IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090007214 


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

2.  The applicant states, in effect, that he believes he should have received a medical retirement instead of severance pay.  He contends that he disagreed with the Army's 0 percent rating, that his request is supported by the Department of Veterans Affairs (DVA) rating of 60 percent, and that he was not allowed due process.  He points out that the same rating codes were used by the Army and the DVA.     

3.  The applicant provides DVA documentation; a DA Form 199 (Physical Evaluation Board (PEB) Proceedings); a DA Form 3947 (Medical Evaluation Board (MEB); and a letter, dated 12 May 2009, from a Member of Congress in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the U.S. Air Force and inactive service in the Army National Guard, the applicant was ordered to active duty on 5 September 2005 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 
18 November 2005 to 29 April 2006.  



2.  On 30 November 2006, an MEB diagnosed the applicant with cervical spondylosis with radiculopathy status post C4-C5 anterior cervical diskectomy effusion; right shoulder rotator cuff tendonitis, bilateral knee retropatellar pain syndrome, and chronic low back pain. The MEB recommended referral to a PEB.  On 16 January 2007, the applicant disagreed with the findings and recommendations.  

3.  On 25 January 2007, an informal PEB found the applicant physically unfit due to chronic neck pain since a fall on 25 March 2006 (line of duty "yes").  Imaging showed compressive diskopathy.  Status post diskectomy and fusion C4-5 in August 2006.  Current imaging compatible with surgical history.  Persistent neck pain prevents wearing Kevlar.  Exam shows full motion without localized tenderness.  Rated for no mechanical loss of motion; chronic low back pain with onset after fall (same as above).  Imaging shows single level non-compressive degenerative disc disease.  Back pain and profile prevent training for Army Physical Fitness Test (APFT).  Exam shows full motion without localized tenderness or spasm.  Rated for no mechanical loss of motion; and chronic bilateral knee pain and right shoulder pain with onset after fall (same as above).  Imaging shows no degenerative joint disease.  Exam shows full motion and good stability.  Upper and lower limb pains prevent training for APFT.  Rated for pain as minimal/frequent.  The PEB recommended a combined rating of 0 percent and that the applicant be separated with severance pay.  On 31 January 2007, the applicant concurred with the PEB’s findings and waived a formal hearing.  

4.  On 2 February 2007, the U.S. Army Physical Disability Agency approved the PEB’s findings and recommendations.

5.  On 9 February 2007, the applicant was honorably discharged by reason of physical disability with severance pay (0 percent) with entitlement to $39,252.00.  He had completed a total of 4 years, 4 months, and 19 days of creditable active service. 

6.  In support of his claim, the applicant provided a DVA Rating Decision, dated 31 October 2007, which shows that service connection was granted for degenerative osteoarthritis cervical spine, with residuals of surgery (20 percent), degenerative osteoarthritis, lumbar spine, with strain and scoliosis of thoracolumbar spine (20 percent), degenerative joint disease, right knee 
(10 percent), degenerative joint disease, left knee (10 percent), right shoulder strain with limitation of motion (10 percent), numbness in right arm due to 


residuals of cervical spine surgery (0 percent), migraine headaches (0 percent), numbness in left arm due to residuals of cervical spine surgery (0 percent), and hypertension (0 percent).  His overall or combined rating is 60 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 VA Schedule for Rating Disabilities.  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 contentions were carefully considered.  However, evidence of record shows the PEB found him physically unfit due to chronic neck pain because of a fall on 25 March 2006 (rated for no mechanical loss of motion), chronic low back pain with onset after the fall (rated for no mechanical loss of motion), and chronic bilateral knee pain and right shoulder pain with onset after the fall (rated for pain as minimal/frequent).  No other conditions were found disqualifying.  He concurred with the PEB's findings on 31 January 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 disabilities were improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his 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 hisein 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)                                         AR20090007214





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ABCMR Record of Proceedings (cont)                                         AR20090007214



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