IN THE CASE OF:	

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130008702 


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 reconsideration of his application for an increased disability evaluation. 

2.  The applicant states the Army failed to screen and evaluate him for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) in accordance with Army Regulation 635-200.  His service medical records show he was suffering from a depressive disorder and he reported he could not sleep.  Nothing is important or interests him now. 

3.  The applicant provides copies of his service medical records, his Noncommissioned Officer Evaluation Reports, post-service medical records, and a 21 May 2009 Department of Veterans Affairs (VA) disability evaluation.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100014006, on 13 January 2011.

2.  The applicant's service medical records were not previously available for Board review.  These records are significant to a just review of the applicant's contentions and warrant a granting an exception to the 1-year reconsideration time frame.

3.  As noted in the prior decisional document, the applicant served on active duty from 18 February 1997 through 11 July 2006.  He was honorably discharged in the pay grade of E-4 by reason of disability with severance pay.

4.  On 8 March 2006, a Medical Evaluation Board (MEB) diagnosed him as having:

   a.  degenerative disc disease of lumbar spine manifested by herniated nucleus pulpous at L5-S1 disc with contact of surrounding nerve roots complicated by continued lower back pain; and 
   
   b.  radicular pain and neurologic deficits of reduced sensory findings and weakness in the left leg. 

5.  On 12 April 2006, a Physical Evaluation Board (PEB) evaluated his two unfitting conditions. The PEB determined that in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time, he was entitled to a 10% disability rating for each disability for a combined disability rating of 20%.  The PEB recommended separation with severance pay and the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 

6.  On 11 July 2006, the applicant was honorably discharged in the pay grade of E-4 by reason of disability (20 percent) with severance pay. He had 9 years, 4 months, and 24 days creditable service.

7.  On 13 January 2011, the Board granted the applicant an increased disability evaluation, voided his discharge, and directed he be retired with back pay and benefits. 

8.  A review of the service medical records provided show the applicant was treated for depression, alcohol dependency, and back problems between 22 February 2005 and his MEB.  His depression was being controlled and was improving with his individual and group counseling sessions.  There is no diagnosis of PTSD in these records.

9.  On 3 March 2009 the applicant reopened his claim with the VA, requesting service connection for PTSD.  On 21 May 2009 the VA granted the applicant an increased disability evaluation to include a 70 percent evaluation for PTSD, effective 3 March 2009, with a combined evaluation of 80 percent.  The diagnoses afforded were post traumatic stress disorder with major depressive disorder, partial nasolacrirnal duct obstruction of both eyes with epiphora, lumbar herniated disc with mild lumbar degenerative disc disease, mild spondylolisthesis and secondary left lower extremity radiculopathy, and bilateral hallux valgus

10.  An 18 November 2009, Psychiatric and Psychosocial Evaluation diagnosed the applicant as suffering from chronic PTSD, cannabis abuse, alcohol dependency, and major depression.

11.  The record contains no evidence the applicant suffered a traumatic brain injury (TBI) while on active duty.

12.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for separation of enlisted personnel from active duty.  It does not contain any specific direction for what medical conditions a Soldier is to be screened for at the time of separation.

14.  Title 38, United States Code, sections 310 and 331, permit 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 physically 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.

DISCUSSION AND CONCLUSIONS:

1.  The contention that there was a mandatory requirement that all Soldiers be evaluated for TBI and PTSD is without merit.  In order for a Soldier to have been afforded a medical evaluation, for any condition, there must be some type of finding that a Soldier was suffering from that condition and that it is directly affecting their performance of duty.

2.  The applicant has not provided and the records do not show he suffered a head injury or that he has been diagnosed with TBI.

3.  The available service medical records do not contain a diagnosis of PTSD.  They do show the applicant was treated for depression, which was improving with counseling, and alcohol dependency, in addition to the physical conditions that resulted in his medical separation.

4.  The first time the applicant was evaluated for PTSD was not until four years after he had been discharged.

5.  An award of a VA rating does not establish entitlement to a military medical retirement or separation, or a disability rating.  The major difference is that VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  It may grant service-connection and award benefits so long as it can show a reasonable correlation or connection between a service member's service and the condition for which a former service member is requesting service-connection.  The Army on the other hand must find that the condition existed while in an active status and that it caused the service member to be unfit for duty due to that condition.  

6.  The applicant has not provided and the record does not show the applicant was diagnosed with PTSD or TBI while on active duty or that as a result of such conditions he was unfit for duty based on those conditions.   

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 to amend the decision of the ABCMR set forth in Docket Number AR AR20100014006, date 13 January 2011



      _______ _   _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)                                         AR20130008702





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ABCMR Record of Proceedings (cont)                                         AR20130008702



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