BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130019519 


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 his records to show he was permanently retired by reason of disability with a rating of 50 percent vice honorably discharged by reason of disability with entitlement to severance pay. 

2.  In the alternate, he requests reinstatement to active duty for further evaluation by a medical evaluation board/physical evaluation board (MEB/PEB). 

3.  The applicant states; 

	a.  He should have been evaluated at the rate of 30 percent for post-traumatic stress disorder (PTSD) and 20 percent for his spine.  His MEB/PEB did not include or evaluate PTSD despite two MEB doctors making that diagnosis during the MEB process and despite his unfitness for duties due to PTSD symptoms. The failure to correctly evaluate PTSD in addition to spinal undervaluation resulted in being separated instead of retired.  The MEB/PEB did not comply with DOD Instruction (DODI) 1332.38 (PEB), Army Regulation (AR) 40-400 (Medical Services - Patient Administration), and AR 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement or Separation).  

	b.  On 3 January 2005, the PEB found him unfit based on a spinal injury he received in Iraq from an improvised explosive device (IED) on 17 December 2003.  The PEB assigned a 10 percent rating for that injury (which the Department of Veterans Affairs (VA) had previously assigned 20 percent) and he was separated instead of retired.  He believes that PEB decision did not consider all relevant evidence because it did not include any finding or disability rating for PTSD although PTSD was previously diagnosed by two Army doctors during the MEB process, the symptoms of which were well documented in his then existing records; and because it under-evaluated his back injury which ultimately required surgery. 

	c.  Specifically, the DD Form 2808 (Report of Medical Examination) signed by Dr. B------ during the MEB process diagnosed PTSD in item 77 (Summary of Defects and Diagnosis).  Also, the DD Form 2807-1 (Report of Medical History) completed during the MEB process shows that he identified several stress symptoms at item 17a (Nervous trouble of any sort), and Dr. V----- diagnosed that he "had some post traumatic stress disorder with insomnia, nightmares, some short term memory loss" at item 30 (Examiner's Summary and Elaboration of All Patient data).  Additionally, his Post-Deployment Health Assessment identified PTSD symptoms.

	d.  Despite those diagnoses and symptoms, the MEB/PEB omitted PTSD on the DA Form 3947 (MEB Proceedings) and DA Form 199 (PEB Proceedings) in conflict with DODI 1332.38, AR 40-400, and AR 635-40.  The MEB/PEB did not follow applicable rules in evaluating all relevant evidence/documenting full clinical information of his PTSD per AR 40-400, paragraph 7-9, and DODI 1332.38.  Also, the MEB/PEB did not consider all relevant evidence to his back injury, omitting bone fractures/other conditions and stating only degenerative disc, in violation of DODI 1332.38 and AR 635-40.  The VA rated him for PTSD at 30 percent, spine at 20 percent (which the PEB rated at 10 percent), and tinnitus at 10 percent. 

	e.  He received a letter from the VA, dated 6 September 2013, advising him that he could apply to the DOD Physical Disability Board of Review (PDBR) or to the Army Board for Correction of Military Records (ABCMR), given his rating and date of separation.   He immediately applied to the PDBR for evaluation of his spine and PTSD issues, but was told the PDBR could not consider PTSD because it was not specifically listed on his DA Forms 3947 and/or 199.  He believes it is in the interest of justice that the ABCMR allow this application to correct the error/injustice of the PEB/MEB ignoring those diagnoses/symptoms/not following rules and regulations in his MEB examination that likely resulted in separation instead of retirement.

4.  The applicant provides:

* Self-authored affidavit
* DD Form 2808 
* DD Form 2807-1
* Post-Deployment Health Assessment
* Psychiatrist letter
* DA Form 3947
* DA Form 199
* Discharge orders
* VA rating decision (September 2008)
* VA rating decision (November 2004)
* Doctor's statement, dated 22 April 2004
* Lumbar Discography Operative Diagnosis and Procedure Report, dated 21 February 2011
* Itemized Statement of Services (bill), dated 12 September 2013
* Standard Form 527 (Group Muscle Strength, Joint Range of Motion (ROM), Girth and Length Measurements)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from the VA, dated 6 September 2013
* Letter from the PDBR, dated 16 October 2013
* DA Form 67-9 (Officer Evaluation Report) for the rating periods 20030125-20040124 and 20020626-20030124
* DA Form 589-R (PEB Referral Transmittal Document) 
* PEB Liaison Officer (PEBLO)/PEB Checklist
* Narrative Summary (NARSUM)
* DD Form 2697 (Report of Medical Assessment)
* DD Form 2215E (Reference Audiogram)
* Patient Lab Inquiry
* DA Form 3349 (Physical Profile)
* Commander's performance statement
* Presumption of line of duty finding
* Mobilization orders and amendments
* DA Form 2-1 (Personnel Qualification Record - Part II)
* DA Form 2A (Personnel Qualification Record - Part I)
* Leave and Earnings Statement
* DA Form 705 (Army Physical Fitness Test Scorecard)
* Army Reserve Personnel Command (ARPC) Form 249-2-E (Chronological Statement of Retirement Points)
* DD Form 2648 (Preseparation Counseling Checklist)
* VA Form 3288 (Request for and Consent to Release of Information from Individual's Records)
* Email exchange with the PDBR

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 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 he was appointed as a Reserve commissioned officer, Judge Advocate General’s Corps, and executed an oath of office on 
26 July 1999.  He was appointed as a Civil Affairs (CA) commissioned officer on 26 June 2002. 

3.  He was ordered to active duty on 7 March 2003 and served in Iraq from 
28 April 2003 to 5 March 2004.  He was assigned to the 490th CA Battalion. 

4.  On or about 17 December 2003, while participating in a CA mission in Iraq, his vehicle was struck by an IED.  He experienced low back pain.  He was treated by a medical team and returned to duty. 

5.  He redeployed on 5 March 2004 and he was honorably released from active duty on 16 March 2004 by reason of completion of his required active service.  

6.  On 28 September 2004, he underwent a physical examination.  His records contain: 

	a.  A DD Form 2808 listed the summary of defects and diagnosis in item 77 as PTSD, tinnitus, and hearing problems.  The recommendation was to recheck cholesterol, see audiology for hearing issues, follow-up with orthopedic, and see Behavioral Health (BH). 

	b.  A DD Form 2807-1 listed more details on his L2 issues and indicated he had had some PTSD symptoms with insomnia, night..., some ....memory loss; he has not sought any assistance; not suicidal, no crying. 

7.  On 18 November 2004, the spine surgeon stated his chief complaint was low back pain with periodic pain into his lower extremities. 

	a.  He had had a long history of low back pain with L4 degenerative disc disease and periodic paresthesia into his lower extremities which he rates at 7 out of 10 while taking Tylex, a mild narcotic.  He had had no improvement of his symptoms with activity modification and pain medication.  He still struggles when he wears his body armor and his rucksack, among other things precluding him from being deployable.   

	b.  His ROM is validated by physical therapy.  He has no motor sensory or reflex deficit in either lower extremity.  He has no provocative testing in his hips or his S1 joint.  He is unable to perform in his military specialty because he is unable to wear his body armor and deploy.  His diagnosis is L4-5 degenerative disc disease.  In accordance with AR 40-501 (Standards of Medical Fitness), paragraph 3-41(e), he is nondeployable and does not meet retention criteria. 

8.  On 4 December 2004, a staff psychiatrist at the U.S. Army Medical Department Activity, Fort Hood, TX, stated the applicant was evaluated by the Outpatient Psychiatric Clinic, Darnall Army Community Hospital, on a routine consult.  Although he does report episodic dreams related to his deployment, there is no evidence of impairment.  There is insufficient evidence to warrant a psychiatric diagnosis at this time. 

9.  On 6 December 2004, an MEB found the applicant was diagnosed with L4-5 degenerative disc disease that failed retention standards.  The MEB recommended the applicant's referral to a PEB.  The applicant was counseled and indicated he did not desire to continue on active duty.  He agreed with the findings and recommendations of the MEB.  

10.  On 3 January 2005, an informal PEB convened.  The DA Form 199 shows: 

	a.  Based on a review of the objective medical evidence of record, the findings of the PEB are that the applicant's medical and physical impairment prevents reasonable performance of duties required by his grade and military specialty. 

	b.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) Codes 5299/5242, chronic subjective back pain, due to L4-5 degenerative disc disease, without neurological abnormality, thoracolumbar ROM is limited by pain.  The PEB recommended a 10 percent combined disability rating and separation with entitlement to severance pay if otherwise qualified.  

	c.  The back page of the DA Form 199 is not available for review with this case.  It is unclear if the applicant concurred with the PEB's finding and recommendation and/or waived his right to a formal hearing.  

11.  On 6 February 2005, the U.S. Army Physical Disability Agency (USAPDA) published Orders D35-05 ordering his honorable discharge from the USAR effective 17 February 2005, by authority of AR 635-40, chapter 4, with entitlement to severance pay.  

12.  He provides two VA rating decisions:

	a.  On 3 November 2004, the VA awarded him service-connected disability compensation at the rate of 20 percent for a herniated disc, status post transverse process fracture, effective 17 March 2004; and 10 percent for tinnitus, effective 17 March 2004. 

	b.  On 25 September 2008, the VA awarded him service-connected disability compensation for PTSD at the rate of 30 percent, effective 10 March 2008; herniated disc, status post transverse process fracture at the rate of 20 percent, effective 17 March 2004; and 10 percent for tinnitus, effective 17 March 2004. 

13.  He provides:

	a.  A self-authored affidavit wherein he chronicles his military service, deployment, situation in Fallujah, Iraq, and the IED explosion that led to his back injury.   He then provides a description of each form submitted with this application and its relevance to the issues he contends.  He concludes that there were errors and injustices with the MEB/PEB; the MEB/PEB made an error that caused an injustice by not including a disability rating for PTSD; and that the MEB/PEB made an error by under-evaluating his back injury. 

	b.  Doctor's/medical statement, dated 22 April 2004, from Dr. F------, of Houston, TX.  He states he saw the applicant in his office on 15 April 2004.  The applicant described his IED to attack to him.  No MRI was done at that time and no disc injury was diagnosed.  He was told that disc damage was possible but could not be diagnosed since there was no magnetic resonance imaging (MRI) machine.  He was given medications but his back pain continued to an extent that he was unable to get out of his cot due to severe pain.  The next time he wore his body armor was when he moved from Sadr City to Baghdad when the weight of this body armor knocked his back out.  He was unable to get an MRI until he returned to continental United States.  A review of his film revealed spondylitic segment of L4-5 with a central disc herniation with elevation of the posterior longitudinal ligament and central protrusion of disc material.  He had no focal neurological deficits at this time but he has marked pain on forward flexion.  He is status post multiple transverse fracture from L2 through L4 and he has an incompetent disc at L4-L5 that will likely require future surgery.



	c.  Lumbar Discography Operative Diagnosis and Procedure Report, dated 
21 February 2011, in relation to a diagnosis of lumbar disc degeneration, low back pain. 

	e.  Itemized statement of service from Southwestern Medical Center in Dallas, TX, dated 12 September 2013. 

	f.  Standard Form 527 dated 26 August 2004, which shows he was examined in relation to his back pain.  ROM measurements were taken as follows: extension, 14 to 16 degrees; flexion (left), 62, 28, and 59 degrees; lateral flexion, 21 to 27 degrees; and rotation, 19 to 24 degrees.  The physical therapist diagnosed him with low back pain.  His ROM is limited by pain. 

	g.  A letter from the VA, dated 6 September 2013, advising him of the Wounded Warrior Act and his possible eligibility to apply to the PDBR or the ABCMR.  

	h.  A letter from the PDBR, dated 16 October 2013, advising him that the PDBR did not have the authority to review his condition since it was never evaluated during his service PEB process. 

	i.  Officer Evaluation Reports for the rating periods 20030125-20040124 and 20020626-20030124. 

	j.  PEB Referral Transmittal Document and PEBLO/PEB Checklist indicating he read and fully understood his disability evaluation process. 

	j.  DA Form 3349, dated 14 September 2004, listing the medical condition of lumbar degenerative disc. 

	k.  Commander's performance statement, dated 3 October 2004.  The commander stated the applicant was unable to carry a rucksack or lift anything greater than 10 pounds.  He was unable to wear a flak vest, run in formation, perform flutter kicks or sit ups, and he was unable to squat or stoop.  He did not have the ability to perform his military specialty.  

14.  An advisory opinion was received from the USAPDA on 22 November 2013, in the processing of this case.  An advisory official recommended no change to the applicant's records.  The advisory official stated: 

	a.  The applicant requests that his military records be corrected to increase the 10 percent rating he received for his unfitting back condition to 20 percent; that a diagnosis of PTSD be found to have existed at the time of his separation 
from the military and that said diagnosis be considered to be unfitting at that time and ratable at 30 percent; and that his separation with severance pay be changed to permanent military disability retirement.

	b.  On 6 December 2004, the applicant's MEB was completed.  It contain only one condition -- degenerative disc.  During the initial processing of the MEB a physical exam was accomplished by Dr. M-----, family physician.  A DD Form 2808 and a DD Form 2807-1, dated 28 September 2004, were prepared by the physician as a part of that examination.  In those documents the physician noted that the applicant complained of some possible behavioral health (BH) symptoms and the physician noted at blocks 77 and 78 of DD Form 2808 that the applicant might have PTSD.  The physician clearly annotated that such a diagnosis was preliminary as it was recommended that the applicant would need a psychiatric consultation to review his preliminary evaluation.  In item 30a of the DD Form 2807-1, the physician went on to describe his observations and noted that the applicant had not sought any assistance for any BH symptoms and was not suicidal or upset at that time.  The applicant's physical profile listed his back condition as the only condition that resulted in any restrictions regarding his ability to perform his assigned duties.  The commander's 3 October 2004 duty performance memorandum noted that only his physical condition was affecting the applicant's ability to perform his duties; there was no mention of any BH issues.  A physical therapy ROM examination on 26 August 2004 noted that three ROM measurements of his spinal flexion were, 62, 58, and 59 degrees; limited by pain, not mechanical.  On 3 December 2004, Dr. C-----, staff psychiatrist, evaluated the applicant for any possible BH conditions.  It was determined that at that time the applicant did not meet any of the criteria for a BH diagnosis and there was "no evidence of impairment" notwithstanding some claims of episodic dreams relating to his deployment.  After review of all of medical findings the applicant concurred with his MEB results on 27 December 2004.

	c.  On 3 January 2005, an informal PEB found the applicant unfit for his only listed condition and rated his spinal condition under VASRD 5299/5242 at 10 percent for limitation of flexion ROM due to pain.  The applicant was to be separated with severance pay.  After being counseled on the PEB findings the applicant concurred with the findings and waived his right to a formal hearing.

	d.  On 17 March 2004 the VA rated the applicant's spinal condition at 20 percent and on 25 September 2008 rated his newly-diagnosed condition of PTSD at 30 percent, PTSD rating effective 10 March 2008.

	e.  The applicant has not provided any evidence that he had a documented approved diagnosis of PTSD before he was separated from the military in February 2005.  He was properly evaluated by military BH experts during his MEB processing and it was determined that no BH diagnosis existed at that time. Thus, none was required to be listed on his MEB.  The applicant concurred with those findings.  Even if a diagnosis had been reached it would not have failed the medical retention standards found at paragraph 3-33, AR 40-501, as he had no persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or persistent or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistent or recurrence of symptoms resulting in interference with effective military performance.  Neither the medical BH expert, the applicant's commander, the physical profile writer, nor the applicant documented any military duty performance inabilities related to any BH diagnosis at the time of the applicant's separation from the military.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions that would be unfitting for military duty while in the military can be compensable

	f.  The applicant's back condition was rated at 10 percent because the PEB found that the applicant was able to flex his back to at least 62 degrees. The VASRD ratings for spinal conditions indicate that any flexion over 60 degrees is rated at 10 percent.  Notwithstanding other flexion ROMs below 60 degrees, it was not inappropriate for the PEB to find that the applicant's spine could flex over 60 degrees and be rated in accordance with that measurement.  There is nothing in the VASRD that requires that only a lower ROM testing result be used.  Even if the back condition was rated at 20 percent the applicant's separation and compensation from the military would not change as all Soldiers with ratings below 30 percent have the same financial computations and are separated with severance pay.

	g.  The applicant has not provided sufficient evidence to show that the PEB's findings were incorrect in 2005.   The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive and regulation.  Recommend no changes to the applicant's military records.

15.  On 26 December 2013, the applicant submitted a rebuttal.  He restated his request, re-chronicled the facts and circumstances as he saw them, and argued that the advisory opinion was incorrect and drew conclusions which were not supported by facts and failed to address his psychiatric condition.  He reiterated his position that the MEB/PEB failed to evaluate him for PTSD as required by AR 40-400 and DODI 1332.38.  His key argumentative points are that: 

* he was a Reserve Soldier; he was not an active duty Soldier; in effect, his demobilization process was quick and inadequate
* the MEB/PEB ignored his symptoms of PTSD and the USAPDA is now doing the same
* the USAPDA's reliance on Dr. C-------'s erroneous report as justification of the denial of his request is a continuation of errors and injustices he experienced during the MEB/PEB process
* the USAPDA does not address or rebut his position that the MEB/PEB failed to follow the psychiatric evaluation guidelines mandated by AR     40-400 and DODI 1332.38
* he was diagnosed with PTSD prior to his February 2005 separation
* the USAPDA erroneously assumed that PTSD did not exist and even if did it would not have presented an impairment
* the errors in the MEB/PEB are consistent with the recent findings of the U.S. Senate Committee on Veterans Affairs

16.  Army Regulation 635-40 establishes the Army 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.  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.  Paragraph 3-1 states the mere presences of an 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 reasonably may be expected to perform because of their office, grade, rank, or rating.

17.  Army Regulation 40-501 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 percent to 100 percent rising in increments of 10 percent.

18.  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.  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 of less than 30 percent.

19.  DODI 1332-38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability.  Section E2.1.7 defines a compensable disability as a medical condition determined to be unfitting by reason of physical disability and which meets the statutory criteria under Chapter 61 of reference (b) for entitlement to disability retired or severance pay.

20.  Title 38, Code of Federal Regulation, covers the VA Schedule of Ratings Disabilities.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  

	a.  Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history, and the limitation of  activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

	b.  Section 4.40 through 4.71 covers the Muscuskeletal System.  VASRD Code 5242 covers degenerative arthritis of the spine and is used when the limitation of motion is not severe enough to warrant a rating under the general rating formula.  A 10 percent rating is assigned when flexion measures more than 60° but less than 90 degrees or combined ROM is between 125 degrees and 240 degrees.  A 30 percent rating is assigned when flexion measures more than 30 degrees but less than 65 degrees or combined ROM is 120 degrees or less.  

	c.  There are a few more rating options under this general formula that only come into play if the ROM is not restricted enough to warrant a higher rating.  If there is an abnormal spine contour (like scoliosis), or if the member has muscle spasms, or if he/she guards his/her spine movements enough that the member walks abnormally, then the condition is rated 20%.  Proof of the abnormal spine contour or abnormal walk must be noted by the physician in an exam, not just with radiological evidence.  If there are muscle spasms and guarding present that do not interfere with the way a member walks, it is rated 10 percent.  A 10 percent rating is also given if there is a compressed (fractured) vertebra that has lost 50% or more of its height.  Finally, if there is pain with motion, then the rating must be at least 10 percent.

21.  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 key issues that are points of contention by the applicant in this case are that he believes the MEB failed to list his PTSD as a condition that failed retention standards; that the PEB underrated his degenerative disc; and that since the VA awarded him service-connected disability for both conditions, the Army should have done the same.  

2.  The applicant was involved in an explosion in Iraq that led to low back pain.  After his release from active duty in March 2004, he continued to experience and complain of low back pain which necessitated an MEB that referred him to a PEB.  The PEB rated his low back condition at a 10 percent disability rating and recommended his separation with entitlement to severance pay.  He concurred. 

3.  With respect to PTSD: 

	a.  PTSD was neither diagnosed as a condition nor did it fail retention standards.  In order for PTSD to be rated, it would have required a diagnosis and a finding of unfitness.  The evidence he provides does not show there was any unfitness due to this condition.  For example, he did not have persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalizations; he did not have persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment (no profile limits required and no commander evaluation limiting his performance of assigned duties); and he did not have persistence or recurrence of symptoms resulting in interference with effective military performance.  

	b.  During his MEB  physical examination, the physician noted that the applicant complained of some possible BH symptoms and the physician noted on the DD Form 2808 that the applicant might have PTSD.  The physician clearly annotated that such a diagnosis was preliminary as it was recommended that the applicant would need a psychiatric consultation to review his preliminary evaluation.  The physician went on to describe his observations on the DD Form 2807-1 and noted that the applicant had not sought any assistance for any BH symptoms and was not suicidal or upset at that time.  

	c.  His physical profile listed only his back condition that restricted his ability to perform the duties required of his former grade and military specialty.  Likewise, his commander's performance statement also noted that only his physical condition was affecting his ability to perform his duties; there was no mention of any BH issues.   

	d.  He was evaluated by military BH experts during his MEB processing and it was determined that no BH diagnosis existed at that time.  Since PTSD was neither diagnosed nor determined to have failed retention standards, there was no reason to list it on the MEB.  This means there was no reason to rate it by the PEB.  The fact that the applicant now believes he may or may not suffer from PTSD has no bearing on his disability processing in 2004. 

	e.  Neither the medical BH expert, the applicant's commander, the physical profile writer, nor the applicant documented any military duty performance inabilities related to any BH diagnosis at the time of the applicant's separation from the military.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions that would be unfitting for military duty while in the military can be compensable. 

4.  With respect to his back condition: 

	a.  An ROM examination on 26 August 2004 noted that three ROM measurements of his spinal flexion were, 62, 58, and 59 degrees; limited by pain, not mechanical.  In January 2005, an informal PEB found this condition unfit for and rated his spinal condition under VASRD 5299/5242 at 10 percent for limitation of flexion ROM due to pain.  

	b.  His back condition was rated at 10 percent because the PEB found that the applicant was able to flex his back to at least 62 degrees. The VASRD ratings for spinal conditions indicate that any flexion over 60 degrees is rated at 10 percent.  Notwithstanding other flexion ROMs below 60 degrees, it was not inappropriate for the PEB to find that the applicant's spine could flex over 60 degrees and be rated in accordance with that measurement.  There is nothing in the VASRD that requires that only a lower ROM testing result be used.  He does not provide medical evidence that indicates he should have received a higher rating for his back condition. 

5.  With respect to the VA rating, the fact that the VA awarded him service-connected disability compensation for his low back pain (at a higher rating than that awarded by the PEB) and/or any other condition is not evidence of any error in the military disability system in 2004.  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.  

6.  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.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his unfitting condition 10 percent disabling.  Since this rating was less than 30 percent, by law he was only entitled to severance pay. 

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.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

8.  Since his disability processing was accomplished in accordance with applicable regulation and since 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, there is no reason to reinstate him to active duty to undergo another MEB or PEB. 

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)                                         AR20130019519



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019519



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1