IN THE CASE OF:	  

		BOARD DATE:	         6 August 2009  

		DOCKET NUMBER:  AR20090002609 


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 of his disability rating to 100 percent, a medical retirement, and concurrent retirement with disability pay.  

2.  The applicant states, in effect, that egregious errors caused his Physical Evaluation Board (PEB) to recommend a combined rating of zero percent.  He also states he believes an injustice occurred for the following reasons:  (1) He was denied presumption under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2, during all PEB proceedings; (2) All medical evidence was not considered; 
(3) Medical evidence verifying severe disability was actively disallowed by the commander of the PEB; (4) medical retirement/concurrent retirement and disability pay were denied although his severe disabilities exceed all pertinent criteria; and (5) Further, he states the Department of Veterans Affairs (DVA) indicated that his combined disability rating of 250 percent was arrived at using the same rating criteria used by the PEB commander.  This DVA document verifies that the PEB unjustly broke the law and denied him all benefits earned by his excellent service and severe disabilities incurred during combat operations in Baghdad, Iraq.  

3.  In support of his application, the applicant provides his formal PEB proceedings, his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service), and his DVA service-connected compensation decision.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Louisiana Army National Guard (LAARNG), in pay grade E-1, on 29 March 2001.  He was ordered to active duty in support of Operation Enduring Freedom and entered on active duty on 30 January 2003.  He was honorably released from active duty on 2 June 2004 and transferred to a LAARNG unit.  On 3 June 2004, the applicant again entered an active duty status in support of Operation Iraqi Freedom. 

3.  The applicant submits a copy of his formal PEB Proceedings that show, on 27 July 2006, he appeared with counsel before a formal PEB.  The PEB considered the applicant's condition of chronic back pain, due to degenerative disc disease, without neurologic or electro diagnostic abnormality, thoracolumbar range of motion limited by pain.  The PEB determined that his other medical conditions were not unfitting and not rated.  The PEB reevaluated all available medical records and the sworn testimony of the applicant.  The PEB determined the applicant was most appropriately rated at zero percent.  The PEB found that his medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.  The PEB noted that a voting member of the PEB included an officer of the Reserve Component.  The PEB found the applicant physically unfit and recommended a combined rating of zero percent and separation with severance pay, if otherwise qualified.  

4.  There is no evidence the applicant and counsel concurred or non-concurred with the PEB's findings and recommendations.

5.  The applicant was honorably discharged from active duty, in pay grade E-4, on 25 August 2006, for physical disability with severance pay.

6.  The applicant was honorably discharged from the LAARNG, on 25 August 2006, in pay grade E-4, under the provisions of National Guard Regulation 
600-200 (ARNG Enlisted Personnel Management), paragraph 8-26(1), medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3.  He was credited with completing 5 years, 4 months, and 27 days of net active service.  

7.  The applicant also submits a copy of a letter, dated 25 April 2007, from the DVA that shows he was advised of his entitlement amount and payment start dates for service-connection compensation and a non-service connected pension.  The letter also advised that the applicant had been awarded a service-connected disability rating of 100 percent for post traumatic stress disorder (PTSD); 20 percent for degenerative disc disease C5-C6, cervical spine; 
10 percent for degenerative disc disease, thoracic spine with herniated disc 
T7-T8; 40 percent for degenerative disc disease, lumbosacral strain, lumbar spine; cervical spine; 20 percent for neurogenic bladder; 10 percent for left shoulder strain; 10 percent for right shoulder strain; 10 percent for hypertension; and 10 percent for left lower extremity radiculopathy associated with degenerative disc disease, lumbosacral strain, lumbar spine.  The letter further advised him that his overall or combined rating was 100 percent.  Additionally, he was advised that the DVA does not add the individual percentages of each condition to determine the combined rating; however, they use a combined rating table that considers the effect from the most serious to the least serious condition.

8.  In an advisory opinion, dated 10 March 2009, the Agency Legal Advisor, US Army Physical Disability Agency (USAPDA), Washington, DC, stated that, on 15 May 2005, the applicant's Medical Evaluation Board (MEB) was completed with degenerative disc disease listed as not meeting medical retention standards. His listed conditions of mild hearing loss, controlled hypertension, morbid obesity, and sensory neurogenic bladder were all found to meet medical retention standards.  On 25 May 2006, the applicant non-concurred with the findings of the MEB and listed 28 items in the MEB he disagreed with.  The vast majority related to what he described as "deceptive statements and complete lies" found in his MEB Narrative Summary.  The MEB approval authority reviewed the applicant's comments and also requested that his primary behavioral mental health provider review the comments.  The applicant's mental health provider, Dr. S*****er, psychiatrist, found that only three of the 28 comments had any validity.  These errors were not material errors that reduced the accuracy and reliability of the medical documentation regarding the applicant's lone medical condition that did not meet medical retention standards.  The applicant's claim that he suffered from PTSD and that it needed to be included on his MEB was dismissed by Dr. S*****er.  Dr. S*****er stated the applicant "did not have any behavioral health conditions that required inclusion in his medical board."  The MEB findings were reviewed and approved by two other physicians and the MEB approval authority. The applicant did sign the statement on the DA Form 3947 (MEB Proceedings) indicating that the MEB accurately covered all of his medical conditions.  The applicant's physical profile did not contain any limits because of any psychiatric diagnosis.   Except for his restrictions related to his back, his duty performance was within standards.

9.  The USAPDA official also stated that on 5 July 2006, an informal PEB found the applicant unfit due to his chronic back pain, without neurologic or electro diagnostic abnormality, with range of motion limited by pain; rated at zero percent, and recommended he be separated with severance pay.  On 11 July 2006, the applicant non-concurred and requested a formal hearing.  On 27 July 2006, a formal PEB reaffirmed the informal PEB's findings and cited examples of medical documentation that supported their findings.  The applicant and his attorney were provided a copy of the PEB's findings on 27 July 2006.  Neither the applicant nor his attorney submitted an appeal, rebuttal, allegations or error, or claims that evidence was not accepted by the PEB.

10.  The USAPDA official further stated the PEB's findings concerning the applicant's back condition were correct.  At the time of the applicant's PEB, there was no evidence of any tenderness, spasm, lack of reflexes, or lack of full strength.  All neurological findings were negative and forward flexion was 55 degrees, limited by pain.  The applicant did not meet any of the Department of Veterans Affairs Schedule for Rating Disabilities criteria found at the General Rating Formula for Diseases and Injuries of the Spine as his range of motion limitations were due to pain only and not an established mechanical basis.  Even if rated for his limitation at 55 degrees, the rating would only be 20 percent which would result in the same exact amount of severance pay and benefits that he received for his zero percent rating.  All other conditions met medical retention standards and the performance data did not support these conditions were unfitting.  Only unfitting conditions are compensable (Army Regulation 635-40, paragraph 3-1, and Department of Defense Instructions 1332.39, 6.1.7.).  Even if the other listed conditions had been changed to reflect they did not meet medical retention standards, the performance data in the case file would not have supported unfit findings by the PEB for these conditions.

11.  The USAPDA official also stated the applicant's claim that he should have been rated for PTSD is not supportable as the PEB can only rate listed conditions that are found to be unfitting by the MEB.  The applicant's main mental health physician clearly indicated that no mental health diagnosis was required to be listed on the MEB.  He did not say he did not have some past or present problems, just that at the time of the MEB/PEB no mental health conditions that could be considered disabilities existed that required treatment and inclusion on the MEB.  These findings were reviewed by several other physicians and all concurred that they were involved with the applicant's MEB.  The medical findings appeared to be supported by well reasoned medical evaluations and opinions and were accepted by the PEB.  

12.  The USAPDA official further stated the applicant claimed error and provided subsequent DVA records as his sole proof.  Subsequent DVA findings and different medical opinions are not proof of MEB/PEB error.  The applicant's MEB/PEB processing was properly accomplished and reviewed by several different MEB and PEB personnel.  He was provided all of his administrative due process rights and there is no evidence that he was precluded from offering any relevant material evidence in his case.  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 existence at the time of the applicant's separation.  The recommendation was no change to the applicant's military record.

13.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 10 March 2009.  The applicant submitted an 18-page rebuttal in which he disagreed with the advisory opinion.  He stated, in effect, the MEB/PEB did not accurately cover all of his medical problems and physical limitations.  He further stated that his DVA rating is evidence of what the correct disability rating from the PEB should have been.  The MEB/PEB is in error and preventing him from obtaining justice and the proper benefits he deserves because he was injured serving his country in Baghdad, Iraq.  He also submitted copies of his DVA, military medical, and military service records.

14.  Army Regulation 40-501, Chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

15.  Title 38, U. S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian 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.

16.  Unlike the Army, the DVA 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 at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that errors occurred during his MEB and PEB processing and that he should have been rated at 100 percent and medically retired.  The evidence shows his MEB and PEB processing were properly accomplished and reviewed by several different MEB and PEB personnel and there is no evidence the applicant was precluded from offering any relevant material evidence in his case.  The applicant’s contentions and the documents that he submitted do not demonstrate error or injustice in his MEB or PEB processing nor error or injustice in the disposition of his case by separating him from active duty.  

2.  The USAPDA opined that the applicant did not meet retention standards for his back condition as his range of motion limitations were due to pain only and not an established mechanical basis.  If he had been rated for his limitation at 
55 degrees, the rating would only be 20 percent which would result in the same exact amount of severance pay and benefits that he received for his zero percent rating.  He was subsequently discharged from active duty due to a physical disability that rendered him functionally unfit to perform the duties of his grade and primary specialty.  All of his other medical conditions met medical retention standards and there was no evidence to support these conditions were unfitting.




3.  The DVA rating decisions and medical documents provided by the applicant with his application and rebuttal were also carefully considered.  However, the award of a DVA rating or an increase of a DVA rating does not establish entitlement to an increased disability rating or medical discharge and/or medical retirement.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the DVA.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20090002609



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ABCMR Record of Proceedings (cont)                                         AR20090002609



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