BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130016070 


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, addition of the following medical conditions to his unfitting conditions and an increase in his disability rating:

* post-traumatic stress disorder (PTSD)
* degenerative disc disease (spine with right upper extremity radiculopathy)
* sleep apnea

2.  The applicant states:

	a.  He requests reinstatement of Department of Veterans Affairs (VA) service-connected rated disabilities (i.e., PTSD – 50 percent, degenerative disc disease – 20 percent, and sleep apnea – 50 percent).  These conditions were either downgraded or omitted by the medical evaluation board (MEB) and physical evaluation board (PEB).

	b.  He was initially rated for PTSD in September 2008, but an MEB psychiatrist downgraded the PTSD diagnosis to an Army MEB diagnosis of major depression with anxiety disorder and the PEB rated this condition as 30 percent disabling.

	c.  His degenerative disc disease (spine with cervical right upper extremity radiculopathy) which was rated as 20-percent disabling by the VA was completely omitted in the MEB and PEB proceedings.

	d.  The third and final VA service-connected rated disability for sleep apnea was also omitted from the MEB narrative summary, yet was annotated as a sleep disturbance in his MEB narrative summary appeal.

	e.  He has exhausted all means to rectify his Army MEB and PEB ratings.  He was advised to work from a position of strength by accepting the Army MEB/PEB findings, establishing at least a permanent disability rating and combat relationship.  He could address downgraded/missing VA Schedule for Rating Disabilities conditions later as a veteran with the Army Review Boards Agency, a better sounding board vice further active duty medical retention and more delays.

	f.  He was told that his appeal packet was most likely overlooked and the Judge Advocate General's cover letter was administratively mistaken for his appeal.

	g.  He was awarded a 20-percent Combat Related Special Compensation (CRSC) status for the degenerative disc disease (cervical spine/right upper extremity radiculopathy) by the U.S. Army Human Resources Command CRSC Branch.

	h.  He seeks correction of his MEB/PEB "low-ball" rating for his PTSD and seeks inclusion of both cervical spinal/upper extremity radiculopathy and sleep apnea that were completely overlooked/omitted by the MEB/PEB.

3.  The applicant provides:

* VA Rating Decisions, dated February 2010 and May 2010
* VA Progress Note
* Army CRSC Decision Letter
* DA Form 3349 (Physical Profile)
* DD Form 2808 (Report of Medical Examination)
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (PEB Proceedings)
* Headquarters, U.S. Army Signal Center and Fort Gordon, memorandum, dated 18 December 2008, subject:  (Applicant)
* Neuropsychological Evaluation
* appeal packet
* DA Form 2173 (Statement of Medical Examination and Duty Status)

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.  Having prior active enlisted service in the Regular Army, the applicant was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 22 February 1979.  He was promoted to colonel on 31 March 2004.

3.  He was ordered to active duty on 28 November 2005 in support of Operation Enduring Freedom and he served as a special forces officer.

4.  He provided a DA Form 3349, dated 12 September 2008, which shows he was assigned a permanent physical profile for PTSD, low back pain, left foot pain, and left shoulder pain.

5.  On 17 September 2008, an MEB diagnosed him with the following conditions that were deemed to be medically unacceptable:

* major depression
* anxiety disorder
* chronic left foot pain
* left shoulder pain
* chronic low back pain
* essential hypertension
* hyperlipidemia 

6.  The MEB recommended his referral to a PEB.

7.  An addendum to the applicant's MEB Narrative Summary, dated 19 September 2008, states he was referred for an MEB with a diagnosis of PTSD.  After a psychiatric consultation, the diagnosis was changed to major depression and anxiety disorder.  These diagnoses were added to the DD Form 3947 and the diagnosis of PTSD was removed.

8.  He provided a DA Form 2173, dated 12 November 2008, which shows he injured his left shoulder and lower back on 7 May 2002.

9.  On 15 November 2008, the applicant did not agree with the findings and recommendations of the MEB and submitted an appeal.

10.  On 2 March 2009, a PEB found him physically unfit due to:

* major depressive disorder with comorbid anxiety disorder since 2005 – 30 percent
* chronic left foot pain after parachute jump in 1981 – 20 percent
* chronic left (non-dominant) shoulder pain since 2002 – 10 percent
* intervertebral disc syndrome since 1992 – 10 percent

11.  The PEB determined the following conditions were not unfitting and met medical retention standards:

* essential hypertension
* hyperlipidemia

12.  The disability description section of his DA Form 199 states:

Due to the chronic nature of the above rated conditions, the PEB does not expect that these conditions will change over the next five years so as to affect Soldier's rating.  The PEB recommends permanent disability retirement.

10A/C is not awarded for the Officer's major depressive disorder with comorbid anxiety disorder.  There is no objective evidence that this medical condition was incurred as direct result of armed conflict.  [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 the line of duty during a period of war as defined by law; 10C – the disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.]

10A/C is not awarded for the Officer's left shoulder pain as an instrumentality to [sic] war reported to be the result of parachute jump; verification cannot be found in the medical records to substantiate this assertion.  Although there is a DA Form 2173 Statement of Medical Examination and Duty Status dated 12 November 2008, reference left foot injury, is [sic] in the Officer's file this document was signed over 6 years after the event purportedly occurred.

10A/C is not awarded for the Officer's intervertebral disc syndrome.  There is no objective evidence that the medical condition was caused by of [sic] an instrumentality of war.

10A/C is awarded for the Officer's left foot pain as a result of an instrumentality of war due to a parachute jump.

13.  The PEB recommended a combined 60-percent disability rating and his permanent retirement.  On 6 March 2009, he concurred with the PEB findings and waived his right to a formal hearing.

14.  On 19 March 2009, the U.S. Army Physical Disability Agency approved the PEB's findings.

15.  He retired in the rank of colonel on 18 June 2009 by reason of permanent disability.

16.  He provided VA documentation, dated February 2010, which shows he was granted service connection for the following conditions with an overall or combined rating of 90 percent:

* PTSD – 50 percent
* sinusitis – 30 percent
* degenerative joint disease of the left shoulder – 20 percent
* degenerative disc disease of the cervical spine with right upper extremity radiculopathy – 20 percent
* degenerative disc disease of the lumbar spine – 10 percent
* tinnitus – 10 percent
* hypertension – 10 percent
* lichen simplex chronicus – 10 percent
* left lower extremity lumbar radiculopathy with sensory deficit, residuals of left foot surgery – 10 percent
* residuals of left foot surgery – 0 percent
* seasonal rhinitis – 0 percent
* erectile dysfunction – 0 percent
* multiple left foot scars, residuals of left foot surgery – 0 percent

17.  He also provided VA documentation, dated 24 May 2010, which shows he was granted service connection for sleep apnea at 50-percent disabling.

18.  Title 10, U.S. Code, chapter 61, provides for 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.

19.  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 percent.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of the rating.

21.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the addition of PTSD, degenerative disc disease (spine with right upper extremity radiculopathy), and sleep apnea to his unfitting conditions.

2.  Although he was referred for an MEB with a diagnosis of PTSD, the diagnosis was changed to major depression and anxiety disorder after a psychiatric consultation.

3.  His MEB did not list PTSD, degenerative disc disease (spine with right upper extremity radiculopathy), or sleep apnea as medical conditions/defects.  There is no evidence to show he was given a physical profile for sleep apnea or degenerative disc disease.  He provides no evidence to show he met all the criteria for a diagnosis of PTSD and/or that these conditions rendered him unfit to perform his military duties.  Therefore, there is insufficient evidence on which to find that these conditions were unfitting.

4.  The evidence shows the PEB found him physically unfit due to major depressive disorder with anxiety disorder, chronic left foot pain, chronic left (non-dominant) shoulder pain, and intervertebral disc syndrome.

5.  The evidence shows he concurred with the PEB findings and recommendation on 6 March 2009.

6.  There is insufficient evidence to show his unfitting conditions were improperly rated by the PEB in 2009.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

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 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)                                         AR20130016070



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ABCMR Record of Proceedings (cont)                                         AR20130016070



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