IN THE CASE OF:	

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080018505 


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 that he be given a higher disability rating than what was assigned to him by his Physical Evaluation Board (PEB).

2.  The applicant states that he was retired with a 40 percent disability rating, but that rating was later reduced to 30 percent without reviewing all of the disabilities that caused him to be unfit to perform his duties.  He adds that the Department of Veterans Affairs (VA) gave him a 30 percent rating for Post-Traumatic Stress Disorder (PTSD), a 10 percent rating for his right knee, and a 10 percent rating for his right shoulder prior to his rating being reduced to 30 percent.  The applicant contends that all of these conditions would have caused him to be unfit to do his job in the Army.

3.  The applicant provides excerpts from his military records, a Social Security Administration benefit summary, and a VA rating decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's records be corrected to show that he was rated between 80 and 100 percent disabled when he was retired.

2.  Counsel states the rating assigned to the applicant by the Army was in violation of both Department of Defense Directive (DoDD) 1332.18 and 1332.39 because the applicant was not rated for several conditions which rendered him unfit to perform his military duties.

3.  Specifically, counsel states that the following conditions were rated by the VA at the percentages indicated, all of which would have prevented the applicant from doing his duties as a tank gunner:  PTSD (30 percent); residuals, broken tibia right leg (30 percent); residuals, broken tibia with nails/screws, left leg
(30 percent); nerve damage, right foot and ankle (10 percent); right shoulder impingement (10 percent); pes planus bi-lateral (zero percent); and residuals, fractured right wrist (zero percent).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 25 July 2002 with 5 years, 2 months, and 27 days prior active service and 1 year and 8 months of prior inactive service.

2.  The applicant served as an M1 armor crewman and was promoted to pay grade E-5.

3.  On 27 June 2006, a Medical Evaluation Board (MEBD) convened and determined that the applicant was medically disqualified due to chronic leg pain, bilateral, secondary to bilateral tibia fractures and burns; and right knee instability.  The MEBD also found the applicant to have right shoulder impingement, right wrist pain, and bilateral flat feet, but found that those conditions were medically acceptable.  An addendum was added to the MEBD which found that "The patient has well-healed wounds with no sites of current drainage.  The patient is able to ambulate with an antalgic gait.  The patient has no sites of point tenderness; however, he is diffusely tender throughout his lower extremities.  The patient has moderate residual swelling diffusely through his lower extremities.  He has stable right knee with no evidence of instability to varus or valgus stress . . . The patient has 5/5 strength in the lower extremities.  He does have decreased sensation in the superficial peroneal branch of his right lower extremity.  He is otherwise neurologically intact distally.  The patient has 20 degrees of ankle dorsiflexion bilaterally and 40 degrees of ankle flexion bilaterally.  The patient has full knee motion on the left side.  On the right side, the patient has 0 degrees of extension to 125 degrees of flexion.  The patient's right wrist demonstrates full active and passive motion.  There is no tenderness to palpation about the ulnar syloid.  There is no pain with axial loading and ulnar deviation.  There is no appreciable click or catching within the wrist.  The patient is neurovascularly intact distally to light touch and capillary refill is less than 2 seconds distally . . . Radiographs demonstrate a very small well-corticalized ulnar syloid nonunion.  The patient's right lower extremity demonstrates well-healed tibia fractures.  Left radiograph demonstrates a healed tibia fracture."  In 

the addendum the applicant was given a prognosis of a limitation in motion of his ankles, most likely secondary to residual pain, which required significant 
narcotics for pain, with an expectation of improvement with time.  The second page of the MEBD was not provided by the applicant and was not contained in his military records.

4.  On 7 September 2006, an informal PEB convened and determined that the applicant was physically unfit due to third degree burns of his right ankle, left ankle, and right foot (20 percent), and chronic leg pain, status post bilateral tibial fractures and ACL reconstruction, rated moderate/constant.  The PEB found the other medical conditions referred to by the MEBD to be medically acceptable without significant physical profile restrictions.  As such, the PEB did not rate those conditions.  The PEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL), rated 40 percent disabled.

5.  The applicant concurred with the informal PEB's findings and recommendation and waived a formal hearing.  As a result, he was honorably released from active duty on 11 November 2006 and placed on the TDRL.

6.  While on the TDRL, the applicant was considered by a second informal PEB which found him physically unfit due to chronic pain residual from bilateral tibial fractures, rated as slight/constant (10 percent); scar, right ankle which is deep and limits ankle range of motion (10 percent); painful scar left ankle (10 percent) and recommended that the applicant be permanently retired due to physical unfitness, rated 30 percent disabled.  The applicant concurred with the informal PEB's findings and recommendation and waived a formal hearing.

7.  Accordingly, on 27 March 2008, the applicant was permanently retired, rated 30 percent disabled.

8.  On 5 March 2007, the VA awarded the applicant the following disability ratings:  PTSD (30 percent); residuals, broken tibia right leg (30 percent); residuals, broken tibia with nails/screws, left leg (30 percent); nerve damage, right foot and ankle (10 percent); right shoulder impingement (10 percent); pes planus bi-lateral (zero percent); and residuals, fractured right wrist (zero percent).  This gave the applicant a combined rating of 80 percent effective 12 November 2006.

9.  On 6 November 2008, the Social Security Administration awarded the applicant Social Security disability effective December 2007.


10.  Title 38, U.S. Code permits 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 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.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Department of Veterans Affairs Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4–13 (Referral to a physical evaluation board), states that the MEBD will recommend referral to a PEB those Soldiers who do not meet medical retention standards.

12.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

13.  Army Regulation 635-40, paragraph 7-11, states, in effect, that a Soldier will only be rated for disabilities which caused his name to be placed on the TDRL when making final disposition of his case.  Other medical conditions which arise or are incurred while an individual is assigned to the TDRL are not ratable by a periodic PEB.


14.  Army Regulation 635-40, Appendix B, Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities, paragraph B-24, VASRD Code 5003, Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis, provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure 
the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.  (Severe eye pain is an exception).    

DISCUSSION AND CONCLUSIONS:

1.  The applicant's counsel believes that all of the conditions rated by the VA would render the applicant physically unfit to perform his duties as a tank gunner.  As such, they were required to be rated by the Army in accordance with DoDD 1332.18 and 1332.39.

2.  While the Narrative Summaries (NARSUMs) for the MEBDs are not available to review, the applicant's initial MEBD only found him medically disqualified due to chronic leg pain, bilateral, secondary to bilateral tibia fractures and burns; and right knee instability.  The MEBD also found the applicant to have right shoulder impingement, right wrist pain, and bilateral flat feet, but found that those conditions were medically acceptable.  The MEBD addendum found a limitation in motion of the applicant's ankles, most likely secondary to residual pain, which required significant narcotics for pain, with an expectation of improvement with time.  

3.  Since the second page of the MEBD was not provided by the applicant and was not contained in his military records, it must be presumed that the applicant either concurred with the MEBD's findings or unsuccessfully appealed those findings.

4.  The VA rated the applicant for the following conditions which were not rated by the Army:  PTSD (30 percent); right shoulder impingement (10 percent); pes planus bi-lateral (zero percent); and residuals, fractured right wrist (zero percent).  It is noted that all these conditions, other than PTSD, were addressed in the applicant's MEBD.  The MEBD specifically stated that the applicant's right 
shoulder impingement, right wrist pain, and bilateral flat feet were medically 

acceptable.  Since they were medically acceptable, they could not be considered by the PEB.  There is no mention of PTSD in the applicant's MEBD or PEB.  As such, PTSD was also not found to be medically disqualifying and could not be referred to a PEB.  As for the conditions rated by both the Army and the VA, the VA rated residuals, broken tibia right leg 30 percent disabling; residuals, broken tibia with nails/screws, left leg 30 percent disabling; and nerve damage, right foot and ankle 10 percent disabling.  The Army rated the applicant for burn scars 20 percent disabling and chronic leg pain 20 percent disabling.

5.  Since the VA is not restricted to rating medically disqualifying or physically unfitting conditions, it was able to rate the applicant for conditions which could not be rated by the Army.

6.  As for the difference in ratings between the VA and the Army for the same conditions, the MEBD Addendum clearly shows that the applicant was healing well and his major problem was pain.  As such, it would appear that the applicant was properly rated by the Army.  The fact that the VA, operating under its own laws and regulations, rated the applicant differently does not indicate an error on the part of the Army.

7.  As such, there is no evidence or indication that the applicant was improperly rated when he was released from active duty and placed on the TDRL.

8.  As for the applicant's rating being reduced to 30 percent when he was placed on the Retired List, the TDRL is intended for Soldiers whose physical disabilities are expected to change.  If the condition does not change, the rating remains the same.  If the condition deteriorates, the rating is increased.  If the condition improves, the rating is decreased.  Since the TDRL NARSUM was not provided to the Board, it must be presumed that the physical disabilities for which the applicant was placed on the TDRL improved.  As such, there is no basis for changing the percentage of disability awarded to the applicant which resulted in his removal from the TDRL and placement on the Retired List.

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)                                         AR20080018505



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ABCMR Record of Proceedings (cont)                                         AR20080018505



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