APPLICANT REQUESTS: The applicant requests disability retirement in lieu of disability separation.
APPLICANT STATES: He served more than 12 years in the military and was permanently injured in the Army. He notes that he needs to be medically retired with at least a 30 percent Army disability rating because he is a single parent with four children and needs to have a permanent identification card. He states he believes he and his family are being punished as a result of his Army injury. Included with his application is a list of multiple medical complaints which the applicant believes warrant an increase in his Army disability rating.
EVIDENCE OF RECORD: The applicant's military records show:
He entered active duty on 26 January 1980. He successfully completed basic and advanced individual training and was assigned duties as an infantryman with a two year tour of duty as a drill sergeant at Fort Benning, Georgia. The applicant was promoted to pay grade E-5 in January 1983.
According to information contained in his medical records the applicant initially injured his back in October 1990 when he fell on his back while serving as a drill instructor and then re-injured it in October 1991 during a speed march when another soldier fell on him.
A Medical Evaluation Board (MEB), conducted in December 1992, noted the applicant's chief complaint as "low back pain." The MEB concluded the applicant suffered from 1) cervical sprain, resolved, 2) nonradicular low back pain and 3) intermittent right S1 radiculitis. The applicant concurred with the MEB findings and was referred to a Physical Evaluation Board (PEB).
On 1 April 1992 an informal PEB concluded the applicant was physically unfit for continued service because of chronic low back pain following the October 1991 injury (MEB diagnosis 2 and 3). MEB diagnosis 1 was considered not unfitting and therefore not rated. The board rated his disability at 10 percent in accordance with the VA Schedule for Rating Disabilities (VASRD) Code 5295 and recommended that he be separated with disability severance pay. The applicant concurred with the informal PEB findings and waived entitlement to a formal hearing.
On 15 May 1992 the applicant was separated from active duty in pay grade E-5 and received $35,582.40 in disability severance pay.
Subsequent to his separation, his back condition was initially rated as noncompensable but effective 6 April 1995 was rated at 40 percent.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
Title 38, United States Code, sections 310 and 331, 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.
Pertinent details of the applicant's medical history and disability rating are set forth in the Physical Disability Agency's (PDA) advisory opinion (COPY ATTACHED). The opinion noted the applicant concurred with the MEB and informal PEB and did not offer any additional evidence or testimony. The PDA concluded there was no evidence of error or injustice and recommended the applicant's military records not be changed.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities. His separation with severance pay was in compliance with law and regulation.
2. While the Board is sympathetic to the applicants current family situation unfortunately that is not a basis for increasing the Armys disability rating.
3. The applicant, who would have been familiar with his medical ailments, at the time of the MEB and PEB, concurred with the findings of both and provides no evidence that he ever raised either issue during his disability processing. Furthermore, the applicant provides no evidence or documentation with his application to this Board which substantiates the existence of any additional medical problems which he feels should have, but were not, addressed by the MEB or PEB.
4. The preceding conclusions are consistent with the advisory opinion from the PDA.
5. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.
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.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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