IN THE CASE OF:	  

		BOARD DATE:	       26 March 2009

		DOCKET NUMBER:  AR20080019126 


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 the recommended disability percentage for the back pain portion on his 3 August 2007 physical evaluation board (PEB) be increased from 10 percent to a higher percentage. 

2.  The applicant states that his back condition has worsened since his operation and that he has serious problems bending, reaching, walking, and standing and sitting too long.  He also adds that the Social Security Administration (SSA) found him unemployable.

3.  The applicant provides copies of the SSA notice of decision, dated 29 August 2008; DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 11 September 2002; Certificate of Retirement, dated 6 November 2007; DA Form 3349 (Physical Profile), dated 16 September 2005; DA Form 261 (Report of Investigation-Line of Duty and Misconduct Status); DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 11 January 2006; DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 3 August 2007; and National Guard Bureau (NGB) Form 23C (Army National Guard Retirement Points History Statement), dated 6 June 2006, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he initially enlisted in the Regular Army for a period of 3 years on 5 September 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 
(MOS) 74C (Records Telecommunications Center Operator).  He subsequently executed a series of reenlistments in the Regular Army and was honorably discharged in the rank of sergeant under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program on 29 September 1992.  The DD Form 214 he was issued shows he completed 13 years and 25 days of creditable active military service.

2.  The applicant’s records also show he enlisted in the U.S. Army Reserve (USAR) for a period of 3 years on 30 September 1992.  However, he transferred to the Texas Army National Guard (TXARNG) on 8 December 1992. 

3.  On 7 February 2000, the applicant was ordered to active duty in support of Operation Joint Forge and subsequently served in Bosnia in MOS 12B (Combat Engineer).  He was honorably released from active duty to the control of his ARNG unit on 30 April 2001.

4.  On 16 September 2005, the applicant was issued a permanent physical profile for lumbar spine fusion L4/L5, left shoulder pain, and bilateral knee degenerative joint disease (DJD).  The profiling officer recommended the applicant’s referral to an MEBD.

5.  On 11 January 2006, an MEBD convened at Darnell Army Community Hospital, Fort Hood, TX.  After consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant’s medical conditions of low back pain, refractory to L4/L5 fusion; bilateral moderate DJD, bilateral knees; and left shoulder trapezuis spasm, rendered him unable to fulfill the requirements of his MOS. The MEBD recommended that he be referred to a PEB.  The applicant concurred with the MEBD’s findings and recommendation and indicated that he desired to continue on active duty. 

6.  On 1 February 2006, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic low back pain, status post L4-L5 fusion without neurologic abnormality, with thoracolumbar range of motion of 220 degrees; chronic pain, left shoulder and left knee; and flexion contracture of the right knee.  The PEB determined that his condition flexion contracture of the right knee existed prior to service (EPTS) and was not aggravated by service but was compensable by law. The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for 

code 5241 (chronic low back pain), a 10 percent disability rating for codes 5099 and 5003 (chronic pain of the left shoulder and left knee), and a 10 percent disability rating for codes 5030 and 5261 (flexion contracture of the right knee).  The PEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL) with a combined rating of 30 percent and with a reexamination in March 2007.  The applicant concurred with the PEB’s finding and recommendation and waived his right to a formal hearing on 10 February 2006.

7.  On 5 September 2007, a TDRL PEB convened at Fort Sam Houston, TX, and reevaluated the applicant’s medical records and sworn testimony.  Based on review of the TDRL examination, the PEB found the applicant remained unfit to reasonably perform the duties required by previous grade and specialty due to chronic low back pain, status post L4-L5 fusion without neurologic abnormality; chronic pain, left shoulder and left knee; and flexion contracture of the right knee, and that his condition was sufficiently stable for final adjudication.  The PEB again rated him under the VASRD and granted him a 10 percent disability rating for code 5241 (chronic low back pain), a 10 percent disability rating for codes 5099 and 5003 (chronic pain of the left shoulder and left knee), and a 10 percent disability rating for codes 5030 and 5261 (flexion contracture of the right knee).  The PEB recommended that the applicant be permanently retired with a combined disability rating of 30 percent.

8.  On 5 November 2007, the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, published Orders D310-6 removing the applicant from the TDRL and permanently retiring him in the rank/grade of sergeant first class (SFC)/E-7, effective 5 November 2007.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

10.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer 

procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.  

11.  The VASRD, General Rating Formula for Diseases and Injuries of the Spine, states that, for code 5241, that the forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal 	contour; or, vertebral body fracture with loss of 50 percent or more of the height supports a 10 percent rating.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained an injury and subsequently underwent an MEBD which recommended he be given a PEB.  He concurred with this recommendation.  The PEB found his chronic low back pain, chronic left shoulder and left knee pain, and flexion contracture of the right knee prevented him from 

performing his duties and determined that he was physically unfit for further military service.  The PEB recommended placement on the TDRL.  The applicant concurred.

2.  A TDRL PEB subsequently convened and reevaluated the applicant’s medical conditions.  Upon reexamination, he was again found unfit for the same conditions of chronic low back pain, chronic left shoulder and left knee pain, and flexion contracture of the right knee.  The PEB recommended his permanent retirement with a combined disability rating of 30 percent.  The applicant concurred.

3.  The applicant now believes he should have received a greater percentage disability rating for his low back pain because his condition has worsened and the SSA found him unemployable.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and their own policies, the VA, SSA, or other agencies do not have the authority or the responsibility for determining medical unfitness for military service.  Other agencies may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

4.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The applicant was properly rated at 10 percent for his chronic back pain.  The physical findings and range of flexion motion all support a 10 percent rating under the general rating Formula of Disease and Injuries of the Spine.  There is no evidence to support a higher rating.

6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief. 
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.


															XXX
      ______________________
               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)                                         AR20080019126



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ABCMR Record of Proceedings (cont)                                         AR20080019126



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