IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090004652 


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 his military records be changed to show he was placed on the Retired List for physical unfitness rated 100 percent disabled.

2.  The applicant states he wants the increased disability rating to be based solely on his physical profile, without the mental portion.  He states, in effect, that a medical doctor gave him a profile and rating of 100 percent that was never honored while he was in the hospital at Fort Bragg in 1998.  He also states that he felt he was pushed out of the Army in 2000.

3.  The applicant provides no additional documentary evidence 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.  The applicant's military records show he enlisted in the Regular Army on 13 February 1992.  He was awarded the military occupational specialty of signal support systems specialist, and was promoted to pay grade E-6.

3.  The applicant was discharged from active duty on 15 February 2001.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time confirms the applicant was honorably released from active duty by reason of temporary physical disability and placed on the Temporary Disability Retired List (TDRL).  It shows he completed a total of 9 years and 3 days of total active service.

4.  On 14 February 2005, the applicant's case was considered by a Physical Evaluation Board (PEB) while he was on the TDRL.  The DA Form 199 (PEB Proceedings) shows the PEB considered the applicant's psychotic disorder, not otherwise specified with anxiety symptoms requiring psychotropic medication and outpatient treatment, ongoing auditory hallucinations, unemployed, rated as definite social and industrial impairment in accordance with (IAW) Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B-107, paragraph E (TDRL diagnosis 1, TDRL psychiatric evaluation); and chronic bilateral leg pain, status post multiple fractures, compartment syndrome and fasciotomies, intermittent narcotic use, pain rated as slight/constant (TDRL diagnosis 2, TDRL orthopedic evaluation).  

5.  Based on a review of the TDRL examination, the PEB found that the applicant remained unfit to reasonably perform the duties required by previous grade and military specialty.  The applicant's condition at that time was considered sufficiently stable for final adjudication.  The PEB recommended his disposition be permanent disability retirement with a combined rating of 40 percent.

6.  On 26 February 2005, the applicant concurred with the PEB’s decision and waived his right to a formal hearing of his case.

7.  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 their office, grade, rank, or rating.
8.  Title 38, U.S. Code, 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.  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.  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.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the VASARD, not all of the general policy provisions set forth in the VASARD apply to the Army.  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. 

9.  In the processing of the case an advisory opinion, dated 27 July 2009, was obtained from the U.S. Army Physical Disability Agency (USAPDA).  It states that the applicant's initial Medical Evaluation Board (MEBD) was completed on 22 February 2000 and included diagnoses of psychotic disorder, not otherwise specified (N.O.S.), and alcohol abuse.  On 26 July 2000, an MEBD addendum was completed on the residuals from his left and right leg fractures.  The applicant complained of pain in both legs after standing for 30 minutes or walking one-fourth mile.  The physical examination showed well healed scars that did not cause him to fall below medical retention standards.  He had a full range of motion and his motion was not painful.  There was no instability, but he did have some tenderness to palpation.  He had a normal gait, no effusions, some slight deficits to light touch on his legs, and he had a minor reduction in strength testing.  On 9 August 2000, the PEB returned the MEBD to the medical treatment facility (MTF) for an update on his psychiatric condition.  On 12 October 2000, a psychiatric addendum was completed.  This addendum reported that the applicant had been well controlled on psychiatric medications and was taken off of them on 28 August 2000, as a test to see if he could return to duty.  After 10 days without medications he again began having hallucinations.  He was placed back on his medications and became "essentially asymptomatic."  The applicant's profile of 27 March 2000 listed his psychiatric condition and bilateral leg pain.
10.  The advisory opinion further stated that on 18 October 2000, an informal PEB found the applicant unfit for his psychotic condition and rated him at 30 percent.  Occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although he should have been rated at 10 percent for "symptoms controlled by continuous medication") VA Schedule for Rating Disabilities (VASRD) 4-130.  His leg pain was not found to be unfitting.  He was to be placed on the TDRL at 30 percent.  On 15 November 2000, the applicant concurred with the PEB's findings and waived his right to a formal hearing.

11.  The advisory opinion further stated that on 20 November 2000, the informal PEB reconsidered its previous findings and now found the applicant's bilateral leg pain unfitting.  The PEB rated the leg pain in accordance with the Agency's Pain Policy as slight/constant at 10 percent.  The applicant was to be placed on the TDRL at 40 percent.  On 22 November 2000, the applicant concurred with the PEB's new findings and waived a right to a formal hearing.

12.  The advisory opinion continues by stating that on 18 March 2004 an informal PEB found the applicant unfit for his psychotic disorder and bilateral leg pain and made permanent the applicant's prior disability ratings.  On 8 September 2004, the USAPDA returned the case to the PEB with instructions to obtain a more recent psychiatric evaluation as the one relied upon by the PEB was too old.  On 28 December 2004, a new psychiatric TDRL evaluation was completed.  This report indicated that the applicant was still on psychiatric medications and saw a psychiatrist every 3-4 months to monitor his medications.  He claimed he still had hallucinations but knew that they were not real.  He had been taking care of his four children while his spouse worked.  He indicated that his psychiatric condition did not hinder his ability to work should he choose to do so.  His condition was considered stable.  A new orthopaedic TDRL medical evaluation was completed on 23 December 2004.  The orthopaedic report revealed some lower extremity reduction in range of motion due to pain.  He had full strength and some decreased sensation to light touch.  His scars, graft sites and fracture were all well healed.  The applicant was in no acute distress and could sit comfortably in a chair.  He mainly complained of bilateral leg pain after standing or walking for a period of time.  There was no evidence of arthritis or arthrosis of any of the knee or ankle joints.  His condition had not changed from past examinations and was considered stable.  On 14 February 2005, the informal PEB reconsidered its prior findings and reaffirmed their prior ratings with permanent retirement at 40 percent.  On 26 February 2005, the applicant concurred with the PEB's findings and waived his right to a formal hearing.



13.  The advisory opinion continued by stating that the PEB properly rated the applicant for his psychiatric condition.  He most closely met the rating criteria for an impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks in accordance with VASRD Section 4-130.  The applicant had a lot of different conditions related to his lower extremities, but only his occasional pain was found to be an unfitting residual of his healed injuries.  His scars were not considered unfitting and his ranges of motion limits were not so severe to be compensable under the VASRD criteria found at 5250-5274.  Slight sensation loss was not an independent unfitting condition.  Only conditions found unfitting by the PEB are authorized for compensation (E2.1.7. DoDI 1332.38).  The PEB properly rated the applicant's complaints of pain upon use under the existing USAPDA Policy #13:  Rating Pain (attached).

14.  The advisory opinion stated that the applicant had not provided any evidence of MEBD/PEB errors.  The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, were not in violation of any statute, directive, or regulation in effect at the time of the applicant's disability processing, and are to be considered administratively correct absent clear evidence of error.  The USAPDA legal advisor recommended the applicant's military records remain unchanged.

15.  The advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The physical profile referenced by the applicant which he states shows that physicians at Fort Bragg rated him at 100 percent disability was not provided by the applicant nor is it contained in his records.  However, even if a physician did communicate that to him, only conditions found unfitting by the PEB are authorized for compensation.

2.  A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual performance of duty.  The applicant failed to submit evidence that would satisfy the requirement of showing to the satisfaction of the Board, or that it must otherwise satisfactorily appear, that the record is in error or unjust.

3.  The applicant contends that his injuries should have resulted in his being rated 100 percent disabled by themselves.  However, the evidence of record shows that the applicant's leg injuries were evaluated on numerous occasions and were not determined to be unfitting.  The PEBs evaluated the applicant's range of motion, loss of sensation, strength, arthritis and arthrosis before they concluded that the applicant's injuries were not physically unfitting.  However, the PEB did give the applicant a 10 percent rating for the residual pain from his injuries.

4.  The evidence of record and the advisory opinion confirms the applicant was properly processed and given an appropriate disability rating by the PEB based on his unfitting conditions of psychotic disorder, not otherwise specified with anxiety symptoms requiring psychotropic medication and outpatient treatment, ongoing auditory hallucinations, unemployed, rated as definite social and industrial impairment in accordance with Army Regulation 635-40, Appendix 
B-107; and chronic bilateral leg pain, status post multiple fractures, compartment syndrome and fasciotomies, intermittent narcotic use, pain rated as slight/constant.

5.  While both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, there is insufficient evidentiary basis to change the 40 percent disability rating assigned the applicant by the PEB at the time of his medical retirement.

6.  The applicant has not provided any evidence or argument which would refute the USAPDA's assessment of the case or otherwise show he was improperly rated for this condition.

7.  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)                                         AR20090004652



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ABCMR Record of Proceedings (cont)                                         AR20090004652



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