IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090002137 


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, medical retirement.

2.  The applicant states, in effect, that he should have been medically retired from the Army instead of medically discharged.  He indicates that the Department of Veteran Affairs (VA) granted him a 90-percent service-connected disability rating for post-traumatic stress disorder (PTSD) and additional medical conditions not considered by the Army on the day following his discharge.

3.  The applicant provides the following documents in support of his application:  Physical Evaluation Board (PEB) Proceedings, VA decisional document, and Standard Form 600 (Chronological Record of Medical Care).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army and entered active duty on 5 March 1996.  He was trained in, awarded, and served in military occupational specialty 11B (Infantryman).

2.  On 11 December 2006, an informal PEB at Fort Sam Houston, Texas, found the applicant to be unfit for further service due to chronic neck pain secondary to degenerative disc disease, without significant motor neurologic abnormality, range of motion (ROM) limited by pain under VA Schedule Rating for Disabilities (VASRD) codes 5299 and 5242 (0 percent); and chronic back pain secondary to degenerative disc disease, without motor neurologic deficit, ROM limited by pain under VASRD codes 5299 and 5242 (0 percent).  The PEB recommended the applicant be separated with severance pay with a combined rating of 0 percent.

3.  On 14 December 2006, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

4.  The applicant's record is void of any medical treatment records or other documents that indicate he was ever treated for PTSD or any other disabling or disqualifying (unfitting) mental condition prior to his discharge.

5.  Headquarters, III Corps and Fort Hood, Orders 361-0115, dated 27 December 2006, directed the applicant’s discharge from active duty on 11 January 2007 with a 0-percent disability rating and the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay in the rank of sergeant first class after completing a total of 10 years, 10 months, and 7 days of creditable military service.

6.  On 14 May 2007, the VA granted the applicant service-connected disability compensation for PTSD with major depressive disorder (50 percent); degenerative joint disease, cervical spine with right upper extremity radiculopathy (neck pain) (10 percent); degenerative joint disease, lumbar spine (back pain) (40 percent); right shoulder strain (20 percent); cold weather injury, left foot (20 percent); cold weather injury, right foot (10 percent); removal ganglion cyst, right wrist (0 percent); right ankle strain (0 percent); bilateral plantar fasciitis, post operative (0 percent); and carpal tunnel syndrome, bilateral wrists (0 percent).  It also shows the applicant was granted an overall combined rating of 90 percent.

7.  The applicant provides a single page Standard Form 600 which shows he had an appointment at the Monroe Health Clinic on 26 December 2006 regarding his low back pain.  This document lists other medical conditions that the applicant experienced during his military service.

8.  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 his or her office, grade, rank, or rating.

9.  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.

10.  Title 38, U.S. Code, sections 310 and 331, 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.

11.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be authorized medical retirement because he received a 90-percent VA rating for PTSD and additional medical conditions not considered by the Army during the PDES process was carefully considered.  However, there is insufficient evidence to support this claim.

2.  There is no evidence suggesting the applicant was suffering from a disqualifying mental or medical condition at the time of discharge that would have supported an inclusion of any such condition in the evaluation process during his separation processing through medical channels.

3.  By regulation, the mere presence of an 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 his or her office, grade, rank, or rating.  Only unfitting conditions or defects or those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

4.  The evidence of record confirms that a PEB, after examining all the medical evidence, determined that the applicant’s chronic neck pain secondary to degenerative disc disease, without neurologic abnormality, ROM limited by pain, and chronic back pain secondary to degenerative disc disease, without motor neurologic deficit, ROM limited by pain, made him unfit for further service and recommended his separation with severance pay based on a combined 
0-percent disability rating.

5.  The record further confirms the applicant concurred with the findings and recommendations of the PEB and there is no indication that he attempted to have those findings changed while he remained on active duty.  As a result, it is concluded that 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.

6.  The PEB findings and recommendations, to include the assigned disability rating, were based on a comprehensive medical evaluation of his disabling medical conditions by competent medical authorities through the PDES process. 
A subsequent change or worsening of those conditions would not call into question the validity of the disability ratings that were assigned during the PEB process and there is absolutely no evidence suggesting the PEB findings and recommendations were arbitrary or capricious.

7.  Notwithstanding the applicant's treatment for many other medical conditions during his active duty tenure, there are no medical records that indicate any of the other conditions were unfitting or that he suffered from an unfitting PTSD or any other disqualifying mental condition at the time of his PDES processing.  The existence of other service-connected conditions that were not considered disabling during the PEB process does not warrant changing the narrative reason for the applicant’s discharge, nor the disability rating assigned by the PEB which was based solely on the disabling unfitting medical conditions evaluated.

8.  The evidence of record also confirms the applicant is properly receiving treatment with the VA which is the appropriate agency to render long term care and disability evaluation for service-connected medical conditions.  The VA can evaluate him throughout his lifetime, adjusting the percentage.

9.  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)                                         AR20090002137



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ABCMR Record of Proceedings (cont)                                         AR20090002137



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