IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080010496 


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, that his physical disability rating be increased from 10 percent (%) to 40% and that he be granted medical retirement.

2.  The applicant states, in effect, based upon Medical Evaluation Board (MEB) findings of medical unfitness, a Physical Evaluation Board (PEB) granted him a 10% disability rating on 23 May 2007, and he was discharged on 30 September 2007.  He also states that the PEB did not properly assess the severity of his injury because the Department of Veteran Affairs (VA) awarded him a 40% disability rating based on their medical examinations that were administered prior to his discharge on 5 and 10 July and 13 August 2007.

3.  The applicant provides a VA Rating Decision, dated 13 December 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after completing more than 15 years of active and Reserve service, the applicant entered active duty as a United States Army Reserve (USAR) officer on 24 August 1997.

2.  On 23 May 2007, a PEB at Fort Lewis, Washington, considered the applicant’s case and determined the applicant was unfit for further service and granted him a 10% disability rating for chronic low back pain under the VA Schedule for Ratings Disabilities (VASRD).  The PEB noted that the applicant had no spasm or deformity and that his motion was limited by pain.  The PEB further recommended his separation with severance pay based on a 10% disability rating.

3.  On 7 June 2007, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

4.  On 30 September 2007, the applicant was released from active duty (REFRAD) and transferred to the USAR Control Group in the rank of lieutenant colonel.  At the time he had completed 15 years and 11 months of active military service, and a total of 28 years, 4 months, and 20 days of military service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was REFRAD by reason of "completion of required active service."  The applicant authenticated this document with his signature in item 21 (Signature of Member Being Separated) on the date of his discharge. 

5.  The applicant’s Official Military Personnel File (OMPF) contains no documents to show that the applicant was discharged because of a physical disability or that he received any severance pay as a result of the PEB’s determination.

6.  The OMPF contains an Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis), memorandum, dated 1 July 1999, which notified the applicant that he had completed the necessary years to qualify for non-regular Reserve retired pay at age 60.

7.  The applicant provides a VA Rating Decision, dated 13 December 2007, which shows he received the disability rating for lumbar spine strain - 40% based upon their examination of the thoracolumbar spine which revealed flexion to 10 degrees, extension of 10 degrees, lateral to 10 degrees bilaterally, and rotation to 10 degrees bilaterally with pain at endpoints of ranges.  The VA examiner opined the applicant had limitation due to pain, fatigue, weakness, and lack of endurance with 0 degree additional loss.  The examination also revealed that there was no evidence of radiating pain on movement, muscle spasm, ankylosis, or intervertebral disc syndrome.  It was noted that the 40% rating was granted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis with the likelihood of improvement.  This rating was not permanent and subject to future review and examination.

8.  The VA Rating Decision further shows that the applicant received disability rating the additional conditions listed:  bilateral plantar fasciitis - 10%, migraine headaches - 10 %; cervical spine strain - 0%; left wrist strain/claimed as hand arthritis - 0%; right wrist strain/claimed as hand arthritis, major - 0%; left ankle disorder - 0%; right ankle disorder - 0%; hallux valgus, left foot - 0%; hallux valgus, right foot - 0%; traumatic mydriasis, right eye - 0%; hypertension - 0%; hemorrhoids - 0%; and scar, left chin, status post facial cellulitis - 0%.  It also shows the applicant was granted an overall combined rating of 50%.

9.  During the processing of this case an advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA) Legal Advisor.  This official provided details of the applicant’s processing through the Army’s Physical Disability Evaluation System (PDES) and noted the applicant’s concurrence with the findings and recommendations of both the MEB and PEB conducted in his case.  He further indicates that applicant had no range of motion (ROM) limits to his back that were compensable beyond the 10% rating granted by the PEB, and that the subsequent VA ratings granted the applicant were based on different criteria used by the VA and do not provide evidence that there was any error in the Army’s rating.

10.  The USAPDA Legal Advisor further stated that in order for the applicant to have received a higher rating than the 10% he received from the PEB (Army), his ROM had to be limited by some objective limitation of motion and that further joint pain alone is not evidence of mechanical basis for ROM limits and is not ratable beyond the 10% already provided for pain upon palpation current rating.  This official finally stated that there was no evidence of pathology which would support any higher rating and recommended denial of the applicant’s request.

11.  On 2 September 2007, the applicant provided his rebuttal to the advisory opinion.  He indicated that the USAPDA official based his unfavorable recommendation on a medical examination administered by the Army on or before 1 March 2007; however, the VA’s 40% disability rating decision was based on their medical examinations administered on 5 and 10 July and 13 August 2007 while he was still on active duty.  He states that his condition significantly worsened from the time he was evaluated by the MEB and before he was REFRAD as evidenced by an examination performed by the William Beaumont Army Hospital on 20 September 2007 which diagnosed radiculopathy of his left leg.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Paragraph 3-5 contains guidance on rating disabilities. It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

13.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA 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 VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Unlike the Army, the VA 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, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability.

14.  The VASRD shows that a 40% disability rating is assigned for conditions of the spine where there is unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  A 10% disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 to 85 degrees; forward flexion of the cervical spine is greater than 30 to 40 degrees; or combined range of motion of the thoracolumbar spine is greater than 120 to 235 degrees; or the combined range of motion of the cervical spine is greater than 170 to 335  degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal coutour, or vertebral body fracture with loss of 50% or more of the height.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be authorized medical retirement because he received a 40% VA rating for lumbar spine strain subsequent to the 10% disability rating recommended him by the PEB was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that a PEB, after examining all the medical evidence, determined that the applicant’s chronic low back pain without spasm or deformity and limitation of motion made him unfit for further service and recommended his separation with severance pay based on a 10% disability rating.  The record further confirms the applicant concurred with the findings and recommendations of the PEB, and there is no indication that he attempted to have those findings changed while he remained on active duty.  As a result, it is concluded that the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

3.  The evidence of record further confirms that the 40% disability rating assigned the applicant by the VA for lumbar spine strain was granted for his forward flexion of the thoracolumbar spine of 10 degrees resulting from his limitation caused by pain, fatigue, weakness and lack of endurance with 0 degree additional loss.  No mechanical reason was given for his limited range of motion, only pain.  The VA chooses to be less stringent with the application of its ratings.  The Army cannot be so flexible when to do so could disadvantage the Soldier who works through the pain to extend his or her range of motion.

4.  Although the applicant received an overall 50% combined disability rating by the VA, this factor alone does not support a change to the rating assigned by the PEB.  While both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army.

5.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based on their examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  As a result, absent any error or injustice in the applicant's PDES processing, there is an insufficient evidentiary basis to change the 10% disability rating assigned the applicant by the PEB.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20080010496



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ABCMR Record of Proceedings (cont)                                         AR20080010496



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