IN THE CASE OF:  	  

		BOARD DATE:  16 July 2015	  

		DOCKET NUMBER:  AR20140018046 


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 reconsideration of his previous request for a review of his disability evaluation pertaining to a mental health (MH) condition.

2.  The applicant states, in effect, he is providing a new argument and new evidence that was not previously considered. 

3.  The applicant provides:

* three letters, dated between 20 November 2006 and 10 September 2014
* 80 pages of various medical documents/forms, dated between 14 August 1993 and 22 October 2004
* one page of a Department of Veterans Affairs (VA) Rating Decision, dated 23 November 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140015770, on 15 October 2014.

2.  The applicant provides a new argument which warrants consideration of his case.  The applicant states:

	a.  He should have been medically retired from military service.  During the process of his medical evaluations, his unit commander, the Physical Evaluation Board Liaison Officer (PEBLO), and the administrative medical personnel didn't provide him with adequate counseling.  They were more concerned in keeping the unit's required number of Soldiers, at least on paper, looking good.  Yet, they managed to create documentation declaring he was fit for duty and he doesn't know how they did that.  

	b.  The combination of all his service-incurred conditions at the time, and even now, compromised his ability to return to full duty based on his military occupational specialty (MOS) and mission requirements.  His disabilities completely affected his performance and placed himself, his fellow Soldiers, and the unit mission in danger 

3.  As new evidence, the applicant provides:

	a.  A statement, dated 15 October 2003, from Dr. AF, a psychiatrist with the Instituo Psicoterapeutico de Puerto Rico, Puerto Rico (PR), wherein he stated the applicant was suffering from PTSD and presents severe anxiety, nightmares, flashbacks, irritability, insomnia, sadness, and startled response to noises.  He was using Paxil and Restoril and couldn’t return to combat duty (emphasis added).

   b.  One page of a VA Rating Decision, dated 23 November 2012, wherein it shows effective 8 February 2006 he was assigned a disability rating of:

* 50 percent (%) for major depressive disorder, claimed as post-traumatic stress disorder (PTSD)
* 10% for thoracolumbar myositis-strain
* 0% for non-erosive gastritis, with hiatal hernia and diverticuli of duodenal bulb

	c.  A VA letter, dated 6 May 2014, wherein it shows his overall combined disability rating was 80% effective 8 February 2006 and 90% effective 24 September 2013.  This shows he was assigned a disability rating of:

* 30% for rosacea, claimed as dermatitis and rash, effective 8 February 2006
* 10% for degenerative joint disease (DJD), myositis, cervical spine, effective 8 February 2006
* 10% for tinnitus, effective 8 February 2006
* 40% for thoracolumbar myositis-strain, effective 8 August 2008
* 20% for non-erosive gastritis, with hiatal hernia and diverticuli of duodenal bulb, effective 24 September 2013

4.  The applicant was born on 8 April 1964.  Having had prior active service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR) on 15 June 1989 in the rank/grade of specialist (SPC)/E-4.  He held MOS 92A (Automated Logistical Specialist) and he was assigned to the 456th Quartermaster Company, Guynabo, PR.

5.  He was ordered to active duty as a member of his USAR unit in support of Operation Enduring Freedom and he entered active duty on 2 January 2003.    He deployed to Iraq with his unit on 17 March 2003.

6.  He had been treated for stomach problems for 3 to 4 months prior to entering active duty and was found to be fit for deployment.  However, due to increased stress, irregular meals, and eating meals ready to eat (MRE) he began to have more stomach problems and pain.  He was vomiting frequently, lost 15 pounds, and became weak.  In May 2003, he was medically evacuated from Iraq due to his stomach problems and he was assigned to Fort Buchanan, PR. 

7.  He was subsequently treated at the U.S. Army Health Clinic, PR, for his stomach problems and, in October 2003, he was diagnosed with PTSD by a civilian psychiatrist.

8.  On 22 April 2004, he was given a permanent (P) profile of 3 in the P (physical capacity or stamina) area of the PULHES for chronic gastritis and peptic ulcer disease and referred to a medical evaluation board (MEB).  The profile indicated he was unable to do upper and lower body weight training

9.  In a narrative summary to the MEB, the treating physician stated, the applicant’s current condition was reviewed and at that time, he was physically able to perform all functional activities that would be required.  He recently completed the Army Physical Fitness Test (APFT) doing the 2 mile run, push-ups, and sit-ups.  He was able to do unlimited running, walking, biking, and swimming, but was unable to do upper and lower body weight training as he stated it aggravated his stomach problems.  He was a good Soldier who was able to do the activities required of a Soldier but he had a disease that caused him to be non-deployable.  For that reason, he was unable to continue and advance in the military.

10.  On 23 April 2004, he was promoted the rank/grade of sergeant (SGT)/E-5.


11.  In a psychiatric addendum to the MEB, the psychiatrist stated, in part:

   a.  The applicant was diagnosed with PTSD manifested by sleep disorder, nightmares, anxiety, irritability, and flashbacks.  His impairment for further military duty was marked and his impairment for social/industrial adaptability was definite.

	b.  His mental status examination revealed he had good eye contact, was cooperative, his speech was clear, his affect was anxious, he had no paranoia, no delusions, no suicidal or homicidal ideations,  He was cognitive, awake, and alert.  He complained of anxiety and stated it was controlled with medication.  He continued to have nightmares and was concerned when heard alarms because it reminded him of bombing alarms when he has been in Iraq.

	c.  It was recommended he be referred to a PEB for determination of fitness for duty as he did not meet retention standards under the provisions of Army Regulation 40-501.

12.  On 3 May 2004, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found he had been diagnosed with chronic gastric and peptic ulcer disease that existed prior to service (EPTS) and PTSD that were not unfitting and were medically acceptable under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The MEB recommended he be continued on active duty.

13.  After being counseled as to the findings and recommendations of the MEB, his rights and options, the applicant checked the block on the DA Form 3947 (MEB Proceedings) to show he did desire to continue on active duty and concurred with the MEB findings and recommendation. 

14.  On 4 May 2004, an informal PEB convened and determined the applicant was physically fit for duty and recommended he be returned to duty.  The DA 199 (PEB Proceedings) show the PEB found:

   a.  Based on a review of the medical and personnel evidence of record, and considering the physical requirements for reasonable performance of duties required by his grade and MOS, the PEB found the applicant fit for duty within the limitations of his profile.

   b.  He could perform his assigned duties despite his diagnosis of chronic gastric and peptic ulcer disease and this condition was controlled with medication.  He had also been diagnosed with PTSD but he did not have any profile restrictions with this condition.  
15.  He was honorably released from active duty on 16 May 2004 in the rank of SGT to the control of his USAR unit.  He was subsequently assigned to the 166th Regional Readiness Command (RRC), Fort Buchanan, PR, as the Warehouse Noncommissioned Officer (NCO).

16.  On 14 June 2004, after being counseled as to his rights and options and the findings and recommendation of the PEB, he waived his right to a formal hearing and concurred with the PEB findings and recommendation.   

17.  His record contains a DA Form 21668 (NCO Evaluation Report (NCOER)) he received for the rated period July 2004 through June 2005 for his duties as the Warehouse NCO, 166th RRC.  This NCOER shows he did not take the APFT during the rated period.  It also shows:

   a.  His rater rated him as "fully capable" and entered, in part, the following comments:

* makes sound decisions; takes responsibility for his actions
* accomplished many complex tasks through diligence and sound judgment 
* regularly worked long hours to accomplish the mission
* clearly demonstrated supervision skills
* demonstrated knowledge and insight experience on how to teach subordinates

   b.  His senior rater rated his overall performance as "successful, 3" and overall potential as "superior, 3" and entered the following comments:

* demonstrated potential for advancement
* willing to learn and grow

18.  His record contains a DA Form 2166-8 he received for the rated period July 2005 through June 2006 for his duties as the Warehouse NCO, 166th RRC.  This NCOER shows he passed the APFT in October 2005.  It also shows:

   a.  His rater rated him as "fully capable" and entered, in part, the following comments:

* maximizes limited resources to create excellent results
* projected excellent military bearing and appearance
* endurance and stamina to go the distance
* functions well under stress; has outstanding organizational skills 
* mission accomplishment, care of Soldiers, and leading by example are his priority

   b.  His senior rater rated his overall performance as "successful, 2" and overall potential as "superior, 3" and entered the following comments:

* promote now ahead of peers
* willing to learn and grow

19.  On 20 July 2006, the U.S. Army Human Resources Command (HRC) issued him a 20-year letter.  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

20.  On 1 August 2007, he was honorably released from the USAR by reason of completion of sufficient service for a nonregular retirement and he was transferred to the Retired Reserve.  

21.  His records do not contain any evidence and he hasn’t provided any evidence that shows he was diagnosed with PTSD or any MH disorder while serving on active duty or the USAR that permanently prevented him from performing the duties expected of him based on his rank and MOS.

22.  A Department of Defense (DOD) memorandum, dated 27 February 2013, directed the Service Secretaries to conduct a review of MH diagnoses for service members completing a disability evaluation process between 11 September 2001 and 30 April 2012, to determine if service members were disadvantaged by a changed diagnosis over the course of their physical disability process.

23.  In September 2014, based on the applicant's request, the DOD Physical Disability Board of Review (PDBR) MH Special Review Panel (SRP) conducted a comprehensive review of his submissions and records for evidence of inappropriate changes in the diagnosis of a MH condition during processing through the military disability system.  Only the MH condition was addressed by this review; any other conditions or requirements were outside the SRP scope.  The SRP:

   a.  Determined, by a unanimous vote, that there should be no change to his disability and retirement determination.  The SRP considered the appropriateness of changes in the MH diagnosis; the PEB fitness determination; and if unfitting, whether the provisions of VA Schedule for Rating Disabilities (VASRD) section 4.129 were applicable; and whether a disability rating recommendation in accordance with VASRD section 4.130 was made.  
   b.  The MH diagnosis was not changed during his processing through the Disability Evaluation System (DES).  Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference of the MH Diagnosis Review Project. Although the PEB adjudicated his case with a diagnosis of PTSD, the evidence did not support that diagnosis due to lack of Diagnostic and Statistical Manual of Mental Disorders criteria A and C for PTSD. 

   c.  The SRP agreed that VASRD section 4.129 was not applicable, his MH condition was not unfitting, and no change in the PEB fitness determination was warranted. 

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical DES (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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

25.  Army Regulation 635-40 also states 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/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.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

26.  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 at less than 30 percent.

27.  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.  On 22 April 2004, while serving on active duty, the applicant received a P-3 profile for chronic gastric and peptic ulcer disease, an EPTS condition, that limited his ability to do upper and lower weight training and he was referred to an MEB.  He had also been diagnosed with PTSD.

2.  On 3 May 2004, an MEB found his conditions of chronic gastric and peptic ulcer disease and PTSD were not unfitting, were medically acceptable, and recommended he be continued on active duty.  The applicant indicated he wanted to continue his military service and concurred with the MEBs findings and recommendation.

3.  On 4 May 2004, an PEB found his condition of chronic gastric and peptic ulcer disease was controlled with medication, he could perform his assigned duties within the limits of his profile, and his condition of PTSD did not have any profile restrictions.  The PEB determined he was physically fit for duty and recommended he be returned to duty.  He concurred with the PEB’s findings and recommendation.  

4.  On 16 May 2004, he was honorably released from active duty to the control of his USAR unit.  He continued to serve in the USAR for over 3 additional years and was honorably released from the USAR on 1 August 2007 and transferred to the Retired Reserve.  The NCOERs he received for the rated periods from July 2004 through July 2006 confirm he was able to satisfactorily perform his assigned duties.

5.  In September 2014, the PDBR SRP reviewed his PEB and determined the PEB’s fitness determination was appropriate.  

6.  Although the applicant has now submitted evidence that shows he was rated at 50% disabling for major depressive disorder, claimed as PTSD, this rating was assigned effective 8 February 2006, almost 2 years after the dates of his MEB/PEB.  The evidence of record shows his physical disability evaluation was conducted in accordance with law and regulation.  There does not appear to be an error or an injustice in his case.  

7.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining a Soldier's fitness to perform military duties.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability.

8.  In view of the foregoing, there is insufficient evidence 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 to amend the decision of the ABCMR set forth in Docket Number AR20140015770, dated 15 October 2014.



      ___________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)                                         AR20140018046





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ABCMR Record of Proceedings (cont)                                         AR20140018046



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