APPLICANT REQUESTS:  Correction of his military records to reflect disability retirement versus disability separation.

APPLICANT STATES:  In effect, his medical conditions were not properly evaluated resulting in an Army disability rating far below what he should have received.

COUNSEL CONTENDS:  The applicant’s Physical Evaluation Board (PEB) proceedings “did not consider his entire medical records, nor was a proper evaluation conducted prior to his discharge.”  He maintains, contrary to the PEB findings, that the applicant’s “herniated disc lumbar spine at L5-S1, and L5-L4, separated and permanently disabled left shoulder; esophageal ulcers; duodenal ulcers; bilateral hearing loss; impairment and disability of the left wrist; impairment and disability of left knee; hypertension; migraine headaches; bursitis of the left elbow, pain in chest from resection of left third rib; and cyst of the right wrist” were all service connected conditions which were disabling and should have resulted in a rating of at least 60 percent.  He states the applicant was still undergoing treatment for a lower back condition which “was suspected to be a herniated disc” and yet was denied a continuance of the PEB process which effectively dismissed consideration of a rating for the back condition.  He notes that “since his discharge, the applicant has not been able to secure employment, is still unemployed and has had to undergo a number of surgical procedures to correct medical conditions and maladies that existed at the time of his discharge but were either ignored by the Army at that time, or the Army physicians were not made aware of the problems.”

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

He served an initial period of active duty between 1974 and 1976 and was subsequently a member of the Army National Guard before reenlisting on 13 January 1982.  He was promoted to pay grade E-5 in September 1984 and in August 1991 was reduced as a result of punishment under Article 15, UCMJ action.

His extensive medical records indicate he was treated for a variety of medical complaints including headaches as early as 1975 and back pain as early as 1983.  He broke his wrist while attending training in 1986 and was treated for ulcers and left shoulder pain beginning in 1987.  In 1989 he was seen by medical personnel for painful ribs.

According to documents contained in the applicant’s service medical records he had a series of temporary physical profiles for chronic lower back pain beginning in July 1983. The last recorded profile expired in January 1985.

In December 1990 the applicant was again seen by medical personnel for “recurrent shoulder dislocation....”  He was issued a temporary profile as a result of his shoulder condition which continued through at least July 1991.  On 
1 October 1991 he underwent surgery on his left shoulder.  The evaluating physician noted the applicant had “a history of multiple shoulder dislocations and over one dozen shoulder subluxations in the past twelve months, having four since this January of the latter.”  He had several follow-up appointments after surgery and on 3 January 1992 reported he “felt a pop.”  The evaluating physician noted the applicant’s shoulder continued to show improvement and that the “pop” was “from tear of scar.”  In March 1992 he again complained of pain in his shoulder and noted that his duties as a medical technician “require[d] heavy and precision use of UE [upper extremities].”

A Medical Evaluation Board (MEB), conducted in July 1992 noted the applicant's chief complaint as “left shoulder pain and decreased range of motion.”  The MEB summary indicated the applicant “complains of pain in his left upper extremity, which is intense at times” and “is unable to get his hand above his head and is unable to lift more than five pounds without pain....”  Following an examination and review of available records the evaluating physician found the applicant suffered from 1) chronic left shoulder pain, status post left anterior capsular shift, no evidence of recurrent dislocation or subluxation [an incomplete or partial dislocation] 2) moderate high frequency sensorineural hearing loss 3) musculoskeletal low back with mild degenerative disc disease, L5-S1 and 4) mild left knee retropatellar pain syndrome.  The applicant agreed with the findings of the MEB on 6 August 1992 and was referred to a PEB.

On 19 August 1992 an informal PEB concluded the applicant was physically unfit for continued service because of pain in his shoulder and knee and degenerative disc disease (MEB diagnosises 1, 3 and 4).  The remaining MEB diagnosis 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 5003 recommended he be separated with disability severance pay.  The applicant nonconcurred with the informal PEB findings and recommendation and demanded a formal hearing.

A formal PEB convened on 8 October 1992 which noted that all of the applicant’s available medical records were reevaluated and sworn testimony was provided by the applicant.  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.  The formal board concluded that MEB diagnosises 2 through 4 were not unfitting and therefore not rated.  They recommended the applicant be separated with disability severance pay.

The applicant appealed the decision of the PEB noting that his back condition was not rated “even though [he] brought with [him] X-rays that showed a defect at L5” and that his “back is bothering [him] to the point that sometime [he] can hardly walk....”  The applicant noted that he was scheduled for additional testing on his back on follow-up appointment for his left shoulder.  The applicant indicated he felt that in the absence of those tests the PEB findings were “unfair and unjust.”  The applicant’s rebuttal was reviewed and it was concluded that in spite of “medical evidence and your [the applicant’s] testimony concerning [his] current back condition” that the condition was not unfitting.  Additionally the reviewing officer indicated that the applicant’s request for a delay was not warranted that the “board felt that the medical evidence provided to the board, along with [the applicant’s] testimony, was sufficient to fairly adjudicate” the applicant’s current medical condition.  In November 1992 the findings and recommendations of the formal PEB were approved on behalf of the Secretary of the Army.

In December 1992 the applicant’s back was again evaluated and the attending physician noted that the applicant’s “discs are not surgically significant at this time, rather they are a manifestation of his degenerative arthritis of the lumbar spine” and suggested “physical therapy/back school.” 

On 17 December 1992 a neurological consult noted that an MRI revealed “central disc bulges L3-4, L4-5, L5-S1.  Lowest L5-S1, is largest but still modest without distation of the thecal sac or roots.”  A 22 January 1993 orthopedic evaluation agreed that the applicant was not a surgical candidate at this time.  None of the subsequent evaluations noted the applicant’s condition was unfitting nor recommended reevaluation by a PEB.

The applicant was discharged by reason of physical disability on 4 February 1993.  He received $30268.00 in disability separation pay.

Subsequent to his separation the applicant was granted a combined service connected disability rating of 60 percent. His shoulder condition was independently granted a 20 percent rating, while his back condition was independently rated at 40 percent and his ulcer at 10 percent.  His remaining medical conditions, which are identical to the ones listed in his application to this Board, were considered service connected by the VA but not compensable. 

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 physical disability system is a performance based system and that the presence of a physical condition or impairment does not automatically result in a finding of unfitness and compensation.  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 there was no evidence of error or injustice and recommended the applicant's military records not be changed.  On 7 March 1997 the applicant’s counsel was provided a copy of the PDA advisory opinion which he responded to on 15 May 1997 (COPY ATTACHED).

VASRD Code 5201 provides that major or minor limitation of motion at shoulder level is rated at 20 percent with a maximum rating of 40 percent for major limitation of motion of at least 25 degrees from side.

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 fact that the applicant had multiple medical conditions which were incurred while on active duty does not mean that those conditions prevented him from accomplishing his military duties or warranted disability compensation from Army.  

3.  Although the VA subsequently granted the applicant disability for his back condition and ulcer neither of those conditions were considered unfitting at the time of his separation from active duty.  The fact that physicians evaluating his back after completion of his disability processing and prior to his separation failed to mention that the condition was so severe as to warrant reconsideration of the PEB findings or that such a condition rendered him unfit for further military service supports this conclusion.

4.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  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 reason or authority for separation.

5.  The preceding conclusions are consistent with the advisory opinion from the PDA.  While the Board notes the contentions of the applicant’s counsel in response to the advisory opinion they do not demonstrate any error or injustice in the Army disability 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