IN THE CASE OF:	 

		BOARD DATE:	  3 March 2009

		DOCKET NUMBER:  AR20080016437 


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 his discharge with severance pay be changed to a disability retirement.

2.  The applicant states that while he was only rated at 10 percent disabled by the Army, the Department of Veterans Affairs (VA) rated him at 70 percent disabled.  He states that all of his service-connected disabilities should have been rated in his medical board evaluation.  He also states that his disability with his spine should be considered to be combat-related.  The applicant states he wants to appeal the findings of the doctor in Yongsan, Korea.  He states the doctor indicated he had Korean Hem. Fever [sic], then at a follow-up indicated he had hepatitis B.  He states the VA told him there was no trace of hepatitis B in his body.

3.  The applicant provides, in support of his application, copies of his Enlisted Record Brief, his Medical Evaluation Board (MEBD) Proceedings with the Narrative Summary (NARSUM), his informal Physical Evaluation Board (PEB) Proceedings, his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 June 2005, four VA Rating Decisions, excerpts from his service medical records, excerpts from his VA medical records, excerpts from his post-service medical records, and miscellaneous correspondence between him and the VA.




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 military personnel records show he enlisted in the Regular Army on 29 September 1999.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He reenlisted on 1 March 2002.

3.  A memorandum to the applicant's MEBD, dated 17 March 2005, from the applicant's commander indicates the applicant was injured in Balad, Iraq while on a convoy.  The commander stated the applicant was the gunner in the lead vehicle and was thrown forward when the vehicle braked hard.

4.  On 10 June 2005, an MEBD found the applicant did not meet retention standards for chronic low back pain with spondylolisthesis (forward displacement of a lumbar vertebra on the one below it and especially of the fifth lumbar vertebra on the sacrum producing pain by compression of nerve roots) of L5-S1 and degenerative joint changes of the lumbar spine.  The MEBD also found the applicant's weight gain secondary to inactivity caused by the low back pain, mild erectile dysfunction, pes planus, mild hyperlipidemia (the presence of excess fat or lipids in the blood), and smoking did not fall below retention standards.  The MEBD referred the applicant to a PEB.

5.  On 16 June 2005, the applicant agreed with the MEBD's findings and recommendation.

6.  On 21 June 2005, an informal PEB found the applicant physically unfit under VA Schedule for Rating Disabilities (VASRD) diagnostic code 5239 for chronic low back pain following back trauma in March 2004, imaging disclosed Grad I spondylolisthesis L5/S1, in addition to degenerative disk disease at L3 through 

S1.  The PEB found no neural impingement, radiculopathy, muscle spasm, or significant loss of spinal range of motion.  The PEB found this condition was not currently amenable to surgery and tenderness to palpation of the paraspinous muscles was noted on the exam.  The PEB recommended a disability rating of 10 percent.

7.  The remaining diagnoses listed on the MEBD were considered by the PEB and found to be not unfitting and therefore not ratable.  The PEB recommended a combined disability rating of 10 percent and that the applicant be separated from the service with severance pay, if otherwise qualified.  

8.  On 22 June 2005, the applicant, after having received a full explanation of the results of the findings and recommendation of the PEB and his legal rights, concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

9.  On 30 June 2005, the applicant was discharged due to disability with severance pay.  He had completed 5 years, 9 months, and 2 days of active service that was characterized as honorable.

10.  A VA Rating Decision, dated 10 November 2005, determined that service connection was established as directly related to military service, under VASRD Code 5010-5239, for the applicant's spondylolisthesis L5-S1 with spondylolysis with chronic bilateral L5 radiculopathy and assigned a disability rating of 
10 percent.  The VA Rating Decision determined that 11 additional medical conditions were incurred while the applicant was in the service and assigned disability ratings from zero to 30 percent.  The VA assigned the applicant a combined disability rating of 70 percent.

11.  The VA noted in their decision, dated 10 November 2005, that the applicant had a history of hepatitis B infection with borderline splenomegaly.  The VA noted that his hepatitis profile was reactive to hepatitis B surface antibody.  The applicant was granted service-connection for this condition and assigned a disability rating of zero percent.

12.  A VA Rating Decision, dated 18 June 2007, granted the applicant additional compensation for his back condition under VASRD Code 8521, effective 10 May 2007.

13.  In the processing of this case an advisory opinion, dated 7 January 2009, was provided by the U.S. Army Physical Disability Agency (USAPDA).  

14.  The USAPDA stated the applicant's MEBD fully reviewed all of the applicant's medical history and, at the time of the MEBD, the only condition that was limiting the applicant's performance of duty was his back pain.  The USAPDA stated the military disability system is a performance based system and can only compensate for those conditions that are found to be unfitting for duty.  The USAPDA stated the only problem that the applicant was having that caused his release from military duty was his back pain and this was confirmed and agreed upon by the applicant at the time of his MEBD and PEB.  The USAPDA determined the PEB's findings and recommendation were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statue, directive, or regulation.

15.  In his rebuttal, by electronic mail dated 21 January 2009, to the USAPDA opinion the applicant stated he would like to have a higher disability rating of
30 percent.  He also stated he wants his spine injury to be determined to be a combat-related injury.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the medical treatment facility 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.  

17.  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. 

18.  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.

19.  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.

20.  Title 26 U. S. Code, section 104 states, in pertinent part, that for purposes of this subsection, the term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. 

DISCUSSION AND CONCLUSIONS:

1.  The advisory opinion provided by the USAPDA stated the findings and recommendation of the applicant's PEB were correct.

2.  In his rebuttal, the applicant stated he wants a 30 percent disability rating from the Army and that his spine injury be determined to be combat-related.

3.  The statement made by the applicant's commander, dated 17 March 2005, indicates the applicant was injured when the vehicle he was riding in braked hard.  The commander did not indicate the injury was combat-related.  The fact that the incident occurred in a combat area does not automatically make it a combat-related injury.   Therefore, the evidence does not show the applicant's back injury was combat-related.  

4.  While the applicant states he appeals the finding of Korean Hem.  Fever and a further finding of hepatitis B by a doctor in Korea, it is not clear exactly what error he is seeking to correct.  However, without evidence to the contrary, diagnoses and observations made by medical personnel present at the time of treatment or admission to medical facilities are accepted as representative of the facts.  In addition, the VA noted that his hepatitis profile was reactive to the hepatitis B surface antibody.

5.  The PEB and the VA both rated the applicant 10 percent disabled for his spondylolisthesis L5/S1, in addition to degenerative disk disease at L3 through S1.  

6.  The applicant concurred with the findings and recommendation of both the MEBD and the PEB.  He also waived his right to a formal PEB hearing.

7.  Under the provisions of Title 38 U.S. Code, the VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  The VA granted service- connection and assigned disability ratings for 11 additional medical conditions.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  The 11 additional medical conditions rated by the VA were determined to have met Army retentions standards by the MEBD and were therefore not reviewed for physical fitness by the PEB.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating.    

8.  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.  

9.  The VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  The VA Rating Decision, dated 18 June 2007, granted the applicant additional compensation for conditions secondary to his back condition.  However, any increases granted by the VA do not constitute any error or injustice in the previous Army disability rating.

10.  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 that 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)                                         AR20080016437



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ABCMR Record of Proceedings (cont)                                         AR20080016437



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