RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070016394 


	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

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea M. Nuppenau

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 that his percentage of disability be increased from the original rating of 10 percent. 

2.  The applicant states, in effect, that his Post Traumatic Stress Disorder (PTSD) and neck pain conditions were not considered in his 6 February 2006 medical evaluation board (MEB) and his 15 March 2006 physical evaluation board (PEB).

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge Form Active Duty), dated 7 April 2006.

	b.  DA Form 3947 (Medical Evaluation Board), dated 6 February 2006

	c.  DA Forms 199 (Physical Evaluation Board), dated 25 February 2006 and 15 March 2006.

	d.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 2 March 2005.

	e.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, Memorandum, dated 4 Mach 2005, Informal Line of Duty Determination.

	f.  U.S. Army Physical Disability Agency, Washington D.C. Memorandum, dated 7 March 2006, Return of PEB Proceedings.

	g.  Report of Medical Examination, dated 20 April 2007.

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Puerto Rico Army National Guard (PRARNG) and the U.S. Army Reserve (USAR), the applicant's records show that he enlisted in the North Carolina Army National Guard (NCARNG) on 7 April 2003 in military occupational specialty (MOS) 12B (Combat Engineer) in the rank/grade of private first class (PFC)/E-3.  He was assigned to Company C, 105th Engineer Battalion, St. Pauls, North Carolina. 

2.  On 1 October 2003, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom.  He reported to Fort Stewart, Georgia, and subsequently served in Iraq from 29 February 2004 to 17 June 2004.  

3.  The applicant's DA Form 2173 shows that, while serving in Iraq on 1 April 2004, the applicant twisted his knee while getting out of a military 5-ton truck.  He subsequently developed knee pain, swelling, and knee locking and was evacuated to Landstuhl Army Medical Center, Germany, where a magnetic resonance imaging (MRI) showed a meniscus tear.  He was returned to Fort Bragg, North Carolina on 17 June 2004 and was attached to the Medical Readiness Processing Unit (MPRJ) at Womack Army Medical Center, Fort Bragg for follow-up medical treatment.  

4.  On 7 January 2005, he was ordered retained on active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing (MRP) Program for medical care and treatment for a period of 179 days.  His retention on active duty was subsequently extended to 537 days with an end date of 27 June 2006.

5.  On 4 March 2005, by memorandum, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, determined that the applicant's injury was determined to be "IN LINE OF DUTY."

6.  On 3 November 2005, by memorandum addressed to the U.S. Army Physical Evaluation Board, Walter Reed Army Medical Center, Washington, D.C., the Commander, Medical Retention Processing Unit, Fort Bragg, North Carolina, submitted his performance statement regarding the applicant.  The unit commander stated that after his transfer to the unit on 17 June 2004, the applicant was diagnosed with lumbar spine degenerative disc disease, which was surgically repaired and that he also had knee arthritis.  The unit commander recommended the applicant be treated for any injuries sustained from being on active duty and be discharged if found unfit for further service.

7.  On 29 November 2005, the applicant was examined at Womack Army Medical Center, Fort Bragg.  The military physician remarked that the applicant was training at Fort Stewart, Georgia in 2004, changing a 5-foot tire on a crane vehicle with another Soldier.  The other Soldier let go of the tire and the tire leaned towards the applicant, who pushed the tire away from him before it came down on him.  He felt acute spasm and sharp low back pain at the time, but kept working on the tire.  However, he suffered pain, spasms, and difficulty moving the next day and was prescribed pain medications and light duty.  He was also referred to physical therapy; however, he reinjured his lumbar spine while performing leg presses.  He was then referred to a chiropractor for low back pain treatment but that worsened his lumbar pain.  He subsequently had posterior decompression and fusion L4 through S1 surgery, but his pain persisted.  The military physician concluded that the applicant failed to meet retention criteria and recommended referral to the physical disability evaluation system.

8.  On 29 November 2005, the applicant was issued a permanent physical profile due to his injury.  The profiling officer stated that the applicant suffered lumbar spine degenerative disc disease subsequent to his surgical repair, and right knee arthritis.

9.  On 6 February 2006, a MEB convened at Womack Army Medical Center, Fort Bragg and found the patient to be medically unfit due to chronic low back pain and right knee arthritis.  The MEB recommended referral to a PEB. The applicant indicated that he did not desire to continue on active duty and agreed with the MEB's findings and recommendations. 

10.  On 25 February 2006, a PEB convened in Washington D.C. and evaluated the applicant's medical condition.  The PEB found the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the Department of Veterans Administration Schedule for Rating Disabilities (VASRD) code 5241, chronic low pain, post fusing L4-S1 and granted a 10 percent combined disability rating.  The applicant's right knee arthritis was found to be "not disqualifying, not unfitting," and was not rated.  The PEB also recommended the applicant be placed on the Temporary Disability Retirement List (TDRL) with reexamination in August 2007.

11.  On 28 February 2006, the applicant was advised of the findings and recommendations of the PEB and received a full explanation of the results of the findings and recommendations.  He concurred with the PEB findings and recommendations and waived a formal hearing of his case.

12.  On 7 March 2007, by memorandum, addressed to the President of the PEB, the Chief, Operations Division, U.S. Army Physical Evaluation Board, Walter Reed Army Medical Center, Washington, D.C., returned the applicant's case for correction of the disposition.  The Chief stated that the applicant was granted only 10 percent disability rating, and since he did not have 20 years of active duty service, he did not qualify for placement on the TDRL.  



13.  On 15 March 2006, a second PEB convened in Washington, D.C. and reconsidered the applicant's case.  The PEB found the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the VASRD code 5241 only for chronic low pain, post fusing L4-S1, and granted a 10 percent disability rating.  The PEB also recommended the applicant be separated with severance pay.  

14.  On 15 March 2006, the applicant was advised of the reconsidered findings and new recommendations of the PEB and received a full explanation of the results of the findings and recommendations.  He concurred with the PEB findings and recommendations and waived a formal hearing of his case.

15.  On 7 April 2006, the applicant was honorably discharged from the Army in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability/severance pay.  The DD Form 214 he was issued confirms he completed a total of 2 years, 6 months, and 7 days of creditable active military service.

16.  In support of his application, the applicant submitted a report of medical examination and miscellaneous medical documentation indicating that he was diagnosed post-service with PTSD and neck pain; conditions that were incurred after he underwent MEB and PEB proceedings.  

17.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

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

19.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

20.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

21.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for: enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

22.  Title 38, United States Code, permits 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 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 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 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.  Confusion arises from the fact that different rating systems are used by the Army and the DVA.  While both use the VASARD, not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant believes he should have his percentage of disability increased from the original rating of 10 percent.

2.  The applicant underwent an MEB which found him medically unfit due to chronic low back pain and right knee arthritis.  The MEB recommended referral to a PEB.  The applicant concurred with this recommendation and indicated he did not desire to continue to serve in the Army.

3.  The PEB, dated 25 February 2006, determined that the applicant was only unfit for chronic low pain, post fusing L4-S1 and initially recommended the applicant be placed on the TDRL, to which the applicant concurred.  The PEB, dated 15 March 2006, corrected the erroneous recommendation and recommended the applicant be separated with severance pay, if authorized.  The applicant concurred in the recommendation. 

4.  The applicant has not provided any evidence to show that he suffered from PTSD or neck pain while he was on active duty.  The military treatment records do not show he was diagnosed with PTSD or neck pain.  The fact that the applicant was diagnosed with those two conditions after his separation does not mean his MEB or PEB erroneously omitted the diagnoses.  The MEB and PEB processes essentially take a snapshot of a patient's physical condition during the period in question.  The MEB and PEB can only evaluate the diagnoses developed during the period in question.  Medical conditions which are diagnosed after a Soldier's separation are treated by and compensated for by the VA.  The VA may reassess a veteran's physical condition throughout his/her lifetime.

5.  The applicant is advised to contact his local or regional VA representative who can best advise him on his eligibility for evaluation of his new conditions of PTSD and neck pain.  The applicant is also advised that 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 civilian employability.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___rtd__  __gjp___  __rmn___  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.




							Richard T. Dunbar
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

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

ISSUES         1.

2.

3.

4.

5.

6.