IN THE CASE OF:	  

		BOARD DATE:	        26 AUGUST 2008

		DOCKET NUMBER:  AR20080008798 


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 the disability rating that was assigned to him by the United States Army Physical Disability Agency (PDA) be changed.

2.  The applicant states that the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB) did not consider all of the medical records that he presented.  He states that his physical profile on his knees and his surgery were not considered.  He states that he initially had a 20 percent disability rating and after his back surgery, the PEB determined that there was no change to his disposition.  He states that he knows there was a change to his disposition after his surgery.

3.  The applicant provides in support of his application, a copy of his surgery schedule, dated 14 April 2008; a copy of an order from the Social Security Administration (SSA) Law Judge, dated 28 March 2008; a copy of his favorable Notice of Decision from the SSA, dated 28 March 2008; a copy of his SAA decision, dated 28 March 2008; and a copy of a list of exhibits and the exhibits, which appear to have been submitted by him during his SSA hearing; a copy of a Request for Waiver/Permanent Physical Profile dated 8 June 1995; copies of his physical profiles and sick slips; a copy of a physician's recommendation dated 22 June 2006; and doctor's statements dated 10 August 2006, 17 December 2006, and 18 December 2006.  He also provides a letter from his wife, dated 12 July 2008, addressed "To Whom It May Concern:" explaining the difficulties that they have experienced regarding the applicant’s pay and the rating assigned to him by the PEB.

CONSIDERATION OF EVIDENCE:

1.  On 18 January 1985, the applicant enlisted in the Arkansas Army National Guard (ARARNG), for 8 years, in the pay grade of E-1.  He successfully completed his training as a light wheel vehicle mechanic.  He remained a member of the ARARNG through reenlistments and extensions.

2.  The available records show that on 4 February 1995, the applicant was placed on a permanent physical profile for knee problems, which included no running.  His profile did not require a change in his duty assignment.

3.  Sick slips that the applicant submitted in behalf of his application shows that on 14 February 1995, he was seen by a physician for knee problems and on 14 June 2000, he was seen by a physician for a check-up on his foot.

4.  A physical profile, dated 8 October 2003, shows the applicant was diagnosed with degenerative joint disease.  The physician noted that he might have assignment limitations that were intended to protect against further physical damage/injury, and that he might have minor impairments that disqualified him for certain military occupational specialty (MOS) training.  This physical profile was also considered as permanent.

5.  The Certificate of Medical Necessity from the Baptist Health Sleep Center, dated 16 February 2006, shows the applicant was being treated for obstructive sleep apnea.  

6.  An individual sick slip dated 15 June 2006, shows he injured his lower back while handling a heavy chain on 7 June 2006.  He was prescribed medication as a result of his injury. 

7.  The Physician Recommendation, dated 22 June 2006, shows the applicant's back injury prohibited him from lifting more than 8 pounds; moving with a fighting load; constructing an individual fighting position; and doing 3-5 second rushes under direct and indirect fire.  

8.  On 6 January 2007, the applicant was placed on a permanent physical profile for chronic low back pain.  His profile limited him from running, doing sit-ups, moving with a fighting load; constructing an individual fighting position; and doing 3-5 second rushes under direct and indirect fire.



9.  The applicant's chronological Record of Medical Care shows that he was examined by a physician on 1 August 2007, who recommended that the applicant be referred to a Medical Evaluation and a PEB for evaluation of degenerative disc disease.  The attending physician indicated that the applicant did not meet medical fitness standards for retention as outlined in Army Regulation 40-501; that he was not fit to perform all of his military duties; that he required a permanent profile; that his permanent profile was disqualifying for his primary MOS; that he could not move two miles with his ruck, do rushes or his physical training test; and that he was not world-wide deployable.

10.  The MEB Proceedings are not in the available record.  However, the applicant's records show that a PEB convened on 29 February 2008, to determine whether the applicant was physically unfit to remain in the service.  The PEB diagnosed the applicant with chronic back pain due to degenerative disc disease without motor neurologic deficits.  Forward Flexion 60 degrees with exam localized tenderness.  No noted spasm, guarding or abnormal gait on exam.  The PEB rated the applicant's chronic back pain at 20 percent disabling.  The PEB also considered the applicant's left knee pain, sleep apnea and hypertension, none of which were determined to be unfitting.  Therefore, they were not rated.  The PEB recommended that he be separated, with severance pay, and a combined service connected disability rating of 20 percent.

11.  On 29 February 2008, orders were published discharging the applicant, with severance pay, from the Army National Guard effective 3 April 2008, due to failure to meet medical retention standards and he was transferred to the Retired Reserves.  He was assigned a 20 percent service connected disability rating.

12.  On 28 March 2008, the applicant was awarded disability benefits by the SSA.

13.  The surgery schedule that the applicant submitted in behalf of his application shows that he underwent surgery on 14 April 2008 for degenerative disc disease, lumbosacral spine.

14.  In a memorandum dated 17 April 2008, the applicant was notified by the Chief, Operations Division, United States Army Physical Disability Agency, that his 9 April and 11 April 2008 appeals for disability retirement were reviewed and that the information that he submitted revealed no new information that would require a change in his disability findings.  The Chief, Operation Division, stated that the PEB explained why his other conditions were not unfitting and therefore,



not rated.  The applicant was told that his social security documents did not change the medical facts that authorized only a 20 percent rating in accordance with the current rating guidance provided by the Veterans Administration (VA).  The applicant was also told that if his condition changed because of any surgery or other treatment, his medical treatment facility could officially request that his case be recalled and a new MEB or addendum be provided.  The applicant was told that the PEB findings are considered final and that his records revealed that he was separated from the Army on April 2008.

15.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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

17.  Army Regulation 635-40 also provides that a soldier may be separated with severance pay if his or her disability is rated at less than 30 percent; if he or she has less than 20 years of service as defined in Title 10 United States Code, Section 1208.

18.  Army Regulation 635-40 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 AR 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

19.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.


DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with the applicable laws and regulations. 

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at 20 percent.

3.  The applicant's contentions have been noted; however, they do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service with severance pay.  His case was considered a PEB and his rebuttals to the determinations made by the PEB were also considered.  However, competent medical authorities determined that at the time of his evaluation his condition warranted a 20 percent disability rating by the PEB and he was separated accordingly.  His dissatisfaction with the assigned disability rating does not demonstrate the existence of an error or injustice.

4.  Additionally, Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The applicant may apply for medical treatment and a disability rating through the Department of Veterans Affairs if he so desires.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080008798



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ABCMR Record of Proceedings (cont)                                         AR20080008798



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