IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140018486 


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 he retired due to physical disability in lieu of discharged due to physical disability with severance pay.

2.  The applicant states:

* his medical evaluation board (MEB) documentation stated he would not require surgery on his shoulder for at least 5 years
* he was diagnosed with post-traumatic stress disorder (PTSD) when he returned from deployment, but the diagnosis was changed to anxiety disorder
* he appealed the MEB findings, but his appeal was denied and he was discharged on 13 February 2013
* he was in so much pain that he went to see a civilian doctor on 17 July 2013 and required left shoulder surgery on 26 July 2013, approximately 5 months after his discharge
* he had a left partial supraspinatus (small muscle of upper back) and infraspinatus (rotator cuff muscle) tear, left anterior inferior labral (shoulder) tear, left capsular tear and rotator interval injury
* he continues to experience difficulties with his shoulder to this day
* he had new magnetic resonance imaging (MRI) done on 25 August 2014 and will be seeing an orthopedic doctor within the Department of Veterans Affairs (VA) system in November
* on 5 December 2011, he was sent to a psychologist through Military OneSource who diagnosed him with PTSD; however, his MEB states he had an anxiety disorder
* he had the Ruff Neurobehavioral Inventory (RNBI) test on 29 September 2014 which showed a diagnosis of PTSD and recurrent, severe, chronic and major depressive disorder without psychotic features

3.  The applicant provides:

* pages 3 and 4 of his MEB Narrative Summary, dated 18 May 2012
* Smith Psychological Services Professional Corporation (PC), psychological assessment intake and treatment plan, dated 5 December 2011
* medical documents from St. Francis Orthopaedic Institute Columbus, dated between 17 July 2013 and 19 December 2013
* Columbus Diagnostic Center MRI report, dated 25 August 2014
* Landmark Counseling Services, Limited Liability Company (LLC), diagnostic impression, dated 29 September 2014
* RNBI Score Report, dated 29 September 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 August 1998.  On 15 December 2000, he was released from active duty under honorable conditions for unsatisfactory performance and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He was credited with 2 years, 4 months, and 10 days of net active service.

2.  On 19 July 2004, he enlisted in the Army National Guard (ARNG).  As a member of the ARNG, he was ordered to active duty on 4 April 2007 in support of Operation Iraqi Freedom.  He injured his left shoulder while at Camp Atterbury, IN, for pre-deployment training, requiring medical treatment.  He was placed on medical hold at Fort Knox, KY, on 23 May 2007 as a result of the injury, then returned to Fort Benning, GA, in August 2007 for further treatment and eventual MEB and physical evaluation board (PEB) action when his injury did not respond to the conservative treatment provided.

3.  On 22 February 2008, the PEB found the applicant physically unfit due to degenerative arthritis in his left shoulder, recommended a combined rating of 20 percent, and recommended separation with severance pay.  On 23 February 2008, the applicant did not concur with the findings and demanded a formal hearing with a personal appearance.

4.  On 25 March 2008, the PEB found the applicant fit for duty and the applicant concurred with the findings.  On 1 July 2008, he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), honorably releasing him from active duty due to the completion of required active service and returning him to the control of his ARNG unit.  He was credited with 1 year, 2 months, and 28 days net active service during that period.

5.  Having been found fit for duty, the applicant then enlisted in the Regular Army for the second time on 6 August 2008.  He subsequently deployed to Iraq from 21 June 2010 through 2 June 2011.

6.  Records indicate he noticed the onset of neck pain while deployed to Iraq.  He received treatment in the form of pain management beginning 1 August 2011, including epidural steroid injection, medial branch nerve block, radio frequency ablation, and medication therapy with no lasting relief.  He additionally attended physical therapy for over 2 months and was found not to be a candidate for surgery on 2 February 2012.  An electromyography study was performed on 6 March 2012 and no signs of cervical radiculopathy (nerve dysfunction) were found.  On 27 March 2012, he was found not fit for duty by the Physical Medicine Department at Womack Army Medical Center and referred into the Integrated Disability Evaluation System (IDES) for left shoulder and neck pain.

7.  A psychological assessment intake and treatment care plan from Smith Psychological Services, PC, dated 5 December 2011, shows the applicant sought treatment for and was diagnosed with PTSD by that clinic.

8.  A Department of Veterans Affairs (VA) Compensation and Pension Psychological Evaluation was administered to the applicant at the Fayetteville, NC, VA Medical Center on 7 May 2012 as part of the IDES evaluation for PTSD and was he diagnosed with anxiety disorder (not otherwise specified (NOS)).  There is no evidence in the applicant's military treatment record that he was previously or subsequently diagnosed with PTSD by a military or VA medical provider.

9.  An MEB Narrative Summary, dated 18 May 2012, shows he did not meet medical retention standards for the diagnosis of multi-level degenerative disc disease (DDD) of cervical spine.  The prognosis statement with regard to multi-level DDD of cervical spine states his DDD continues to deteriorate over time but avoidance of impact activity and muscle strengthening can slow deterioration significantly.  The service member may need surgery in the future, but due to age and current condition, will likely not require surgery for well over 5 years.  It is unlikely that there will be significant improvement or worsening of the condition during the next 5 years.  The rigors of soldiering would most likely worsen the service member's condition.  This condition significantly limited or interfered with his performance of duty and was disqualifying under the provisions of Army Regulation 40-501 (Standards of Medical Fitness)

10.  The MEB Narrative Summary also shows three diagnoses – anxiety disorder not otherwise specified (NOS), tension headaches, and scars – all met medical retention standards, did not significantly limit or interfere with his performance of duty, and were not disqualifying under Army Regulation 40-501.  Under anxiety disorder (NOS), VA psychology and military psychiatrists agree on the diagnosis and have found no significant effect on activities of daily living or interference with performance of duty.

11.  His DA Form 3947 (MEB Proceedings), dated 23 May 2012, refers the applicant to a PEB based on diagnoses of multi-level DDD of cervical spine and multi-directional left shoulder instability.  The proceedings noted the diagnoses of anxiety disorder (NOS), tension headaches, and scars were not disqualifying.  The applicant signed the document on 1 June 2012, agreeing with the board's findings and acknowledging the MEB accurately covered all his medical conditions.

12.  His DA Form 199 (Informal PEB Proceedings), dated 20 July 2012, shows the PEB convened on the date of the document and determined the medical conditions of DDD of cervical spine and multi-directional left shoulder instability were unfitting.  He was given a combined rating of 20 percent.  The medical conditions of anxiety disorder, tension headaches, and scars were determined not to be unfitting.  The applicant signed the document on 30 August 2012, concurring with the findings and waiving a formal hearing of his case.  He did, however, request VA reconsideration of his disability ratings.

13.  A memorandum from the National Capital Region PEB to the applicant, dated 4 October 2012, notified him that his request for VA reconsideration of the 20-percent rating for his unfitting conditions was considered by the VA, but the VA determined no change was warranted.

15.  On 13 February 2013, he was honorably discharged by reason of combat-related disability with severance pay.  He was credited with 4 years, 6 months, and 8 days of net active service during this period.

16.  He provided medical documentation showing he was evaluated and received medical treatment at the St. Francis Orthopaedic Institute Columbus for his left shoulder pain starting in July 2013.  Evaluation and treatment included x-rays, MRI, injections, and left shoulder arthroscopic evaluation with an open anterior shoulder capsular reconstruction and repair.

17.  He also provided documentation from Landmark Counseling Services, LLC, dated 29 July 2014, showing his self-referral to their services for behavioral health evaluation and treatment.  Medical professionals from this counseling service administered the RNBI to him, a self-report questionnaire designed to assess the most important dimensions of an individual's life activities and to measure the current status of individuals whose lives have been altered by a catastrophic event.

18.  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 VA Schedule for Rating Disabilities (VASRD).

19.  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.

20.  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.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

21.  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.

22.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred into the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a MEB
* receive a permanent physical profile rating of 3 or 4 and are referred by a Military Occupational Specialty Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	d.  The mere presence of medical impairment does not in and of itself justify a finding of unfitness.  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.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he retired due to physical disability was carefully considered.

2.  He was properly discharged from the Regular Army under the provisions of Army Regulation 635-40, chapter 4, after referral to an MEB and subsequent PEB which found he did not meet medical retention standards for two unfitting conditions, DDD of cervical spine and multi-directional left shoulder instability.  The conditions of anxiety disorder (NOS), tension headaches, and scars were not found to be unfitting.

3.  The applicant was diagnosed during the IDES process with anxiety disorder (NOS) despite the fact that a civilian doctor diagnosed him with PTSD.  There is no evidence of record he was diagnosed by a military or VA medical care provider with PTSD, that his diagnosis was altered during the IDES process by VA or Army medical professionals, or that the symptoms and severity of this condition interfered with the satisfactory performance of his duties, rendering him unfit for continued military service.

4.  After establishing the fact that he was unfit because of physical disability and that he was entitled to benefits, the PEB decided the percentage rating for each unfitting compensable disability using the VASRD provided by the VA during the IDES process.  Upon appeal of the ratings by the applicant, the VA upheld the original rating determinations.

5.  Title 10, U.S. Code, 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.  The applicant had neither a disability rating of 30 percent nor did he have 20 years of service to render him eligible for a physical disability retirement.

6.  In view of the foregoing evidence, there is no basis for granting the applicant's request.

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)                                         AR20140018486



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ABCMR Record of Proceedings (cont)                                         AR20140018486



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