IN THE CASE OF:
BOARD DATE: 11 September 2008
DOCKET NUMBER: AR20080005853
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 that he be assigned a disability rating.
2. The applicant states that his Medical Evaluation Board (MEBD) (sic) gave him a zero (sic) percent rating because his disability was considered not in line of duty (sic). However, on 12 June 2006, his disability was approved as being incurred in line of duty (ILOD).
3. The applicant provides excerpts from his medical records.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Army National Guard (ARNG) on 27 May 1986. He remained assigned to the ARNG and was promoted to pay grade E-4.
2. The medical records provided by the applicant show how he reinjured his knee while performing inactive duty training, how that injury was approved as ILOD, and the treatment he received for his knee. The applicant did not provide any documentation pertaining to his shoulder.
3. On 4 May 2007, an MEBD convened and determined that the applicant was medically disqualified due to right shoulder pain which was permanently aggravated by service. The MEBD found that the applicant also had right knee pain which was not medically disqualifying.
4. On 22 May 2007, a physical evaluation board (PEB) convened and determined that the applicant was physically unfit due to chronic right shoulder pain, originally due to a non-duty related fall in 2000 and possibly in 2001, reportedly aggravated by slip and fall on ice while attending drill in January 2005.
5. The PEB determined that the applicants pain was ratable as zero percent (slight, occasional). However, since the disability was not greater than that which existed prior to his ILOD injury, the pain could not be considered service aggravated. As such, the PEB recommended that the applicant not be rated for that condition.
6. The PEB noted that the applicants knee pain was determined to meet retention standards by the MEBD, and determined that it was not physically unfitting. As such, the PEB did not rate that condition either.
7. The applicant was honorably transferred from the ARNG to the US Army Reserve (USAR) Control Group (Retired Reserve) on 3 August 2007 due to his unfitness for retention.
8. In the processing of this case an advisory opinion was obtained from the Physical Disability Agency (PDA). The PDA recommended no change to the applicants records. The PDA stated that the applicant has not provided any evidence of error by the PEB and the PEBs findings are supported by a preponderance of the evidence. The PDA explained that since the applicants shoulder showed no instability, no significant physical deficits, full strength and full range of motion, all he could be rated for was slight/occasional pain, which was zero percent disabling according to current guidelines.
9. The PDA continued that although a zero percent rating entitles a Soldier to disability severance pay, in this case the applicant had sustained several non-duty related injuries to his shoulder prior to his 2005 ILOD injury. Upon review of the records, the PEB determined that the applicants shoulder was zero percent
disabling prior to his ILOD accident. Since the applicants current level of disability was equal to the level of disability which existed prior to his ILOD accident, he was not entitled to disability compensation.
10. On 5 June 2008, the applicant was provided a copy of the advisory opinion and given the opportunity to submit matters in his own behalf. The applicant has not responded to date.
11. Army Regulation 635-40 provides that if the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. Paragraph 4-19b states that a PEB may decide that a soldiers physical defect existed prior to service (EPTS), but must then determine whether the condition was aggravated by military service. If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service. The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.
DISCUSSION AND CONCLUSIONS:
1. The applicant was not given a disability rating for his shoulder because the level of non-service related disability which existed prior to his ILOD injury equaled the level of service-related disability which existed after his ILOD injury.
2. There is no evidence of any error or injustice in the processing of the applicants case within the disability evaluation system.
3. There is no evidence that the ILOD status of his shoulder injury was ever questioned.
4. In view of the foregoing, there is no basis for granting the applicants 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
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) AR20080005853
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ABCMR Record of Proceedings (cont) AR20080005853
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