IN THE CASE OF:	

		BOARD DATE:	 20 August 2009   

		DOCKET NUMBER:  AR20090006666 


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

2.  The applicant states that she has a Department of Veterans Affairs (DVA) combined rating of 70 percent and over 30 percent for the disabilities that separated her from the Army.

3.  The applicant provides a DVA Rating Decision, dated 12 February 2009, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 March 1995 and trained as a human resources specialist. 

2.  On 7 September 2007, a Medical Evaluation Board (MEB) diagnosed the applicant with bilateral knee pain.  The MEB proceedings state that diagnoses 
2-5 ("ACTH" producing pituitary hyperplasia (Cushing's disease), hyperlipidemia, bilateral second toe hammer toe deformity, and history of iron deficiency anemia) met retention standards.  The MEB recommended referral to a Physical Evaluation Board (PEB).  On 10 September 2007, the applicant agreed with the findings and recommendations.  

3.  On 28 September 2007, an informal PEB found the applicant physically unfit due to pain, chronic bilateral knee pain which began in 2001 at same time she was diagnosed with Cushing's Disease and subsequent weight gain.  Chronic pain continues in both knees which is exacerbated by physical activities.  Pain and profile restrictions prevent Soldier from performing basic Soldiering skills.  Negative lachman exam and full range of motion.  Rated 0 percent for pain (slight/occasional) (VA Schedule for Rating Disabilities (VASRD) Codes 5099/5003).  The PEB recommended a combined rating of 0 percent and that the applicant be separated with severance pay.  The PEB proceedings state, in pertinent part, that the conditions listed as MEB diagnoses 2-5 were determined to meet retention standards by the Medical Treatment Facility and that consideration by the PEB found the conditions to be not unfitting and therefore not ratable.  On 1 October 2007, the applicant concurred with the PEB’s findings and waived a formal hearing.  

4.  On 9 October 2007, the U.S. Army Physical Disability Agency approved the PEB’s findings and recommendations.

5.  On 1 January 2008, the applicant was honorably discharged by reason of physical disability with severance pay (0 percent) with entitlement to $72,000.00.  She had completed 12 years, 9 months, and 3 days of creditable active service. 

6.  In support of her claim, the applicant provided a DVA Rating Decision, dated 12 February 2009, which shows that service connection was granted for migraine headaches (30 percent), lumbosacral strain (10 percent), osteopenia hips, left (10 percent), osteopenia hip, right (10 percent), right knee painful motion 
(10 percent), right knee strain with ligament instability (10 percent), left knee strain (10 percent),  mood disorder (depression) (10 percent), Cushing's syndrome (0 percent), post surgery scars (0 percent), and hypertension 
(0 percent) effective 2 January 2008.  Her overall or combined rating is 
70 percent.

7.  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.

8.  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.

9.  Army Regulation 635-40 states, in pertinent part, 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 used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.

10.  Army Regulation 635-40 also states, in pertinent part, 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.  Apply a 0 percent rating even though the lowest rating listed is 10 percent or more, except when"minimum ratings" are specified or unless the minimum rating is for a "by analogy rating." In all instances where a zero rating is applied to a principle cause of disability, include a rationale explaining the exact reasons for unfitness. 

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 was carefully considered.  However, evidence of record shows the PEB found her physically unfit due to chronic bilateral knee pain only and she was rated 0 percent for slight/occasional pain.  No other conditions were found disqualifying.  She concurred with the PEB's findings on 
1 October 2007.    

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 her separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase her 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)                                         AR20090006666



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ABCMR Record of Proceedings (cont)                                         AR20090006666



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