IN THE CASE OF:	  

		BOARD DATE:	       17 March 2009

		DOCKET NUMBER:  AR20080017110 


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 reconsideration of his earlier request that his physical disability rating be increased to 30 percent or higher.

2.  The applicant states, in effect, that he believes the Board misunderstood him in the original case.  To clarify, the applicant states that per the Department of Veterans Affairs (VA) his left leg weakness/atrophy is actually left foot drop related to lower back problems.  The applicant also contends that the 10 percent disability rating by the Army for post traumatic stress disorder (PTSD) should be increased based on the VA disability rating of 100 percent for this condition.

3.  The applicant provides, in support of his application, copies of VA Rating Decisions dated in 2008; a Compensation and Pension Exam Report, dated 21 March 2007; Physical Evaluation Board Proceedings, dated 5 November 
2006; memorandum, Brooke Army Medical Center, dated 13 September 2006; Schedule of Ratings (one page) identifying 8520, paralysis of the sciatic nerve; results of VA General Medical Examination, dated 8 May 2007; two medical diagnosis and treatment plans, Abilene Sports Medicine and Orthopedics, dated 15 August 2007 and 22 April 2008; extracts of military medical records dated from 21 October 2005 to 13 September 2006; Surgical Pathology Report, Baylor University Medical Center, dated 13 January 2004; and a Post Deployment Health Care Provider Review, Interview and Assessment, dated 1 December 
2003.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004515 on 24 June 2008.

	a.  On 14 December 2005, a medical evaluation board (MEBD) diagnosed the applicant with right shoulder injury; excision of right shoulder joint for recurrent sarcoma of right chest and shoulder (existed prior to service); right arm and back lymph edema; diabetes; PTSD; depression; and low back pain with spondylolysis.  The following diagnoses were found medically acceptable:  radiation changes, right lung; hearing loss; left knee; gastroesophageal reflux disease; scalp folliculitis; right leg weakness; solitary pulmonary nodule right lung; idiopathic hypersomnia; and fatty liver infiltration with elevated enzymes.  The MEBD recommended referral to a physical evaluation board (PEB).

	b.  On 9 January 2006, the applicant disagreed with the findings and recommendations and submitted a rebuttal, dated 27 January 2006.  In summary, he stated that he had not received reconstructive surgery to his right shoulder and that his hearing aids were not providing adequate hearing correction.  He also pointed out that the following diagnoses should be included in the MEBD:  pain management, prescription of morphine along with other medications daily; sinus tachycardia; atypical chest pain; hypertension; upper and lower extremities hampered prompting the use of a wheelchair; left leg atrophy; left shoulder weakness; cellulitiis of right arm; cutaneous chest wall nodule and biopsy; and non-alcoholic liver disease.

	c.  The MEBD appellate authority reviewed the rebuttal and reaffirmed their findings.  His case was referred to a PEB.

	d.  On 17 May 2006, a formal PEB found the applicant physically unfit due to low back pain, with spondylolysis, without neurologic abnormality; PTSD, with major depressive disorder, requiring psychotropic medication and outpatient treatment; status post removal of recurrent fibromatosis, involving a 14-centimeter tumor in chest area wrapping under his right arm (right dominant); and right arm and back lymphedema, secondary to excision of fibromatosis in January 2004.  Diagnosis number 4 (diabetes) was found to be not independently unfitting (not rated) and the other diagnoses (radiation changes, right lung; hearing loss; left knee; gastroesophageal reflux disease; scalp folliculities; right leg weakness; solitary pulmonary nodule right lung; idiopathic hypersomnia; and fatty liver infiltration with elevated enzymes) were found to be not unfitting and not rated.
	e.  The DA Form 199 (Physical Evaluation Board Proceedings) states that during the formal proceedings, the PEB reevaluated all available medical records and sworn testimony by the applicant.  Apparently during his sworn testimony the applicant raised the issue of an antalgic gait requiring use of a motorized wheelchair.  Although the applicant is noted to have spondylolysis and complaints of back pain prior to right shoulder surgery, the preponderance of medical information indicates that the applicant’s current antalgic gait and need for a wheelchair is directly related to his right shoulder surgery, which included excision of the entire lattissimus dorsi as well as the trapezius muscles on the right.  This is within the normal progression and treatment of recurrent sarcoma of the right chest and shoulder.

	f.  The PEB recommended a rating of 20 percent and that the applicant be separated with severance pay.  On 26 May 2006, the applicant nonconcurred with the PEB findings and submitted an appeal.  The appeal included new medical facts about a recent diagnosis of diabetes.  The PEB reviewed the applicant’s appeal along with his entire case file.  The PEB determined that additional documentation was required to properly adjudicate his case.  The applicant’s case was returned to Brooke Army Medical Center (BAMC) on 30 May 2006 for additional information pertaining to his diabetes and the PEB proceedings were discontinued.

	g.  On 13 September 2006, the Disability Evaluations section at BAMC responded to the request for additional information on the applicant’s diabetes.  The memorandum states that the applicant’s diagnosis of diabetes was first established on 1 August 2005.  The memorandum states that the applicant was additionally evaluated for newly identified concerns reported as seizures and left leg atrophy and weakness.  Physical Medicine and Neurology reports are included showing negative electrodiagnostic testing, minor magnetic resonance imaging [MRI] findings, and mixed motor/sensory examinations.

	h.  A DA Form 18 (Revised Physical Evaluation Board Proceedings), dated 17 November 2006, states the applicant’s case was informally reconsidered based on the physician’s memorandum, dated 13 September 2006.  The PEB found the applicant physically unfit due to low back pain, with spondylolysis, without neurologic abnormality, negative electrodiagnostic testing (10 percent); PTSD, with major depressive disorder, requiring psychotropic medication and outpatient treatment (10 percent); status post removal of recurrent fibromatosis, involving 14-centimeter tumor in chest area wrapping under his right arm (right 


dominant) (not incurred or aggravated while entitled to basic pay); and right arm and back lymphedema, secondary to excision of fibromatosis in January 2004 (not incurred or aggravated while entitled to basic pay).  Diagnosis number          4 (diabetes) was found to be not independently unfitting (not rated) and the other diagnoses (radiation changes, right lung; hearing loss; left knee; gastroesophageal reflux disease; scalp folliculities; right leg weakness; solitary pulmonary nodule right lung; idiopathic hypersomnia; and fatty liver infiltration with elevated enzymes) were found to be not unfitting and not rated.

	i.  The DA Form 18 states that complaints of left leg weakness and atrophy were fully considered.  The doctor’s memorandum, dated 13 September 2006, does not confirm weakness and atrophy.  He states the applicant "reported" the same, but that Physical Medicine and Neurology reports showed no nerve damage.  The preponderance of the evidence does not support a separate unfit finding for leg weakness, nerve damage, or radiculopathy.

	j.  On 20 November 2006, after a complete and thorough review of the applicant’s case file, the U.S. Army Physical Disability Agency approved the PEB’s findings and recommendations.

	k.  On 20 December 2006, the applicant was honorably discharged by reason of physical disability with severance pay (20 percent) with entitlement to $38,433.60.  He had completed 4 years, 7 months, and 16 days of creditable active service.

2.  The applicant's VA Rating Decision, dated 9 May 2008, shows that he was awarded a service-connected physical disability for PTSD, rated at 100 percent; and for left foot drop associated with spondylolysis, lumbosacral spine, with chronic back pain, rated at 60 percent.

3.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

4.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his disability ratings rendered by the Army should be increased to match the VA rating determinations, or at a minimum, raised to 30 percent.

2.  The applicant has not provided sufficient evidence showing that his medical condition at the time of his evaluation and subsequent separation was incorrectly diagnosed or rated.

3.  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 civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080004515 dated 24 June 2008.



      __________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)                                         AR20080017110





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ABCMR Record of Proceedings (cont)                                         AR20080017110



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