IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080008753 


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 his medical discharge be changed to a medical retirement.

2.  The applicant states that the Army discharged him with a 20 percent disability rating and the Department of Veterans Affairs (VA) awarded him a 40 percent disability rating for the very same things.  He should have been medically retired, not just released from active duty.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 January 2007; the first page of his DA Form 3947 (Medical Evaluation Board Proceedings); the first page of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings); a VA Rating Decision, dated 26 September 2007; and a VA Rating Decision, dated 11 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 30 April 1999.  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 4 January 2005.

2.  The applicant’s complete Medical Evaluation Board (MEB)/PEB packet is not available.


3.  On 21 November 2006, an MEB referred the applicant to a PEB for diagnoses of chronic low back pain, chronic left knee pain, and chronic left shoulder pain.

4.  On 5 December 2006, a PEB found the applicant unfit due to chronic back pain, without neurologic or electrodiagnostic abnormality, thoracolumbar range of motion limited by pain with localized tenderness; chronic pain left knee and left shoulder, range of motion limited by pain, rated as slight/constant.  He was rated for pain and recommended for separation with severance pay with a 20 percent disability rating.  

5.  On 17 January 2007, the applicant was released from active duty due to disability, with severance pay.

6.  On 27 January 2007, the applicant was discharged from the Army National Guard and from his Reserve of the Army status due to being medically unfit for retention.

7.  On 26 September 2007, the VA awarded the applicant service connection for post-traumatic stress disorder (30 percent); patellofemoral pain syndrome, left knee (10 percent); and degenerative disc disease, lumbar spine with mild disc bulge L4-S1, claimed as lower back pain (10 percent), for a combined 40 percent disability rating.  

8.  On 11 February 2008, the VA awarded the applicant additional service connection for left ear tinnitus (10 percent) for a combined 50 percent disability rating.

9.  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.  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 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.

10.  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 VA even though it was not found to be medically unfitting by the Army or it may be rated by the VA at one level and by the Army at another level.

2.  In the applicant’s case, he was rated for three conditions -- chronic low back pain, chronic left knee pain, and chronic left shoulder pain.  All of the conditions were rated essentially for pain.  Since 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.  There is a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions, when each condition is rated essentially for a pain value.  This is the reason his Army disability rating was limited to 20 percent.

3.  In addition, it is noted that the VA did not award the applicant a 40 percent disability rating for the very same conditions.  Part of the applicant’s 40 percent VA disability rating came from post traumatic stress disorder, and it appears this condition did not render him unfit for continued service in the Army.

4.  There is insufficient evidence that would warrant granting the relief requested.

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 for correction of the records of the individual concerned.



      ________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)                                         AR20080008753



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ABCMR Record of Proceedings (cont)                                         AR20080008753



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