RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20060015226 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

Member

	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, in effect, that his physical disability rating be increased. 

2.  The applicant states, in effect, that the Physical Evaluation Board (PEB) failed to take into account the loss of his range of motion in his C-spine and right wrist conditions.  

3.  The applicant continues that the PEB also failed to take into consideration objective findings submitted by the Chief of the Hand Clinic at Walter Reed Army Medical Center (WRAMC) and the Commanders' Performance Statement.

4.  The applicant provides a copy of his self-authored statement, dated 15 May 2007; DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 October 2006; his Chronological Record of Medical Care, dated 22 June 2006; the Department of Veterans Affairs, Rating Decision, dated 10 April 2007; and Commander's Performance Statement, dated 8 May 2006, in support of this case.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's records are incomplete; however, the available record shows he had 5 years, 1 month, and 19 days of prior Regular Army service and over 23 years of inactive military service.  

2.  On 26 April 2006, a Medical Evaluation Board (MEB) was convened at WRAMC, Washington, DC.  The MEB shows in August 2003, the applicant injured his back after sustaining a fall aboard ship.  The MEB also shows that approximately 2 weeks after the injury he noted intermittent cold/ice numbness in his left hand along the medial aspect and his 5th digit.  

3.  The MEB continues that he had a burning sensation along the medial aspect of his left arm.  The MEB continues that the applicant's next injury occurred in February 2004, when he was involved in a snow mobile accident and was treated for right orbital and wrist fractures, facial laceration and right orbital fracture, sprained left knee, chronic neck and back pain, hypertension and chronic bilateral knee pain.  The MEB continues that the applicant past surgical history included Anterior Cervical Decompression and Fusion (ACDF) at 
C6-C7, on 30 September 2004; right wrist surgery in March 2004, carpal tunnel in May 2004, and bilateral knee surgery, left 1978, right 1983 and June 2005.  
4.  The MEB diagnosed the applicant with anterior cervical fusion, with decreased range of motion (ROM), residual pain, dysesthesia of the left side of trunk and left lower extremity, and healed fracture of the right distal radius with residual pain and mild loss of dexterity and limitation of motion.  These conditions were found to not meet medical retention standards.  

5.  On 8 May 2006, the applicant non-concurred with his MEB findings and requested several minor changes.  The applicant's rebuttal included a copy of the Commander's Performance Statement, dated 8 May 2006, which addressed the applicant's past medical history, and the limitations of his present condition.  

6.  The Commander continues that he had worked with the applicant for three years and served as his commander for the last 15 months.  The Commander concluded that the applicant's injuries had adversely affected a good Soldier, and if not for his injuries he would continue to be a beneficial member of the U.S. Army Reserves at the highest standard.

7.  On 9 May 2006, the MEB approved findings and directed that the case be referred to the PEB with the following minor changes.  The MEB was amended to show that the applicant had healed-medically, the ophthalmic condition was stable and not-active, scarring healed appropriately, and on the third/last iteration the narsum was appropriately completed by orthopedics.  

8.  On 15 June 2006, the PEB returned the case to the MEB for some additional information.  

9.  On 22 June 2006, the MEB returned the case to the PEB with additional information.  The MEB opined that the cervical ROM was mechanically limited by one level fusion and provided additional ROM data reflecting a passive ROM flexion of the cervical spine of 32 degrees.  

10.  On 10 July 2006, an informal PEB found the applicant unfit for his chronic neck pain, rated at 10 percent, and unfit for his painful wrist, rated at zero percent, and separation with severance pay.  The PEB also found the applicant's dysesthesia not independently unfitting, as he had full strength in all his extremities, and all other conditions were not considered unfitting or compensable.




11.  On 1 August 2006, the applicant did not concur with the findings of the PEB and requested a formal hearing.  On 14 August 2006, the formal PEB reaffirmed the 10 July 2006 finding of 10 percent for chronic neck pain, and increased his rating by 10 percent for wrist pain to a total rating of 20 percent, separation with severance pay.

12.  On 24 August 2006, the applicant again did not concur with the findings of the PEB, and submitted a statement in rebuttal.  The applicant's rebuttal indicated his cervical ROM was not 32 degrees, his wrist ROM limitations should have been rated, given a rating for arthritis of both conditions, and the PEB failed to fully consider the Commander's Performance statement, dated 8 May 2006 which showed how the conditions related to his functional loss.

13.  On 1 September 2006, the PEB responded to the applicant's rebuttal and indicated the 22 June 2006 ROM document stated he had at least one 32 degree of ROM which allowed him to mechanically flex to that extent.  Therefore, the applicant's ROM was over the 30 degree criteria for assigning a rating of 20 percent he could only be rated at 10 percent for restrictions of ROM. All other evidence and comments did not provide any change to the PEB's finding.

14.  On 6 September 2006, the applicant's case was reviewed by U.S. Army Physical Disability Agency, WRAMC, and the findings were approved for 20 percent disability, separation with severance pay.

15.  On 18 October 2006, the Department of Veterans Affairs (DVA) petition for relief in behalf of the applicant.  The petition for relief letter, in summary, addressed the applicant's request for a discharge upgrade reflecting his entitlement to a medical retirement, due to a permanent disability.  The DVA continues that the applicant's last period of service was during the period from 30 January 2003 through 18 October 2006.  The DVA shows that the applicant served a total of 9 years of active duty with an additional 19 years of inactive duty and he was discharged from active honorable service due to a physical disability with severance pay for chronic neck pain and right wrist pain status post fracture. 

16.  The DVA continues that the Department of Defense and the Department of Veteran's Affairs use the same schedule for disability rating, but their philosophy and application are completely different.  The DVA continues that the applicant ultimately accepted the PEB finding with the understanding that the military addressed his disability(s) with his best interest in mind.  However, the DVA states that the applicant after reviewing the DVA's interpretation of the Disability Schedule for rating purposes filed an application for correction of his disability rating/percentage.  
17.  On 18 October 2006, the applicant was honorably separated from 
active duty under the provisions of paragraph 4-24B(3) of Army Regulation 
635-40 (Personnel Separations) by reason of a physical disability with severance pay. 

18.  On 10 April 2007, the DVA, Philadelphia, Pennsylvania, informed the applicant that he would receive service connected compensation for: 

	a.  carpal tunnel syndrome right upper extremity with radicular pain (also claimed as post-surgical radiculopathy right side of body) at the rate of 30 percent;  

	b.  radiculopathy left upper extremity (claimed as post surgical numbness left side of body) at the rate of 20 percent;  

	c.  chronic low back strain with osteodegenerative disease at the rate of 20 percent; and 

	d.  chronic neck strain with osteodegenerative disease and disc degeneration s/p disc surgery at the rate of 10 percent;  

19.  Therefore, the DVA request that the Board provide careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision, awarding at a minimum a twenty percent evaluation for each of the disabilities for a combined forty percent evaluation, based on the clinical evidence of record and the Schedule for Rating Disabilities as contained in Part Four of the 38 Code of Federal Regulations, requiring placement of the applicant on the permanent disability retired list.

20.  On 20 April 2007, the United States Army Physical Disability Agency (USAPDA) provided an advisory opinion.  It was concluded that the applicant has provided no new evidence not previously reviewed or considered.  It was opined that the applicant has provided no evidence of error in the PEB's findings.  It was further opined that the PEB's findings are supported by a preponderance of the evidence, the findings are not arbitrary or capricious, and the findings are not in violation of any statue, directive, or regulation.  It was recommended that the applicant's military records remain unchanged.

21.  The applicant was provided a copy of the advisory opinion for review and comment.  On 7 May 2007, the applicant did not concur with the advisory opinion.
22.  On 15 May 2007, the applicant submitted a statement in rebuttal of the advisory opinion.  The applicant stated that he spent 29 years and 9 months in the service, but only 11 years of that time was on active duty.  The applicant states that if he was not found medically unacceptable for further military duty he would be a member of the Army Reserve.  The applicant continues that he had three surgeries preformed at WRAMC the first two were successfully done on his right hand and wrist.  The applicant states his third surgery did not turn out as well and left the anterior cervical fusion (ACF) at C 6-7 hypersensitive.  

23.  The applicant continues that the ROM studies are open for debate, since the two studies he had on his cervical spine are different.  The applicant states that one of his studies was done by the physical therapy clinic at WRAMC and the other by the Orthopedics center at WRAMC.  The applicant adds that the other study shows that his ROM was 32 degrees at one point with the electric shock feeling running down his left arm and leg.  

24.  The applicant continues that at the physical therapy clinic he made it to 26 and 28 degrees ROM.  The applicant also points out that Army and the DVA uses the same rating system, which is a little more generous in their percentages.  The applicant states he deserves his records corrected to show an increase in his disability rating by an additional 10 percent.  

25.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness in chapter 2, 3, 4, or 5 apply, may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  

26.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

27.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities. It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

28.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA, 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 civilian employability.  

29.  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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  

30.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

31.  Title 10, United States Code, Chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

32.  Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of active Federal service and a disability rated at less than 30 percent.

33.  Title 38, United States Code, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.  

34.  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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that he was incorrectly discharged based on his medical condition and that his physical disability rating should be upgraded. 

2.  Record shows that the applicant had a MEB which determined he suffered with anterior cervical fusion, with decreased rang of motion, residual pain, dysesthesia of the left side of trunk and left lower extremity, and healed fracture of the right distal radius with residual pain and mild loss of dexterity and limitation of motion.  These conditions were found to not meet medical retention standards in the Army in accordance with Army Regulation 40-501, Chapter 3.  

3.  The applicant's record shows that he ultimately concurred with the PEB findings.  Further, the applicant has not provided any medical documentation which required he receive a permanent disability rating at the time of his non concurrence with the PEB or in his rebuttals.  

4.  On 18 October 2006, the applicant was separated from active duty under the provisions of paragraph 4-24b (3) of Army Regulation 635-40 (Personnel Separations) for disability, with severance pay.  




5.  Evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

6.  The applicant's disability was properly rated in accordance with the DVA Schedule for Rating Disabilities by the PEB.  Based on the applicant having less than 20 years of service and a disability rating at less than 30 percent, he was, therefore, separated with entitlement to disability severance pay instead of a disability retirement consistent with law and regulation.

7.  An award of a higher DVA rating does not establish error or injustice in an Army disability 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 DVA, 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 civilian 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.

8.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

9.  Based on the foregoing, there is no basis for changing the applicant's disability rating by the Army in this case.  As provided for in law, the DVA has rated the applicant at 80 percent service connected disability, is appropriately compensating the applicant based on this ratings, and may reevaluate the applicant, if necessary, as his condition changes.

10.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JI____  _RML___  _JRH_ ___  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.





__John Infante____
          CHAIRPERSON







INDEX

CASE ID
AR20060015226
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
18 August 2006
DISCHARGE AUTHORITY
AR 635-40. . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.