DOCKET NUMBER:  AR20080015256 


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 disability rating be increased to a percentage that will allow him to receive disability retirement.

2.  The applicant states, in effect, that the Medical Evaluation Board (MEB) determined his disability was 10 percent disabling and that after he was separated the Department of Veterans Affairs (VA) determined his disability was 50 percent disabling.

3.  The applicant provides a page from a VA disability rating document in support of this application. 

 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 record shows that he was serving as an enlisted Soldier in the Regular Army at the time of his disability separation.

3.  Complete records are not available for review; however, there are sufficient records available for a fair and impartial decision to be rendered in this case.

4.  The MEB Proceedings and the Physical Evaluation Board (PEB) Proceedings were not available for review with this case. 

5.  The US Army Physical Disability Agency (PDA) provided an advisory opinion which essentially states that on 15 March 2005, the MEB diagnosed the applicant with bilateral knee pain and low pain back.  The MEB found that there were no other conditions that did not meet medical retention standards and showed that the applicant concurred with the findings.  The opinion continued that on 19 April 2005, an informal PEB found the applicant unfit for duty for his back pain and rated him at 10 percent disability.  The opinion further noted that the applicant concurred with the PEB findings and waived his right to a formal hearing.  The PDA concluded that the PEB findings were supported by the preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.

6.  The applicant provided a copy of the advisory opinion for rebuttal comments and to date has not responded.

7.  Records indicate that the applicant was separated for disability with severance pay on 9 July 2005 with 9 years, 11 months, and 22 days of total active service and 14 years, 3 months, and 29 days of prior inactive service.

8.  The applicant provided a page from a VA disability rating document which shows that he received a 50 percent disability rating for obstructive sleep apnea on 10 July 2005.

9.  Army Regulation 635-40 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 their office, grade, rank, or rating.
10.  Paragraph 3-5 of the PDES regulation 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.  

11.  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.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a higher disability rating has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The advisory opinion indicates that  the applicant was properly processed through the Army's PDES and that all requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process. It further shows that an informal PEB ultimately determined the applicant was unfit for service, and granted him a combined disability rating of 10 percent for bilateral knee and low back pain, and recommended his disability discharge with severance pay.  The USAPDA reviewed the PEB findings and recommendations and determined they were supported by substantial evidence.  As a result, the findings and recommendations of the PEB were affirmed by the USAPDA.  

3.  The evidence also confirms the VA awarded the applicant a 50 percent disability rating for a sleep apnea condition diagnosed in 2005.  However, while both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  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 upon that agency's examinations and findings.  

4.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  There is no evidence of record and the applicant provided none to show his sleep apnea affected his ability to perform his military duties.  As a result, it appears the applicant was properly compensated with severance pay at the time of his discharge, and he is now properly being rated, treated, and compensated for all his service connected conditions by the VA.  

5.  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)                                         AR20080015256



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ABCMR Record of Proceedings (cont)                                         AR20080015256



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