APPLICANT REQUESTS: That her physical disability rating be increased and she be placed on the Permanent Disability Retired List (PDRL).
APPLICANT STATES: That she meet the criteria of law for placement on the PDRL at the date of her discharge.
EVIDENCE OF RECORD: The applicants military personnel and medical records show:
She enlisted in the Regular Army on 3 November 1983 in pay grade E-3, was awarded the military occupational specialty (MOS) of wire systems installer, and was promoted to pay grade E-6 on 5 June 1988.
On 23 May 1989 an MOS Medical Retention Board (MMRB) convened to determine whether the applicant was able to perform her military duties as a wire systems installer. Contrary to the applicants contention that she could not perform her duties, the MMRB determined that she would be retained on active duty, that she would be given a physical profile and that she would be placed on a probationary status.
A Noncommissioned Officer Evaluation Report (NCOER) senior rater profile contains five blocks, a first block rating being the best, a fifth block rating being the worst. The applicant was placed in the second block on the report following her MMRB, the first block on her next NCOER, the second (performance) and the first (potential) blocks on the following report, and the first and the second block, respectively, on her last NCOER. She also received an Academic Evaluation Report (AER) for her successful completion of Basic Noncommissioned Officers Course, a resident course conducted from 3 April through 16 May 1989.
A medical board was convened on 13 December 1991 and determined that the applicant had degenerative joint disease, both knees, the right greater than left, mild to moderate, and the she had right hip greater trochanteric bursitis. Both conditions were said to have had their origins in 1984.
A physical evaluation board (PEB) convened on 27 February 1992 and found the applicant to be physically unfit due to the conditions noted by the MEB. The PEB recommended that she be discharged with severance pay, rated 10 percent disabled. That recommendation was approved.
On 9 June 1992 the applicant was honorably discharged for physical disability, rated 10 percent disabled, with $27,177.80 in severance pay. She had served 8 years, 7 months, and 7 days of active service.
Records provided by the applicant show that she has been awarded a 30 percent disability rating by the VA. That rating was for residuals of injury of knees and neck with degenerative changes, rated 10 percent disabling; for residuals of bursitis in her right hip, rated 10 percent disabling; and for post-operative residuals of uterine fibroids, rated 10 percent disabling. She was also given service connection for seven other medical conditions, all of which were rated zero percent disabling. She had also unsuccessfully claimed service connection requested disability rating for 36 other medical conditions.
Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating.
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 10, United States Code, section 1203, provides for the physical disability separation (discharge) of a member who has less than 20 years service and a disability rated at less than 30 percent.
Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards 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. Consequently, due to the two concepts involved, an individual's particular medical condition, although not considered medically unfitting for military service at the time of processing for separation and therefore not rated, may be sufficient to be rated by the VA.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:
1. The applicant has not submitted any documentation which show that her disabilities were not properly rated in accordance with the VA Schedule for Rating Disabilities. Her separation with severance pay was accomplished in compliance with law and regulation.
2. To the contrary, it appears that her PEB gave her the benefit of doubt by recommending a 10 percent disability rating. She had performed her duties flawlessly for over 2 years after she was considered by an MMRB, receiving better than average and outstanding NCOERs and completing the resident course of a military school during that time.
3. The fact that the VA, in its discretion, has awarded the applicant a higher disability rating than the Army does not, in itself, establish that the Armys rating was in error. Conditions which the VA rated were not determined to be physically unfitting for Department of the Army purposes.
4. In view of the foregoing, there is no basis for granting the applicants 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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