IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080010650 


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 recommended disability percentage on his 5 May 2005 physical evaluation board (PEB) be increased from 10 percent to a higher percentage that matches that granted by the Department of Veterans Affairs (DVA) and that he be placed on the Retired List.

2.  The applicant states that the PEB provided for 10 percent disability for lumbar radioculopathy and zero percent for chronic low back pain, whereas the DVA awarded him 40 percent for a herniated disc, lumbar spine and 20 percent for the left leg neuropathy.  Due to the DVA findings, he believes the original PEB findings to be in error and did not follow the DVA guidelines for the disability ratings.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 4 August 2005.

	b.  Copy of the DVA rating Decision, dated 17 April 2008.

	c.  Copy of discharge Orders 461-002, dated 22 September 2005.




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service in the Regular Army and the Army National Guard (ARNG), the applicant's records show he was appointed as a second lieutenant (2LT) in the Military Intelligence (MI) Corps of the Idaho Army National Guard (IDARNG) on 3 February 2002.  He was subsequently assigned to the 116th Cavalry Brigade, Boise, Idaho.  

3.  On 1 May 2004, the applicant injured his back while taking the Army Physical Fitness Test (APFT) while on annual training.  He was taken to the Troop Medical Clinic (TMC) at Gowen Field, Boise, Idaho, where he was treated and prescribed medications.  

4.  On 5 June 2004, the Chief, Army Personnel Branch, IDARNG, certified that the applicant's injury was determined to be "In Line of Duty." 

5.  On 24 May 2005, the applicant was considered by a medical evaluation board (MEB).  The MEB found that he had herniated L4-5 and L5-S1 lumbar disks with left lumbar radiculopathy.  He also had hypertension and hyperlipidemia, but both conditions met retention standards.  The MEB recommended that he be referred to a PEB.  The applicant agreed with the MEB’s findings and recommendation.  

6.  On 4 August 2005, an informal PEB convened and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to left lumbar radiculopathy secondary to lumbar discogenic disease, manifested by pain and weakness, and chronic low back pain, status post diskectomy and laminectomy L4/L5.  The PEB also considered the applicant's other conditions (hypertension and hyperlipidemia) but found them to be not unfitting and therefore not ratable.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for codes 8799 and 8720 and zero percent disability rating for codes 5299 and 5243.  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified, with a 10 percent combined disability rating.  The applicant did not concur with the findings and recommendation of the informal PEB and demanded a formal hearing.

7.  On 9 September 2005, a formal PEB convened and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to left lumbar radiculopathy secondary to lumbar discogenic disease, manifested by pain and weakness, and chronic low back pain, status post diwkectomy and laminectomy L4/L5.  The PEB also considered the applicant's other conditions listed as medical board diagnosis but found them to be not unfitting and therefore not ratable.  The applicant was rated under the VASRD and was granted a 10 percent disability rating for codes 8799 and 8720 and 10 percent disability rating for codes 5299 and 5243.  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified, with a 20 percent combined disability rating.  The applicant concurred with the findings and recommendation of the formal PEB and waived his right to a formal hearing.

8.  On 13 September 2005, the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., published Orders D256-02 discharging the applicant from the ARNG, with entitlement to severance pay, in the rank of 2LT based on 6 years, 4 months, and 1 day of creditable service.

9.  An advisory opinion was obtained on 18 August 2008 in the processing of this case.  The USAPDA Legal Advisor advised that:

	a.  on 24 May 205, the applicant's MEB was completed with a diagnosis of herniated L4-5 and L5-S1 lumbar disks with left lumbar radiculopathy not meeting medical retention standards.  The physician's examination showed flexion of 66 degrees, limited by pain, with full extension.  The gait was noted to be steady with normal heel and toe walk, and full motor strength and reflexes in his lower extremities.  Straight leg raise was negative, but sensory examination showed decreased sensation to light touch of the dorsal and lateral left foot.  There was no tenderness to palpation noted by the physician.  The applicant concurred with the MEB on 15 June 2005.  A previous examination on 12 April 2005 documented similar findings but with no lower atrophy and 4/5 strength for dorsiflexion and toe extension;

	b.  on 4 August 2005, an informal PEB found the applicant unfit for left lumbar radiculopathy, rated as mild at 10 percent analogous to mild sciatic neuralgia, and unfit for chronic low back pain, rated at zero percent because of no tenderness to palpation.  The recommended disposition was to separate the applicant with severance pay.  On 19 August 2005, the applicant did not concur and requested a formal hearing;

	c.  on 9 September 2005, a formal PEB continued the 10 percent rating for the applicant's left lumbar radiculopathy.  Based on newly submitted evidence of physical findings of lumbar tenderness to palpation, the PEB increased the chronic low back pain rating to 10 percent.  The final disposition was to separate the applicant with 20 percent severance pay.  The applicant concurred with the formal PEB findings and submitted no further evidence or rebuttal.  He was separated on 27 September 2005;

	d.  on 17 April 2008, the DVA rated the applicant at 40 percent for his low back pain condition.  He cited this subsequent rating as his sole basis for the error in the 2005 PEB findings.  Subsequent DVA ratings are not evidence of error in either the Army disability system or the DVA ratings; but, simply reflect a different rating, at a different time, based upon a different physical exam; and

	e.  the applicant was properly rated at 10 percent for his mild radiculopathy and 10 percent for his chronic low back pain.  The physical findings and range of flexion motion all support a 10 percent rating under the general rating Formula of Disease and Injuries of the Spine.  There is no evidence to support a higher rating.

10.  The applicant was furnished with a copy of this advisory opinion on 18 August 2008.  He responded via email on 14 September 2008 that he would continue with his formal request to the ABCMR to review the DVA documents that he provided.

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

12.  Paragraph 3-1 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

13.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

14.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

15.  Title 38, U.S. 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 VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained an injury that was determined to be “In Line of Duty.” He subsequently underwent an MEB which recommended he be given a PEB.  He concurred with this recommendation.  The PEB found his left lumbar radiculopathy and chronic low back pain prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended his separation with severance pay with 10 percent disability rating.  The applicant did not concur.

2.  A formal PEB subsequently convened and reconsidered the applicant's medical records as well as statements submitted in his support.  Upon reexamination, again, he was found unfit for the same conditions of left lumbar radiculopathy and chronic low back pain; however, he was awarded an additional 10 percent for chronic low back pain.  The PEB, again, found him to be unfit for further military service and recommended his separation with severance pay with 20 percent disability rating.  The applicant concurred.  

3.  The applicant now believes he should have received a greater percentage disability rating and provided a DVA rating decision.  However, an award of a higher DVA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

4.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.


6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief. 

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)                                         AR20080010650



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ABCMR Record of Proceedings (cont)                                         AR20080010650



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