IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090016491 


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 in his Army disability rating.

2.  The applicant questions whether his Army disability rating of 0 percent was justified.  He states his physical conditions have mostly remained the same with no improvement and are slowly worsening.  He states he downplayed the traumatic events but they are finally catching up with him since 2007.  

3.  The applicant indicates he is confused about the difference in ratings, that while the Department of Veterans Affairs (VA) notes he has symptoms of Posttraumatic Stress Disorder (PTSD) he does not have PTSD.  He also states that the strength of pain medication obviously affects the degree of pain he experiences during a “bending test.”  He states, in effect, a Magnetic Resonance Imaging (MRI) proves the actual degree of impairment and he questions why an MRI was not an option at military and VA medical facilities.

4.  The applicant provides the following:

* August 2005 informal Physical Evaluation Board (PEB) results
* Various DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* September 2005 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* VA Rating Decisions dated 2001, 2006, and 2007
* December 2007 statement from the VA confirming the VA granted him a disability rating of 50%
* 2009 Pulmonary Sleep Study

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 enlisted in the Regular Army in 1991.  He served on active duty as a Regular Army enlisted Soldier between March 1993 and July 2001.  He was honorably discharged at the completion of his required military service in the grade of E-4.

3.  In November 2001 the applicant was granted a combined disability rating of 20% by the VA.  His tinnitus and chronic low back strain were each independently rated at 10%.

4.  In February 2003 the applicant enlisted in the California Army National Guard.  He was ordered to active duty in support of Operation Iraqi Freedom in December 2003.  He was released from active duty at the completion of his required active service on 11 April 2005 and returned to his National Guard unit in California.

5.  On 9 August 2005 the applicant underwent an informal PEB.  The PEB concluded chronic low back pain prevented him from performing effectively in his primary military specialty (motor transport operator) and recommended discharge with severance pay and a disability rating of 0%.  The proceedings referenced “imaging” which showed degenerative disk disease with non-compressive bulges at several levels.  The PEB proceedings also noted the applicant had four additional diagnoses from his Medical Evaluation Board (MEB) but those conditions, which are not defined, were not found to be unfitting and therefore were not ratable.



6.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.  Other than the informal PEB proceedings no other documents associated with his Army disability processing were available for review.

7.  As a result of the PEB findings and recommendation, the applicant was discharged from the California Army National Guard on 5 September 2005.

8.  In September 2006 the VA granted the applicant a combined disability rating of 40%.  The following conditions were independently rated at 10%:

* Degenerative disk disease, lumbar spine with disk bulge (formerly chronic low back strain)
* Tinnitus
* Degenerative changes, left shoulder, status post acromioclavicular separation
* Right knee chondromalacia patella
* Adjustment disorder with mild depression

9.  The rating evaluation noted the applicant’s PTSD symptoms were subclinical and as such did not meet the diagnostic criteria for a diagnosis of PTSD.

10.  In October 2007 the applicant’s VA rating was increased to 50%.  The following medical conditions were rated:

* Degenerative arthritis of the spine – 20%
* Limited motion of the arm – 20%
* Tinnitus – 10%
* Limited flexion of the knee – 10%
* Chronic adjustment disorder – 10%
* Benign growth of the skin – 0%

11.  The VA examiner did not give a diagnosis of PTSD and noted it was not found on examination.

12.  In the processing of this case, an advisory opinion was provided by the U.S. Army Physical Disability Agency.  The opinion noted a search of the Agency’s files failed to reveal a complete case file on the applicant.  However, the opinion noted there was no evidence of error or injustice regarding the applicant’s Army disability processing.  It stated that subsequent VA ratings which may be higher than those provided by the Army or that compensate for conditions not compensated by the Army, is not evidence of error by either Agency.  The opinion stated the applicant would have received the same separation compensation and benefits whether his back condition was rated at zero, ten, or twenty percent.

13.  The applicant was provided an opportunity to comment on the advisory opinion and did not submit any comments.

14.  References:

   a.  Title 38, U.S. Code, sections 1110 and 1131, 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 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.

   b.  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 rated at least 30 percent.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant admits that his conditions have slowly worsened which would explain why the VA has continued to increase its ratings or rate conditions the Army may have not found unfitting and therefore not ratable.

2.  The fact the applicant may have “symptoms” of PTSD but the VA has not rendered a diagnosis of PTSD is not an issue for the ABCMR to address.  The applicant’s informal PEB found only that his chronic low back pain was unfitting.  The applicant concurred and waived his right to a formal hearing.  He has provided no medical evidence suggesting the findings of the PEB were in error, and the subsequent conclusions by the VA are not evidence the Army’s findings were in error nor would it warrant a change in the Army’s rating.
3.  The fact an MRI may not have been available or utilized by military or VA medical facilities, as the applicant contends, does not establish an error in the Army’s rating decision.  It is only reasonable to conclude medical evaluators would use tools they deemed most appropriate and the decision by other evaluators to use other tools is not evidence or an error or injustice in either decision process.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  There is no available evidence that the applicant's disability was improperly rated.  His separation with severance pay was in compliance with law and regulation.

6.  The evidence of record shows 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 VA (and some other government agencies) 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 VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army is a prerogative exercised within the policies of that agency.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show an adjustment to his disability rating from the U.S. Army.

7.  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 has failed to submit evidence that would satisfy this requirement.

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.



      _______ _   _______   ___
               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)                                         AR20090016491



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ABCMR Record of Proceedings (cont)                                         AR20090016491



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