IN THE CASE OF:	  

		BOARD DATE:	  	  17 March 2009

		DOCKET NUMBER:  AR20080017643 


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, correction of his records to show he was retired based on permanent disability with a disability rating of 100 percent.

2.  The applicant states, in effect, his disability was chronic at the time of his discharge.  He also states that his medical records indicate unsuccessful surgery to decompress nerve roots and rocket-propelled grenade (RPG) shrapnel fragment.  The applicant further states that the original Department of Veterans Affairs (VA) disability rating established 100 percent for left hip sacral, nerve injury, post-sacral decompression laminectomy with fused S1-S2, limited left hip motion, asthma, erectile dysfunction, and loss of use of creative organ.

3.  The applicant provides copies of his Headquarters, 359th Neurosurgical Detachment, 31st Combat Support Hospital, Ibn Sina Hospital, Baghdad, Iraq, Neurological Discharge Summary, dated 15 May 2004 with 7 (medical record) enclosures; Headquarters, Landstuhl Regional Medical Center (Germany), Operation Report, dated 25 May 2004 with 25 (medical record) enclosures;
DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
23 February 2006, with 3 enclosures; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an ending date of 22 April 2006; and VA, Washington Regional Office, Washington, District of Columbia (DC), Rating Decision, dated 11 September 2006 with 23 enclosures.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 21 November 2001 in the Delayed Entry Program (DEP).  He was discharged from the DEP on 22 January 2002 and enlisted in the Regular Army (RA) for a period of 3 years on 23 January 2002.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 63A (Abrams Tank System Maintenance).  On 31 October 2002, the applicant extended his 3-year enlistment in the RA for a period of 9 months to 3 years and 9 months.  The applicant was promoted to the grade of sergeant (SGT)/pay grade E-5 effective 22 April 2006.

2.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty on 23 January 2002 and served in Iraq in support of Operation Iraqi Freedom from 11 May 2003 to 20 November 2004.  The applicant was honorably discharged on 22 April 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on disability with severance pay.  This document also shows at the time of his discharge the applicant had completed
4 years and 3 months of net active service this period and 2 years and 21 days of foreign service.  Item 18 (Remarks), in pertinent part, contains the entry “DISABILITY SEVERANCE PAY -- $16,996.80.”

3.  In support of his application, the applicant provides the following documents.

 	a.  Headquarters, 359th Neurosurgical Detachment, 31st Combat Support Hospital, Ibn Sina Hospital, Baghdad, Iraq, Neurological Discharge Summary, dated 15 May 2004 with 7 (medical record) enclosures.  This documentation shows, in pertinent part, that the applicant was injured in a firefight on 14 May 2004 and admitted to the hospital for a shrapnel injury to sacrum.  The Hospital Course section of the Neurological Discharge Summary shows, “[i]mmediate decrease in sensation of buttocks.  Motor intact.  Notes decerased (sic) sacral sensation in buttocks, genitals as well as difficulty with sensing void.  Lower extremity motor/sensory is intact.  Has several small shrapnel injuries in the extremities and one in the low lumbar region, none complicated.  No egress of CST [cerebral spinal fluid] CT [computerized tomography] scan reveals a shrapnel fragment penetrating the sacrum dorsally with impaction within the bone and outside of the foramenae of the sacrum.  No pelvic hematoma is noted.  The cortical disruption of the sacrum places the soldier at significant risk of sacral insufficiency fracture with any load bearing.  He has been stable neurologically.”  

This document shows that the applicant “[n]eeds urodynamics, evaluation for neurologic urogenital dysfunction” and, the discharge instructions state, in pertinent part, [f]ollow-up with Neurosurgery and Urology services.”  The applicant was discharged on 15 May 2004.

   b.  Headquarters, Landstuhl Regional Medical Center (Germany), Operation Report, dated 25 May 2004 with 25 (medical record) enclosures.  The Operation Report shows, in pertinent part, the Preoperative Diagnosis and Operative Diagnosis of “[s]hrapnel Injury to the Sacrum from a Rocket Propelled Grenade Attack with Sacral Nerve Root Compression from Compressed Bone Fragments.” The Operation Performed section shows “Sacral Laminectomy and Excision of Shrapnel from the Sacrum, Micro-techniques, Intraoperative Fluoro.”  The Indications for Procedure section notes, in pertinent part, “[t]he patient and his family understood the nature, indications, and risks of the surgery and agreed to go ahead.”  The Findings section of the report shows, “[c]ompressed sacral nerve roots from bone fragments and retained shrapnel fragment.”  The operation was performed on 18 May 2004.  There is no indication in the Operation Report of surgical complications or that the surgery was unsuccessful.

   c.  DA Form 199, dated 23 February 2006, with 3 enclosures. 

   (1)  The Medical Evaluation Board (MEB) dated 29 August 2005, show the 
applicant’s Chief Complaint was Erectile Dysfunction.

   (a)  The Diagnosis was “[e]rectile dysfunction, multi-factorial, possibly 
being contributed by organic as a result of his shrapnel injuries, likely contribution by the Paxil, Valium, and also possible psychogenic cause.  There are no planned operations or procedures.”

   (b)  The Present Condition and Prognosis section indicates, “[h]e 
currently has erectile dysfunction that is partially responsive to Viagra; however, this does cause him some chest discomfort.  He has currently been advised to have an evaluation by cardiology before continuing with this medication.  This condition should not affect his ability to work.”

   (c)  The Disposition/Recommendations section indicates, “[t]he patient 
is currently undergoing a medical evaluation board for his other complaints.  With regard to his erectile dysfunction, this should not affect his ability to perform his duty.  While he likely may not be fit for duty based on other complaints, from a urologic standpoint he is fit for duty and he meets retention standards as per paragraph 3-18, Army Regulation 40-501 [Standards of Medical Fitness].”

   
   (2)  The MEB Summary, dated 28 October 2005, shows the applicant was 
seen for evaluation of back/sacral injury and dictation of an MEB.

   (a)  The Diagnostic Studies section indicates “[a] CT myelogram was 
performed while at Walter Reed and showed no evidence of residual nerve root compression.  X-rays of his pelvis are reviewed, and no bone abnormalities are noted.  The hip joints and sacroiliac joints are normal.”

   (b)  The Diagnoses were “[c]hronic low back, sacral, and left lower 
extremity pain with limited motion left hip due to sacral nerve injury.  

   (c)  The Present Condition and Prognosis section indicates, “[S]oldier 
uses Lofstrand crutches because of pain in the low back and left hip.  Normally, he uses the crutch in his right hand, but if he has to do a lot of standing he will use 2 crutches.  He has less pain when he lies on his stomach.  He has pain when he lies on his back for more than 30 minutes, and he rates this pain as 4/10.  He has pain in his low back extending down his left lower extremity to the lateral foot and toes when he sits for more than 20 minutes.  He rates this pain as 7/10.  When he walks without crutches, he must premedicate himself with extra meds.  He cannot walk at all without a cane.  When he walks with his crutches, he has pain between 6 and 8/10.  He takes approximately 1 Percocet every 4 to 6 hours.  He also takes Effexor, Valium, and Colace.  He uses albuterol and Advair inhalators as necessary for asthma.  He has been given a prescription for morphine tablets, but he takes this only when his pain is very severe and estimated 1 time per month.  He has regained urinary and bowel control.  His sexual function is virtually normal.  He can have erections and ejaculations.  As described under physical examination, he also has normal strength in his lower extremities, but power at the hip is limited by pain.  He also has persistent numbness affecting  the left buttocks, thigh, and calf.”

   (d)  The Disposition/Recommendations section indicates, “[S]oldier’s 
condition is stable.  He is not a candidate for additional surgery.  He has received maximum benefits of conservative treatment.  He is unfit for retention under provisions of Army Regulation 40-501, paragraph 3-13d(1) because of his limited left hip motion, paragraph 3-30j because of his sacral nerve neuropathy, and [paragraph] 3-39h because of his pain and neuropathy.  He is referred to the physical evaluation board for disposition.”

   (3)  The DA Form 3947 (MEB Proceedings), dated 12 December 2005, 
lists the applicant’s diagnoses as “[c]hronic Low Back Pain, Sacral, and left lower extremity pain with limited motion left hip due sacral nerve injury.  Medically 
Unacceptable IAW (in accordance with) Army Regulation 40-501 [in accordance with 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement)], paragraph
3-13d(1), Left hip motion [Chapter 3-30j], nerve neuropathy [Chapter 3-39h]” and “[e]rectile dysfunction, multi-factorial, Medically Acceptable.”  The MEB proceedings show the applicant was referred to a PEB; the Chief, Orthopedic Service approved the findings and recommendation of the board; and the applicant agreed with the board’s findings and recommendation on 10 January 2006.

   (4)  The DA Form 199 shows an informal PEB convened on 27 January 
2006.  The PEB Proceedings, Disability Description section, describes the applicant’s MEB Diagnosis 1 as “[c]hronic low back pain with a history of an injury from a fragment of a rocket propelled grenade (RPG) while serving in Iraq.  Initially Soldier was unable to move either leg and lost bowel and bladder control.  These latter conditions resolved months later.  Soldier had debridement and sacral decompression laminectomy.  Hip passive flexion limited to 107 degrees passive (not ratable).  Physical exam notes a 71” [inch] 238lbs [pound] Soldier with back ranges of motion limited by pain, thus not ratable.  There is tenderness, lower extremity muscle strength is normal except that relating to flexion and abduction, which are limited by pain, thus not ratable.  There is marked decreased pinprick sensation over the left buttock and associated areas, again not ratable.  Soldier does not have evidence of pelvic or sacroiliac joint instability.  Soldier ambulates with single or double crutches depending upon the situation.  Further, the Soldier also must use a cane when not using crutches.”  The Disability Description section also shows “MEB Diagnosis 2 [erectile dysfunction], “medically acceptable.”

   (a)  Based on a review of the medical evidence of record, the PEB 
concluded that the applicant’s medical condition prevented performance of duty in his grade and specialty; the PEB found the applicant physically unfit and recommended a combined rating of 10 percent, and that the applicant’s disposition be separation with severance pay, if otherwise qualified.  

   (b)  On 15 February 2006, the PEB Liaison Officer (PEBLO) informed 
the applicant of the findings and recommendations of the PEB and explained to him the result of the findings and recommendation, and his legal rights pertaining thereto.  The PEBLO also indicated that he witnessed the applicant’s election.

   (c)  On 15 February 2006, the applicant indicated with his initials that 
he concurred with the PEB Findings and Recommendations and also placed his signature on the document.

 			(d)  The DA Form 199 shows the PEB's Findings and Recommendation were approved for the Secretary of the Army on 2 March 2006.

   d.  The applicant’s DD Form 214 with an effective date of 22 April 2006 was previously introduced and considered in this Record of Proceedings.

   e.  VA, Washington Regional Office, Washington, District of Columbia, Rating Decision, dated 11 September 2006 with 23 (medical record) enclosures.
						
   (1)  The Rating Decision, in pertinent part, shows “[s]ervice connection for 
chronic low back pain, sacral and left lower extremity pain with limited motion of left hip due to sacral nerve injury, left hip motion neuropathy, asthma, erectile dysfunction is granted with a prestabilization evaluation of 100 percent from
April 23, 2006” and “[e]ntitlement to special monthly compensation based on loss of use of a Creative Organ is granted April 23, 2006.”

   (2)  The Rating Decision shows evidence considered in the applicant’s 
case included partial medical records from 22 January 2002 through 15 March 2006; MEB, Walter Reed Army Medical Center (WRAMC), Washington, DC, dated 12 December 2005; PEB, WRAMC, Washington, DC, dated 26 October 2005 (sic); DD Form 214, dated 2 (sic) April 2006; and VAF-21-526 (Application for Compensation and/or Pension), received 10 March 2006.

   (3)  The Rating Decision, Reasons for Decision section, in pertinent part, 
shows “[s]ervice connection for chronic low back pain, sacral and left lower extremity pain with limited motion of left hip due to sacral nerve injury, left hip motion neuropathy, asthma, erectile dysfunction has been established as directly related to military service.  A 50 percent prestabilization rating is assigned from April 23, 2006 for unhealed or incompletely healed wounds or injuries, with it being likely there will be material impairment of employability.  A 100 percent rating is not assigned since gainful employment is feasible and the veteran does not have an unstabilized condition with severe disability.  Since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination.”

4.  Army Regulation 635-40 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.  

5.  Paragraph 4-10 (The MEB) of Army Regulation 635-40 provides that medical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501, Chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

6.  Paragraph 4-20 (Informal board) of Army Regulation 635-40 provides that each case is first considered by an informal PEB.  This paragraph states, in pertinent part, an informal board must ensure that each case considered is complete and correct.  The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case.  All evidence in the case file must be closely examined and additional evidence obtained, if required.

7.  Title 10, U.S. Code, Chapter 61 provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, Chapter 61, and in accordance with Department of Defense Directive (DoDD) 1332.18 (Separation or Retirement for Physical Disability) and Army Regulation 635-40.  

8.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

9.  Department of Defense Instruction (DoDI) 1332.39 (Application of the Veterans Administrations Schedule of Rating Disabilities [VASRD]) implements policy, assigns responsibilities, and prescribes procedures, under DoDD 1332.18, for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement.  Section E2.A1 (Attachment 1 to Enclosure 2) provides instructions for specific VASRD codes and provides, in pertinent part, that ratings for active disease process should not be combined with ratings for residuals (5200 series).

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA 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.  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.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was retired based on permanent disability with a disability rating of 100 percent because his disability was chronic at the time of his discharge, his medical records indicate unsuccessful surgery to decompress nerve roots and RPG shrapnel fragment, and the VA disability rating established 100 percent for his medical conditions.

2.  The evidence of record shows that all of the applicant’s medical conditions were fully considered and evaluated under the PDES by the MEB and PEB.  The evidence of record also shows that the informal PEB found the applicant unfit for chronic low back pain with a history of an injury from a fragment of an RPG in Iraq during a period of war (on 12 May 2004) and recommended separation with severance pay.  The evidence of record further shows that the PEB found the applicant’s erectile dysfunction, multi-factorial, medically acceptable; not unfitting and not compensable.

3.  The evidence of record shows that the PEBLO informed the applicant of the findings and recommendations of the PEB, explained the result of the findings and recommendations to the applicant, and his legal rights pertaining thereto.  The evidence of record also shows that the applicant concurred with the PEB findings and recommendations on 15 February 2006.

4.  The evidence of record shows that the applicant was discharged with a disability rating of 10 percent effective 22 April 2006.

5.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.

6.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

7.  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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20080017643



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ABCMR Record of Proceedings (cont)                                         AR20080017643



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