APPLICANT REQUESTS:  In effect, correction of his military records to reflect disability retirement.  The applicant also notes that his name should be placed on the TDRL (Temporary Disability Retired List).

APPLICANT STATES:  His left wrist conditions was improperly rated at only 10 percent when it should have been rated at 20 percent under VA Schedule for Rating Disabilities (VASRD) Code 5214.  He also notes that his left ankle condition was also “unfitting” and should have been rated at 10 percent.  The combined rating of 30 percent, in effect, would have enabled him to be retired by reason of disability rather than merely separated for disability.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 4 April 1990 and was promoted to pay grade E-4 in 1991.  He was assigned to Fort Hood, Texas as an assistant gunner throughout his military service.

Beginning in 1993 the applicant was issued a series of temporary profiles, one following knee surgery in March 1993, one for his left ankle in November 1993, and two following left wrist surgery.  The temporary knee and ankle profiles were allowed to expire and were not renewed.  However, in March 1994 the applicant was issued a permanent physical profile for his left wrist condition

A Medical Evaluation Board (MEB), conducted in May 1994, noted the applicant's chief complaint as "left wrist pain for the past year.”  The MEB summary indicated the applicant had undergone surgery and “has been in a postop recovery period...he has a significant amount of wrist pain limiting motion and limiting his ability to do push-ups or any other type of strenuous type activity with the left upper extremity.”  The MEB also noted that the applicant had some tenderness in his left ankle and that “in the MRI of the left ankle which demonstrated a tenosynovitis [inflammation] of the anterior tibialis tendon.”  In addition to the applicant’s left wrist condition the MEB concluded he suffered from early arthritic process in his left wrist, a healed right knee conditions and chronic tenosynovitis of his left ankle.  The applicant concurred with the MEB findings and was referred to a PEB.

On 16 September 1994 an informal PEB concluded the applicant was physically unfit for continued service because of his left wrist condition.  Neither his knee nor his ankle conditions were considered unfitting and therefore not rated.  The board rated his left wrist condition at 20 percent in accordance with VASRD Codes 5215 and 5003 and recommended that he be separated with disability severance pay.  The applicant concurred with the findings and recommendation and waived his right to a formal hearing.

On 10 November 1994 the applicant was separated from active duty in pay grade E-4 and received $12,885.00 in disability severance pay.

Subsequent to his separation, he was granted a combined service connected disability rating of 30 percent by the VA. Although the VA, utilizing VASRD code 5213, independently rated the applicant left wrist condition at 20 percent, they also rated his ankle at 10 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.

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

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’s ankle and knee were not considered unfitting at the time of his PEB and that his “inability to perform his military duties” was based on his painful wrist.  They also noted that the VA’s use of VASRD Code 5213 may have been incorrect as the code applies to the elbow and forearm, not the wrist.  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.  The Board notes that the applicant concurred with the findings and recommendation of both the MEB and PEB and appears to base his request for an increased Army rating based solely on the rating by the VA.

4.  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.

5.  There is no evidence the applicant’s condition had not stabilized to a sufficient degree and placement on the TDRL was not appropriate.

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