IN THE CASE OF: BOARD DATE: 14 October 2009 DOCKET NUMBER: AR20090008517 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 reconsideration of the Board's denial of his previous request that he be medically retired. 2. The applicant states he has attached copies of his Department of Veterans Affairs (VA) rating decision which shows that his adjustment disorder, right shoulder impingement, low back strain, cervical strain, and right knee patellofemoral syndrome were service connected from his injury in the Army. He states he had these conditions at the time he was medically boarded from the Army and believes he should have been medically retired. 3. The applicant provides a copy of a VA rating decision in support of this application. 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 AR20080012720 on 10 March 2009. 2. The VA rating decision provided by the applicant is new evidence which requires that the Board reconsider his request. 3. The applicant's official military personnel file (OMPF) contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 July 1999. It shows that the applicant experienced right shoulder pain after a parachute landing fall on or about 5 October 1998 at Fort Bragg, North Carolina, that was considered to have occurred in line of duty. 4. The applicant's OMPF includes a narrative summary (replaces Standard Form 502 (Narrative Summary - Clinical Record)) from Womack Army Medical Center (WAMC), Fort Bragg, North Carolina, that was prepared for a medical evaluation board (MEBD) that documents his 8 September 1999 medical examination. The narrative summary shows that the applicant sustained right shoulder, neck, and low back pain during a parachute landing fall on 30 September 1998 for which he was initially treated with rest and non-steroidal anti-inflammatories. His radiographs were all negative. The applicant subsequently began to develop persistent right shoulder pain with scaplothoracic crepitus and he received the following medical treatment: extensive supervised physical therapy and sub-scapular bursa injections without improvement; superomedial border excision of the right scapula on 12 February 1999 with temporary relief; and referral to the anesthesia pain clinic where he underwent several interscalene and cervical ganglion blocks with limited success. 5. The narrative summary provided the applicant's past medical history which shows that the applicant marked block 9 (Back Pain) of his Standard Form 93 (Report of Medical History) and indicated a complaint of neck and low back pain following his injury in September 1998 from which he still suffers. It also shows that he was diagnosed with "post-traumatic right shoulder pain" and "reflex sympathetic dystrophy, right shoulder, post-traumatic, mild." 6. The applicant's DA Form 3947 (MEBD Proceedings), dated 15 September 1999, shows the applicant was diagnosed by the MEBD with "post-traumatic right shoulder pain; reflex sympathetic dystrophy, right shoulder, post-traumatic, mild; and late effect from injury." The MEBD recommended referral to a physical evaluation board (PEB). The applicant was informed and agreed with the findings and recommendations of the MEBD on 28 September 1999. 7. On 19 October 1999, the president, United States Army PEB, returned the MEBD proceedings to the Commander, WAMC, and requested that a complete examination of the applicant's back, to include its range of motion, be performed. The president also requested to know if there was tenderness or muscle spasm during the range of motion test. The president also asked what the result of the neurological exam and straight leg raises were. He asked if the back pain was medically acceptable or not and an explanation of what is meant by the MEBD diagnosis 3, "late effect from injury." 8. On 1 December 1999, Medical Corps officials at WAMC forwarded an MEBD addendum to the president of the PEB, answering his request for additional information regarding the applicant's complaint of back pain. The addendum shows that the applicant indicated some low back pain, but it was not a significant problem for him; his primary problem was his upper back pain which was secondary to his previous injury and surgery. His lower extremity exam was normal and his back pain condition was considered to be medically unacceptable. The applicant read and concurred with the results included on the addendum. 9. On 10 January 2000, the applicant's case was considered by a PEB. The PEB considered the applicant's post-traumatic right shoulder pain with right shoulder reflex sympathetic dystrophy (MEBD diagnoses 1-2). As a result, the PEB found that the applicant's medical condition prevented his performance of duty in his grade and specialty. The PEB recommended he be separated with severance pay with a physical disability rating of 20 percent. The PEB considered his MEBD diagnosis 3 and addendum and determined that these diagnoses were not unfitting and not ratable. 10. On 19 January 2000, the applicant concurred with the PEB's decision and waived his right to a formal hearing of his case. 11. Headquarters, 18th Personnel Services Battalion, Orders 041-0259, dated 10 February 2000, directed the applicant's discharge from active duty on 4 May 2000 with a 20-percent disability rating. 12. Accordingly, the applicant was discharged from active duty on 4 May 2000. The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time confirms the applicant was honorably discharged by reason of disability with severance pay. It shows he completed a total of 5 years, 6 months, and 8 days of total active service. 13. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 15. Army Regulation 635-40, paragraph 3-5, contains guidance on rating disabilities. It states that the fact that a Soldier has a condition listed in the VA Schedule for Rating Disabilities (VASRD) does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. It also 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. Any non-ratable defects or conditions will be listed in item 8 of the PEB proceedings, but will be annotated as non-ratable. 16. Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA 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 VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's 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. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. Confusion arises from the fact that different rating systems are used by the Army and the VA. While both use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army. The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that he should be medically retired from active duty rather than separated by reason of disability with severance pay and that his disability rating is higher than 20 percent has been carefully considered. However, there is insufficient evidence to support this claim. 2. The evidence of record confirms the applicant was properly processed through the Army's PDES and that he was separated by reason of disability with severance pay with a 20-percent disability rating based on his unfitting conditions of post-traumatic right shoulder pain with right shoulder reflex sympathetic dystrophy. The applicant's condition related to his back pain found on the MEBD addendum was noted; however, because it was not unfitting, a disability rating was not granted for this condition. 3. While the VA found the applicant's adjustment disorder, right shoulder impingement, low back strain, cervical strain, and right knee patellofemoral syndrome to be service connected and subject to compensation, only the shoulder condition was determined to be unfitting for further military service and resulted in his disability discharge as is required in order for a medical condition to contribute to the disability rating assigned by the PEB. While the applicant provided his VA rating decision with this request for reconsideration which shows an increased rating percentage of 80 percent, this factor alone does not support a change to the disability rating assigned by the PEB. 4. While both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army. The VA may rate any service-connected impairment, thus compensating for loss of civilian employment. It may also award 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. It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES. The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career. As a result, there is insufficient evidentiary basis to change the 20-percent disability rating assigned the applicant by the PEB at the time of his discharge. 5. A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual performance of duty. The applicant did not provide any new evidence that was not previously considered by the PEB or the previous Board and his argument was not sufficient to overcome the evaluation of the PEB. 6. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 7. 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 to amend the decision of the ABCMR set forth in Docket Number AR20080012720, dated 10 March 2009. __________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) AR20090008517 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090008517 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1