IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20150008711 


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 a reexamination of his Physical Evaluation Board (PEB) results and increase in his percentage of disability.

2.  The applicant states, in effect, his doctor indicates that he has significant post-traumatic stress disorder (PTSD) and he does not believe it was considered by the PEB.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) medical treatment records.

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 AR20140001534, on 5 March 2014.

2.  The applicant enlisted in the Regular Army on 14 July 1993.  He completed his training as a food service specialist and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 4 January 1999.  He deployed to Afghanistan during the period 20021130 – 20030909 and to Iraq during the periods 20040325 – 20050306 and 20060813 - 20071108.

3.  On 11 June 2011, he was retired by reason of temporary disability and was placed on the Temporary Disability Retired List (TDRL) with a 70% disability rating for anxiety disorder not otherwise specified and major depressive disorder (MDD).

4.  On 12 April 2013, a PEB convened in the National Capital Region which determined that the applicant had the unfitting conditions of anxiety disorder not otherwise specified (NOS) and MDD and recommended that he be permanently retired by reason of permanent disability with a 70% disability rating.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case on 7 May 2013.

5.  On 13 May 2013, he was removed from the TDRL and he was permanently retired on 14 May 2013 with a 70% disability rating.  

6.  The applicant applied to this Board on 22 June 2013 requesting a mental health diagnosis review and in the processing of his case an advisory opinion was requested through the Department of Defense Physical Disability Board of Review (PDBR) for review of his case by the Mental Health Special Review Panel (SRP).

7.  The SRP agreed that the PEB adjudication of unfitting anxiety disorder NOS and MDD was well supported by the evidence and were combat-related.  After due deliberation, the SRP opined that the applicant was not entitled to a higher rating.  The advisory opinion was provided to the applicant.

8.  Documents provided by the applicant show that he was granted a 70% disability rating for PTSD by the VA.

9.  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.

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

11.  Title 38, USC, 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.

12.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and his retirement by reason of permanent disability was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a disability rating of 70 percent for his unfitting conditions as they existed at the time of his PEB hearing.  The applicant agreed with the findings and recommendations and elected not to appeal or request a formal board.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show he was not afforded proper disability processing or that the evaluation and rating rendered by the PEB were incorrect.  This is further reinforced by the review conducted by the PDBR.

4.  The fact that the VA, in its discretion, awarded the applicant the same disability rating (70%) for PTSD instead of the PEB diagnosis of anxiety disorder NOS and MDD is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional benefits from the Department of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR20140001534, dated 5 March 2014.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20150008711





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ABCMR Record of Proceedings (cont)                                         AR20150008711



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