MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 August 2000
	DOCKET NUMBER:   AR2000037333

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier application to correct his records by showing that he was separated from active duty due to medical disability retirement rather than with physical disability severance pay.

APPLICANT STATES: He believes that the documents he previously sent were not considered because they were not individually described or addressed. 
He contends that he should have been rated for post-traumatic stress disorder (PTSD) and points out that one of his medical evaluation board (MEB) physicians has taken responsibility for not referring him for a mental health consultation.  He contends that he would have contested the physical evaluation board (PEB) rating if anyone had told him that tinnitus was a ratable condition.  He notes that the same MEB doctor has acknowledged an oversight in not establishing the cause of the tinnitus.  He believes he should have been rated at 50 percent disabled for PTSD and 20 percent for tinnitus.  He submits 11 exhibits to substantiate his case plus a 28 February 2000 revision of his VA rating.
  
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case on 
17 November 1999 (COPY ATTACHED).

Since the previous MOC did not individually describe or discuss the documents previously provided, Board consideration of the entirety of this submission is appropriate.

An undated letter from a retired sergeant first class who identifies himself as the applicant’s squad leader and later as his platoon sergeant relates that during the Gulf War the applicant had an allergic reaction to taking nerve gas pills.  “His lips swelled and he developed a bumpy red rash and sometimes became very nervous.”  During the ground war push their tactical vehicle was involved in an accident and the applicant sustained a head injury that caused ringing in the ears. Communicating with him during combat was difficult.  He could not hear because of the ringing in the ears.  The applicant was exposed to nearby explosions while destroying captured artillery with explosives.  The company was accidentally hit by friendly tank fire.  The applicant became even more nervous after a very close friend was killed.  After they returned to Fort Stewart, Georgia the applicant continued to experience rashes, swelling and fevers.  The applicant’s father died and he became very upset.  Then he was hospitalized with appendicitis.  The applicant was dropped from Basic Noncommissioned Officer Course (BNCOC) for failing an infantry skill that he had taught many times.  When the applicant was hospitalized for meningitis he started believing 

that something that he was exposed to during the Gulf War had made him sick and he was angry because he felt the Army doctors were not being forthcoming about the causes of his medical problems.  At about this time the applicant lost control of his anger during an instruction period and assaulted a soldier.  The writer relates that his experience has taught him that, sometimes, senior leadership can be insensitive to soldier’s mental problems.  After researching the subject, he is now convinced that the applicant was suffering from PTSD and depression.

A 31 March 1993 medical record shows that applicant was seen for follow-up on a 2 year old rash.  It notes “Patient is getting extremely frustrated.”

An undated fragment of a medical progress record state “He voices great anxiety about being an outpatient.”

A 5 May 1993 progress note records “suspect some significant anxiety component.”

A 15 December 1998 memorandum from the Chief Department of Medicine, Irwin Army Community Hospital states that the applicant was under his care in May and June 1993.  He was diagnosed with and found unfit because of chronic allergic urticaria and angioederma.  He was “also under emotional distress secondary to incidents that occurred during Operation Desert Storm.  It is known that emotional disturbances can contribute greatly to recurrence and chronicity of urticaria.” 

Another physician, Dr. S_____, made handwritten comments on the above  
15 December 1998 Memorandum.  He wrote that he concurred with the diagnosis and notes that he signed the applicant’s MEB along with the writer of the Memo and that the head of the Allergy-Immunology Department approved it.  He also concurred with the above physician concerning how disabled soldiers could become following combat whether the diagnoses was PTSD, mood disorder or dysthymia.  He continued “If there is a failure here with respect to obtaining a psychiatric evaluation as part of his medical board, then the failure was mine , not [the applicant’s]”.

A psychiatrist writes in a 21 April 1999 letter “I have diagnosed [the applicant] with Post Traumatic Stress Disorder which occurred during Desert Storm in 1991Based on review of symptoms and level of functioning during and after Desert Storm it appears [the applicant] was not capable of continuing his tour of duty.”

Dr. S_____ wrote in a 15 July 1999 memorandum to the VA that tinnitus should have been included in the applicant’s original MEB.  He stated that the onset of 
his tinnitus was linked to his work as an infantryman and that he was exposed to acoustic trauma as the result of his duty environments.  He observed that the benefit of the doubt should go to the service member.  An associated in-service hearing consultation record notes that the applicant was undergoing an MEB.  The comments on the 23 July 1993 testing report note that hearing sensitivity was within normal limits and speech understanding ability was excellent.  Periodic re-evaluation was recommended.

On the medical history submitted by the applicant for his 30 July 1993 physical evaluation he marked “yes” for numerous problems including: Frequent severe headaches, ear nose or throat trouble, skin diseases, pain or pressure in chest, frequent trouble sleeping, depression and excessive worry, and nervous trouble.

The applicant’s mother wrote on 16 November 1998 that following his medical discharge he was constantly sick.  He had nightmares and rashes.  He was very angry and depressed because neither the VA nor the Army would consider his different symptoms [to be separate ratable conditions].  She told him that the VA had called him for a job interview but he responded that his doctor told him he could not work there because of the medication he was taking.  He was later stabbed in a bar fight and was treated by the VA.  She was very worried because he carried a gun.   In April he was sick again with another bout of meningitis.  She became worried because whatever was making him sick was much more that chronic allergic urticaria and angioederma.  He was angry because his girlfriend was afraid to have his baby because of his unknown sickness.  His mother writes that she next saw him in court after he had been arrested on Federal charges.  She is very disappointed with the way he has been treated by the Army.  

The applicant’s sister wrote in an undated statement that when he returned from the Army she noticed a definite change in his personality and demeanor.  He was constantly sick.  He stayed home constantly for the first few months.  Her son came running to tell her that the applicant was sleeping on the couch and screaming in a bad dream.  She had noticed him during nightmares and he related to her that they were related to Desert Storm.  She believed that his experiences changed him.  She was especially afraid for him when she discovered that he carried a gun.  She states the applicant ”was depressed and angry about being discharged from the Army and his deteriorating health, I hope he gets the treatment that he needs because he did his duty to his country.” 

A 22 July 1999 handwritten note signed by the previous examiner acknowledged the applicant’s 25 June 1999 letter and previous supplements dated 4 June and 7 May 1999.

A fragment of a 25 January 2000 VA rating decision states that the rating on his tinnitus was increased to 10 percent effective 7 April 1999.  The applicant wrote on this form “The Army diagnosed this condition and I am entitled to a rating for this condition.”

A 13 January 2000 note from the applicant states that he was denied Federal employment because of his disability and complains that the people who have Federal jobs don’t want to do them.  He states that he would appreciate proper consideration of the evidence he has submitted.

An undated note (received 25 January 2000) to the staff of the Board complains about the treatment he has received.  

In an undated letter (received 17 March 2000) the applicant reports, in effect, that the VA has acknowledged that he had significant symptoms of PTSD at the time of the discharge.  He contends that the compensation start date of 7 April 1999 was based on the date he reopened his claim, but that he should have been rated for PTSD at the time of the discharge because the rating decision was based upon the statements from his MEB doctors.  He further avers that if his PTSD rated at 10 percent had been combined with the original rating  of 20 percent he would have been medically retired.  He again stated that he should have been rated for tinnitus.  He included a 26 February 2000 VA disability rating showing that the ratings for PTSD and tinnitus were both increased to 10 percent effective 7 April 1999.  The applicant has highlighted various details on the rating decision and made notations that restate his contentions that tinnitus and PTSD should have been rated by his PEB.

PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  The condition is described in the current DSM IV, pages 424 through 427.  Characteristic symptoms involve re-experiencing the traumatic event(flashbacks), avoidance of stimuli associated with the event or a numbing of general responsiveness and increased arousal these include difficulty falling asleep or staying asleep, recurrent nightmares, hypervigilance and exaggerated startle response, difficulty concentrating or completing tasks, changes in aggression

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to adversely effect the individual’s ability to perform assigned duties.  Physical disability separation pay or retirement compensates the individual for loss of a career.  The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual simply for the existence of a diagnosis or condition.  An example is a compensable rating for pain.  The Army could rate the same painful condition only if it impaired the soldier’s ability to perform assigned tasks. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  At the time of the MEB/PEB the applicant had physical ailments which included or were exacerbated by emotional/psychological factors that were noted at the time. The fact that his MEB doctors acknowledged these factors does not demonstrate that he had PTSD.  Rather, their recognition of those factors tends to show that had his situation been out of the norm for such cases they would have referred him for a mental health consultation.  Notwithstanding the psychiatrist’s April 1999 opinion that the applicant was disabled by PTSD at the time of his separation, there is no evidence that he had any separate emotional/ psychological condition that affected his performance of duty.

2.  The 23 July 1993 hearing consultation clearly shows the applicant did not have a ratable hearing condition. 
 
3.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  Additionally, the Army does not base disability ratings upon a diagnosis but upon the degree to which a condition impairs the soldier’s ability to perform duty.  In this case, the VA action and medical reports occurring years after the fact does not demonstrate that the applicant’s disability was rated incorrectly at the time of separation.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_  TDH __  _AAO___  __GJW__  DENY APPLICATION

                                                     Carl W. S. Chun
                                      Director, Army Board for Correction 
  of Military Records

					

INDEX

CASE ID	AR2000037333	
SUFFIX		
RECON		
DATE BOARDED	20000815	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.