 2 May 2013, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond.

18.  There is no evidence in his available medical records that shows while he was serving on active duty the applicant's medical conditions of tinnitus, right kidney cyst, ED, and defective hearing of the left ear were found to be unfitting. 

19.  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 office, grade, rank, or rating.  It states 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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  

	a.  Paragraph 7-2 (Reasons for placement on the temporary disability retired list or TDRL) states a Soldier’s name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.  

	b.  Paragraph 7-4 (Requirement for periodic medical examination and PEB evaluation) states a Soldier on the TDRL must undergo a periodic medical examination.  A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  

20.  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%.  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 at less than 30%.

21.  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, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's 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.  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 was diagnosed with several conditions that warranted his entry into the PDES.  In September 2005, an MEB found he was diagnosed as having the medically-unacceptable conditions of PTSD, chronic lower back pain with two level disc protrusions, and post-traumatic headaches/post-concussive syndrome.  They also found he was diagnosed with the medically-acceptable conditions of personality disorder and dyslipidemia.  The MEB recommended referral to a PEB.  

2.  In October 2005, a PEB found he was unfit due to chronic lower back pain only.  His conditions of PTSD, post-traumatic headaches/post-concussive syndrome, personality disorder, and dyslipidemia were not found unfitting and therefore not ratable.  The PEB assigned a 10% disability rating and recommended he be separated with entitlement to severance pay.

3.  As evidenced by the USAPDA advisory opinion, the PEB findings contained significant errors.  His PTSD should have been found to be unfitting and rated 50% disabling, his chronic lower back pain should have been rated 20% disabling, and his post-traumatic headaches should have been rated 10% disabling.  He should have been assigned a combined rating of 60% and placed on the TDRL on 17 November 2005 vice being discharged for disability with severance pay.  As a result, his DA Form 199 should show in:

	a.  Item 10A "The Soldier's retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law."

	b.  Item 10C "The disability did result from a combat related injury as defined in 26 U.S. Code (C.) 104."

4.  As placement on the TDRL would require a subsequent medical examination at least every 18 months and he was subsequently assigned a VA disability rating of 30% for PTSD, he should be permanently retired as of 16 June 2007 by reason of permanent disability due to PTSD rated 30% disabling, chronic lower back pain rated 20% disabling, and post-traumatic headaches rated 10% disabling, for a combined rating of 50%.

5.  Based on the foregoing, the applicant is entitled to correction of his DA Form 199 (PEB) as stated in paragraph 3 above.  He is also entitled to a revised DD Form 214 to show he was retired on 16 November 2005 by reason of temporary disability and placed on the TDRL effective 17 November 2005, with entitlement to any back retired pay due as a result of this correction.  In addition, he is entitled to orders showing he was removed from the TDRL on 16 November 2007 and permanently retired on 17 November 2007.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

7.  With respect to his medical conditions of tinnitus, right kidney cyst, ED, and defective hearing of the left ear, a disability decision rendered by another agency does not establish an error on the part of the Army.  Only conditions that are found unfitting by the Army are compensable; the mere presence of a medical condition does not justify a finding of unfitness.  The evidence of record does not show and the applicant has not provided any evidence that shows these medical conditions were found to be unfitting while he was serving on active duty.  Therefore, there is an insufficient evidentiary basis for granting this portion of the applicant's requested relief.

8.  As a result, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Amending his DA Form 199 by:

* deleting from item 8a (VA Code) the rating of 10% that pertains to code 5243 and adding the rating of 20%
* deleting from item 8b (Disability Description) any reference to his disability rating being less than 30%
* deleting from item 9 the combined rating of 10% and adding the combined rating of 60%
* deleting from item 9 the disposition pertaining to severance pay and adding the disposition pertaining to TDRL 
* deleting from item 10A the word "NOT" to show his retirement was based on disability from injury or disease received in the line of duty as a direct result of armed conflict
* deleting from item 10C the word "NOT" to indicate his disability did result from a combat-related injury
* amending item 8a to show he was rated under code 9304 for PTSD with the appropriate description and rating of 50%
* amending item 8a to show he was rated under code 8045 for post-traumatic headaches with the appropriate description and a rating of 10%

	b.  Correcting his discharge orders and DD Form 214 by:

* revoking Orders 292-0024 that discharged him with severance pay
* issuing orders retiring him on 16 November 2005 by reason of temporary physical disability and placing him on TDRL on 17 November 2005 with a combined rating of 60%
* voiding his current DD Form 214 and issuing him a new DD Form 214 that reflects his medical retirement under the appropriate authority and with the appropriate codes

	c.  issuing him orders retiring him effective 16 June 2007 by reason of permanent disability with a combined rating of 50%; and

	d.  paying him all back retired pay due as a result of this correction after recovering the disability severance pay he received.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to tinnitus, right kidney cyst, ED, and defective hearing of the left ear.  



      _______ _  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)                                         AR20130002808



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ABCMR Record of Proceedings (cont)                                         AR20130002808



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