IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090009781 


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, an increase of his disability rating to a level comparable to the disability rating that he received from the U.S. Department of Veterans Affairs (DVA) and correction of his records to show he was medically retired instead of honorably discharged for non-combat related physical disability with severance pay.

2.  The applicant states, in effect, that he is currently rated as 80-percent disabled as the result of DVA rating decisions based upon his medical condition. 
The applicant states that while on active duty, he consulted with mental health providers and since his discharge, the DVA has rated him 30-percent disabled for post-traumatic stress disorder (PTSD).  He continues that for DVA rating purposes, 30 percent for PTSD and 10 percent for lumbar strain [awarded by the Army] equate to a combined rating of 40 percent.  The applicant contends that if a person is discharged for disability with a rating of greater than 30 percent, the service member is to be medically retired; therefore, it would be appropriate for him to be in a medically retired status.  The applicant continues that if his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he was medically retired he would be eligible for Department of Defense (DOD) benefits.  He concludes that he is being harmed by not being eligible for those benefits.

3.  The applicant provides a DD Form 214 and two letters from the Milwaukee, Wisconsin, DVA Regional Office, as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he served several periods of enlistment in both the Regular Army and the U.S. Army Reserve (USAR).  The applicant's DD Form 214 for his most recent period of service shows that as a member of the USAR, he was ordered to active duty in support of Operation Iraqi Freedom on 29 November 2004.  This form also shows that he was retained on active duty during the period 27 May 2008 through 30 December 2008 to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment.  At the time of his separation, the applicant held the rank of staff sergeant/pay grade E-6 and military occupational specialty (MOS) 92A (Automated Logistical Specialist).

2.  The applicant's military service records contain a DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings) which shows the applicant was considered by a PEB conducted by the U.S. Army Physical Disability Agency (USAPDA) at the Walter Reed Army Medical Center located in Washington, DC.  This form indicates that the catalyst for conducting the PEB was the result of a medical evaluation board (MEBD) conducted by the applicant's servicing medical treatment facility.  The MEBD proceedings are not contained in the applicant's available records and the applicant did not provide a copy for consideration.

3.  The PEB found the applicant medically unfit to perform the duties required of a Soldier of his rank and MOS due to chronic lumbar back pain he developed after a lifting strain in June 2007.  The PEB determined that the applicant's medical condition was not the result of intentional misconduct, willful neglect, or unauthorized absence.  The PEB further determined that the applicant's injury occurred in the line of duty while he was entitled to basic pay and was the proximate result of performing his duty.  The applicant was evaluated using the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5237 (lumbar back strain) and recommended a disability rating of 10 percent.

4.  The PEB noted that the MEBD had determined that two of the applicant's other diagnoses (numbers 2 and 4) met retention standards.  Further consideration by the PEB also found the conditions to be not unfitting and therefore not ratable.  The PEB informed the applicant that the DOD Physical Disability Evaluation System (PDES) may only rate an illness or injury that is service-incurred or permanently aggravated by military service and would cause the Soldier to be separated or retired.  The PEB further informed the applicant that although the PDES could not compensate him for these conditions, he could still apply for a disability rating for them through the DVA, since it operates under different regulations and guidelines and may compensate any service-connected condition even if it was not unfitting at the time of separation.  The PEB concluded that the applicant's final MEBD diagnosis (number 3) was not considered a disability for rating purposes.

5.  The PEB informed the applicant that disability ratings of less than 30 percent for Soldiers with less than 20 years for retirement service required separation with disability severance pay in lieu of retirement.  The PEB recommended the applicant be awarded a combined disability rating of 10 percent and that he be separated from the service with severance pay if otherwise qualified.  The PEB advised the applicant that since he had service-connected medical conditions, he should contact a DVA counselor to learn about available benefits such as disability compensation, rehabilitation programs, insurance programs, employment assistance, home loans, and medical care benefits.

6.  The back page of the PEB proceedings shows that the applicant was advised of the findings and recommendations of the PEB, and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  The applicant did not concur with the PEB's findings and recommendations, waived a formal hearing, and opted to submit a written appeal for consideration by Headquarters, USAPDA.

7.  USAPDA, Washington, DC, memorandum, dated 20 October 2008, subject:  Nonconcurrence/Rebuttal to PEB Findings, shows the Chief of the Operations Division informed the applicant that the USAPDA had noted his disagreement with the findings of the PEB and had reviewed his entire case.  The USAPDA concluded the applicant's case had been properly adjudicated by the PEB, which had correctly applied the rules that govern the PDES in making its determination. 
The USAPDA determined that findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.

8.  The applicant's DD Form 214 shows he was released from active duty with an honorable characterization of service on 30 December 2008.  He was separated under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and the narrative reason for his separation was "disability, severance pay, non-combat related."  Item 18 (Remarks) of this form, in pertinent part, shows the applicant was paid disability severance pay in the amount of $90,812.40.

9.  The applicant's record is devoid of any evidence and he fails to provide any evidence that he consulted with mental health professionals concerning PTSD prior to his separation.

10.  The applicant provides a letter from the DVA Regional Office, Milwaukee, Wisconsin, dated 14 May 2009.  This letter shows the Veterans Service Center Manager informed the applicant about his entitlements to DVA benefits resulting from a DVA Rating Decision rendered on 11 May 2009 in response to his disability claim received on 23 December 2008.  The manager informed the applicant about his entitlement amount, the payment start date, its disability determinations, and that his overall combined DVA disability rating was 80 percent.

	a.  The DVA determined the following conditions were related to the applicant's military service and granted service connection; however, each condition was evaluated at zero-percent disabling:

		(1)  scar of the neck area below the left chin and

		(2)  left second hammertoe syndrome.

	b.  The DVA determined the following conditions were related to the applicant's military service, granted service connection, and assigned the disability rating percentages as shown:

		(1)  sleep apnea (50 percent),

		(2)  scar on the left anterior cheek (30 percent),

		(3)  scar on the right anterior cheek (30 percent),

		(4)  scar on the right anterior temporal area (10 percent),

		(5)  tinnitus (10 percent),

		(6)  lumbar strain (10 percent), and

		(7)  right knee patellofemoral pain syndrome (10 percent).

11.  The applicant provides a DVA Regional Office, Milwaukee, Wisconsin, Rating Decision, dated 17 July 2009.  This document shows the DVA had made additional decisions in response to the applicant's disability claim received on 23 December 2008.  These additional decisions resulted in a revised combined disability rating of 90 percent for the applicant.  The decisions were as follows:

	a.  service connection for PTSD was granted with an evaluation of 30 percent effective 31 December 2008;

	b.  service connection for recurrent infectious maxillary sinusitis was granted with an evaluation of 10 percent effective 31 December 2008; and

	c.  service connection for tension headaches was denied.

12.  Army Regulation 635-40, in effect at the time of the applicant's separation, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, in pertinent part, provided that the mere presence of an 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 his or her office, grade, rank, or rating.  The regulation states 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.  

13.  Army Regulation 635-40, in pertinent part, provides that MEBDs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 
40-501 (Standards of Medical Fitness), chapter 3.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Army Regulation 635-40, paragraph 4-17, provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:

	a.  investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board;

	b.  evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating;

	c.  providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214; and

	d.  making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Army Regulation 635-40 provides, in pertinent part, that if a Soldier nonconcurs with the findings and recommendation with a statement of rebuttal and demands a formal hearing, the PEB may reconsider its findings and recommendation in light of the Soldier's statement of rebuttal.  Should the PEB agree with the Soldier and modify its findings and recommendation, the PEB will initiate a new DA Form 199 (PEB Proceedings) informing the Soldier of the results.  If the Soldier then concurs, the case will be processed; otherwise, the case will be scheduled for a formal hearing.

16.  Army Regulation 635-40 provides, in pertinent part, that a Soldier is entitled to a formal hearing if requested after informal consideration by a PEB.  The Soldier may waive this right by concurring with the findings and recommendation of the informal board.  If the Soldier demands a formal hearing, he or she is entitled to counsel.  An Army attorney will be appointed as counsel to represent Soldiers at formal PEB hearings.  The attorney will not be a voting member of the PEB or an advisor to the PEB, but will represent the Soldier as required when the Soldier requests a formal hearing.  The attorney will counsel the Soldier until formal disability proceedings are completed.

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB uses the VASRD to rate unfitting disabilities.  DOD Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from zero to 100 percent, rising in increments of 10 percent.

18.  Chapter 61, Title 10, U.S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61, Title 10, U.S. Code, and in accordance with DOD Directive 1332.18 and Army Regulation 635-40.

19.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

20.  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.  The VASRD gives code 5237 (lumbosacral strain) a 10-percent disability rating when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.

21.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA, 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 civilian 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his disability rating should be increased to a level comparable to the disability rating that he received from the DVA and that his records should be corrected to show he was medically retired instead of honorably discharged for non-combat related physical disability with severance pay were carefully considered.

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and a recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  Evidence shows the applicant was evaluated by an MEBD and recommended for referral to an informal PEB, which subsequently determined that he was physically unfit for retention in the Army and recommended that he be assigned a disability rating of 10 percent and separated with severance pay.  The record also shows that the applicant nonconcurred with the findings of the informal PEB and provided additional information to be considered by the USAPDA.  The USAPDA reevaluated the applicant's case utilizing the additional information and reaffirmed the findings and recommendations of the PEB.

4.  The VASRD is used by the DVA and the Army primarily 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 DVA, the Army must first determine whether a Soldier is fit to reasonably perform the duties of his or her office, grade, rank, or rating.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  In fact, both the Army and the DVA determined the applicant's lumbar strain was unfitting and assigned a disability rating of 10 percent.

5.  Army Regulation 635-40 provides, in pertinent part, that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The DVA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the DVA must give the veteran the benefit of any reasonable doubt.  The fact that the DVA, in its discretion, awarded the applicant a higher disability rating than that which he received from the Army is a prerogative exercised within the policies of that agency.

6.  An award of a DVA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.

7.  The record contains no evidence, and the applicant failed to provide sufficient evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning his disability processing.

8.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20090009781



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ABCMR Record of Proceedings (cont)                                         AR20090009781



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