RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20060014525 


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


x

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be rated for the medical problems with his back and left foot that existed during active duty and was not diagnosed properly.

2.  The applicant states that he complained of extreme pain in his back that was traveling down his left leg and 6 weeks after his separation to the Temporary Disability Retired List (TDRL) his doctor ordered an MRI for his back because of his chronic pain and discovered a central disc herniation.  Follow-up treatment at the Department of Veterans Affairs (VA) in Baltimore resulted in a diagnosis of degenerative disc disease of the lumbar spine and is now on pain medication.  He goes on to state that his condition has worsened since he has left the Army. 

3.  The applicant provides a copy of his report of separation (DD Form 214), a VA Rating Decision and copies of medical documents from both military and civilian facilities, and copies of his medical evaluation board (MEB) and physical evaluation board (PEB) proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 5 November 1981 and enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) in Baltimore, Maryland on 19 November 2003 for a period of 8 years. 

2.  On 15 January 2004, he enlisted in the Regular Army for a period of 4 years, training as an imagery ground station operator and participation in the Partnership for Youth Success (PAYS) Program.

3.  He successfully completed his training and was transferred to Fort Campbell, Kentucky.  He was advanced to the pay grade of E-3 on 1 December 2004.

4.  On 24 June 2005, the applicant appeared before a MEB for a medical evaluation of his left hamsting or semimembranous tear.  The applicant presented his views on his condition and his medical treatment records were evaluated as well.  The MEB recommended that he be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty and he agreed with the MEB findings and recommendations. 

5.  On 22 July 2005, a PEB was convened at Fort Sam Houston, Texas.  The PEB evaluated the applicant’s condition as being a torn left hamstring muscle with 6 X 5.5 cm mass in left posteromedial thigh, palpable muscle defect, 4+ out of 5 strength, fatigue, with exertion, when exertion is possible, numbness of leg when muscle mass is compressed by sitting, rated as moderately severe. 

6.  The PEB determined that the applicant’s condition was not stable enough for a final adjudication and recommended that he be placed on the TDRL with a 30% disability rating and reexamination in September 2006.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

7.  On 14 September 2005, he was placed on the TDRL by reason of temporary disability with a 30% disability rating.  He had served 1 year and 8 months of total active service.

8.  The information regarding the applicant’s reevaluation is not present in the available records; however, information obtained from officials at Walter Reed Army Medical Center, Washington, D.C. indicates that the applicant was removed from the TDRL and was separated with entitlement to severance pay in January 2007. 

9.  The VA Rating decision provided by the applicant, though undated, was apparently rendered sometime in 2006.  The VA gave the applicant a combined rating of 60% for Status post ruptured hamstring (to include left hip and left knee condition), low back strain and degenerative disc disease lumbar spine (claimed as low back condition) and left S1 radiculopathy (claimed as left foot numbness).

10.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine percentage ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings. The Army's determination of a soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his grade, rank, or rating. If the soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.  The VA may find a soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending upon the changes in the disability.

11.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

12.  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, however, is not required by law to determine medical unfitness for further 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 medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.            

DISCUSSION AND CONCLUSIONS:

1.  The available records show that the applicant concurred with both the findings and recommendations of the MEB and PEB at the time.  While the information pertaining to his reevaluation are not present in the available records, it must be presumed in the absence of evidence to the contrary that the applicant was properly evaluated and his rights were protected at the time it was determined that he be separated by reason of disability with severance pay. 

2.  The fact that the VA in its discretion has awarded the applicant a disability rating does not establish physical unfitness, of any degree thereof for Department of the Army purposes.  Each agency/department is bound to operate within its own rules, regulations and policies.  The granting of a compensable award by one agency is not tantamount to a lesser, equal or more enhanced award by the other agency.    

3.  The evidence of record suggests that the applicant was actively involved in his medical evaluation and that he was afforded the opportunity to present his views of his medical condition at the time.  Therefore, since evaluation boards make determinations on conditions that are present at the time of the evaluation, it appears that his condition worsened after his separation and became an issue that was under the jurisdiction of the VA.  



4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_  __x ___  __x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





______ x________
          CHAIRPERSON




INDEX

CASE ID
AR20060014525
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050522
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.108.0200
179/%
2.

3.

4.

5.

6.