IN THE CASE OF:	  

		BOARD DATE:	       11 September 2008

		DOCKET NUMBER:  AR20080004794 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request to change his disability separation with severance pay to a disability retirement.

2.  The applicant states that he turned down the severance package he was offered and requested Continuation on Active Reserve (COAR) status in order to receive 20 good years.  The Department of Veterans Affairs (VA) has given him a disability rating of 80 percent.  In light of all the recent coverage of the rating system of the medical boards he would like to have his case re-examined to see if he was underrated for his multiple orthopedic injuries and constant pain and the fact that his conditions degrade with time.  He is back drilling with his troop program unit (TPU) and has watched his once-great career suffer.  He has been passed over four times for promotion to E-8 and feels that is due to his profile and COAR status.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070004860 on 31 January 2008.


2.  The applicant provides a new argument that will be considered by the Board.

3.  The applicant was born on 29 March 1965.  After having had prior service, he enlisted in the U. S. Army Reserve (USAR) on 6 December 1990.

4.  The applicant was ordered to active duty on 5 December 2003 and served in Kuwait/Iraq from 30 December 2003 through 14 May 2004.  A Medical Evaluation Board (MEB) addendum, typed on 13 March 2006, indicates he was medically evacuated from the theater of operations to Walter Reed Army Medical Center in May 2004 due to the injuries that led to his disability separation from active duty.

5.  In May 2004, a left knee partial meniscectomy was performed on the applicant.  On 21 July 2004, a left hip labral debridement was performed.  On    13 October 2004, a left shoulder subacromial decompression was performed.  On 3 March 2005, a repeat left shoulder subacromial decompression with the addition of a distal clavical resection was performed.  

6.  On 25 September 2006, an informal Physical Evaluation Board (PEB) found the applicant to be unfit for diagnoses of bilateral knee pain (10 percent), the range of motion in both knees being normal; left hip pain (10 percent), with a mild decrease in range of motion; and left shoulder impingement with labral tear (zero percent), for a combined disability rating of 20 percent.  Diagnoses of post-traumatic migraine headaches, insomnia, hyperlipidemia, hypertension, and gastroesophageal reflux disease were found to be meet medical retention standards as they were not listed on his profile, as they were not commented on by his commander as hindering his performance, and as the case file contained no evidence that those diagnoses independently, or combined, rendered him unfit for his assigned duties.  The informal PEB recommended he be separated with severance pay.

7.  On 10 October 2006, the applicant non-concurred with the informal PEB findings, submitted a rebuttal, and requested a formal PEB.  In his rebuttal, he indicated he felt the disability rating he was given was not fair and did not adequately reflect the problems and continuing pain he was experiencing.  He also requested COAR status based on being a few years short of qualifying for a Reserve retirement.  He indicated that he would be able to maintain himself in the military environment without adversely affecting his health or requiring extensive medical care.


8.  On 31 October 2006, a formal PEB found the applicant to be unfit for diagnoses of bilateral knee pain (10 percent), the range of motion of both knees being normal; and arthritis of the left shoulder and hip (10 percent), pain with 
activity.  The conditions were rated under the VA Schedule for Rating Disabilities (VASRD) code 5003 (arthritis).  Diagnoses of post-traumatic migraine headaches, insomnia, hyperlipidemia, hypertension, and gastroesophageal reflux disease were found to be meet medical retention standards as they were not listed on his profile, as they were not commented on by his commander as hindering his performance, and as the case file contained no evidence that those diagnoses independently, or combined, rendered him unfit for his assigned duties.  The formal PEB recommended he be separated with severance pay.

9.  On 13 November 2006, the applicant submitted a rebuttal to the formal PEB findings in which he stated he still believed his pain level warranted a higher disability rating.

10.  On 25 November 2006, the applicant’s request for COAR was approved.  Based on the approval, his disability separation was not finalized.  

11.  On 25 January 2007, the applicant was released from active duty and transferred to the 77th U. S. Army Regional Readiness Command.

12.  Records at the U. S. Army Human Resources Command – St. Louis      show the applicant has been drilling with his TPU on a regular basis (through    10 August 2008) since his release from active duty, to include attending 15 days of annual training in June 2008.

13.  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.  It 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.  

14.  Army Regulation 635-40, appendix B, paragraph B-24, states that often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded only on 

the basis of pain.  Rating by analogy to degenerative arthritis (VASRD code 5003) as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

15.  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.

16.  Title 38, U. S. Code, sections 1110 and 1131, 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 AND CONCLUSIONS:

1.  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.

2.  The recent coverage of the rating system of the medical boards is acknowledged.  Nevertheless, the fact remains there will always be some differences between the Army’s and the VA’s ratings.  Consider the example of an infantry Soldier with a disfiguring facial scar.  The scar does not hinder his performance as an infantry Soldier; yet the VA may well award him a disability rating based upon a social impairment.


3.  The applicant was rated primarily for pain.  No notable range of motion limitations were noted in his knee, hip, or shoulder.  Because there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, Army policy is that a disability retirement cannot be awarded only on the basis of pain, and there is a 20 percent ceiling for either a single diagnosed condition or a combination of diagnosed conditions each rated essentially for a pain value.  The applicant received the maximum permissible rating.

4.  In addition, disability compensation is not an entitlement acquired by reason of service-incurred illness or injury.  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.  

5.  The applicant himself requested COAR, indicating that he would be able to maintain himself in the military environment without adversely affecting his health or requiring extensive medical care.  Records show that he has been drilling with his TPU on a regular basis (through 10 August 2008).  Therefore, there is insufficient evidence to show that his service has been interrupted because of a physical disability.

6.  In addition, since his disability separation was not completed and he remained in the Army, he continues to be eligible to re-enter the disability system at any time he, his command, or military physicians are of the opinion that his condition has worsened to the degree that continuation would be deleterious to his health.

7.  It is acknowledged that the applicant’s conditions may worsen over time.  However, the Army’s rating is dependent on the severity of a condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting a disability rating once a Soldier separates from the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ____xx__  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 to amend the decision of the ABCMR set forth in Docket Number AR20070004860 dated 31 January 2008.




      _______ _xxxx______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080004794





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ABCMR Record of Proceedings (cont)                                         AR20080004794



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