RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:   1 May 2008	  
	DOCKET NUMBER:  AR20070013423 


	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.  






















	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, a medical discharge and/or disability retirement.  

2.  The applicant states, in effect, that his back injury occurred about April, May or June 2003, while in Iraq, at Camp Anaconda.  While he was down loading a 5 ton trailer, he bent to lift something and when he came up the tailgate struck him in the lower back.  He went on sick call the day after his injury and was advised that the doctor was not seeing any patients.  He returned a few days later and was told that all the physical profiles were given out and that he had to "suck it up and drive on."  No accident report was done and there are no medical records available for the period during the time the injury occurred.  He was in constant pain no matter the type of activity being performed.  After redeployment, he saw a doctor in Germany and was advised that he would have to have a magnetic resonance imaging (MRI) on the local German economy.  He could never set up an appointment through Tricare for the MRI, and deployed to Afghanistan without having it completed.  When he returned from Afghanistan, he asked the doctor from his Iraq deployment if he [the doctor] would provide a statement about his accident in Iraq.  He contends that the doctor told him that if he recommended the applicant for a Medical Evaluation Board (MEB), it would only look like he was trying to get money out of the Army.  He continued to receive treatment until his discharge and is now receiving benefits from the Department of Veterans Affairs (DVA) for his back.  

3.  The applicant also contends that he hurt his neck in Iraq when the convoy he was traveling in left the road surface.  The impact was so hard it crushed the suspension of the vehicle and caused his neck injury.

4.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his DVA Rating Decisions, dated 9 July 2007 and 27 November 2007; his service medical records (SMRs); and his DVA medical records, in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant receive a medical discharge and/or disability retirement.  

2.  Counsel states that the applicant received injuries in the Army that were not annotated on his SMRs.  He also contends the applicant was not medically evaluated before his discharge and that he was refused an MEB.  
3.  Counsel did not provide any additional evidence in support of the applicant's application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he served in the Oregon Army National Guard and the United States Army Reserve from 30 July 1981 through 29 July 1990.  He enlisted in the Regular Army on 14 March 1996.  He was honorably discharged on 30 June 2006, after completing 10 years, 3 months, and 17 days of active duty.  His DD Form 214 shows that he attained the grade of sergeant (SGT), pay grade E-5, and that his primary military occupational specialty (MOS) was 93F (Petroleum Supply Specialist).

2.  The applicant served in Iraq from 1 February 2003 through 18 March 2004, and in Afghanistan from 3 November 2005 through 25 February 2006.

3.  The applicant's SMRs show he had a history of lower back pain as early as December 1997, prior to his deployment to Iraq.  A clinical note entry for 10 December 1997, shows he was treated for lower back pain (LBP).  He reported that after changing a vehicle tire he experienced LBP.  On 5 August 1999, the applicant reported to sick call and reported he had LBP after lifting pallets.  

4.  The applicant was treated on multiple times from 2001 through 2006 for his LBP.  On 26 April 2001, he reported to sick call complaining of LBP after taking an Army Physical Fitness Test (AFPT).  He was seen on follow-up on 26 April 2001, reporting that the pain had increased and was constant.  On 4 August 2001, he received treatment for LBP.  At that time, the applicant reported a history of LBP.  He was prescribed Motrin, Percocet, and Flexiril and placed on a 7-day physical profile.  He was seen on follow-up on 6 August 2001.  He reported that he felt a sharp pain with movement, but the pain was not constant and did not radiate up or down his legs.

5.  A clinical note for 7 January 2002 shows the applicant was treated for LBP which began 3 days prior to his reporting to sick call.  The applicant reported that he had a history of LBP and that he possibly exacerbated his condition with heavy lifting.  

6.  On 20 August 2002, the applicant was treated for his LBP.  He reported a 
6-year history of LBP.  He complained of lower left-side back pain with standing and walking, but denied radiation of pain, numbness, or tingling.

7.  On 30 April 2003, while deployed in Iraq, the applicant was seen for his history of LBP.  The examiner indicated there was no trauma to his back, and that his pain began that morning as a dull constant ache.  

8.  On 25 August 2004, the applicant was treated for LBP.  He reported that while on leave he did some roofing and his back pain worsened.  He was treated again on 8 November 2004, and reported a long history of LBP with no trauma.  On 20 June 2005, a clinical note indicates that the applicant's LBP was triggered by putting down a fire extinguisher.

9.  The applicant's SMRs show continuous treatment of his LBP and neck pain until his discharge.  A review of his available physical profiles shows he was placed on temporary profile on numerous occasions, but there is no evidence of a permanent profile being issued for his LBP.

10.  The applicant received a change of rater NCOER for the period January 2003 through June 2003.  This NCOER shows he passed the APFT in January 2003 and the rater noted he "motivated Soldiers during fitness training by his personal example of stamina and high morale."

11.  The applicant's annual NCOER for the period July 2003 through June 2004 shows he passed the APFT in April 2002 and the rater noted he "increased his APFT score by 67 points while serving in a combat area," and "completed a 10 mile marathon relay under the harshest conditions while deployed to Iraq."

12.  A review of the applicant's annual Noncommissioned Officer Evaluation Report (NCOER) for the period July 2004 through June 2005 shows that he passed the APFT in May 2005 and his rater noted that he "led by example during tough vigorous training."

13.  The applicant provided a copy of a lumbar spine MRI, dated 16 August 2007 which shows degenerative changes at all lumbar discs.  The most severe degenerative change is in the upper lumbar spine at L1-2 and L2-3.  

14.  The applicant provided a copy of his latest thoracic spine x-ray report, dated 13 February 2008, showing that there is no significant degenerative disease, or loss of height of vertebral bodies.  His lumbosarcral spine x-rays show anterior spurring, disc space narrowing, and vacuum disc at L2-L3, suggestive of severe degenerative disease.  X-rays of his cervical spine show marked degenerative disease, with bilateral foraminal stenosis and a very abnormal curvature, with an S shape of the cervical spine.

15.  The applicant provided a copy of a DVA Rating Decision, dated 9 July 2007, showing that he is service-connected for residuals of a lower back injury, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; arthritis of the neck, rated as 10 percent disabling; and glaucoma, rated as 10 percent disabling.

16.  The applicant provided a copy of a DVA Rating Decision, dated 27 November 2007, which granted him service connection for radiculopathy of the left lower and right extremities, rated as 10 percent disabling, respectively.

17.  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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness),
Chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

18.  The objectives of the Army PDES are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-
connected disability, and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 as evidenced in a medical evaluation board; receive a permanent medical profile and are referred by an MOS/Medical Retention Board (MMRB); are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption and compensation for service-incurred conditions.
	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the PEB.  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active Federal service.  For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active Federal service; and (2) Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, that is what might happen in the future.  If placed on the Temporary Disability Retired List (TDRL), the Soldier is required to undergo a periodic medical reexamination within 18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEB for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the US Army Physical Disability Agency (USAPDA) to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

19.  Paragraph 3-1 of Army Regulation 635-40 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.

20.  Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

21.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

22.  Title 38, United States Code, sections 1110 and 1131, permit the 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 the 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.

23.  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.  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 Army Board for Correction of Military Records 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.

DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the applicant's official military records, his SMRs, and the evidence he submitted in support of his request, no error or injustice is shown to justify the relief he is requesting.

2.  Contrary to counsel's contentions, the applicant's SMRs show the applicant received medical treatment for a lower back condition on a multitude of occasions.  The applicant provided a copy of his SMRs showing that he first sought medical help and reported mechanical LBP in December 1997.  He was treated for this condition on numerous occasions between 1997-2002 prior to his deployment to Iraq in February 2003.  While it may be true that the applicant's lower back was again injured in Iraq, even without a medical report confirming his allegations, the injury would most likely only have exacerbated a preexisting  condition.  

3.  Although the applicant's LBP condition is well documented in his SMRs, there is no evidence that his military service was interrupted by a physical disability.  He was never placed on a permanent medical profile or referred by an MOS/MMRB to the PDES; he took and completed all APFT's according to his NCOERs; and he was not command-referred for a fitness for duty medical examination because he could not reasonably perform the duties of his office, grade, rank or rating.  The mere presence of an impairment does not justify a finding of unfitness because of physical disability.

4.  When a Soldier continues to perform military duties up to his or her discharge or retirement date, that Soldier is presumed to have been physically fit.  The presumption is rebuttable by evidence that shows:  an acute, grave illness or injury occurred which prevented the Soldier from performing further duty; a serious deterioration of a previously diagnosed condition, to include a chronic condition, which would preclude further service (if the Soldier were not separating/retiring); and/or a chronic condition for which the Soldier was referred, 
and a preponderance of evidence established that the Soldier was not performing duties befitting his or her experience, grade, rank, or rating.  The applicant has not provided evidence sufficient to overcome the presumption of fitness.

5.  The VA rating decisions and medical documents provided by the applicant were also carefully considered.  However, the award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the VA; however, there is no indication the applicant suffered a disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels; therefore, there is an insufficient evidentiary basis to support granting the applicant a medical retirement at this time.  

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

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


ABCMR Record of Proceedings (cont)                                         AR20070013423


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508