IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130007163 


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 correction of her 2004 disability separation to show, in effect:

* post-traumatic stress disorder (PTSD) was considered by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB)
* her disability rating was increased to 30 percent (30%) or higher
* she was medically retired 

2.  The applicant states she served in Iraq between January and August 2003 in military occupational specialty (MOS) 91W (Nuclear Medical Specialist).  She was assigned to Company C, 703rd Support Battalion (Main), and to the 4th Battalion, 64th Armor Regiment.  Both units engaged in combat and she was awarded the Combat Medical Badge for performance under fire.  

   a.  Following her redeployment, she went into an emotional downward spiral. Military medical providers failed to take into consideration the mental health evaluation diagnosis of Adjustment Disorder.  This resulted in incomplete documentation and an inaccurate diagnosis of Major Depression.  She adds the Chief of Behavioral Medicine who indicated her Adjustment Disorder was not unfitting was never actively involved in counseling sessions with her.

   b.  The initial diagnosis of Adjustment Disorder could have been appropriate if she did not meet all of the criteria for PTSD.  However, she was later given a diagnosis of Acute Stress Disorder.  The symptoms persisted for more than a month and met the criteria for a diagnosis of PTSD, but she was not diagnosed with PTSD.

   c.  She notes in describing the medical diagnosis of Major Depression that the diagnosis often co-occurs, precedes, follows, or emerges concurrently with the onset of PTSD.  The history of the diagnosis, objective findings on examination, reports of consultations, response to therapy, and subjective conclusions with rationale should also have been considered during the MEB.  However, the disinterest of medical providers prevented an accurate diagnosis of PTSD.

   d.  In February 2005 and March 2009, she related several incidents which occurred while she was serving in Iraq.  She states that Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) show all of her diagnoses could have been considered unfitting as they contributed to her unfitness.  In fact, her condition was classified by the VA as PTSD.

   e.  She opines that a proper evaluation by a psychiatrist prior to her discharge would have produced a diagnosis of PTSD and resulted in her being placed on the temporary disability retired list (TDRL) pending further evaluation.  She adds that her unfitting condition did not exist prior to military service and it occurred/ was aggravated during her service.

3.  The applicant provides copies of her military behavioral health records, civilian mental health records, and VA outpatient health records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 26 June 1997 and she was awarded MOS 91W.  She served in Germany from 4 December 1997 to 
4 December 1999.  

2.  She reenlisted in the RA on 23 February 2001 and was promoted to sergeant (SGT)/pay grade E-5 on 8 March 2002.  She reenlisted on 8 November 2002, served in Iraq from 21 March to 26 August 2003, and redeployed with Company C, 703rd Support Battalion, to Fort Stewart, GA.

3.  Two DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports) covering the period March 2003 through August 2004 show she was rated "Among the Best" by both raters.  In addition, both senior raters assessed her overall performance as "Successful (1)" and overall potential as "Superior (1)."

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably discharged on 7 September 2004 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), based on disability (with severance pay).  She completed 7 years, 2 months, and 12 days of total active service.

5.  The applicant's complete medical record is not available for review with this case.  However, she provides the following documents: 

	a.  Army medical records, spanning the period from 19 March to 28 April 2004, that show the applicant was treated for, in part, an Adjustment Disorder.  

    	(1)  On 30 March 2004, she was seen by a physician to rule out PTSD.  The physician diagnosed the applicant's condition as Acute Stress Disorder.

    	(2)  On 22 April 2004, the Chief, Behavioral Health Clinic, Winn Army Community Hospital, Fort Stewart, GA, indicated the applicant did not have a boardable psychiatric condition and that she met retention requirements.  He diagnosed the applicant with Major Depressive Disorder that was being treated by medication.  He noted she was attending weekly redeployment groups and weekly individual therapy.

    	(3)  On 28 April 2004, the physician the applicant saw to rule out PTSD and who diagnosed her condition as Acute Stress Disorder noted she was feeling "OK without medications," she had been sleeping well, she did not feel a need for anti-depressants because she was not depressed, and she denied having nightmares and suicidal ideation.

   b.  An MEB Dictation Summary, dated 6 April 2004, that shows the applicant complained of constant low back pain, aching in both knees, and uterine bleeding.  It also shows the applicant indicated a past medical history of, in part, PTSD.

    	(1)  The examining physician's diagnosis was left sacroiliac joint pain, chronic bilateral knee pain, and abdominal uterine bleeding.

    	(2)  She found the applicant's conditions of left sacroiliac joint pain and chronic bilateral knee pain were medically unacceptable and recommended referral to the PEB.  She was inconclusive about the uterine bleeding condition.

   c.  A DA Form 199 (PEB Proceedings) that shows an informal PEB convened on 30 April 2004 and found the applicant's condition of chronic pain, left sacroiliac joint and bilateral knees, rated as slight/constant, prevented her from performing the duties required of her grade and MOS and determined that she was physically unfit due to this condition.  The PEB rated her condition under VASRD Code 5099/5003 and awarded her a 10% disability rating.  The condition of uterine bleeding was found to be not unfitting and, therefore, not rated.

    	(1)  The PEB recommended separation with severance pay, if otherwise qualified.

    	(2)  On 4 May 2004, the applicant concurred with the PEB's findings and she waived a formal hearing of her case.

    	(3)  The PEB was approved on behalf of the Secretary of the Army.

   d.  A VA Rating Decision, dated 8 March 2005, that shows the applicant was granted service connection, effective 8 September 2004, for:

* lumbar strain/left sacroiliac condition - 0%
* right knee patellofemoral pain syndrome - 0%
* left knee patellofemoral pain syndrome - 0%

   e.  A VA Rating Decision, dated 18 December 2005, that shows the applicant was granted service connection for PTSD (also claimed as depression) with an evaluation of 10%, effective 23 February 2005.

   f.  A VA Rating Decision, dated 30 April 2009, that shows the applicant's claim for an increase in her service connected condition was granted for PTSD (also claimed as depression) with an evaluation of 50%, effective 4 December 2008.

   g.  She also provides:

* 33 pages of records showing her medication profile that span from 
13 November 1998 to 23 September 2009
* 268 pages of VA medical records that span from 23 May 2005 to 1 July 2010 that show she was diagnosed with PTSD on 23 May 2005
* 19 pages of civilian medical records (Eastern Wellness Center), that span from 7 February 2008 to 20 September 2011 that show she was diagnosed with PTSD on 20 February 2008

6.  On 29 August 2012, the Physical Disability Board of Review (PDBR) reviewed the applicant's case with respect to the findings and determinations of the PEB.  The scope of the review was limited to the medical conditions identified by the applicant and that were evaluated by the PEB; specifically, the unfitting medical condition of chronic pain, left sacroiliac joint and bilateral knees.  (She did not request review of her condition of Abdominal Uterine Bleeding that the MEB had judged to have met retention standards and the PEB had found not to be unfitting.)

   a.  The PDBR noted the PEB adjudicated the left sacroiliac and bilateral knee diagnoses as a single unfitting condition, rated at 10%.  However, the PDBR exercised the prerogative of separate fitness recommendations in the applicant's case and recommended the prior PEB determination be modified, as follows:

* Left Sacroiliac Dysfunction (VASRD Code 5299-5237) - 10%
* Patellofemoral Pain Syndrome, Bilateral Knees - Not Unfitting

   b.  In her application to the PDBR, the applicant offered facts and rationale in support of a requested rating for PTSD.  However, the condition was not within the scope of the PDBR because there was no such diagnosis in the applicant's MEB/PEB proceedings.

7.  Army Regulation 40-501 (Standards of Medical Fitness) 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 VASRD.

8.  Army Regulation 635-40 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 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.  Chapter 3 (Policies), paragraph 3-5 (Use of the VASRD), provides:

   a.  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.

   b.  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.  Any non-ratable defects or 
conditions will be listed in item 8 of DA Form 199, but will be annotated as 
non-ratable.

9.  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 PTSD at the time of her disability separation in 2004 and thus an additional finding of unfitness and compensation.

2.  The applicant's complete medical records are not available for review with this case.  However, the evidence of record shows she was considered by an MEB in April 2004 that referred her to a PEB.  Her MEB indicated that she had only two conditions that did not meet medical retention standards:  chronic pain, left sacroiliac joint and bilateral knee pain.  (She was also diagnosed with uterine bleeding; however, the condition was not unfitting.)  There is no indication the applicant was diagnosed with any other medically-unacceptable conditions, such as PTSD, that failed medical retention standards.  In order for the MEB to list a condition, there must be a medical diagnosis of such condition and an indication whether such condition met or failed retention standards.

3.  In April 2004, an informal PEB found the applicant's chronic pain, left sacroiliac joint and bilateral knee pain condition was unfitting and rated it at 10%.  The PEB recommended her separation with entitlement to severance pay.  On
4 May 2004, after being counseled on her rights, the applicant concurred with the PEB findings and waived her right to a formal hearing of her case.

4.  Based on a post-service civilian and VA diagnosis, she now claims she should have been diagnosed with PTSD during her military service.  However, her contention is unsupported.  Her Army medical records show she was diagnosed with an Adjustment Disorder, Acute Stress Disorder, and Major Depressive Disorder, which were treated by medication.  Two days prior to her PEB, she acknowledged to her physician that she was doing "OK" without medication.

5.  Records show the applicant successfully performed her required duties subsequent to her service in Iraq and throughout the remainder of her active duty service.

6.  Thus, even if the condition of PTSD 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.  The applicant provided insufficient evidence that she was diagnosed with the condition of PTSD and that it was unfitting at the time of her separation in 2004. The fact that the VA diagnosed her with and may or may not have awarded her service-connected disability compensation for PTSD in 2005 is not evidence of any error in the military disability system in 2004.

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 2004, there is no basis to conclude that the condition of PTSD should have been included in the applicant's MEB/PEB 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)                                         AR20130007163



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ABCMR Record of Proceedings (cont)                                         AR20130007163



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