IN THE CASE OF:	  

		BOARD DATE:	       19 August 2008

		DOCKET NUMBER:  AR20080008391 


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, disability retirement.

2.  The applicant states, in effect, that all her medical information was readily available to the Army, but she was only rated as 20 percent disabled and discharged with severance pay.  The Department of Veterans Affairs (DVA) rated her 70 percent disabled, and she now feels the Army did not rate her disabilities properly.   

3.  The applicant provides a copy of DVA Rating Decision, dated 21 February 2008, and associated compensation examination; and a copy of her Medical Evaluation Board (MEB) Narrative Summary (NARSUM).

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 8 May 2002 through
29 August 2007.  She attained the grade of sergeant/E-5.  Her military occupational specialty (MOS) was 25L (Cable System Installation/Maintenance). 

2.  On 26 June 2007, the applicant underwent a MEB.  The MEB found her pituitary microadenoma/prolactinoma and chronic right foot pain (status-post surgeries) medically unacceptable and recommended that her medical conditions be referred to a Physical Evaluation Board (PEB). 

3.  The MEB found the following additional diagnoses met retention standards:  post traumatic stress disorder (PTSD), major depression (not unfitting for military duty), chronic sinusitis, recurrent miscarriages, protein C resistance/hypercoagulable state, and chronic anemia of unknown etiology.

4.  On 3 July 2007, the applicant concurred with the MEB's findings and recommendations.

5.  On 7 July 2007, the applicant underwent an informal PEB which found her unfit due to pituitary microadenoma, first symptoms (galactorrhea and weight gain) in early 2006.  Imaging disclosed 7mm pituitary tumor which was treated with Bromocriptine daily.  Residuals consisted of sedation due to Bromocriptine which, together with profile limitations, prevented full duty performance in her primary MOS and as a Soldier.  Her condition was rated as analogous to chronic fatigue syndrome with symptoms that are nearly constant and restrict daily activities by less than 25 percent of pre-illness levels.  She was rated as
20 percent disabled. 

6.  The PEB also found the applicant's chronic right foot pain at the first metatarsal phalangeal joint, status post bunionectomy and sesamoid excision was found unfitting.  It was rated 0 percent disabling with minor pain, with limited range of motion of the joint and pain prevented the wearing of Army boots, limited ambulation.  It was rated in accordance with U.S. Army Physical Disability Agency (USAPDA) Policy/Guidance Memorandum Number 13 for pain, slight intermittent.  It was explained that because she had a rating of 0 percent, it did not mean she did not have a disabling condition, only that her condition did not meet the criteria for the minimum disability rating under the VASRD.

7.  The PEB found that the conditions listed on the MEB,  PTSD, major depression (not unfitting for military duty), chronic sinusitis, recurrent miscarriages, protein C resistance/hypercoagulable state, and chronic anemia of unknown etiology, met retention standards and not unfitting.  Therefore, they were not ratable.  Because she was rated less than 30 percent disabled and had less than 20 years of active service, her condition required separation with severance pay in lieu of retirement.

8.  On 25 July 2007, the applicant concurred with the informal PEB and waived a formal hearing of her case.

9.  On 29 August 2007, the applicant was discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40, paragraph
4-24b(3).  She was credited with 5 years, 3 months, and 22 days of active military service and received $21,714.00 in severance pay.

10.  On 21 August 2008, the DVA Denver Regional Office, granted the applicant service-connection for sinusitis (30 percent disabling); PTSD (30 percent disabling); left foot osteoarthritis, status-post bunionectomy (10 percent disabling); right foot, status-post bunionectomy (10 percent disabling); microcytic anemia (10 percent disabling); macular (retinal) degeneration, early, right eye
(0 percent disabling); hemorrhoids (0 percent disabling); and hypercoagulable state with prolactin-releasing pituitary microadenoma (0 percent disabling).  

11.  The applicant's unfitting chronic right foot condition was rated under VA Schedule for Rating Disabilities (VASRD) Diagnostic Code 5099-5003.  Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from 5000 to a possible 9999.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built up."  The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions.

12.  USAPDA Policy/Guidance Memorandum Number 13, dated 28 February 2005, provides guidance for rating unfitting conditions that are manifested with pain with and without supportable medical findings for rating an underlying condition.  It stipulates, in relevant part, that pain is rated by intensity and frequency of pain.  Intensity (severity) of pain is rated as minimal, slight, moderate, or marked.  Frequency of pain is rated as intermittent, occasional, frequent, or constant.  When there is evidence of an underlying medical condition that is manifested by more than just pain, the underlying impairment should be rated.  Examples are fibromyalgia, osteoarthritis, bursitis, ligament tear, muscle tear, or previous muscle or bone injury.  A Soldier's total rating may exceed 20 percent and may include a separate rating for pain up to the maximum of 20 percent under 5099-5003.  When pain is rated as minimally intense, and frequency occurs intermittently, occasionally, frequently, or even constantly, a Soldier will be rated as 0 percent disabled.  A 10 percent rating is allowed when intensity of pain increases to slight, moderate, or marked, and the frequency is frequent, constant, intermittent, or occasional.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 PEB.

14.  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.

15.  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.  These 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.

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

17.  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.

18.  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.

19.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting conditions were properly diagnosed and her disabilities were properly rated by the PEB in accordance with the above regulations.  Her separation with severance pay was in compliance with law and regulations.  Her rights were fully protected during the disability process.  She concurred with the findings of both the MEB and PEB and waived her right to a formal hearing.    Only these 2 conditions were found unfitting.  

2.  The PEB found only 2 conditions unfitting:  pituitary microadenoma, first symptoms (galactorrhea and weight gain) and a chronic right foot condition, status-post bunionectomy.  Based on the available medical evidence, the applicant's pituitary microadenoma, first symptoms (galactorrhea and weight gain) was properly rated as analogous to chronic fatigue syndrome as 20 percent disabling.  It is noted that the VA rated this condition as only 10 percent disabling. All the other medical conditions raised by the applicant now and at her DVA compensation examination which were included in her MEB, were not found independently unfitting at the time of her discharge.  There is no available contemporaneous medical evidence showing that any of the myriad conditions she raises now were found to be unfitting.  The mere presence of an impairment does not mean that the condition is unfitting.  Since her other medical conditions were found to meet medical retention standards, they could not be claimed as medically unfitting at that time. 
3.  At the time of her discharge, her chronic foot condition did not meet the criteria under VASRD Code 5099-5003 for a 10 percent compensable rating.  The above explanation of the USAPDA policy guidance on rating for pain shows why the applicant's condition did not meet the criteria for a higher rating.  

4.  The rating action by the DVA does not necessarily demonstrate any error or injustice in the Army rating.  The fact that the DVA, in its discretion, has awarded service-connection for the applicant’s physical and mental conditions is a prerogative exercised within the policies of that agency.  It does not, in itself, establish that she was physically unfit due to any of those conditions and the VA rating action does not compel the Army to modify its rating.  

5.  The DVA rating decision provided by the applicant does not establish entitlement to medical retirement or disability separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority, nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is 
related to service; i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 

6.  Given the above, the applicant has submitted insufficient evidence to establish error in the disability rating given in her PEB or to entitlement to medical disability retirement.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.

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)                                         AR20080008391



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ABCMR Record of Proceedings (cont)                                         AR20080008391



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