BOARD DATE: 13 December 2012 DOCKET NUMBER: AR20120018865 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, correction of his records by increasing the rating assigned by the physical evaluation board (PEB) from 10 percent to a higher rating that includes post-traumatic stress disorder (PTSD). 2. The applicant states the Department of Veterans Affairs (VA) gave him a rating for PTSD after the Army decided he did not have PTSD. The VA also rated him for chronic PTSD and bipolar disorder. He had more conditions than those rated by the Army. His injuries were a result of combat, including his foot, wrist, and increased back pain. 3. The applicant provides his VA rating decision. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 25 April 2002 and he held military occupational specialty (MOS) 88N (Traffic Management Coordinator). He served through multiple reenlistments in a variety of assignments including service in Kuwait/Iraq from October 2008 to September 2009 and he attained the rank/grade of staff sergeant/E-6. 2. A medical evaluation board (MEB) narrative summary dictated on 7 December 2010 shows he underwent a medical examination in the November/December 2010 time frame. a. His commander stated the applicant's medical conditions/limitations affect the unit accomplishing its mission; he could not do his normal routine to support the mission such as wearing his interceptor body armor and/or carrying and firing his weapon. b. His conditions based on his diagnosis, evaluations, and treatment histories were previously diagnosed and included lumbar degenerative joint disease, left plantar fasciitis, anxiety disorder, PTSD, memory loss, insomnia, chronic headaches, hearing loss, tinnitus, neck pain, left arm weakness, and bilateral wrist pain. c. His conditions at the time of the examination, functional status, and prognosis were as follows: * lumbar degenerative joint disease and spondylosis – failed retention standards * plantar fasciitis – did not significantly limit or interfere with the performance of his duties; his functional status and prognosis were excellent * chronic headaches – met retention standards; it did not significantly limit or interfere with the performance of his duties; his functional status and prognosis were good * bilateral wrist pain – met retention standards; it did not significantly limit or interfere with the performance of his duties; his functional status and prognosis were excellent * left knee pain – met retention standards; it did not significantly limit or interfere with the performance of his duties; his functional status and prognosis were excellent * left ankle pain – met retention standards; it did not significantly limit or interfere with the performance of his duties; his functional status and prognosis were excellent * dermatitis on hands – met retention standards; it did not significantly limit or interfere with the performance of his duties; his functional status and prognosis were good * irritable scar formation on back – met retention standards; it did not significantly limit or interfere with the performance of his duties; his functional status was good and his prognosis was excellent d. Other medical issues presented were either resolved or were of insufficient severity and intensity to prevent him from performing in a satisfactory manner the duties and responsibilities specific to his rank and MOS. He was referred to a PEB for further adjudication. 3. On 13 December 2010, an MEB convened at Fort Riley, KS, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of lumbar degenerative joint disease and spondylosis and anxiety disorder. He also had the medically acceptable conditions of plantar fasciitis, chronic headaches, bilateral wrist pain, left knee pain, left ankle pain, dermatitis on hands, irritable scar formation on back (surgery residual), tinnitus, erectile dysfunction, memory loss, and insomnia. The MEB recommended his referral to a PEB. He was counseled and agreed with the MEB's findings and recommendation. He indicated that: * he reviewed the contents of the MEB, physical profile, and narrative summary * he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether they did not meet retention standards * the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB * he agreed that the MEB accurately covered his medical conditions at the time 4. On 14 April 2011, an informal PEB convened in Fort Lewis, WA. The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to degenerative disc disease – not a combat injury and not in a combat zone. It was unfitting because it impaired his ability to reliably perform basic warrior tasks and combat drills. He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 5243, and granted a 20-percent disability rating. a. The PEB considered his anxiety disorder and determined this condition was not unfitting as evidenced by the commander's statement that listed the only condition that hindered his ability was his physical limitations. b. The PEB also considered all the other conditions listed on the MEB which had been determined to have met retention standards and further consideration found those conditions not to be unfitting and therefore not ratable. c. The PEB recommended the applicant's separation with entitlement to severance pay if otherwise qualified. 5. Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process. His counseling culminated on 19 April 2011 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law. Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing. 6. He was honorably discharged on 31 July 2011 by reason of disability with entitlement to severance pay under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 3 months, and 6 days of active service. He received $63,846.00 in severance pay. 7. On 1 September 2011, the VA awarded him service-connected disability compensation at the below rates: * PTSD (claimed as anxiety disorder) – 20 percent * degenerative disc and joint disease – 20 percent * scar, lumbar spine – 10 percent * tinnitus – 10 percent * tension headaches – 0 percent * left foot plantar fasciitis – 0 percent * xerosis cutis bilateral hands – 0 percent * erectile dysfunction – 0 percent 8. Army Regulation 635-40 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. It states 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. a. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement pay and have access to all other benefits afforded to military retirees. b. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 9. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 10. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 11. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 12. Title 38, U.S. Code, sections 1110 and 1131, permit 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 an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant sustained various injuries and/or illnesses that warranted his entry in the PDES. He underwent an MEB which recommended his referral to a PEB. The PEB found his medical condition of degenerative joint disease prevented him from reasonably performing the duties required of his grade and military specialty. He was determined to be physically unfit for further military service. a. The PEB considered the other condition of anxiety disorder which was found to have failed retention standards by the MEB. However, the PEB determined that this condition was found to be not unfitting and therefore not ratable. The commander's statement indicated the only thing that hindered his performance was his physical limitations. b. The PEB also considered his other medical conditions despite their having been determined to have met retention standards and found those other conditions to be not unfitting and therefore not ratable. c. The PEB recommended separation with entitlement to severance pay with a 20-percent disability rating. The applicant agreed with the findings and recommendations and waived his right to a formal hearing. 2. The applicant does not provide medical evidence to support a higher rating. However, he contends that since the VA awarded him service-connected disability for various conditions, including PTSD and a bipolar disorder, the Army should have, in effect, done the same. There are two important concepts that require clarification. a. One, the Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. b. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. Only those conditions that render a member unfit for continued military duty at the time of separation will be rated. However, the VA may rate all service-connected conditions. c. In the applicant's case, there was no diagnosis for PTSD or a bipolar disorder being a disabling factor at the time of his separation. Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The applicant was properly rated 20-percent disabled for his degenerative disc disease. There is no evidence to support rating any other medical condition. 4. The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated him 20-percent disabled for his condition. There is no evidence that he should have been awarded a higher rating. The VA also rated this condition at 20 percent. Since this rating was less than 30 percent, by law he was only entitled to severance pay. 5. The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. In view of the circumstances in this case, there is insufficient evidence to grant the requested relief. 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 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) AR20120018865 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120018865 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1