IN THE CASE OF:	  

		BOARD DATE:  20 February 2014

		DOCKET NUMBER:  AR20130009918 


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 her records to show she was permanently retired.

2.  The applicant states she was seen by the medical review board and she was released from active duty (i.e., placed on the temporary disability retired list (TDRL)) with a diagnosis of Major Depression.  She was seen at the New Mexico Department of Veterans Affairs (VA) Medical Center and found to have Rapid Cycling Bipolar Disorder prior to the medical board.  She was receiving treatment that would have precluded her from active duty.  The examiner told her that she could not appeal this decision.  She was also 6 to 9 months from retirement.  She believes if the examiner had reviewed her VA records he would have seen the amount of medications she had cycled through, mainly Depakote (anti-seizure medication) and Lithium.  

3.  The applicant provides her VA rating decision and progress notes. 

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's records show she enlisted in the Regular Army on 21 February 1978 and she held military occupational specialties 91C (Practical Nurse) and 91G (Behavioral Science Specialist). 

3.  She served through multiple reenlistments in a variety of stateside or overseas assignments and she attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  During July 1995, she complained of depression.  Her narrative summary shows:

	a.  She first reported to the Community Health Services in May 1994 complaining of stress, irritability, depression, decreased sleep, decreased appetite, and suicidal ideation with a questionable plan.  She was able to contract for safety and she was placed on medications and treated with therapy.  However, her improvement did not last.  Her depression and suicidal ideation continued and she was hospitalized at the Psychiatric Clinic, Sheppard Air Force Base for about 4 weeks and she returned much improved.  She appeared to continue her recovery with therapy but several personal and work stressors continued to keep her feeling dysphoric with waxing and waning depressive symptoms necessitating a medical evaluation board (MEB). 

	b.  She was diagnosed with Major Depression, recurrent, moderately severe, treated and partially improved as manifested by depressed mood, tearfulness, decreased concentration, decreased interest, decreased libido, insomnia, and suicidal ideation.  

5.  On 3 July 1995, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions and recommended her referral to a physical evaluation board (PEB).  She agreed with the MEB's findings and recommendations.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Major Depression

X
2.  Lower extremity edema
X

3.  Raynaud's disease
X

4.  Premenstrual syndrome
X

5.  Stress headache
X

6.  Status post repair of herniated nucleus pulposus
X

6.  On 3 August 1995, an informal PEB convened and found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to Major Depression, recurrent, treated, partially improved, manifested by depressed mood, tearfulness, insomnia, and suicidal ideation.  

7.  The PEB rated her under the VA Schedule for Rating Disabilities (VASRD) code 9209 and granted a 30% disability rating.  The PEB considered her other conditions but found them not to be unfitting and therefore not rated.  The PEB recommended the applicant be placed on the TDRL with reexamination during August 1996. 

8.  Throughout the disability process, she appears to have been counseled by a PEB Liaison Officer and informed of her rights at each step of the process.  Subsequent to this counseling, on 8 August 1995, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

9.  On 26 October 1995, she was honorably retired under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability, and on 27 October 1995, she was placed on the TDRL.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed 17 years, 8 months, and 6 days of active service. 

10.  On 6 March 1997, she underwent a TDRL examination.  Her psychiatric evaluation shows she appeared appropriate and she had good eye contact.  There were no abnormal gestures, postures, or mannerism.  She was alert and cooperative throughout the interview.  Her speech was coherent, relevant, and organized.  Her thinking was linear.  She was negative for delusions, hallucinations, and paranoid thinking.  Her mood was considered euthymic.  She denied suicidal and homicidal ideations; however, she acknowledged she had a suicidal ideation few weeks earlier but without a plan.  Her memory was found to be normal and her insight and judgment were intact.  Her diagnosis was as follows: 

* Axis I: Bipolar II Disorder, most recent episode depressed without psychotic features; in remission at present
* Axis II:  Deferred
* Axis III: Reynaud Disease, PMS, stress headaches, lower extremity edema by history, and status post repair of herniated nucleus pulposus and ventral hernia
* Axis IV: Normal stressors at present time for a person who is unemployed and has medical and psychiatric conditions 
* Axis V: Global Assessment of Functioning (GAF) score of 70 (current)

11.  On 18 April 1997, an informal TDRL PEB convened and found the applicant remained medically unfit for Bipolar II Disorder.  The TDRL PEB noted that:

	a.  The applicant had originally been placed on the TDRL for VASRD Code 9209, Major Depression, that was modified to VASRD Code 9405 by the U.S. Army Physical Disability Agency (USAPDA).  Continued treatment and observation indicated a Rapid Cycling Bipolar II Disorder, with hospitalizations due to depression which was prodormal to Bipolar.  Since institution of Valproic Acid her condition had stabilized with reduction in both extremes, considered in remission at this time and her symptoms are controlled with medications.  

	b.  Her condition had not improved to the extent that she was now considered fit.  Axis II on her psychiatric evaluation was not ratable since it was not considered an unfitting condition on her PEB.  

	c.  She was rated under VASRD Code 9432 and awarded a 10% disability rating.  The TDRL PEB recommended her separation with entitlement to severance pay if otherwise qualified. 

12.  On 18 April 1997, she was notified by certified mail of the TDRL PEB's findings and recommendation.  She was also advised that prior to removing her from the TDRL she must show whether she agreed with the findings and recommendations of the PEB, and if desired she may submit a rebuttal and/or waive her right to a formal hearing.  She acknowledged receipt of the certified letter on 26 April 1997 but she never responded. 

13.  On 16 May 1997, the USAPDA published Orders D97-15 removing her from the TDRL and discharging her from the Army effective 16 May 1997 with entitlement to severance pay at the rate of 10%.  

14.  On 22 December 2005, the VA awarded her service-connected disability compensation for Hepatitis C at the rate of 0%, which when added to her other ratings gives her a combined overall rating of 60%.  She also provides VA progress notes from July 1999 on. 

15.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 or her 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 that 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.

16.  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.  Ratings can range from 0% to 100%, rising in increments of 10%.

17.  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%.

18.  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 sustained a behavioral health condition that warranted her entrance into the PDES.  She underwent an MEB which recommended her referral to a PEB.  She agreed with the MEB's findings and recommendations.  The PEB found her medical condition prevented her from reasonably performing the duties required of her grade and military specialty.

2.  The PEB determined she was physically unfit for further military service.  The PEB rated her Major Depression condition and recommended a 30% disability rating and placing her on the TDRL.  The applicant agreed with the findings and recommendation and waived her right to a formal hearing of her case.  She was placed on the TDRL in October 1995. 

3.  In March 1997, she underwent a TDRL examination.  Her psychiatric evaluation shows she was diagnosed with Bipolar II Disorder, most recent episode depressed without psychotic features; in remission at present.  The TDRL PEB noted that with new medication her condition had stabilized and her symptoms were controlled with medications.  The TDRL PEB rated this condition at 10% and recommended her separation with entitlement to severance pay.  She was advised of this finding and her rights, and she was given the opportunity to concur or submit a rebuttal; however, she failed to respond to the TDRL PEB's findings and recommendation.  Accordingly, she was removed from the TDRL and discharged in May 1997. 

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The applicant was properly initially rated at 30% and later rated at 10%.  She provides no medical evidence to support a higher rating for her condition.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated her condition initially at 30% disabling.  Subsequent to the TDRL examination and the TDRL PEB, her condition was rated at 10%.  Again, she did not provide medical evidence then nor does she now provide any to support a higher rating.  Since this rating was less than 30%, by law she was only entitled to severance pay.

6.  She was awarded service-connected disability compensation by the VA.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

7.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  She has not submitted substantiating evidence or an argument that would show an error or injustice occurred in her case.

8.  In view of foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20130009918





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ABCMR Record of Proceedings (cont)                                         AR20130009918



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