IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20150007826 


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 disability findings to add the following medical conditions to his existing unfitting condition and increase his disability rating for medical retirement:

* post-traumatic stress disorder (PTSD)
* insomnia
* severe headaches
* blurred vision
* left arm condition

2.  The applicant states:

	a.  In 2009 after being injured while deployed to Iraq and after having surgery on his left shoulder, his unit was scheduled for deployment and he was told he was being released from active duty.  This was his second deployment; his first deployment was in 2004 to Afghanistan.

	b.  He is now being treated for PTSD, insomnia, severe headaches, blurred vision, and a left arm condition.

	c.  He should be medically retired.

	d.  He should have been considered by an evaluation board before he was released.

	e.  He completed 24 years of service between the U.S. Army Reserve, Regular Army, and Army National Guard (ARNG).  He has deployed twice.

	f.  Nightmares keep him up at night, his vision impairment keeps him from driving, and he depends on other people to get him to his appointments.

	g.  He has a 20-percent disability rating by the Department of Veterans Affairs (VA), but it is in appeal.  He is in court for social security benefits and he was retired by reason of disability from his government job.

3.  The applicant provides:

* VA Rating
* disability retirement documentation
* doctors notes
* active duty orders
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 22 April 2005 and 4 September 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.  Having prior enlisted service in the U.S. Army Reserve and Regular Army, the applicant enlisted in the ARNG on 17 August 1996.

3.  He was ordered to active duty as a member of the ARNG on 1 February 2004 in support of Operation Enduring Freedom.  He served in Afghanistan from 30 March 2004 to 24 March 2005.  He was released from active duty on 22 April 2005.

4.  He was promoted to sergeant effective 1 February 2007.

5.  He was ordered to active duty as a member of the ARNG on 31 January 2008 in support of Operation Iraqi Freedom.

6.  A DA Form 2173, dated 10 July 2008, shows he injured his shoulder on 6 February 2008 during deployment preparation activities.

7.  He provided a letter from a neurologist, dated 15 April 2009, which states the applicant was evaluated for headaches.  He reported his headaches got worse in the past 1 1/2 years.  He started training in January 2008 to go to Iraq and he injured his left shoulder while training in Indiana.  At that time his headaches started getting worse.

8.  DA Forms 3349 (Physical Profile), dated 22 May 2008 and 26 July 2008, show he was issued a temporary physical profile rating of 3 in the upper extremities factor for left shoulder pain (rotator cuff tear).

9.  Records show he underwent left shoulder surgery in September 2008.

10.  In May 2009, a medical evaluation board (MEB) diagnosed him with left shoulder pain status post-subacromial decompression (outpatient arthroscopic surgical procedure to increase the size of the shoulder area and reduce the pressure on the muscle), superior labral anterior-posterior (SLAP) repair (outpatient arthroscopic surgical procedure to repair a tear of the biceps tendon), distal clavicle excision/impingement syndrome, and migraine headaches.  The MEB recommended his referral to a physical evaluation board (PEB).  On 21 May 2009, he concurred with the board's findings and recommendation.

11.  Item 30 (Continuation) of his DA Form 3947 (MEB Proceedings) states, in part:

	a.  "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947."

	b.  "The DA Form 3947 includes all my current medical conditions and whether or not the meet medical retention standards."

	c.  "I agree that this MEB accurately covers all my current medical conditions."

12.  On 22 June 2009, a PEB found him physically unfit due to chronic left shoulder pain due to injury in preparation for deployment to Afghanistan, status post-subacromial decompression, SLAP lesion repair, and distal clavicular excision.

13.  The PEB considered the other MEB diagnosis (migraine headaches).  Even though the military treatment facility determined this condition failed retention standards, the PEB determined this condition was not unfitting and therefore not ratable based on the clinical records of the case manager who indicated the applicant stopped taking headache medication and the migraines were no longer a clinical problem.

14.  The PEB recommended a 10-percent disability rating and separation with severance pay.  On 24 June 2009, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

15.  On 4 September 2009, he was honorably discharged from active duty by reason of disability with severance pay.

16.  He was honorably discharged from the ARNG on 1 December 2009 for being medically unfit for retention.

17.  He provided a letter from the VA, dated 22 August 2012, which states he was followed for diagnoses of low back pain, migraines, and PTSD.  The applicant reported his low back pain began when he was in the military after an injury to his back in Germany.

18.  He provided a VA Rating Decision, dated 25 October 2013, which shows he was granted service connection for:

* left shoulder glenoid (shoulder) SLAP lesion, subacromial bursectomy, and anterior acromioplasty (claimed as left shoulder condition) (20 percent)
* left shoulder residual scars due to glenoid SLAP lesion, subacromial bursectomy, and anterior acromioplasty (0 percent)

19.  He provided a letter from his physician, dated 9 April 2014, who states:

	a.  The applicant has a history of left shoulder pain (history of left labral repair and most recently diagnosed with partial left rotator cuff tear), migraines, PTSD, and vision changes.

	b.  He has been evaluated by orthopedics for his shoulder and is currently in physical therapy.

	c.  He has been evaluated by neurology for his migraines and vision changes.

	d.  He has been evaluated by ophthalmology for his vision changes.

	e.  He has been followed by the mental health clinic for his PTSD symptoms.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.

21.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

22.  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.

23.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired and requests addition of the following medical conditions to his existing unfitting condition and an increase in his disability rating:

* PTSD
* insomnia
* severe headaches
* blurred vision
* left arm condition

2.  His MEB did not list these conditions as medical conditions/defects and he agreed that the MEB accurately listed all of his current medical conditions.  He provided no evidence to show these conditions rendered him unfit to perform his military duties.  As such, there is insufficient evidence with which to add these medical conditions as unfitting conditions.

3.  The evidence shows a PEB found him physically unfit due to chronic left shoulder pain due to injury in preparation for deployment to Afghanistan, status post-subacromial decompression, SLAP lesion repair, and distal clavicular excision.

4.  There is insufficient evidence to show this unfitting condition was improperly rated by the PEB in 2009.  In addition, he concurred with the PEB findings and recommendation.  There is no basis for granting the applicant's request to increase his disability rating.

5.  The rating action by the VA does not demonstrate an error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

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)                                         AR20150007826



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ABCMR Record of Proceedings (cont)                                         AR20150007826



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