IN THE CASE OF:	  

		BOARD DATE:	      28  July 2009

		DOCKET NUMBER:  AR20080018020 


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, an increase in the disability rating he received from the Army at the time of his separation.

2.  The applicant states, in effect, that he believes he was misdiagnosed during his two year hospitalization at Walter Reed Army Medical Center (WRAMC).  He states that the Department of Veteran Affairs (VA) paperwork he is providing shows what was overlooked.  He claims he was part of a group that was lost in the system and not properly evaluated while at WRAMC.  He states that he was discharged prior to the press exposing the way things were at WRAMC and he was gone by the time things were fixed.  He also states that Senator Bond has looked over his records and stated that he should be re-evaluated for an increase in percentage rating with the Army and that he should file for a reevaluation.  He further states that one of the things overlooked was his traumatic brain injury (TBI) in addition to his neck, shoulder, back, hearing loss, vertigo, etc.  He claims to have been told the medication he was on was the cause of a lot of his problems; however, he has discovered it was not.  

3.  The applicant provides the following documents in support of his application:  DD Form 214 (Certificate of Release or Discharge from Active Duty); DA Forms 199 (Physical Evaluation Board (PEB) Proceedings), dated 11 March 2006 and 
20 April 2006; DA Form 3947 (Medical Evaluation Board (MEB) Proceedings); MEB Summaries, Addenda, and Clarifications; and VA Medical Records.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 21 July 2003.  

2.  On 15 February 2006, an MEB convened at WRAMC, Washington, D.C. to consider the applicant's case.  The MEB found the applicant's low back degenerative joint disease (DJD), right trapezius myofascial pain syndrome causing neck and right shoulder pain, and right unilateral vestibular hypofunction were medically unacceptable in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  The MEB further found the applicant's condition of mild shoulder impingement, post traumatic chronic daily headaches, localized idiosyncratic reaction to Botox, mild posttraumatic stress disorder (PTSD), dysthymia, right high frequency hearing loss with normal speech discrimination, tinnitus, and psychophysiological insomnia without evidence of sleep apnea were all medically acceptable and met medical retention standards.  The applicant concurred with the MEB's findings on 15 February 2006, and his case was referred to a PEB for evaluation.

3.  On 11 March 2006, the applicant’s case was considered by a PEB that convened at Washington, D.C.  The PEB found that the applicant was physically unfit and recommended a disability rating of 10 percent (%): 10% for frequent episodes of unsteadiness associated with tinnitus, 0% for chronic low back pain, and 0% for chronic right shoulder pain.  The MEB's diagnoses 4-12 were all found to be fit for duty and non-compensable.  The PEB finally recommended the applicant be separated with a 10% disability rating based on his unfitting conditions.  On 29 March 2006, the applicant non-concurred with the PEB's findings and demanded a formal hearing. 

4.  On 5 February 1992, the applicant's case was evaluated by a formal PEB that convened in Washington, D.C.  The PEB found the applicant's frequent episodes of unsteadiness at 10%, chronic low back pain at 10%, and chronic right shoulder pain at 0%.  All other diagnoses were found to be fit for duty and 
non-compensable.  The PEB recommended separation with a combined rating of 20%.  On 20 April 2006, after conferring with his attorney, the applicant concurred with the formal PEB's findings and recommendation.  

5.  On 20 May 2006, the applicant was honorably discharged under the provisions of paragraph 4-24b(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability, with severance pay.  The DD Form 214 he was issued shows he completed a total of 2 years and 10 months of active military service.


6.  On 18 March 2009, in connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) Legal Advisor.  The advisory official states the applicant has not provided enough evidence of error regarding his medical conditions as documented in his MEB in February 2006.  Contrary to the applicant's belief the MEB/PEB did not fully considered all of his conditions, the fact that not all conditions were unfitting and therefore not compensable does not mean they were not considered or that they were "overlooked."  This official also states that the subsequent VA medical findings or opinions are not proof of an error by the MEB/PEB at the time of the applicant's separation.  He further states that the PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in effect at the time of the applicant's separation.  This official recommended no change to the applicant's military record.

7.  On 27 May 2009, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has failed to reply.  

8.  The applicant provides VA medical documents which include consult requests and progress notes which cover the period January 2007 through October 2008.

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.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 

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 feels he was misdiagnosed and suffered from multiple medical conditions which should have resulted in higher disability rating than 20% was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further confirms that he was treated for multiple medical conditions while serving on active duty, other than the frequent episodes of unsteadiness, chronic low back pain, and his chronic right shoulder pain that resulted in his disability discharge, there is no indication that any of the other conditions were unfitting for further service, as is required in order for them to contribute to the disability rating assigned by the PEB.  As a result, there is an insufficient evidentiary basis to change the 20% disability rating assigned the applicant at the time of his discharge.

3.  Although the applicant did not provide an actual VA Rating Decision, the 
VA Progress Notes and other treatment documents he provided do confirm his treatment for multiple service-connected medical conditions that would support a higher disability rating from the VA.  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.  

4.  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.  However, any change in the disability rating granted by the VA would 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.

5.  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.  As a result, the applicant was properly compensated with severance pay at the time of his discharge based on the findings and recommendation of the PEB, and that he is now properly being rated, treated, and compensated for all his service-connected conditions by the VA.  

6.  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)                                         AR20080018020



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ABCMR Record of Proceedings (cont)                                         AR20080018020



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