IN THE CASE OF: BOARD DATE: 2 DECEMBER 2008 DOCKET NUMBER: AR20080010258 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, an increase of his disability rating or a medical retirement. 2. The applicant states, in effect, that the Army did not include disability for all of his medical conditions. He also states, in effect, that he believes the increase would honor his over 19 years of military service, the same as a 20-year discharge with a service-connected disability. His service disability is rated less than 30 percent, with a series of service-connected injuries. To allow the severance pay to stand as the record of discharge would be unequal treatment and a contradiction to the interest of the US Army. He further states that the Medical Evaluation Board (MEB) first reviewed his medical records and rendered a finding for "permanent retirement," listed in the narrative to the Physical Evaluation Board (PEB). A review of the facts will show that the PEB failed to provide a rating for his multiple medical conditions and did not consider the narrative of the MEB. As a result, the PEB's failures to rate all medical conditions prejudiced the final determination for military disability pay. 3. The applicant also states, in effect, that the PEB did not rate his herniated nucleus pulposus in accordance with the assigned diagnostic code 5293. The diagnostic code specifies levels of percentages in relation to the complaints. The evaluation only rated the complaint of mild pain, but did not rate the neurological findings. An evaluation following the rating levels, as required, would have substantially increased the final disability rating. Additionally, the PEB did not rate the ruptured biceps tendon in the right arm, shoulder, and humerus. He is a dominant right handed person. The medical records and history studied will show reduced strength and restricted motion in the right shoulder that affects his ability to perform certain tasks. These conditions were prevalent at the time of the PEB decision; therefore, the PEB's decision was not based on the preponderance of evidence. The rating of 10 percent is substantially less that it would have been provided the PEB had followed the appropriate diagnostic codes and reviewed all existing medical conditions (injuries). The PEB's failure to review all of the existing medical conditions adversely affected the final disability percentage. 4. In support of his application, the applicant provides copies of his US Air Force (USAF) Clinical Record – Narrative Summary; his USAF Honorable Discharge Certificate 1967; his US Army 1972 Clinical Record – Narrative Summary; Radiographic Reports dated 1979 and 1982; 1983 Physical Profile Board Proceedings; a Medical Record – Narrative Summary (Clinical Resume); a Medical Board summary; a Report of Medical Examination; his MEB and PEB; his Report of Medical Examination; his Army separation orders and his DD Form 214 (Certificate of Release or Discharge from Active Duty); his Department of Veterans Affairs (DVA) Rating Decisions; and his statement addressed to Military Retired Pay. 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 2. The applicant's Army service records were not available to the Board as they are charged out to another government agency; however, the documentation submitted by him in this case is sufficient for the Board to make a fair, impartial, and equitable determination. 3. The applicant submitted a copy of a Clinical Record – Narrative Summary, that shows while serving as a member of the USAF he was admitted to the USAF Hospital, Vandenberg AF Base, California, on 25 January 1967, due to a traumatic injury he sustained to his right arm two weeks earlier. He was diagnosed with osteochondroma of the right humerus, possible osteoid osteoma. The summary also shows that on 26 January 1967, he underwent an excision biopsy of the right humerus, which was performed without difficulty. He was discharged on 30 January 1967 and the incision was noted to be well healed. He was advised of home care and that he would be followed as an outpatient in the clinic. These records do not show he was determined unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating or that he was referred for medical separation processing. 4. The applicant submitted a copy of his USAF Honorable Discharge Certificate that shows he was discharged from the USAF, in the rank of sergeant, on 22 October 1969. The certificate shows he enlisted in and was transferred to the USAF Reserve on 9 August 1969 and was credited with 3 years, 11 months, and 29 days prior active service and 4 years, 2 months, and 13 days total service for pay purposes. 5. There is no evidence of the date of the applicant's first enlistment in the US Army; however, it appears that he was found medically/physically qualified for enlistment in the US Army after his discharge from the USAF. 6. The applicant also submitted a copy of a Clinical Record – Narrative Summary, dated 14 November 1972, that shows he was sent to the US Walson Army Hospital, Fort Dix, New Jersey, and diagnosed with a tear of his Achilles tendon, left foot. The summary shows he underwent an operation for repair of the tear, was hospitalized for approximately two weeks, and then sent on convalescent leave. Four months post-surgery, he was being followed-up in the orthopedic clinic. A Clinical Record Cover Sheet shows he was returned to duty on 14 March 1973. 7. The applicant further submitted a copy of a Medical Condition Physical Profile Record, dated 4 October 1976, that shows he was given a PULHES profile of 1T31111, for recovery from surgery for repair of a rupture of the long head of biceps tendon, right arm. 8. The applicant also submitted a copy of his DD Form 214, where it appears he reenlisted in Regular Army, in the rank of staff sergeant, on 25 May 1978. 9. The applicant further submitted a copy of a Radiographic Report, dated 5 October 1979, that shows the findings of an arthritic change in the first metacarpophalangeal joint and the ring and small finger distal interphalangeal joints, with a bony fragment over the dorsum of the middle phalanx of the small finger at the distal interphalangeal joint from an old injury. 10. The applicant also submitted a copy of a Radiographic Report, dated 21 October 1982, that shows the findings of a mild spur formation on the superior and anterior surface of L1 of his spine and a very mild spur formation on the interior and anterior surface of L3 of his spine. 11. The applicant also submitted a copy of Physical Profile Board Proceedings, dated 8 February 1983, that shows he was given a PULHES profile of 113111 for herniated lumbar disc. He was given assignment limitations of no crawling, stooping, jumping, no running over 1/4 mile, no standing over 20 minutes, no marching over 1/2 mile, and no lifting over 20 pounds. The profile was determined permanent and was approved on 11 February 1983. 12. The applicant further submitted a copy of a Medical Record – Narrative Summary (Clinical Resume), dated 21 June 1983, that shows he was admitted to the Brooke Army Medical Center, Fort Sam Houston, Texas, on 4 May 1983, for low back pain radiating into the left lower extremity. The history given for the illness was that he was struck by a truck on his left side in 1981. The applicant underwent a lumbar myelogram and lumbar laminectomy. He was discharged to duty on a 90-day L3 profile on 21 June 1983. 13. In a Medical Board summary, dated 27 July 1984, a medical doctor with the Reynolds Army Community Hospital, Fort Sill, Oklahoma, stated that the applicant's chief complaint was numbness in the left leg and, to a lesser degree, the right leg. The history stated that the applicant was injured on 30 November 1981 when he was hit from the side by a truck while on active duty. Since that time, he had experienced numbness in both legs, the left greater than the right, resulting in inability to perform any type of vigorous activity. That resulted in an evaluation at Brooke Army Medical Center, and a L4-L5 discectomy was performed in May 1983. Initially, the patient had significant improvement; however, he started having progressive pain in the left buttock which radiated down the leg similar to preoperatively. That had continued to restrict his activity and resulted in a permanent profile against crawling, stooping, or jumping. The patient had continued to be unable to perform any type of vigorous activity and that had prompted his medical board. The medical doctor recommended the applicant for permanent retirement under the provisions of Army Regulation 40-501, Chapter 5, paragraphs 34c and 36c(1). 14. The applicant also submitted a copy of a Report of Medical Examination, dated 28 August 1984, that shows he was found qualified for a medical board. 15. On 10 September 1984, the applicant appeared before a MEB. The MEB considered the applicant's conditions of residual of herniated nucleus pulposus at L4-L5; status post hernia repair in 1982, and status post repair of biceps tendon rupture in 1977, with mild residual weakness in right arm. The MEB recommended he be referred to a PEB. The board noted the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40. The MEB findings and recommendations were approved on the same day. 16. On 11 September 1984, the applicant concurred with the findings and recommendations of the MEB. 17. On 18 September 1984, the applicant appeared before a PEB. The PEB considered the applicant's condition of herniated nucleus pulposus at L4-L5, surgically repaired by discectomy in May 1983, with residual back pain and some neurological finding, rated as mild. The PEB determined that the applicant's conditions of status post hernia repair in 1982, and status post repair of biceps tendon rupture in 1977, with mild residual weakness in right arm, were non-ratable. The PEB found that the applicant's condition made him medically unfit to perform the duties required of a Soldier in his rank and primary specialty. The PEB noted that the applicant specifically declined submission of a Continuation of Active Duty (COAD) statement. The PEB found the applicant physically unfit and recommended a combined rating of ten percent and separation with severance pay, if otherwise qualified. 18. Because the entirety of the applicant's PEB "packet" is not available, there is no evidence the applicant concurred or non-concurred with the PEB's findings and recommendations. It is presumed that he concurred in view of the fact that he was processed for discharge and was paid disability severance pay in the amount of $32,428.80. 19. The applicant was honorably discharged from active duty, in pay grade E-6, effective 26 November 1984, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), for Physical Disability with Severance Pay. 20. The applicant further submitted a copy of his separation orders, dated 19 November 1984, that shows he was authorized severance pay in the pay grade of E-6 for 19 years, 1 month, and 3 days of total active service. 21. The applicant also submitted a copy of a DVA Rating Decision, dated 4 January 1999, that shows his service-connected disability rating was increased to 40 percent for residuals of the herniated nucleus pulposus, L-4-5, with radiculopathy, left leg. He was granted a 10 percent service-connected disability rating each for status post right bicep tendon rupture; traumatic arthritis, right hand; traumatic arthritis, left hand; status post left Achilles tendon repair; and pseudofolliculitis barbae. He was further granted a zero percent rating each for post operative residuals, right inguinal hernia repair and residuals, removal of lipoma, right forehead. 22. The applicant further submitted a copy of a DVA Rating Decision, dated 14 March 2003, which granted him entitlement to individual unemployability effective 5 April 2003 and a copy of a DVA Rating Decision, dated 2 February 2004, which granted him entitlement to special monthly compensation based on Housebound criteria being met from 19 January 1999. 23. The applicant also submitted a copy of a letter from the DVA, dated 30 November 2007, that certified he had been awarded a service-connected disability rating of 100 percent by the DVA and his evaluation was considered permanent and total. 24. The applicant reached age 60 on 21 March 2007. 25. The applicant further submitted a copy of an undated statement, Subject: Reference: Military Retired Pay, wherein he gave a brief background on his military service and an injury he received on 30 November 1981. He stated, in effect, that he was requesting assistance in order to begin receiving retired pay. He also stated that the National Defense Authorization Act for Fiscal Year 1993 was amended to grant regular retirement to members of the Armed Forces, with less than 20 years of service and a disability rating of less than 30 percent. Thus, there was a possibility that some disabled members with less than 20 years of service and a disability rating less than 30 percent could be eligible for retirement rather than having to make do with disability severance pay. 26. Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, Chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 27. PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability. 28. Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. 29. Title 38, U. S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher DVA rating does not establish error or injustice in the Army rating. 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 DVA, which has neither the authority, nor the responsibility for determining physical fitness for the 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. 30. Unlike the Army, the DVA 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 DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant sustained an injury to his right arm in 1967 while serving as a member of the USAF. He continued to serve in the USAF and was honorably discharged from the USAF on 22 October 1969. There is no evidence and the applicant provided no evidence that his right arm injury continued to given him medical difficulties which required imposition of assignment limitations or even referral to a medical physical evaluation board for medical separation processing. The presumption is that the applicant's treatment and other medical interventions restored him to a sufficient level of medical wellness that allowed his continued service in the USAF and subsequent service in the USAF Reserve. 2. It appears that the applicant was also found medically/physically qualified for enlistment in the US Army sometime after his discharge from the USAF Reserve. The available evidence also shows he was diagnosed with a tear to his Achilles tendon in November 1972 and underwent an operation to repair the tear of his Achilles tendon and was returned to duty on 14 March 1973. Again, there is no evidence of imposition of assignment limitations or even referral to a medical physical evaluation board. The presumption is that the applicant's treatment and other medical interventions restored him to a sufficient level of medical wellness that allowed his continued service in the Army at that time. 3. The evidence further shows he was placed on profile on 4 October 1976, for recovery from surgery for repair of a rupture of the long head of biceps tendon, right arm. He was given assignment limitations of no use of his right arm for 8 weeks, with instruction for mild activities after 4 weeks at patient's discretion. 4. Without evidence to the contrary, it appears the applicant was found qualified for continued service in the Army and reenlisted on 25 May 1978. 5. The evidence also shows that in July 1984, he began experiencing numbness in both legs as a result of an injury that occurred on 30 November 1981. He was evaluated, underwent an L4-L5 discectomy, continued to be unable to perform any type of vigorous activity, and was referred to a medical board for evaluation of his conditions of residual of herniated nucleus pulposus at L4-L5; status post hernia repair in 1982, and status post repair of biceps tendon rupture in 1977, with mild residual weakness in right arm. The medical doctor who evaluated him recommended the applicant for permanent retirement under the provisions of Army Regulation 40-501. 6. The evidence further shows that the applicant appeared before a MEB and the MEB determined that he failed to meet retention standards of Army Regulation 40-501 and referred him to a PEB for further evaluation and he concurred. He appeared before a PEB and it was determined that his condition of herniated nucleus pulposus at L4-L5, surgically repaired by discectomy in May 1983, with residual back pain, rated as mild, made him medically unfit to perform the duties required of a Soldier in his rank and primary specialty. The PEB also determined that his other medical conditions, status post-hernia repair in 1982, and status post repair of biceps tendon rupture in 1977, with mild residual weakness in right arm, did not render him functionally unfit to perform the duties of his grade and primary specialty; therefore, these were non-ratable. The PEB found the applicant physical unfit and recommended a combined rating of ten percent and separation with severance pay and noted that he specifically declined to submit a COAD statement. 7. While there is no evidence of the applicant's concurrence or non-concurrence of the PEB findings and recommendations, in the course of MEB/PEB proceedings, he had the opportunity to non-concur with any of the determinations reached by the boards, to include the disability percentage ratings. He knew, or should have known that any disagreement he had, he could make and, his disagreements would be considered. It appears that during the PEB process, he concurred and the process was carried through to its conclusion. He was subsequently discharged from active duty due to a physical disability that rendered him functionally unfit to perform the duties of his grade and primary specialty. 8. There is no evidence of error or injustice in the applicant's physical evaluation process for his conditions. The applicant has failed to show, with the evidence submitted with his application that he should have received a higher disability rating percentage or that he should have been medically retired. The type of separation directed and the reasons for that separation appear to be appropriate considering all of the available facts of the case. 9. The DVA rating decisions and medical documents provided by the applicant were also carefully considered. However, the award of a DVA rating or an increase of a DVA rating does not establish entitlement to a medical discharge and/or medical retirement. Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the DVA. 10. In view of the foregoing, there is no basis for granting the applicant’s request. 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) AR20080010258 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010258 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1