MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2002067535

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Richard T. Dunbar		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his separation for disability with severance pay be changed to a medical retirement.

APPLICANT STATES: That he was separated with a zero percent disability rating. He honorably served his country for over 14 years and served in Kuwait during the Persian Gulf War. The Department of Veterans Affairs (VA) has given him a 50 percent disability rating. Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the Regular Army on 5 November 1985. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember). He was later reclassified into MOS 13M (Multiple-Launch Rocket System (MLRS) Crewmember).

In September 1999, the applicant sustained a left pectoralis major rupture to his left dominant arm. In April 2000, he was given a permanent profile for left shoulder pain. On 16 April 2000, his commander stated that his profile impacted on his duty performance as an MLRS crew chief.

The Medical Evaluation Board (MEB) Narrative Summary dated May 2000 indicates that intraoperative findings revealed a tear at the musculotendinous junction and not off of the pectoralis tendon bone junction. He did well until 6 weeks after surgery when he experienced a static aching and burning pain over his left pectoralis major repair and then a ripping pain with left shoulder motion. X-rays revealed a left AC joint arthrosis (disease of a joint) and a well-healed surgical scar over the deltopectoral groove. Repeat MRIs revealed surgical changes; however, the pectoralis tendon was intact and clinically there was isometric contraction with tendon tension. It was felt the pain was most likely secondary to scarring as the repair appeared intact. It was noted he had a history of sarcoidosis (lung condition).

The active range of motion of the right shoulder in abduction was 175 degrees; left shoulder 160 degrees. Forward flexion of the right shoulder was 180 degrees; left shoulder 160 degrees. External rotation of the right shoulder was 60 degrees; left shoulder 60 degrees.

The MEB diagnosed him with left shoulder pain, status post left pectoralis major rupture and repair; left AC (acromio-clavicular) joint arthrosis; and sarcoidosis and referred him to a Physical Evaluation Board (PEB). The applicant agreed with the findings and recommendation on 23 May 2000.

On 25 May 2000, a PEB found the applicant to be unfit for duty as a result of his diagnoses of left shoulder pain, status post left pectoralis major rupture and repair, rated as slight/intermittent, with a disability rating of zero percent. His diagnosis of sarcoidosis was found to be not unfitting and not rated. It was recommended he be separated with severance pay. On 5 June 2000, the applicant concurred in the findings and recommendation and waived a formal hearing of his case. On 7 June 2000, the findings were administratively corrected to show his ratable diagnoses were rated as slight under VA Schedule of Rating Disabilities (VASRD) code 5303.

On 18 July 2000, the applicant was separated for disability with severance pay, in pay grade E-6, after completing 14 years, 8 months, and 14 days of creditable active service.

In August 2001, the VA awarded the applicant disability for left AC joint arthrosis (10 percent); scar due to status post left pectoralis major rupture and repairs (10 percent); bilateral flat feet (10 percent); right hip strain (10 percent); left knee retropatellar pain syndrome (10 percent); and right knee retropatellar pain syndrome (10 percent). The VA found the following ranges of motion in his left shoulder – 120 degrees forward flexion without pain, 180 degrees with pain; 50 degrees of extension; abduction at 120 degrees without pain, 180 degrees with pain; 50 degrees of adduction; internal rotation 90 degrees; and external rotation 90 degrees.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Appendix B prohibits pyramiding. Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code. All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

The VASRD gives code 5303, intrinsic muscles of the shoulder girdle, pectoralis major and deltoid, a zero percent rating when slight and a 20 percent rating when moderate.

Title 38, U. S. 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, however, is not required by law to determine medical unfitness for further military service.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. 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 this requirement.

2. The Board notes that the applicant was referred to a PEB only for his left shoulder injury. None of the other conditions for which the VA awarded him a disability rating were noted as rendering him unfit to perform his duties as an MLRS crew chief. The Board presumes that competent medical authorities determined that the differences in ranges of motion between his injured left shoulder and his uninjured right shoulder were only slight; therefore, a zero percent disability rating was appropriate. The Board notes that the three rated diagnoses were all related to his left shoulder injury. The prohibition of pyramiding rule prevents the Army from rating those three conditions separately.

3. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

4. The Board appreciates the applicant’s years of honorable service to include service in a combat zone; however, years of service does not play a part in determining fitness or unfitness for duty or in the determination of disability ratings.

5. 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

__mkp___ __eja___ __rtd___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002067535
SUFFIX
RECON
DATE BOARDED	20020411
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.02
2.
3.
4.
5.
6.