RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 January 2008 DOCKET NUMBER: AR20070007633 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Ms. Michael J. Fowler Analyst The following members, a quorum, were present: Mr. Gerald J. Purcell Chairperson Mr. Donald L. Lewy Member Mr. David W. Tucker Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his disability with severance pay discharge be changed to a medical retirement. In an undated letter, he additionally requested that his disability with severance pay be changed to a disability retirement with a rating greater than 30 percent. 2. The applicant states, in effect, that his Medical Evaluation Board (MEB) denied him the benefits he rightfully deserved and used derogatory remarks made by his platoon leader to reinforce their decision. While serving in the Florida Army National Guard (FLARNG) he was called to active duty in support of Operation Iraqi Freedom. He was deployed to Iraq and served as an infantryman squad leader detailed on special assignments. On several occasions, his unit came under fire by Scud missiles and automatic fire. 3. The applicant states that during this time he had little contact with his platoon leader (Lieutenant B______, who later stated that the applicant was never in danger while serving in Iraq). The applicant started having medical problems with his hernia and was medically evacuated out of the country to Germany where he had surgery. He returned to the States and was assigned to a medical holding company. While on leave, his wife stated that something was wrong with him, that he wasn't the same. 4. The applicant states that he went to three different Army counselors and they all stated that nothing was wrong with him. He continued to go to counseling and was later diagnosed with Post Traumatic Stress Disorder (PTSD) and other ailments by Navy physicians. He states that a Physical Evaluation Board (PEB) considered his case and came with back with 10 percent rating for cervical pain and zero percent for hearing loss. He appealed their decision and the cervical pain rating went to zero percent. He was not given a chance to decline disability severance pay. He further states that he received a call from the medical board stating the board used the recommendation of his platoon leader instead of his doctors. 5. The applicant states since this application for a records correction he has received an overall rating from the Department of Veterans Affairs (DVA) of 80 percent. He further stated that the Army did not rate him for all his ailments. 6. The applicant provides Tab 1 through Tab 37 as identified on a separate sheet. CONSIDERATION OF EVIDENCE: 1. The applicant had prior service. He last enlisted in the FLARNG on 3 October 2000. His civilian job was a plane captain conducting aircraft inspections and launch/recovery aircraft. On 2 January 2003, he was ordered to active duty in support of Operation Iraqi Freedom. 2. A MEB Narrative Summary (NARSUM) indicates the applicant was evaluated on or about 21 August 2004, at which time he was diagnosed with: a. PTSD, chronic, severe as manifested by sleep disturbance, hyper arousal, lengthy disassociation, intrusive nightmares, memory problems, and extreme levels of irritability with intermittent aggression. b. Partner relationship problems, as manifested by increasing tension of a three-year marriage since the exacerbation of his PTSD. c. Nicotine dependence, as manifested by long-term one pack per day use of cigarettes. Precipitating stress was severe and consisted of combat involvement in two Gulf Wars, as well as witnessing four separate incidents which led to the graphic and violent deaths of other service members. d. Agoraphobia without history of panic disorder, as manifested by physical reaction and anxiety when in groups of people which impairs function. 3. The NARSUM indicated that the applicant did not meet the retention standards for retention. 4. A Commander's Statement, dated 10 April 2005, shows the applicant's commander stated that the medical conditions affecting the applicant were high frequency hearing loss; PTSD, post traumatic stress combat related; degenerative joint disease; and depressive disorder. The commander further stated that the applicant was not medically able to perform his duties as a squad leader in peacetime or wartime because he was unable hear or to carry, walk, or run to carry on the mission. 5. An additional MEB NARSUM shows that the applicant was reevaluated on or about 12 July 2005, at which time his diagnoses were unchanged but with an additional diagnosis of atypical depression (depression disorder not otherwise specified), combat related as associated with increased nonproductive time, anergy, amotivation (sic), decreased libido with weight gain and depressed mood. 6. A DA Form 3349 (Physical Profile), dated 1 August 2005, shows the applicant was issued a permanent profile for "PTSD, SEVERE DJD OF NECK, SEVERE HEARING LOSS." The document further indicated he was able to carry and fire his individual assigned weapon. 7. On 8 August 2005, an MEB referred the applicant to a PEB for diagnoses of: (1) PTSD, chronic, combat related; (2) sensor neural hearing loss, bilateral; (3) cervical spondylosis without myelopathy; (4) agoraphobia without panic disorder (medically acceptable); (5) partner relationship problems (medically acceptable); and (6) nicotine dependence (medically acceptable). 8. On 22 September 2005, the PEB requested clarification on several issues regarding the applicant's PTSD. 9. On 11 October 2005, an MEB addendum stated that the applicant was unable to report to his previous civilian job due to difficulties with focus, concentration, and multi-tasking. Prior to his current mobilization, while he served in the active Navy, he became grouchy and irritable with frequent thoughts about gruesome deaths. The applicant stated that he thought that he was going to die and lived in fear while serving in Iraq. On one occasion his unit was fired upon by eight SCUD missiles and they had to don protective gear for 90 minutes. On other occasion he was fearful of "chemical warfare" when a SCUD missile was shot down right over his position and while in a convoy driving to Bagdad he was fearful when his vehicle broke down and was separated from the convoy for about 20 minutes before he caught up. 10. The addendum further shows that the applicant indicated that he always believed himself to be a good noncommissioned officer but stated, "I felt fear but I did it without question." This MEB addendum listed the following diagnoses: a. PTSD, combat related, medically unacceptable. b. Agoraphobia without panic disorder, combat related, medically acceptable. c. Depression disorder not otherwise specified (atypical depression), combat related, medically acceptable. 11. On 15 November 2005, the PEB requested clarification on whether the applicant's neck pain and hearing loss were medically unacceptable. 12. On 18 November 2005, an MEB addendum stated that the applicant could not wear a Kevlar helmet to continue his military service because of neck pain. He was diagnosed as having cervalgia, cervical spondylosis, and cervical disc bulge. 13. On 5 December 2005, the applicant's case was considered by an informal PEB. The PEB considered diagnoses: (2) bilateral sensor neural hearing loss and (3) subjective neck pain associated with cervical spondylosis, without neurologic abnormality, cervical range of motion limited by pain, narcotic medication not required. 14. The PEB also considered diagnoses 1 and 4 through 6 (PTSD, agoraphobia without panic disorder, partner relationship problems, and nicotine dependence) and found these conditions "not unfitting" and "not ratable." The PEB determined that there was no evidence that PTSD interfered with his civilian employment or with the Soldier's deployment. The PEB noted the applicant was reported to have chronic and intermittent PTSD most likely over the last 20 years. The four airplane crashes during U.S. Navy service and an airplane crash in 2001 on an aircraft he had inspected in his civilian employment. Nor was there evidence that his PTSD was aggravated by stressors during deployment. The PEB further stated the psychiatrist made the additional diagnoses of agoraphobia, without panic disorder and depressive disorder, not otherwise specified. While many of the Soldier's symptoms were consistent with these diagnoses, the psychiatrist indicated that both were medically acceptable. 15. The PEB concluded that the applicant was physically unfit for duty. The PEB further recommended that the applicant be separated from active duty with a combined rating of 10 percent due to subjective neck pain associated with cervical spondylosis, without neurologic abnormality. The applicant disagreed with the findings and requested a formal hearing. 16. The applicant submitted a rebuttal to the PEB findings. He stated, in effect, that he had been diagnosed by two psychiatrists as having PTSD chronic/severe. He had not been cleared to return to his civilian job and the PEB did not recognize his PTSD. However, his doctors did and would not release him back to his civilian job. He further stated that his job would not take him back until he was cleared. He continued that he was also diagnosed with sleep apnea and was on long term medicines. 17. On 10 January 2006, a formal PEB considered the applicant's case. The formal PEB found diagnoses 2 and 3 unfitting and diagnoses 1 and 4 through 6 "not unfitting "and "not rated." The formal PEB determined that the applicant's subjective neck pain was not rated using pain criteria at the formal PEB and that the rating was corrected from 10 percent to zero percent. At the formal hearing the applicant submitted evidence of obstructive sleep apnea. However, the diagnosis was not included in his MEB and was not judged to be separately unfitting. The applicant signed the proceedings PEB on 20 January 2006 indicating that he disagreed with the findings. 18. DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 10 January 2006, stated in part, "As a Soldier with a rating of less than 30% who may have at least 20 qualifying years for reserve retirement UP Chapter 67, Title 10, USC, you may have the option of accepting disability severance pay and forfeiting your Reserve retirement pay, or you may request transfer to inactive Reserve status and Reserve retirement pay at age 60." 19. A National Guard Retirement Points History Statement shows the applicant had 18 years, 8 months, and 6 days of creditable service for retirement pay as of retirement year ending 30 June 2004. His military records do not show that he received a letter for notification of eligibility to receive retired pay at age 60. 20. On 21 February 2006, the applicant was discharged from active duty. He was issued a DD Form 214 which shows in block 28 (Narrative Reason for Separation) the entry "DISABILITY, SEVERANCE PAY." Records show that the applicant had competed 12 years, 6 months, and 8 days of active federal service at the time of his separation. 21. On 21 February 2006, the applicant was discharged from the ARNARG under the provisions of National Guard Regulation 600-200, paragraph 8-26j(i) with an honorable discharge, by reason of "Medically Unfit for Retention" after completing 24 years, 4 months, and 27 days of qualifying service for pay. 22. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that 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. 23. The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition. 24. The VASRD states, in pertinent part, that VASRD Code 9411 PTSD is rated at 10 percent when less than criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment; rated at 30 percent when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment; rated at 50 percent when the ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment; and rated at 70 percent when the ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 25. Department of Defense Instruction 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries. However, not all the general policy provisions of the VASRD are applicable to the Military Departments. Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA. This Instruction replaces some sections of the VASRD. 26. Paragraph E2.A1.5.1.1. of Department of Defense Instruction 1332.39 states, in pertinent part, that loss of function is the principal criterion for establishing the level of impairment resulting from mental illness. Loss of function is reflected in impaired social and industrial adaptability. Paragraph E2.A1.5.1.1.1. of Department of Defense Instruction 1332.29 states, in pertinent part, that in rating impairment of social and industrial capability, if any, a comparison must be made between pre- and post-illness adjustment. 27. Title 10, U. S. Code, section 1213 states that, unless a person who has received disability severance pay again becomes a member of an armed force he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services. However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due him on the date of his separation or if a claim by him is allowed under any law. 28. Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a DVA disability pension. Under the law prior to 2004, a veteran could only be compensated once for a disability. If a veteran was receiving a DVA disability pension and the Board corrected the records to show the veteran was rated for physical unfitness, the veteran would have had to have chosen between the DVA pension and military retirement. The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement. 29. Title 38, U. S. Code, sections 1110 and 1131, permits 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. Although the applicant contends that his PTSD was not properly considered by the PEB, there is no evidence to show that this condition rendered him unfit to perform his military duties. It is acknowledged that evidence of record shows the MEB reported the applicant as having PTSD. However, the physical disability evaluation system evaluates Soldiers based on their ability/inability to perform their military duties. There is no evidence that PTSD interfered with the applicant's military duties. His commander noted that he could not perform duty because he could not hear or carry, walk, or run, not because he was mentally incapable of performing his duties. The applicant's physical profile did not prohibit him from carrying his assigned weapon. Usually, Soldiers with a disabling mental disorder are prohibited from carrying a weapon. 2. There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation. Therefore, there is insufficient evidence on which to change his discharge to medical retirement. 3. The DVA rating does not establish entitlement to medical retirement or separation. The DVA is not required to find unfitness for duty. Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the DVA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___GJP _ __DLL __ __DWT__ 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 for correction of the records of the individual concerned. ____ Mr. Gerald J. Purcell _ CHAIRPERSON INDEX CASE ID AR20070007633 SUFFIX RECON DATE BOARDED 24 JANUARY2008 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY MS. MITRANO ISSUES 1. 144.9321.0000 2. 3. 4. 5. 6.