IN THE CASE OF:	  

		BOARD DATE:	  18 June 2009

		DOCKET NUMBER:  AR20090000805 


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, that his disability rating be increased to 
30 percent or more (i.e., a medical retirement).

2.  The applicant states that the Medical Evaluation Board (MEB) did not take into account the full range of his disability conditions. 

3.  The applicant provides a DA Form 199 (Physical Evaluation Board (PEB) Proceedings); a Department of Veterans Affairs (DVA) Rating Decision; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 April 2004.  

2.  The applicant's MEB is not available.  However, the advisory opinion from the Legal Advisor, U.S. Army Physical Disability Agency (USAPDA) states that on 
17 November 2006 a MEB diagnosed the applicant with low back pain.  His MEB indicated that his back pain was his chief and sole complaint and the applicant agreed that his MEB listed all current conditions.  The applicant's disagreement with the MEB findings did not relate to additional conditions not being listed on the MEB.  The MEB recommended referral to a PEB.  

3.  On 18 December 2006, an informal PEB found the applicant physically unfit due to chronic low back pain beginning in October 2005.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 4 January 2007, the applicant concurred with the PEB’s findings and waived a formal hearing.   

4.  On an unknown date, the USAPDA approved the PEB’s findings and recommendations.

5.  On 25 January 2007, the applicant was honorably discharged by reason of physical disability with severance pay (10 percent) with entitlement to $5,895.45.  He had completed 2 years, 9 months, and 4 days of creditable active service. 

6.  In support of his claim, the applicant provided a DVA Rating Decision, dated 10 September 2007, which shows that service connection was granted for low back strain claimed as back injury (10 percent), cervical strain claimed as neck stiffness (0 percent), right shoulder strain claimed as right shoulder injury (dominant) (10 percent), left ankle strain (10 percent), retropatellar pain syndrome of the right knee, claimed as right knee pain (10 percent), and retropatellar pain syndrome, left knee pain, claimed as left knee pain 
(10 percent).  

7.  In the processing of this case, an advisory opinion was obtained from the Legal Advisor, USAPDA.  The opinion recommended no change to the applicant’s military records.  The opinion states that it is presumed that the applicant is claiming that since he got a higher rating from the DVA that the PEB rating was therefore in error.  The opinion points out that the applicant's MEB listed only one diagnosis (low back pain), that the applicant agreed that his MEB listed all current conditions, that his DD Form 2807 (Report of Medical History) only listed back pain and indigestion/heartburn as conditions that were problems at the time, and that his physical profile only listed his back pain as causing any limitation to his assigned duties.  The opinion states that the PEB found the only listed condition unfitting and properly rated it and that the applicant could only be rated on conditions that were found to be unfitting.  It states that even if the other conditions considered by the DVA in September 2007 were considered by the PEB, none but the back condition would have been found to be unfitting.  Higher subsequent ratings by the DVA on conditions that did not affect the applicant's duty performance do not equate to MEB/PEB error.  The applicant has not provided any evidence of error in his military records.  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.      

8.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal; however, he did not respond within the given time frame.  
9.  Title 10, U. S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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.

11.  Paragraph 6.1.7. (Disabilities not unfitting for military service) of Department of Defense Instruction 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) states that conditions that do not themselves render a Service member unfit for military service will not be considered for determining the compensable disability rating unless they contribute to the finding of unfitness. 

12.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the MEB did not take into account the full range of his disability conditions was carefully considered.  However, the advisory opinion states that the applicant's MEB listed one diagnosis (low back pain) and he agreed that the MEB listed all current conditions.  He provides no evidence to show any other conditions rendered him unfit to perform his military duties.

2.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 

3.  There is insufficient evidence to show the applicant’s disability was improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

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)                                         AR20090000805





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ABCMR Record of Proceedings (cont)                                         AR20090000805



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