IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090014708 


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 an increase in her Army disability rating.

2.  The applicant states the following:

	a.  the Army only evaluated the back injury she received during military service;

	b.  her plantar fasciitis and tennis elbow were not evaluated;

	c.  her tennis elbow condition drastically decreases her right arm strength;

	d.  carpal tunnel syndrome in both hands causes her to lose feeling in her hands when kept in the same position for too long;

	e.  she requires cortisone shots for tennis elbow and carpal tunnel syndrome; and 

	f.  she desires evaluation of her right lower extremity radiculopathy associated with a spinal condition.

3.  The applicant provides the following documents in support of her application:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Soldier's Medical Evaluation Board (MEBD)/PEB Checklist
* Department of Veterans Affairs (VA) letter, dated 19 June 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after having prior active duty and Reserve Component service, she enlisted in the Regular Army in the rank of specialist/E-4 for military occupational specialty (MOS) 63W (Health Care Specialist) on 13 June 2008.

2.  On 23 December 2009, a PEB at Fort Sam Houston, Texas, considered the applicant's case.  It determined the applicant's diagnosed "degenerative arthritis, lumbar spine pain" limited her ability to lift patients and litters and as a result rendered her unfit to perform the duties of her MOS and grade.

3.  The PEB assigned a disability rating of 10 percent under the VA Schedule for Rating Disabilities (VASRD) code 5242 based on the applicant's "degenerative arthritis, lumbar spine pain" condition.  However, it determined the applicant's diagnosed "bilateral hand tingling and altered sensation" condition was not unfitting for further service and met medical retention standards and therefore was not rated.

4.  The PEB finally recommended the applicant be separated by reason of disability with a 10-percent disability rating with severance pay.

5.  On 29 December 2008, the applicant concurred with the PEB findings and waived consideration of her case by a formal hearing.

6.  On 9 January 2009, Headquarters, U.S. Army Garrison, Fort Sam Houston, Texas, issued Orders 009-0111 which directed the applicant's discharge from the Army on 9 January 2009.  These orders also indicated she received a 10-percent disability rating and was authorized severance pay.

7.  On 9 January 2009, the applicant was honorably discharged in the rank of specialist/E-4 by reason of disability with severance pay, non-combat related.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed 6 months and 27 days of active military service for the period 13 June 2008-9 January 2009.

8.  During the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) legal advisor.

9.  The USAPDA advisory opinion outlines the following information to pertaining the applicant's processing through the Army's Physical Disability Evaluation System (PDES):

	a.  On 9 December 2008, an MEBD referred the applicant to the PEB based on only one diagnosis that did not meet medical retention standards (lumbar intervertebral disc degeneration with chronic low back pain).

	b.  The MEBD found the applicant's diagnosed bilateral hand tingling-carpal tunnel condition met regulatory medical retention standards.

	c.  The applicant's only comments to the MEBD were to stress her request for care for her back and hand conditions.

	d.  The applicant informed the MEBD she did not have a painful elbow, no foot problems, and no impairment with the use of her arms, legs, hands, or feet.

10.  The USAPDA advisory opinion further indicates the applicant ultimately concurred with the MEBD's and the PEB's findings.  The conditions she now requests be evaluated and rated were not significantly affecting her ability to perform her assigned military duties in December 2008 and simply having a condition does not automatically render the condition unfitting.  The USAPDA legal advisor finally recommends the applicant's request be denied.

11.  On 31 March 2010, the applicant was provided a copy of the USAPDA advisory opinion in order to have the opportunity to comment on or rebut its contents.  To date, she has failed to reply.

12.  The applicant provides a VA Rating Decision, dated 19 June 2009, which shows she received a 50-percent combined rating for the following conditions:

* right elbow lateral epicondylitis									10 percent
* degenerative disc disease, lumbar spine,						10 percent minimal herniated disk L2-L3
* bilateral plantar fasciitis												10 percent
* left carpal tunnel syndrome										10 percent
* right carpal syndrome												10 percent
* right lower extremity radiculopathy associated					10 percent with degenerative disc disease lumbar spine

13.  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 contains the following guidance:

	a.  Paragraph 3-1 provides guidance on standards of fitness.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-5 contains guidance on rating disabilities.  It 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.

14.  Title 38, U.S. Code, sections 310 and 331, 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.

15.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's employability.  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.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a military career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the disability rating she received upon her discharge from the Army should be increased due to additional conditions she had at that time based on the VA rating she subsequently received was carefully considered.  However, the evidence is not sufficient to support this claim.

2.  The evidence of record confirms a PEB, after examining all the medical evidence, determined the applicant was unfit for further service based on her "degenerative arthritis, lumbar spine pain," assigned a disability rating of 10 percent, and recommended her separation with severance pay.  The record further confirms the applicant was properly processed through the Army's PDES. 
All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

3.  Although the applicant was later rated at 50-percent disabled by the VA based on all her service-connected medical conditions, this factor alone does not support a change to the disability rating assigned by the PEB.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

4.  The Army assigns disability ratings only for conditions that are considered unfitting for further military service.  Medical conditions that exist during service that are not determined to be unfitting are not rated by the PEB.  As a result, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

5.  The applicant is now being properly treated and compensated for service-connected medical conditions that were not unfitting for further military service during her PDES processing by the VA.  Therefore, absent any error or injustice in the applicant's PDES processing, there is an insufficient evidentiary basis to change the 10-percent disability rating assigned the applicant by the PEB at the time of her discharge.

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)                                         AR20090014708



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ABCMR Record of Proceedings (cont)                                         AR20090014708



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