Search Decisions

Decision Text

ARMY | BCMR | CY1995 | 9507477C070209
Original file (9507477C070209.TXT) Auto-classification: Denied
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 applicant’s current family situation unfortunately that is not a basis for increasing the Army’s 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

Similar Decisions

  • ARMY | BCMR | CY1996 | 9606812C070209

    Original file (9606812C070209.txt) Auto-classification: Denied

    The formal PEB concluded that the applicant’s left shoulder condition “prevents reasonable performance of duties required by grade and military specialty” and rated his condition at 20 percent under VASRD Code 5201. They noted that the applicant’s shoulder condition was properly rated and that “although the applicant established that he probably had a herniated disc at L5-S1 before separation that fact was considered and did not change any PEB findings or recommendations.” The PDA concluded...

  • ARMY | BCMR | CY2011 | 20110001112

    Original file (20110001112.txt) Auto-classification: Denied

    On 22 October 1993, a medical evaluation board (MEB) convened at Fort Bragg, NC, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of intervertebral disc syndrome manifested by chronic low back pain. The applicant was properly rated at 10 percent for his low back pain. The PEB did so and rated him at 10 percent for his low back condition.

  • ARMY | BCMR | CY2002 | 2002082322C070215

    Original file (2002082322C070215.rtf) Auto-classification: Approved

    The PDA concluded that the applicant should have had a fitness for duty PEB before he was medically separated from the ARNGUS and a PEB held in 1998 would have most likely found the applicant unfit for duty because of this back pain and rated at 20 percent, under VASRD Code 5293, and separated with severance pay. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically...

  • ARMY | BCMR | CY2005 | 20050017961C070206

    Original file (20050017961C070206.doc) Auto-classification: Denied

    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...

  • ARMY | BCMR | CY2010 | 20100014079

    Original file (20100014079.txt) Auto-classification: Denied

    The applicant provided a self-authored statement, sleep study, and a letter from a physician as new evidence that will be considered by the Board. This office stated that there was insufficient evidence to conclude that a PEB would have found the applicant unfit for sleep apnea in 2000 and that military disability compensation can only be provided if there was a finding of unfitness for that condition. The opinion stated the applicant: * was separated from the military with severance pay...

  • ARMY | BCMR | CY2004 | 040008277C070208

    Original file (040008277C070208.doc) Auto-classification: Denied

    Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel. The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge. The applicant was discharged because of his physical disability, mechanical low back pain, and received a 10 percent disability rating.

  • ARMY | BCMR | CY2005 | 20050012318C070206

    Original file (20050012318C070206.doc) Auto-classification: Denied

    On 27 November 2002 an informal PEB concluded the applicant’s low back pain precluded performance of his military duties and recommended separation with a 10 percent disability rating. The applicant was discharged from the United States Army Reserve on 14 May 2003 with a disability rating of 20 percent. A May 2005 medical summary noted his Charcot-Marie-Tooth Disease and chronic low back pain were both presently stable.

  • ARMY | BCMR | CY2007 | AR20070000241C071029

    Original file (AR20070000241C071029.doc) Auto-classification: Denied

    The PEB found the applicant to be physically unfit for continued service and the board recommended separation from the Army with severance pay, if otherwise qualified, with a combined physical disability rating of 20 percent. The PDA official concluded that the applicant has provided no new evidence of any error in the disability rating assigned by the United States Army and he recommended that no change be made to the applicant military records. As stated in the advisory opinion, he has...

  • ARMY | BCMR | CY2010 | 20100020534

    Original file (20100020534.txt) Auto-classification: Approved

    The applicant requests that her 2 March 2003 discharge be voided and that she be retired by reason of physical disability with a 40-percent disability rating. The PEB determined she was physically unfit and recommended a rating of 10 percent. By 1 July 2003 Title 38—Pensions, Bonuses, and Veterans’ Relief, Chapter 1, DVA, Part 4—Schedule for Rating was changed to show that VASRD Code 5293 provided the following: Evaluate intervertebral disc syndrome (preoperatively or postoperatively)...

  • ARMY | BCMR | CY2012 | 20120021545

    Original file (20120021545.txt) Auto-classification: Denied

    The applicant provides copies of his: * Medical Evaluation Board (MEB) proceedings * Physical Evaluation Board (PEB) proceedings * VA rating decision CONSIDERATION OF EVIDENCE: 1. The evidence of record shows the PEB considered the applicant's entire case file, including the LOD finding and his MEB proceedings. Records show that after the applicant's PEB findings and recommendations were approved, and the PEBLO provided the applicant information about applying for VA compensation.