IN THE CASE OF:	

		BOARD DATE:	        27 October 2009

		DOCKET NUMBER:  AR20090012386 


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 disability rating for his back be adjusted and that the medical conditions of post-traumatic stress disorder (PTSD), tinnitus, and right knee pain be added to his military disability rating.

2.  The applicant states that if his medical conditions of PTSD and tinnitus had been considered and if his back condition had been given a higher rating, he would have been eligible for a medical retirement.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 February 2006; a copy of the Department of Veterans Affairs (DVA) rating decision, dated 27 November 2008, with copies of various DVA medical reports and documents subsequent to his discharge; and copies of various medical reports, examinations, charts, consults, screening notes, records, sheets, and other medical documents, dated throughout his military service, in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 12 November 1996.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  He executed a series of extensions and/or reenlistments in the RA and attained the rank of staff sergeant/E-6.  His records also show he served in Kuwait from 24 February 1998 to 24 August 1998 and in Kuwait/Iraq from 7 April 2003 to 6 April 2004.  He was assigned to Company F, 64th Brigade Support Battalion, Fort Carson, CO.

3.  The applicant's Medical Evaluation Board (MEBD) Narrative Summary, dated 30 November 2005, shows the following:

	a.  The applicant complained of intermittent low back pain since 1999.  He was initially injured while lifting a tent in the field.  He was subsequently seen by medical personnel, underwent X-rays, and was treated with medications.  His symptoms initially resolved; however, he was reinjured at a later date during a field training exercise and his symptoms were further exacerbated by doing routine physical training.

	b.  During his deployment to Iraq, his symptoms increased significantly and upon his return to Fort Carson, CO, he was referred to the orthopedic clinic for further evaluation.  He underwent magnetic resonance imaging (MRI) that revealed a focal central disc protrusion at the L5-S1.  He then completed a course of physical therapy that lasted 8 weeks with no improvement.  He then proceeded to have an anterior and posterior fusion of the L5-S1 performed by a civilian spine surgeon in March 2005.  His postoperative course was uncomplicated and he stated that he initially experienced significant relief.  However, in August 2005, he was reinjured while running when he stepped into a track hole.  The low back pain became intense again and he also had radiation of the pain into his left buttocks.  He was ultimately reevaluated and was placed on a permanent physical profile and referred to a medical board.

	c.  The applicant underwent a thorough physical examination on 30 September 2005 which included X-rays, MRIs, and various consults.  His diagnosis was that of a chronic low back pain secondary to degenerative disc disease.  The attending physician noted that the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his referral to the Physical Disability Evaluation System (PDES).  He was also diagnosed with intermittent right knee pain (existed prior to service (EPTS)), intermittent left wrist pain, intermittent right ankle pain, and mild hyperlipidemia.  However, the additional diagnoses met medical retention standards.

4.  On 6 December 2005, an MEBD convened at Fort Carson, CO, and after consideration of the clinical records, laboratory findings, and physical examination, the MEBD found the applicant had the medically unacceptable condition of chronic low back pain secondary to degenerative disc disease and the medically acceptable conditions of intermittent right knee pain (EPTS), intermittent left wrist pain, intermittent right ankle pain, and mild hyperlipidemia.  The MEBD recommended the applicant's referral to a physical evaluation board (PEB).  The applicant indicated that he did not desire to continue on active duty and agreed with the MEBD's findings and recommendations on 15 December 2005.

5.  On 20 December 2005, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to chronic low back pain, status post L5/S1 diskectomy and spinal fusion with resolution of the radiculopathy.  The applicant was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5241 (chronic low back pain) and granted him a 10-percent disability rating.  The PEB also considered his other medical conditions of intermittent right knee pain (EPTS), intermittent left wrist pain, intermittent right ankle pain, and mild hyperlipidemia; however, those conditions were not found to be unfitting and therefore they were not ratable.  The PEB recommended the applicant be separated from the service with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case on 20 December 2005.

6.  The applicant was honorably discharged on 1 February 2006.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability-severance pay.  This form further shows he completed 9 years, 2 months, and 20 days of active service during this period of enlistment.

7.  The applicant submitted a copy of the DVA rating decision, dated 18 November 2008, in which he was awarded service-connected disability compensation for PTSD, degenerative disc disease, right knee pain, tinnitus, and left wrist pain.  He also submitted selected copies of various DVA medical reports, charts, consults, and medical related documents, dated subsequent to his discharge, as well as several notices of disagreement with and appeals of the DVA rating decision.

8.  The applicant also submitted copies of various medical reports, examinations, charts, consults, screening notes, routine sick-call slips, records, sheets, and other medical documents, dated throughout his military service.  These documents essentially chronicle the same medical conditions listed on the MEBD.  Although he complained of right knee pain and this condition was listed on his MEBD, there is no indication that this condition was found to be medically unacceptable or unfitting.  Furthermore, none of the documents he provides shows a diagnosis of PTSD or tinnitus.

9.  An advisory opinion was obtained on 3 August 2009 in the processing of this case.  An official at the U.S. Army Physical Disability Agency recommended no change to the applicant's records and stated the following:

	a.  The applicant's medical examination, physical profile, and commander's statement only annotate his back as a condition that was limiting his performance of duties.  The applicant's MEBD listed his chronic low back pain as the only condition that did not meet medical retention standards.  All other conditions, to include right knee pain, met medical retention standards.  The physical findings of the back revealed forward flexion at 19 degrees, limited by pain, with pain at 4 out of 10, increasing with any significant lifting, prolonged standing, or excessive walking and/or twisting.  The applicant denied any radicular pain in the legs.  The applicant also concurred with the MEBD's findings and recommendations.

	b.  The applicant's informal PEB found him unfit for his low back pain and rated him at 10 percent based on Army Regulation 635-40 which required more than pain to authorize a higher rating.  Since there was no medical evidence to substantiate any mechanical limitations of forward flexion less than 60 degrees, the appropriate rating was 10 percent.  The PEB recommended the applicant's separation with severance pay and the applicant concurred with the findings and waived his right to a formal hearing.

	c.  The evidence in the file fully supports that the only condition that caused any significant limits on the applicant's ability to perform his duties was his low back pain.  The right knee pain was listed on the MEBD but was found not to be below medical retention standards.  There is no evidence that PTSD or hearing problems were limiting conditions at the time of his separation.  Only conditions that were found to be unfitting by the military are compensable by the military.

	d.  The applicant has provided no evidence of any errors in the MEBD or the PEB findings.  The PEB's findings were supported by the preponderance of evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.

10.  The applicant was provided with a copy of this advisory opinion on 4 August 2009 and responded on 28 August 2009 indicating he needed more time as he was in the process of obtaining more medical records; however, he has since neither provided additional documents nor responded to the advisory opinion.

11.  Army Regulation 635-40 establishes the Army 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.  It provides for MEBDs, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

12.  Army Regulation 635-40, paragraph 3-1, provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

13.  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 rates all disabilities using the VASRD.  Department of Defense 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 0 to 100 percent, rising in increments of 10 percent.

14.  The VASRD contains the rating criteria that the PEB uses to assign ratings.  Under VASRD diagnostic code 5241, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

15.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his disability rating for his back should be adjusted and that PTSD, tinnitus, and right knee pain be added to his military disability rating.

2.  PEBs 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 recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The evidence of record shows that the applicant suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty.  His immediate commander and medical personnel recommended his referral to an MEBD due to chronic low back pain.  Consequently, his records were evaluated by an MEBD that referred him to a PEB.  The PEB found him medically unfit and rated his disabling condition at 10 percent and recommended his separation by reason of physical disability with entitlement to severance pay.

4.  The applicant now believes he should receive an upgrade of his disability status because the DVA granted him a different percentage for low back pain as well as his other conditions of PTSD, degenerative disc disease, right knee pain, tinnitus, and left wrist pain.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his case.  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 sufficient 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)                                         AR20090012386



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ABCMR Record of Proceedings (cont)                                         AR20090012386



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