IN THE CASE OF:
BOARD DATE: 15 December 2009
DOCKET NUMBER: AR20090009020
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 correction of his records to show he was medically retired.
2. The applicant states he was medically separated with severance pay. He states that his claim was rushed and not all documents were present at that time. He states his medical condition was worse than noted at the time of his separation and that the Board should consider the severity of his disabilities and how they have worsened over the years. He states that he believes his Department of Veterans Affairs (VA) documents will prove that he is due an upgrade to medical retirement.
3. The applicant provides VA medical documents 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 applicants 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 applicants 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 15 October 1993. He was awarded the military occupational specialty of tactical fire operations specialist, and was promoted to pay grade E-4.
3. The applicant's DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 31 December 1997, shows he was diagnosed with left arm ulnar nerve dysfunction; mechanical low back pain; right foot porokeratosis skin lesions; and adjustment disorder with depressed mood manifested by the development of primarily depressed mood and frustration in response to the distress of chronic pain and disability from the left ulnar nerve problem. He did not meet criteria for major depression.
4. The applicant concurred with the MEBD's findings on 23 January 1998.
5. The applicant's DA Form 199 (Physical Evaluation Board (PEB)) Proceedings are not available.
6. Orders 55-0116, dated 24 February 1998, reassigning the applicant to the transition center show he was authorized disability severance pay for a percentage of disability of 20 percent.
7. Accordingly, on 20 March 1998, the applicant was honorably discharged from active duty for reason of disability, severance pay and rated 20 percent disabled after completing 4 years, 5 months, and 6 days of active duty service.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.
9. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. Section 1201 provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
10. 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 individuals 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 agencys 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.
11. In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). The USAPDA official stated that the MEBD was completed on 31 December 1997, with diagnoses of: left arm ulnar nerve dysfunction; mechanical low back pain; right foot porokeratosis skin lesions; and adjustment disorder. He states that the physical examination revealed left elbow pain due to a hypertrophic surgical scar, with small and ring finger paresthesias. There was some minimal weakness in his left hand, but no atrophy. His low back examination revealed good flexion with minimal pain; he was neurovascularly intact relating to his back and lower extremities. The applicant had complained of a depressed mood secondary to his arm discomfort and dysfunction. A psychiatric addendum fully reviewed his condition and diagnosed adjustment disorder. The official indicates the applicant also had some lesions on his right foot diagnosed as porokeratosis.
12. The USAPDA states that on 3 February 1998, an informal PEB found the applicant unfit for his ulnar nerve dysfunction. Since the condition only affected two fingers on the hand, and did not appear to significantly impact on the functionality of the hand, the PEB rated it as mild in accordance with VASRD 8516; 10 percent. The PEB also found the applicant unfit for his back condition and properly rated it at 10 percent in accordance with VASRD 5295; Characteristic pain on motion. This resulted in a total 20 percent rating and separation with severance pay (10 USC 1203). Adjustment disorders are considered to be a condition not constituting a physical disability and are not unfitting as a disability and not compensable (E5.1.3.9.4, DoDI 1332.38). All other conditions were found to not be unfitting. On 25 February 1998, the applicant concurred with the PEB's findings and waived his right to a formal hearing. On 20 March 1998, the applicant was separated with severance pay.
13. The USAPDA stated that subsequent VA ratings, and the fact that conditions may have worsened after separation, are not evidence of PEB error. 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 effect at that time.
14. The USAPDA recommended no change to the applicant's military records.
15. The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He indicated in his comments that his conditions have severely worsened since his departure from military service. He stated that evidence in his VA records show how his service connected disabilities have affected his family and social life; and gainful employment. He stated that he has missed a substantial amount of work.
DISCUSSION AND CONCLUSIONS:
1. 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. While the applicant requests an increase in his military disability rating based on information from the VA because his disabilities have worsened, he has provided no evidence to show the 1998 PEB's findings were incorrect. Subsequent VA ratings, and the fact that conditions may have worsened after separation, are not evidence of PEB error. The Army takes a "snapshot" picture of a Soldier and rates that Soldier for his disabilities at that point in time. Unlike the Army, the VA can increase or decrease a disability rating when a disability improves or worsens. As such, the narrative reason for separation, "disability, severance pay" shown on his DD Form 214 is correct as currently constituted.
2. While the Board does not have the applicant's PEB records, the Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. Absent evidence to the contrary, it is concluded the Army completed processing of the applicant's MEBD and PEB correctly. As such, the applicant has not provided sufficiently convincing evidence or argument showing the PEB failed to properly rate his physical disabilities or, therefore, to form a basis to change his discharge to a medical retirement.
3. 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) AR20090009020
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ABCMR Record of Proceedings (cont) AR20090009020
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