IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007120 


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, amendment of his Physical Evaluation Board (PEB) proceedings to add attention deficit/hyperactivity disorder, and post-traumatic stress disorder (PTSD).  

2.  He states he was diagnosed with attention deficit/hyperactivity disorder, predominantly inattentive type 309.81 and chronic PTSD on 6 March 2013, but it was not added to his file since his packet had already been sent for review.  

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* DA Form 199 (Informal PEB Proceedings)
* Disability Evaluation System Proposed Rating
* Department of Veterans Affairs (VA) Rating Decision, dated 10 February 2013
* DA Form 199-2 (U.S. Army Physical Disability Agency (USAPDA) Revised PEB Proceedings)
* Medical Evaluation Board (MEB) Proceedings
* Extensive Health Record Documents

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the U.S. Army Reserve (USAR), on 6 November 2002 the applicant enlisted in the Regular Army.  He served in Iraq from 
2 December 2005 to 25 November 2006. 
2.  On 21 January 2009, an MEB was convened and considered the applicant's condition of right chronic iliotibial band (ITB) syndrome.  His conditions of scoliosis and herpes zoster in the left flank area with some post-herpetic pains were considered medically acceptable.  The board recommended that he be referred to a PEB.  

3.  On 10 February 2009, he agreed with the board's findings and recommendation.

4.  On 19 February 2009, a PEB was convened and considered the applicant's condition of ITB.  The board stated that the condition had been present since 2003 and since that time, he was deployed and promoted to the grade of sergeant (SGT)/E-5.  The PEB opined that his condition of ITB should not prevent him from performing his job as a 63B (Construction Equipment Repairer) and determined he was fit for duty.  

5.  On 2 March 2009, he agreed with the board's findings and recommendation.

6.  On 10 October 2012, an MEB was again convened and considered the applicant's condition of ITB, right with chronic pain and limited active range of motion (ROM) and degenerative disc disease.  Both conditions were considered medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The board recommended that he be referred to a PEB.  The MEB also considered his condition of Sleep Apnea, but it was unsubstantiated. Additionally, the following conditions were considered and determined to be medically acceptable:

* Left Elbow Lateral Epicondylitis
* Right Foot Sesamoiditis
* Status Post Nevus Removal Right Lower Back
* Primary Snoring
* Bilateral Tinnitus
* Lumbar Myositis with Sciatica and Limited ROM
* Adjustment Disorder with Anxiety and Depressed Mood

7.  On 6 November 2012, he agreed with the board's findings and recommendation.

8.  In a letter from the VA, dated 10 February 2013, the representative proposed the following unfitting disabilities as it related to the applicant's military service:
	
* Degenerative Disc Disease L5-S1 Lumbar Myositis and Sciatica,
20 percent (%)
* Right ITB with pain and limited active ROM, 10%
* Left Elbow Lateral Epicondylitis, 10%
* Tinnitus, 10%
* Adjustment Disorder with Anxiety and Depressed Mood, 10%

9.  His VA claim is void of any evidence that shows he requested that PTSD or attention deficit/hyperactivity disorder be considered in his claim.

10.  On 14 February 2013, a PEB was convened and considered the applicant's condition of degenerative disc disease L5-S1 and right ITB with pain and limited ROM.  The PEB found these conditions precluded him from performing his duties as a 91B (Wheeled Vehicle Mechanic).  The board also found he was physically unfit and recommended a disability rating of 20% for degenerative disc disease and 10% for ITB for a combined disability rating of 30% with permanent disability retirement.  The other conditions listed in his MEB, and cited in paragraph 6 of this Record of Proceedings, met the medical retention standards and therefore were not unfitting.  In reference to his condition of adjustment disorder with anxiety depressed mood, the PEB stated that the condition did not constitute a physical disability.

11.  On 26 February 2013, the PEB Liaison Officer (PEBLO) signed the DA Form 199 stating that "I have informed the Soldier of the findings and recommendations of the PEB and explained to the Soldier the result of the findings and recommendations. 

12.  On 26 February 2013, the applicant concurred with the board findings and recommendations and waived a formal hearing of his case.  Additionally, he initialed the block indicating that he did not request reconsideration of his VA ratings.

13.  On 28 May 2013, he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, permanent disability.  He was credited with 10 years, 10 months, and 28 days of active service.  

14.  The applicant provided extensive medical records dating as early as his enlistment in the USAR in 1997.  There are no documents dated prior to 5 March 2013 that show he suffered with and/or was diagnosed with attention deficit/hyperactivity disorder or PTSD.  However, a health record document, dated 6 March 2013, shows he was seen at the Psychiatric Health Clinic at Fort Sam Houston, TX and the psychiatrist diagnosed him with attention deficit/hyperactivity disorder and chronic PTSD.  The document stated he did not meet the criteria for psychiatric admission as a patient.  He was able to currently commit to being safe and had a safety plan if his conditions worsen.  A review of the relevant risk factors and strengths indicated his ability to continue and any needed care could be conducted as an outpatient at that time.  

15.  On 17 July 2013, the USAPDA administratively corrected the applicant's PEB findings and recommendations, dated 14 February 2013.  The agency stated that in reference to the diagnosis of adjustment disorder with anxiety and depressed mood which was determined not to constitute a physical disability, it was found to meet the retention standards in accordance with chapter 3, Army Regulation 40-501 and was not unfitting.  The administrative correction did not change the applicant's disposition or rating.  

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was found unfit for duty for degenerative disc disease L5-S1 and right ITB with pain and limited ROM.  The other conditions listed on his MEB and PEB of left elbow lateral epicondylitis, right foot sesamoiditis, status post nevus removal right lower lack, primary snoring, bilateral tinnitus, and lumbar myositis with sciatica and limited ROM were considered and determined to be medically acceptable.  Additionally, the condition of adjustment disorder with anxiety and depressed mood was also evaluated and the USAPDA found the condition to meet retention standards of Army Regulation 40-501 and was not unfitting.

2.  On 26 February 2013, he concurred with the board findings and recommendations and waived his right to a formal hearing.  Additionally, he initialed the block indicating that he did not request reconsideration of his VA ratings. 

3.  His record shows that 6 March 2013 was the first time he was diagnosed with attention deficit/hyperactivity disorder and chronic PTSD.  However, the psychiatrist stated he did not meet the criteria for psychiatric admission as a patient, he was able to commit to being safe, and he had a safety plan if his conditions worsen.  He also stated that after a risk factor review, the applicant's treatment could be conducted as an outpatient at that time.  

4.  There is no evidence and he has not provided any evidence to show that being diagnosed with attention deficit/hyperactivity disorder and chronic PTSD rendered him unable to perform his duties.  As stated in paragraph 16b of this Record of Proceedings, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  It is necessary to compare the nature and degree of physical disability present with the requirements of the duties the applicant may reasonably be expected to perform.

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.  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)                                         AR20140007120





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007120



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1