IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150005789 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 medical retirement in lieu of discharge with disability severance pay. 2. The applicant states not all of his medical conditions were considered by the Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) due to a personal bias of his brigade surgeon against the MEB/PEB process. During the MEB processing he tried every possible way to stay in the Army and requested that all of his conditions to be considered for a new rating. When he received information that only his back condition had been found unfitting he requested that all of his medical conditions be considered; however, the battalion surgeon denied the request and he was told the decision could not be altered once the board made its decision. 3. The applicant provides: * 7 August 2015 letter in support of his application * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2011 private orthopedic evaluation and physical therapy treatment records * 33 pages of service medical records * MEB narrative summary * Disability Evaluation System (DES) Program evaluation * 17 September 2013 Department of Veterans Affairs (VA) disability evaluation proposed rating decision * 24 September 2014 Physical Disability Board for Review (PDBR) declination letter CONSIDERATION OF EVIDENCE: 1. The applicant's service medical and dental records are not available for review. 2. The applicant served on active duty from 13 November 2003 through 26 December 2013 in military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic). 3. On 19 March 2013, the applicant underwent an MEB evaluation for the following conditions – * status post lumbar spine fusion with pain * bilateral tinnitus * post-traumatic stress disorder (PTSD), major depressive disorder * a persistent disorder of initiating or maintaining sleep * alcohol abuse * asthma * bilateral hip strain * right and left knee strain * quiescent eczema * status post epididymitis (inflammation of the coiled tube at the back of the testicle) * status post hemangioma capillary (benign orbital tumor) 4. The MEB determined that, except for his lumbar spine fusion with pain, the conditions were found to meet retention standards. His case was referred to the joint Department of Defense (DOD) and VA evaluation DES program. 5. The DES proposed rating the applicant's conditions as follows – * status post lumbar spine fusion with pain 20 * post-traumatic stress disorder (PTSD) with major depressive disorder 50 * left hip strain 10 * right hip strain 10 * left knee strain 10 * right knee strain 10 * tinnitus 10 * asthma 10 * status post lumbar spine fusion scars 0 6. The DES narrative stated that the following conditions were not found – * allergies * sleep apnea * gastroesophageal reflux (GARD) * erectile disorder * epididymitis * left leg radiculopathy * right leg radiculopathy 7. The PEB found the applicant unfit for a back condition rated as a 20 percent disability. The PEB recommended he be discharged with severance pay. The applicant concurred with the PEB and waived a formal hearing. 8. On 17 September 2013, the VA proposed granting the applicant the following disability evaluations – * status post lumbar spine fusion with pain 20 * post-traumatic stress disorder (PTSD) with major depressive disorder 50 * asthma 10 * left hip strain 10 * right hip strain 10 * left knee strain 10 * right knee strain 10 * tinnitus 10 * status post lumbar spine fusion scars 0 * combined rating 80 9. The applicant was discharged with disability severance pay on 26 December 2013. He had 10 years, 1 month, and 14 days of creditable service. 10. On 24 September 2014, the PDBR declined to process the applicant's case because he was not deemed a covered individual since he was discharged after 31 December 2009, thus they no longer had jurisdiction to process the request. 11. The applicant's 29 April 2012 DA Form 2166-8 (NCO Evaluation Report) shows his rater marked him as fully capable, noting he was on a physical profile but his profile did not hinder his ability to perform his duties. His senior rater marked him as successful and recommended he be promoted with his peers. 12. His 30 April 2013 DA Form 2166-8 shows his rater marked him as fully capable, noting he was on a profile but was able to perform his duties within the limits of his profile. His senior rater marked him as successful and recommended he be promoted with his peers. 13. The profile referenced in the evaluations is not included in the available records. 14. Title 10, US Code, Chapter 61 sets forth provisions for retirement or separation due to a physical disability including for personnel receiving medical retirement with a 30% or greater disability rating. 15. Army Regulation 40-501 (Standards of Medical Fitness) provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals. These medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in the military Service. e. Possession of one or more of the conditions listed in chapter 3 does not mean automatic retirement or separation from the Service. It is critical that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. f. Anxiety, somatoform, or dissociative disorders are to be referred to an MEB if they are persistence, the recurrence of symptoms are sufficient to require extended or recurrent hospitalization, necessitating limitations of duty or duty in protected environment, or if the symptoms result in interference with effective military performance. 16. Title 38, US 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 physically 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. Once the applicant was referred to the MEB his battalion surgeon would have no input into the process. Therefore, the applicant's contention that the battalion surgeon prevented a proper evaluation of his medical conditions is without merit. 2. The applicant was evaluated for 10 conditions by the MEB. The only condition that was found to have rendered him unfit for retention was his back and the DES, PEB, and VA have all rated the applicant's back condition as a 20% disability. 3. Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, which include PTSD, and provides that such disorders are unfitting only if persistence or their recurrence of symptoms is sufficient to require extended or recurrent hospitalization, creates a necessity for limitations of duty or duty in a protected environment or resulting in interference with effective performance of military duty. The applicant has not provided and the available record does not contain any evidence that his PTSD or other medical conditions rendered him unfit for duty. 4. Although he suffers from a number of medical problems, there is no evidence that these conditions rendered him unfit for duty. In fact his evaluations state he was able to perform his duties despite being on a profile. 5. The fact that the VA has awarded him a rating for all of the conditions they determined had their onset while he was on active duty is of no consequence to the Army's finding of unfit for retention and does not indicate that either the VA or the Army is in error in its ratings. 6. While both the Army and the VA use the VA 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 which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career. The VA, however, may rate any service connected impairment, thus compensating for loss of civilian employment. Therefore, it is not unexpected that these two different systems would produce different evaluations. 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 that 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) AR20150005789 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005789 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1