IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090004324 


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 he be medically retired.

2.  The applicant states that at the time of his discharge he was not afforded a retirement due to the rating of his disabilities.  He argues that his disability was underrated according to the Department of Veterans Affairs (DVA) which gave him a 40 percent disability rating. 

3.  The applicant provides a Physical Disability Information Report in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The American Legion, as counsel for the applicant, did not provide additional evidence or argument in support of this application.

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.  After having had prior service in the Army National Guard (ARNG), the applicant again enlisted in the ARNG on 30 November 1999.  

3.  The applicant was evaluated for his left knee pain and left wrist pain by a Medical Evaluation Board (MEB) on 11 August 2004.  The MEB referred the applicant to a Physical Evaluation Board (PEB) to determined if he met medical standards for retention.  The applicant concurred with the finding of the MEB.

4.  On 2 September 2004, the PEB found the applicant unfit for continuation on active duty due to chronic left knee pain and chronic wrist pain with full active range of motion of both areas with good stability and no degenerative joint disease noted on imaging.  He was recommended for separation under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5003 (degenerative arthritis) with a zero percent disability rating and severance pay.  The applicant concurred with the PEB findings and waived a formal hearing.  Accordingly, on 22 October 2004, the applicant was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), by reason of medically unfit for retention.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

6.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

7.  Army Regulation 635-40, Appendix B, paragraph B-15 states that occasionally a medical condition which causes or contributes to unfitness for military service is 
of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD.  In those cases, a zero percent rating will be applied even though the lowest rating listed is 10 percent or more.

8.  Army Regulation 635-40, Appendix B, paragraph B-24 states that often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded only on the basis of pain.  Rating by analogy to degenerative arthritis (VASRD code 5003) as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

10.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, 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 physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have received a greater disability rating percentage and medical retirement, and that he was awarded a service-connected disability rating of 40 percent by the VA.  However, there is no evidence of record and the applicant did not provide any evidence to corroborate his contentions.


2.  The applicant was appropriately evaluated by an MEB and a PEB before his discharge and he concurred with their findings and recommendation.  At the time the applicant separated there were no objective findings to account for his pain.  He had full active range of motion of both areas with good stability and no degenerative joint disease noted on imaging.  He was separated for pain.  His contention that the VA awarded him a 40 percent disability rating does not invalidate the Army awarding him a zero percent disability rating.  The Army is not bound by the VASRD when a medical condition is rated essentially for pain.

3.  The rating action by the VA does not necessarily demonstrate error or injustice in the Army's rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

4.  There is insufficient evidence to show the applicant's PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is basis for granting the applicant's 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.



      ____________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)                                         AR20090004324



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ABCMR Record of Proceedings (cont)                                         AR20090004324



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