IN THE CASE OF:	   

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130008146 


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 amendment of his Physical Evaluation Board (PEB) proceedings to add post-traumatic stress disorder (PTSD), anxiety, depression, and insomnia.  Additionally, he requests award of the Bronze Star Medal (BSM) with "V" Device.

2.  He states he was originally separated from the Army with severance pay.  However, the Department of Defense (DoD) Physical Disability Board of Review (PDBR) granted him a 40 percent (%) disability rating for a gunshot wound (GSW) to the left knee and he was subsequently retired due to permanent disability.  Since the conditions of PTSD, anxiety, depression, and insomnia were not addressed in his original PEB, the PDBR could not make a decision.  He maintains he has suffered with these conditions since the date of the incident that caused his permanent disability retirement.  

3.  He also states, in effect, he honorably put his life on the line during Operation Iraqi Freedom in 2003.  He explains that he was on guard with his dismounted infantry squad when his position came under ambush.  He selflessly held his position, even after being told to abandon it, for fear that other members of his squad would be wounded or killed if he did so.  As a result of this act, he was shot in the left knee and received shrapnel wounds from a rocket propelled grenade explosion.  He maintains that his squad leader recommended him for award of the BSM with "V" Device, but he never received the award or any information concerning the denial. 


4.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter, Subject:  Correction of DD Form 214, dated 17 December 2010
* Orders 172-0007, dated 21 June 2010
* Orders 155-001, dated 4 June 2010
* U.S. Army Human Resources Command (HRC) letter, dated 5 November 2010
* PDBR Record of Proceedings with corresponding documents
* Department of Veterans Affairs (VA) letter

CONSIDERATION OF EVIDENCE:

1.  The applicant requested correction of his records to show award of the BSM.  There are no orders or other evidence authorizing award of this decoration.  In the absence of a proper award authority for this decoration, the applicant may request award of the BSM under the provisions of Title 10, U.S. Code, section 1130.  The applicant has been notified by separate correspondence of the procedures for applying for this decoration and, as a result, it will not be discussed further in the Record of Proceedings.

2.  The applicant's record shows he enlisted in the Regular Army on 14 June 2002.  He served in Iraq from 3 March 2003 to 27 February 2004. 

3.  On 21 September 2004, a Medical Evaluation Board (MEB) was convened and considered the applicant's condition of status post GSW, left knee, extraarticular and chronic left knee pain.  The board opined that he no longer met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and referred him to a PEB.  

4.  On 28 September 2004, he agreed with the board's finding and recommendation.

5.  On 13 October 2004, a PEB was convened and considered the applicant's condition of chronic left knee pain, status post GSW in Iraq through the non-articular portion of the knee.  The PEB found his functional limitation in maintaining the appropriate level of stamina caused by the physical impairments made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The board also found that he was physically unfit and recommended a 10% percent disability rating.  He was recommended for separation with severance pay if he was otherwise qualified.  On 12 October 2004, the applicant concurred with the board findings and recommendations and waived a formal hearing of his case. 
6.  On 17 November 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay.  He was credited with 2 years, 5 months, and 4 days of active service.  He received $6,553.20 for disability severance pay.

7.  In a letter from the VA, undated, the representative stated that a decision was made on his claim for service connected compensation received on 21 October 2008, 30 October 2008, 24 November 2008, and 27 February 2009.  He was granted an 80% disability rating for the following:

* Tinnitus, 10%
* Post-concussive headaches due to head injuries, 10%
* Musculoligamentous strain, left hip, 10%
* Scars, residuals of entrance and exit wounds, left knee, status post GSW, 10%
* Mechanical low back strain, 10%
* Left knee, status post GSW, 10%
* PTSD, 50%

8.  On 10 May 2010, the DoD PDBR recharacterized the applicant's separation as a disability retirement with a combined disability rating of 40%.  The board stated:

   a.  The applicant suffered a GSW to the left leg on 18 June 2003 while deployed to Iraq.  He underwent multiple surgeries for debridement and removal of bullet fragments.  A majority of the meniscal cartilage of the left knee was also removed.  Records show a consistent complaint of cardinal signs/symptoms of muscle disability and evidence of inability to keep up with work requirements.  Entrance and exit scars were present and tests of strength/endurance demonstrated definite evidence of muscle impairment and left anterior thigh damage.  The PDBR recommended a 30% disability rating for the left posterior thigh - muscle group XIII.  It also recommended a 10% disability rating for removal of knee cartilage.

	b.  His low back pain, scarring of skin, left foot numbness, kidney stones, mild hearing loss, chronic cough, and history of major head injury were all discussed and considered by the board.  There was no clearly documented evidence that any of those other conditions caused significant interference with the performance of required military duties.  Those other conditions were all judged to be not unfitting at the time of separation from service, and therefore were not relevant for a disability rating.  

	c.  The PDBR also found that PTSD, erectile dysfunction, right knee condition, left hip condition, tinnitus, post-concussive headaches, and left eye condition were all considered by the board, but were not documented in the Disability Evaluation System (DES) package.  The board said there was no clearly documented evidence that any of those conditions were a matter of record in the DES package and therefore, they were found to be outside the scope of the PDBR.

9.  On 5 November 2010, HRC made a decision on the applicant's claim for Combat-Related Special Compensation (CRSC).  The letter shows the following:

a. Verified as Combat-Related:

* Left knee, status post GSW, effective January 2008
* PTSD, effective July 2008
* Scars, residuals of entrance and exit wound, effective January 2008
* Tinnitus, effective November 2008

b. Unable to verify as Combat-Related Disability

* Limited flexion of knee right knee musculoligamentous strain
* Lumbosacral or cervical strain mechanical low back strain

10.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.

   a.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The regulation 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.

	c.  Recommendations of the informal PEB are recorded on a DA Form 199.  Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include:

* concurrence with the findings and recommendations and waiver of a formal hearing
* nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing
* demand for a formal hearing with or without personal appearance
* choice of counsel if a hearing is demanded

   d.  Soldiers indicate their elections by placing a checkmark in item 13 and signing and dating the original and the medical treatment facility copies.

11.  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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records are not available to the Board and he did not provide medical records.  The available evidence shows he was found unfit for duty for chronic left knee pain, status post GSW with a 10% disability rating.  There were no other conditions listed on his MEB or PEB that were evaluated.   

2.  On 12 October 2004, he concurred with the PEB findings and recommendations and waived his right to a formal hearing.  There is no evidence and he has not provided any evidence to show he was diagnosed with PTSD, anxiety, depression, and/or insomnia while on active duty or that any of those conditions ever rendered him unable to perform his duties.

3.  Army Regulation 635-40 provides that the U.S. Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires that the VA must give the veteran the benefit of any reasonable doubt.  The fact that he was awarded a 50% disability rating by the VA for PTSD is not sufficient justification to presume that this condition should have been evaluated on his original MEB and subsequently on his PEB.

4.  An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received during his U.S. Army service.

6.  In view of the evidence in this case, there is no basis for granting his requested relief.

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)                                         AR20130008146



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ABCMR Record of Proceedings (cont)                                         AR20130008146



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