IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013452 


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, through his Member of Congress, reconsideration of his earlier request for correction of his records to show he received a medical retirement with entitlement to full benefits.  

2.  The applicant did not make a statement.  However, his Member of Congress states that he is aware that the applicant's case had been considered by this Board on more than one occasion; however, there is a great deal of medical evidence that needs to be considered.  He adds that the applicant had found his original service treatment records recently at his home and that he, the Member of Congress, is fairly certain that these records have not been previously considered due to the fact that they are originals.

3.  The applicant provides, through his Member of Congress, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 March 2000, and a certified copy of his entire medical history, including chronological record of medical care, progress notes, medical consults, medical evaluations, educational evaluations, immunization record, laboratory results, physical profile, hearing examination, optometric examination, pulmonary function report, screening notes, doctors notes, and other medically-related documents in support of his request.





CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050011773, on 15 June 2006, and AR20070007859, on 15 November 2007.

2.  The applicant and his Member of Congress did not submit any new evidence which was not previously reviewed by the ABCMR; however, the member of Congress feels fairly certain that the applicant's medical records were not previously considered due to the fact that the applicant had the originals at home A member of his staff, who is also a notary, personally copied these medical records and had provided a certification to attest to that.  This new argument was not previously considered; therefore, it is considered new evidence and as such, as an exception to policy, warrants consideration by the Board.

3.  The applicant's records show he initially enlisted in the Regular Army (RA) on 5 October 1984 and was assigned to initial training as an infantryman.  However, 4 months and 15 days into his enlistment, the applicant was discharged on 19 February 1985 by reason of not meeting procurement medical fitness standards-no disability.

4.  The applicant's records also show he again enlisted in the RA for a period of 4 years on 17 May 1988.  He was subsequently trained in and held military occupational specialty (MOS) 19K (Armor Crewmember).  His records also show he executed an 11-month extension in the RA on 5 January 1990, two 3-year reenlistments on 14 September 1992 and 10 February 1995, and a 4-year reenlistment on 4 March 1997.  He attained the rank/grade of sergeant/E-5.

5.  The applicant's records also show he completed 7 years, 3 months, and 29 days of foreign service, including service in Southwest Asia from 17 June 1991 to 31 August 1991 and 28 May 1993 to 1 May 1994.  

6.  The applicant's undated Narrative Summary (NARSUM) shows that in or around July/August 1998, the applicant complained of left hip and medial thigh pain.  At the time, he was assigned to an armor battalion in Germany.  His duties required working with heavy and/or hazardous equipment and movement up and down large pieces of equipment.  His duties required physical stamina and strength and strenuous activities.  On initial presentation, he was limping on the left leg and denied any weakness but indicated that his pain prevented him from running and climbing ladders/stairs.  He reported occasional low back pain and bilateral knee pain without injury.  He also reported left shoulder pain as well as neck and shoulder pain.  The attending physician noted that the applicant had a history of being diagnosed by the neurologist with findings of functional cognitive dysfunction.  The NARSUM also notes the following:

	a.  On 3 May 1998, the Child Study Committee Chairman, Kaiserslautern High School, administered the Woodcock-Johnson Psycho-Educational Battery (Revised) Tests of Achievement to the applicant.  This educational assessment/evaluation was administered at the applicant's request.  He had reported that he had suffered a recent trauma and as a result felt that his academic skills had atrophied.  The examiner noted that the applicant, at the time of the evaluation, appeared healthy, although he wore a neck brace; that he was obviously nervous and appeared to be under stress.  He was conscientious in his approach to the test, but became frustrated with his inability to respond and was visibly disappointed with his inadequacy.  The examiner summarized the applicant's performance as being low in broad reading and mathematics; and very low in broad written language and broad knowledge.  The examiner concluded that the applicant could be expected to experience great difficulty competing in any environment which required reading, writing, or mathematics.  

	b.  The applicant had several restrictions in his physical profiles to include no running, no wearing of a backpack, no outdoor activities, no deployments, and no exposure to exhaust fumes.  His immediate commander stated that he was unable to successfully fulfill the duties required of his MOS and grade in a field or a garrison environment.  The applicant had expressed motivation to continue his Army career.  The psychiatrist recommended retraining into a supportive, less stressful environment.   The physical medicine and rehabilitation doctor indicated that the pain in the left hip was secondary to chronic left adductor muscle tendonitis and that this condition would probably not improve in the future and was interrupting his ability to ambulate much less run or climb.  

	c.  The overall diagnosis included chronic left hip adductor tendonitis, left pectineal muscle strain, bilateral patellofemoral pain syndrome, cervical spine degenerative joint disease with neck pain, left shoulder impingement syndrome, functional cognitive dysfunction, Gulf War syndrome, intermittent hematuria, severe allergic rhinitis/conjunctivitis, and dissociative amnesia, in partial remission.  The attending physician indicates that the applicant did not meet retention standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness) and recommended his entry into the Physical Disability Evaluation System (PDES).

7.  On 10 August 1999, a medical evaluation board (MEBD) convened at Landstuhl Army Medical Center, Germany, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed him as having the medical conditions of (1) severe allergic rhinitis/conjunctivitis; (2) chronic left hip tendonitis; (3) cervical spine degenerative joint disease with neck pain; (4) bilateral patellofemoral pain syndrome; (5) left shoulder impingement syndrome; (6) functional cognitive dysfunctions; (7) Gulf War syndrome; (8) intermittent hematuria; (9) left pectineal muscle strain; and (10) dissociative amnesia in partial remission.  The MEBD recommended that he be referred to a physical evaluation board (PEB).  On 18 August 1999, the applicant concurred with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty.

8.  An MEBD addendum, dated 20 October 1999, provided to the PEB by the applicant's attending psychiatrist indicated that during his mental status evaluation the applicant was alert and cooperative.  There were no illusions, delusions, and no suicidal or homicidal ideations.  His cognition appeared to be grossly intact, his insight poor, and judgment appeared to be adequate.  The addendum confirms the applicant was diagnosed as follows:  Axis I- dissociative amnesia, in full remission; Axis II - personality traits, possessive, paranoid, controlling; and Axis III - no related diagnosis.  The attending psychiatrist confirmed the applicant was being treated with Prozac, and his ability to perform at work in a civilian environment may be mildly affected by some of his personality symptoms and the residual symptoms of his dissociative amnesia.  

9.  On 20 December 1999, an informal PEB convened at Walter Reed Army Medical Center, Washington DC, and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit for further service due to pain to his left hip, left shoulder, knees, and neck.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for codes 5099 and 5003.  The PEB further indicated that a review of MEBD diagnosed conditions 1, 6, 7, 8, and 10, and of the Psychiatric and Neurosurgery addendums submitted with the MEBD resulted in a determination that the these conditions were not unfitting, and as a result were not ratable.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  On 15 February 2000, the applicant concurred with the PEB’s finding and recommendation and waived his right to a formal hearing.  On 17 February 2000, the PEB Proceedings were approved on behalf of the Secretary of the Army.

10.  On 24 March 2000, the applicant was honorably discharged in accordance with paragraph 4-24B(3) of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 he was issued shows he completed a total of 12 years, 2 months, and 23 days of total creditable active service.

11.  On 24 April 2000, the VA granted the applicant service-connected disability compensation for chronic radial epicondylitis, right elbow (10%); subacromial bursitis left shoulder (20%), chronic tendonitis left adductor longus muscle left thigh (10%), post traumatic stress disorder (70%), abnormal fatigue and exertional intolerance as an undiagnosed Gulf War illness (10%), degenerative changes cervical spine with paraspinal muscle spasm (10%); rhino-conjunctivitis with flaccid swelling polyvalent with high activity levels of chronic inflammatory processes to include facial swelling and severe lid edema (0%) allergic asthma requiring constant double medication (60%), recurrent thoracic pain as undiagnosed Gulf War illness (10%); and residuals traumatic contusion right kidney (10%).  

12.  On 2 February 2002, the applicant also received a fully favorable impairment decision from the Social Security Administration.

13.  AR 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 office, grade, rank, or rating.  It provides for medical evaluation boards, 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 AR 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

14.  AR 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 (DODI) 1332.39 and AR 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.  

15.  Title 10, U.S. Code (USC), 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, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

16.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of any, lower, or higher, VA 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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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 VA 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, through his Member of Congress, that his records should be corrected to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay.

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 recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

3.  The applicant was diagnosed with various illnesses that did not meet retention standards of AR 40-501 and was recommended for entry into the PDES.  His clinical records, laboratory findings, and physical examinations (his entire medical records) were subsequently considered by an MEBD which recommended he be given a PEB.  He concurred with this recommendation.  The PEB found his condition of pain to the left hip, left shoulder, knees, and neck prevented him from performing his duties and determined that he was physically unfit for further military service.  The applicant was rated under the VASRD and was granted a 10 percent disability rating.  The PEB also considered his other diagnosed conditions and determined that these conditions were not unfitting, and as a result were not ratable.  The PEB recommended his separation with entitlement to severance pay.  The applicant concurred.

4.  The law 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.  It also provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  The applicant had less than 20 years of creditable service and was rated by the PEB at less than 30 percent.  Therefore, he did not qualify for retirement. 

5.  The applicant initially believed he should have received full retirement for his medical conditions because the VA granted him a higher percentage.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

6.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  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 physical disability evaluation system.  

7.  The applicant now believes that his complete medical records may not have been previously considered due to him having the originals.  When the MEBD convened at Landstuhl, it considered his complete clinical records, laboratory findings, and physical examinations.  That is how the MEBD was able to diagnose him with 10 different diagnoses.  

8.  When the Board previously considered his case, it considered his NARSUM, the MEBD, the PEB, the Woodcock-Johnson Psycho-Educational Battery Tests, the psychiatric and neurosurgery addendums, medical addendums, as well as the medical evidence previously submitted by the applicant and/or his representative.  

9.  The fact that the applicant had the original medical record at home after his discharge does not mean his original records or a copy of those records were not available to the MEBD and/or PEB prior to his discharge.  Now, this Board has considered his complete medical records.

10.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  The applicant was rated at 10 percent for his condition of pain to the left hip, left shoulder, knees, and neck.  There is no evidence to support a higher rating.  There is no evidence of error or injustice in this 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 evidence that would satisfy this requirement. In view of the foregoing evidence, the applicant's new request should again be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20050011773, dated 15 June 2006, and AR20070007859, dated 15 November 2007.




      _______ _   _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)                                         AR20090013452



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ABCMR Record of Proceedings (cont)                                         AR20090013452



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