DOCKET NUMBER:  AR20080014353 


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 medical discharge (correctly known as a disability discharge with severance pay) be upgraded to a medical retirement because of the injuries he received in support of Operation Iraqi Freedom.

2.  The applicant states, in effect, that he believes that he was not properly evaluated when he was medically evacuated for wounds he received when an improvised explosive device (IED) exploded which caused his truck to roll over.

3.  The applicant provides the following documents in support of this application:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty),

	b.  a copy of his Patient Movement Request dated 25 April 2004,

	c.  multiple pages of medical records from April 2004 to January 2005,

	d.  a copy of his DA Form 2173 (Statement of Medical Examination Duty Status),

	e.  multiple pages of progress notes from April 2006 to May 2007, and


	f.  a Department of Veterans Affairs (VA), Winston-Salem Regional Office, Rating Decision, dated 23 August 2007.

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.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 24 July 2001.  He was awarded the military occupational specialty 92G (Food Specialist).  The highest rank he attained while serving on active duty was sergeant (E-5).

3.  The applicant submitted a copy of a DA Form 2173 which shows that he was seen at the Camp Anaconda, Iraq, Medical Treatment Facility (MTF) on 24 April 2004 for a pelvic fracture.

4.  The applicant submitted a copy of his Patient Movement Request, dated 25 April 2004, which shows that the applicant was wounded in a motor vehicle accident on 24 April 2004 which resulted in a superior/inferior ramus fracture of the left hip (pelvic fracture).

5.  The applicant submitted 80 pages of his medical records from Walter Reed Army Medical Center, Washington, DC, from 25 April 2004 through 13 September 2004 which show he received treatment for a pelvic fracture that he received on 24 April 2004 during a motor vehicle accident in Iraq.

6.  On 29 September 2004, the applicant underwent a medical evaluation board (MEBD) for 1) subluxation left sacroiliac joint, right sacral ala and superior public ramus healing with residual pain and 2) low back pain associated with these injuries and transverse process fractures left L4 and bilateral L5 [lumbar 

vertebrae].  The MEBD recommended the applicant be referred to a physical evaluation board (PEB).  The applicant concurred with the findings and recommendations of that board.

7.  On 28 March 2005, the PEB found the applicant physically unfit due to a back and pelvic pain incurred during a rollover motor vehicle accident while serving in Iraq and recommended his separation with a 10 percent disability rating.  The applicant also complained of back and pelvic pain.  The physical examination noted back range of motion (ROM) is limited by pain to 180 degrees.  His hip ROM is also limited by pain.  The applicant ambulates with a cane up to one half mile before pain causes him to rest.  Ambulation without the cane is reported to accentuate the antalgic gait.  The neurological exam was normal.  The PEB also stated that based on a review of the applicant's medical evidence of record his medical condition prevented him from performance of duty in his grade and specialty.  

8.  The PEB continued that Soldiers who receive a rating of less than 30 percent and have less than 20 years of active service require separation with severance in lieu of retirement pay.  The amount of severance pay the applicant will receive is based on the amount of one's active duty service, not one's disability rating.  The applicant would receive the same amount of severance pay regardless of whether his rating was 10 or 20 percent.  Severance pay is calculated by multiplying monthly basic pay times two times the number of years of active duty service not to exceed 12 years.  The applicant was recommended for separation with severance pay.  

9.  On 28 March 2005, the applicant non-concurred with the findings and recommendations of the PEB and demanded a formal board.

10.  The applicant submitted a copy of a memorandum from the U.S. Army PEB, Walter Reed Army Medical Center, Washington, DC, subject:  Appeal of PEB Informal Proceedings, dated 30 March 2005, which stated that the Washington PEB received a copy of the applicant's rebuttal to the informal PEB held on 4 March 2005.  The Washington PEB stated that the applicant's rebuttal provided no information as to any new diagnosis or changes in his current rated disability and affirmed the decision of the informal PEB that found him unfit with a disability rating of 10 percent.

11.  On 17 April 2005, the applicant withdrew his request to appear before a formal PEB.

12.  On 15 June 2005, the applicant was honorably discharged from active duty in accordance with the provisions of Army Regulation 635-40 (Physical 
Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), for separation by reason of disability with severance pay.  Item 12c shows his net active duty for this period as 3 years, 10 months, and 22 days.

13.  The applicant submitted a copy of his VA Rating Decision from the St. Petersburg, FL, Veterans Affairs Medical Center, dated 23 August 2007, which shows that he was rated for a service-connected disability at 30 percent for post-traumatic stress disorder, service-connected at 10 percent for degenerative joint disease, service-connected at 20 percent for instability of the left knee, service-connected at 10 percent for traumatic arthritis of the right knee, and service-connected at 10 percent for sacroiliac joint subluxation (lower spine fractures L4-L5).

14.  An advisory opinion, dated 4 November 2008, from the Agency Legal Advisor, U.S. Army Physical Disability Agency (USAPDA), Washington, DC, stated that the applicant requested that his medical discharge be upgraded due to the conditions of post-traumatic stress disorder, headaches, and traumatic brain injury (TBI) not being properly evaluated.  The advisory official stated that on 29 September 2004 an MEBD was completed with diagnoses of subluxation of left sacroiliac joint pain in the low lack and left posterolateral pelvis.  The narrative summary noted normal strength in this right leg with some weakness in his left leg and left knee flexon muscles.  His left knee had full ROM with no swelling or instability.  His left knee would become painful with excessive walking or sitting.  X-ray findings showed no fractures of the right hip with widening of the left sacrioliac joint and fracture of the superior public ramus.  The CT [computed axial tomography] scan of the cervical and left knee area was normal with transverse fractures noted bilaterally at L5 and on the left at L4.  The applicant had noted on his DD Form 2807-1 (Report of Medical History), dated 22 September 2004, that he had experienced headaches in the past, but he had no complaints about memory loss or cognitive problems.  The applicant also noted trouble sleeping and depression.  The physician found the sleeping and depressive problems related only to his pain that he was experiencing and noted on the DD Form 2808 (Report of Medical Examination) that this neurologic and psychiatric evaluations were considered normal.  The physician noted the claims of headaches, but there was no medication prescribed for such headaches, the physical profile did not list them as a limiting condition, and the applicant informed the MEBD that his primary problem was pain from the applicant's injuries.  The applicant concurred with the MEBD findings on 30 November 2004.

15.  The advisory opinion also stated that on 28 December 2004 the PEB returned the MEBD to the MTF requesting further review and inquiring whether the applicant's condition had obtained the maximum medical benefit at the time.  The MEBD physician conducted another physical evaluation on 7 January 2005.  The findings were essentially the same as the initial MEBD with some new ROM measurements.  The ROM for the right hip was normal with the left hip having some flexion limits that were not ratable in accordance with VA Schedule for Rating Disabilities (VASRD) codes 5250 through 5255.  The lumbar ROM had decreased, but all the ROM limits were found to be the result of pain and not due to mechanical defects.  The applicant described constant pain in the lower back and hip with a slight pain in the left knee that increased with prolonged walking.  The physician noted improvement and opined that the condition had stabilized.

16.  The opinion further stated that on 4 March 2005 an informal PEB found the applicant unfit for back and pelvic pain and rated the pain under VASRD code 5237, lumbosacral pain, at 10 percent, separate with severance pay.  On 28 March 2005, the applicant non-concurred, submitted a rebuttal, and requested a formal hearing.  The applicant's rebuttal indicated that he requested higher ratings for his back, hip, and knee pain.  The applicant did not mention any other conditions that were a concern or that he thought he should be compensated for. On 30 March 2005, the PEB responded that the applicant had not provided any new evidence that would change the PEB's findings.  On 13 April 2005, the applicant changed his mind and withdrew his request for a formal hearing.

17.  The advisory opinion noted that a review of the PEB's findings reveals an acceptable rating and findings supported by the evidence.  The applicant's ROM limit for his hips was not ratable under any rating criteria found under VASRD 5250-5255, hip and thigh, and ROM limits to the lower back were not ratable unless the limits were caused by a mechanical basis per Army Regulation 635-40, appendix B, paragraph B-29e.  However, a closer review of the evidence does provide an alternative method of rating the applicant's unfitting conditions that could result in a higher total rating for the applicant.  The applicant's rating could be changed to 5236, sacroiliac injury, 20 percent, abnormal antalgic gait caused by pain and guarding; and 5237 lumbosacral pain, 0 percent, due to residuals of transverse fracture bilaterally at L5 and left L4, no tenderness to palpation and no abnormal gait caused by the lumbosacral condition.  Ratings for the left leg, PTSD, TBI, and headaches were not possible as the conditions were not listed as medical conditions that did not meet medical retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  Further, none of these conditions had sufficient evidence in the case file to support findings of unfit for duty.  Only conditions that are found to be unfitting can be compensable under the provisions of Department of Defense Instruction 1332.39, paragraph 6.1.7.

18.  The advisory opinion concluded that although it is possible to raise the applicant's rating to 20 percent, this would result in no change to the applicant's 
severance pay or disposition from the military.  Only a rating of 30 percent or higher can result in disability retirement and all ratings from 0-20 percent receive the same computation for severance pay under the provisions of Title 10, U.S. Code, sections 1201 and 1212.

19.  A copy of the advisory opinion was forwarded to the applicant on 4 November 2008.  The applicant did not respond.

20.  Army Regulation 635-40 provides, in pertinent part, that the MTF commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

21.  Army Regulation 635-40 further provides, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.

22.  Army Regulation 635-40 provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent; if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208; and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

23.  Title 38, U.S. Code, 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.  The VA, in accordance with its own policies and regulations, awards 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation 
by that agency.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.
24.  The VASRD (1 July 2004 edition) provides a general rating formula for diseases and injuries of the spine.  Lumbosacral or cervical strain is shown under diagnostic code 5237.  Note 1 to the general rating formula indicates that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code.

25.  Title 10, U.S. code, section 1201, states, in pertinent part, that upon separation from the Armed Forces a member is entitled to disability severance pay computed by multiplying the member's years of service by twice the amount of basic pay to which he would be entitled if serving on active duty on the date he is separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been medically retired was carefully considered.

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with applicable laws and regulations.  He has not provided sufficient evidence to support his contention that the evaluation and the rating rendered by the PEB were incorrect or that any of his other medical conditions rendered him physically unfit to perform his duties.  

3.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service-connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.

4.  However, the advisory opinion noted that an alternative method of rating the applicant's unfitting conditions could result in a higher total rating for the applicant.  The advisory opinion stated that the applicant's rating could be changed to 5236, sacrioliac injury, 20 percent, abnormal antalgic gait caused by pain and guarding; and 5237 lumbosacral pain, 0 percent, due to residuals of transverse fracture bilaterally at L5 and left L4, no tenderness to palpation and no abnormal gait caused by the lumbosacral condition.  Although this change to 20 percent would not result in any change to the applicant's severance pay or disposition from the military, it might assist him in filing other types of claims for benefits.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  _____x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his disability rating to 5236, sacroiliac injury, 20 percent, abnormal antalgic gait caused by pain and guarding; and 5237 lumbosacral pain, 0 percent, due to residuals of transverse fracture bilaterally at L5 and left L4, no tenderness to palpation and no abnormal gait caused by the lumbosacral condition.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his disability separation with severance pay to a disability retirement.



      ____________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)                                         AR20080014353



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ABCMR Record of Proceedings (cont)                                         AR20080014353



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