IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140015854 


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 his records to show an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The applicant states:

	a.  His back and neck injuries were not properly evaluated and he was never evaluated for post-traumatic stress disorder (PTSD).

	b.  After he was assigned a 20 percent disability rating, he inquired with his Physical Evaluation Board Liaison Officer (PEBLO) and with the Office of the Staff Judge Advocate on how to appeal his disability rating.  In both cases, he was told he was lucky to have received a 20 percent disability rating and that an appeal could reduce or take away his rating.  The information caused fear, so he decided not to appeal his Medical Evaluation Board (MEB) for fear of losing the 20 percent disability rating.

	c.  In 2009, he was told that MEB regulations had changed and he could appeal, but he was also told he could not submit additional medical documentation outside of the documentation the MEB used for his initial rating.

	d.  He did not know about PTSD symptoms or depression while he was in the Army.  However, he was diagnosed by the Department of Veterans Affairs (VA) with severe depression, PTSD, and panic and anxiety disorder.  He also suffers from chronic adjustment disorder, which is also annotated on VA medical records.

	e.  As of today, his stomach issues continue and after years of vomiting, pain nausea, and rapid weight loss, he was diagnosed with idiopathic gastroparesis /dyspepsia.  As for his sinusitis, he suffers from constant nasal post-drip, which causes him constant nasal congestion, chronic nasal discharge, and whooping cough.  VA medical records include a more detail explanation of his condition, follow-ups, and progress, if any.

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the VA, dated 14 February 2014
* the first page of a VA Rating Decision, dated 10 December 2008
* a 10-page VA Rating Decision, dated 10 April 2009
* the first page of a 4-page letter from the Colorado Springs Health Partners, P.C., undated
* 11 pages of VA Progress Notes, printed on 11 June 2009

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 enlisted in the Regular Army on 20 May 2003.  He was awarded military occupational specialty 45K (Armament Repairer) upon completion of his initial entry training.  He deployed to Iraq from 17 December 2004 through           19 December 2005.

3.  His MEB proceedings are not available for review.

4.  A DA Form 199 shows that an informal PEB convened on 15 April 2008 to consider his case.

	a.  The PEB assigned a 10 percent disability rating for chronic mid-back pain and a 10 percent disability rating for chronic neck pain.  The PEB concluded the applicant was physically unfit and recommended his separation with severance pay with a combined 20 percent disability rating.  

	b.  The PEB indicated that five other conditions listed as medical board diagnoses were determined to meet retention standards.  The PEB found the conditions not to be unfitting and therefore not ratable.  

	c.  The PEBLO indicated he had informed the applicant of the PEB decision and explained to him the results of the findings and recommendations and his legal rights pertaining thereto.  

	d.  The applicant concurred with the proceedings and waived a formal hearing of his case.

5.  He was discharged from the Army on 1 August 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of non-combat related disability with entitlement to severance pay.  

6.  The applicant provided:

	a.  A letter from the VA, dated 14 February 2014, informing him of his option and of the procedures to appeal his disability rating to the Department of Defense (DOD) Physical Disability Board of Review (PDBR).

	b.  The first page of a VA Rating Decision, dated 10 December 2008, that shows he was granted 30 percent service-connected disability compensation by the VA for major depressive disorder.

	c.  a 10-page VA Rating Decision, dated 10 April 2009, that shows he was granted a combined 70 percent service-connected disability compensation as follows:

* 20 percent for degenerative disc disease
* 10 percent for allergic rhinitis
* 10 percent for chronic sinusitis with turbinate surgery
* 10 percent for cervical degenerative disc disease and herniated nucleus pulposus
* 10 percent for left upper extremity radiculopathy 
* 10 percent for facial acne
* 0 percent for gastroesophageal reflux disease, irritable bowel syndrome, dyspepsia, and hematochezia
* 0 percent for cervogenic headaches

	d.  The first page of a 4-page letter from the Colorado Springs Health Partners, P.C., undated, that shows he was diagnosed with gastroparesis (delayed gastric emotying).

	e.  11 pages of VA Progress Notes, printed on 11 June 2009, that show a diagnosis of PTSD and depression.

7.  The applicant's record is void of medical documentation that indicates he was suffering from an unfitting PTSD condition or any other unfitting medical condition during his active duty service, aside from "chronic mid-back pain and chronic neck pain."  

8.  There is no evidence indicating he appealed his disability rating to the DOD PDBR.  

9.  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.

	a.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  It states the Narrative Summary (NARSUM) to the MEB is the heart of the disability evaluation system.  In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures.


	c.  It 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.

	d.  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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

11.  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 error or injustice on the part of the Army.  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 contends his records should be corrected to show an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The evidence shows a PEB diagnosed him with chronic mid-back pain and chronic neck pain.  The PEB found him medically unfit and assigned a 20 percent disability rating.  He concurred with the PEB findings and recommendations.  Accordingly, he was discharged with severance pay.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The 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.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

4.  The VA determined that he suffered from several other medical conditions, including PTSD, which were not identified as unfitting at the time of his discharge from active duty.  The fact that the VA gave these conditions a rating does not mean any of the conditions were misdiagnosed by the Army.  There is no evidence to show he was ever unfit to perform his duties due to those other conditions.

5.  The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations.  There is no evidence of error or injustice in this case.

6.  Based on the foregoing, there is no basis to grant the 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)                                         AR20140015854



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140015854



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1