IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20090021982 


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 reconsideration of his earlier request for an increase of his medical disability rating from 20 percent to 30 percent or higher.  He specifically requests: 

   a.  an award of a 30 percent service connected disability rating for heart disease;
   
   b.  that his rating for his left shoulder be increased from 10 percent to 
20 percent; and 
   
   c.  that he be granted 20 percent for his back and 10 percent for psychological problems.

2.  He states, in effect, he admits he previously asked for a 100 percent service connected disability rating.  Now he is bringing up something new, his heart.  He is also requesting a second look at his records concerning his shoulder being rated higher.  There was no way for the Physical Evaluation Board (PEB) to properly consider his medical conditions because all of the medical evidence was not properly presented to them.  He was treated at the 97th General Army Hospital in Germany and his board was held at Fort Gordon, GA.  What the PEB saw was what the hospital sent them.  He was sent to Fort Gordon for a second medical board which never happened.  He was removed from his military occupational specialty (MOS) more than 3 years before his medical discharge.  

3.  He also states once he was diagnosed for his shoulder injuries he never saw a combat unit again.  Three months before the first Gulf War, he was back in the hospital for his back.  The hospital put a metal line brace on his back and he reported for his war time duty.   When duty was done, for some reason he had a breakdown and was taken back to the hospital.  He lost the ability to handle unbroken stress.  Clearly, this made him unfitting and he has this problem to this 
very day.  The fact that he was sent to Fort Gordon is all the proof needed to show he was unfit to do his job as a combat arms tour leader.  He states he does not understand why he was sent there since he already had a completed medical board.

4.  He further states the Army was wrong for allowing him to be discharged prior to giving him a full medical examination at Fort Gordon.  His Army medical records will show he reported chest pain on sick call on three occasions in 1989, 1990, and 1992.  They never performed tests other than an EKG.  The blood test in 1989 showed a very high level of cholesterol, a clear sign of heart disease.  A review of the August 1992 to October 1993 Department of Veterans Affairs (VA) medical records on his heart makes it clear.  He was discharged on 15 May 1992 and he was being treated for severe coronary artery disease at the VA 3 months later.  The VA gave him a 30 percent service-connected disability rating because he had three blocked arteries.  He is asking the Army to do the same thing.

5.  He provides copies of the following documents:

* His 1991 Standard Forms 509 (Progress Notes) and Standard Forms 600 (Chronological Record of Medical Care)
* A 1991 Translation - Medical Report
* A DA Form 3647 (Inpatient Treatment Record Cover Sheet)
* A DA Form 3346 (Physical Profile)
* His 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* His Separation Memorandum and Army Achievement Medal Certificate
* Two Letters of Appreciation, a Certificate of Appreciation, and a Lifetime Pathfinder Appointment Certificate
* His 1992 VA Compensation and Pension Examination
* His 1992 VA Rating Decision
* His VA Medical Center Cardiac Catheterization Report and Cardiothoracic Surgery Operative Note and Discharge Summary
* A 2009 Report from the VA Arthritis Clinic




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 AR20080006779 on 16 December 2008.

2.  He submits copies of his 2009 Report from the VA Arthritis Clinic.  This document is new evidence that will be considered by the Board.  All other documents were previously considered by the Board.  

3.  His military records show he enlisted in the Regular Army on 1 May 1984.  He completed training and was awarded MOS 11B (Infantryman).

4.  On 18 September 1990, a Medical Evaluation Board (MEB) convened and considered his diagnoses of degenerative arthritis; right foot and left shoulder impingement syndrome, moderate with partial rotator cuff tear; and synovitis.  The MEB recommended that he be referred to a PEB for evaluation.  He concurred with the MEB’s findings and recommendations.

5.  On 12 February 1991, an informal PEB found him unfit based on traumatic arthritis of the right foot and ankle and left shoulder pain with a 90 degree flexion and 90 degree abduction.  The PEB awarded him a 10 percent rating for each, for a net rating of 20 percent, and recommended that he be separated with severance pay.  

6.  On 7 March 1991, he non-concurred with the PEB's findings and recommendations and requested a formal hearing.

7.  His records do not contain a copy of his formal hearing held on 4 April 1991.  On 22 April 1991, a PEB reconsidered his formal hearing and found him unfit based on traumatic arthritis of the right foot and ankle and left shoulder pain with a 90 degree flexion and 90 degree abduction.  The PEB stated it did not find his back condition unfitting and confirmed its formal findings that his psychiatric condition was personality or situational adjustment disorder which could have been administratively unfitting, but was not a physical disability.  The PEB affirmed its findings of unfit, awarded a net rating of 20 percent, and recommended that he be separated with severance pay.

8.  On 19 September 1991, through counsel, he non-concurred with the PEB's findings and recommendations.  He stated he concurred with the PEB’s decision to find him unfit based on the condition of his right foot and ankle at 10 percent.  He non-concurred with the PEB’s decision to grant him only a 10 percent disability rating for his shoulder condition.  He felt he should have received a higher disability rating.  He also non-concurred with the board’s findings/decision not to find him unfit based on his back condition.  He felt his decreased range of motion and the source of his chronic back pain had an easily discoverable source and diagnosable etiology.  That coupled with his back spasms should have qualified him for at least a 20 percent rating.  He concluded by requesting the board grant him sufficient time to gather medical documentation for his back and knee.  

9.  On 3 October 1991, he was advised that if he was able to obtain additional medical evidence which would cause the board to reconsider his case and change his rating, he could submit the additional information to the board until the U.S. Army Personnel Command (PERSCOM) made a final decision concerning his case.

10.  On 21 October 1991, the U.S. Army Physical Disability Agency (USAPDA) forwarded his case to PERSCOM for final disposition.  On 20 November 1991, the PEB advised him that based on his letter, the PEB once again reviewed his file and board proceedings.  The board affirmed its original findings and recommendations.

11.  He was honorably discharged on 15 May 1992, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, for physical disability with severance pay.  He was credited with 8 years and 15 days of net active service.

12.  In a VA Rating Decision, dated 6 March 2007, he was awarded a 40 percent service-connection for traumatic arthritis; 30 percent for degenerative arthritis, right shoulder and both wrists and coronary artery disease; 20 percent for synovitis and adhesive capsulitis left shoulder; 20 percent for left side chest muscle paralysis, residual of coronary artery bypass graft surgery; 20 percent for degenerative arthritis of the left shoulder, rotator cuff tear; 10 percent for traumatic arthritis, left knee; 10 percent for traumatic arthritis, right ankle and 1st MTP (metatarsophalangeal) joint; 10 percent for adjustment disorder with mixed emotional features; 10 percent for degenerative arthritis, right wrist; and 10 percent for degenerative arthritis, left wrist.  

13.  He provides a copy of a Report from the VA Arthritis Clinic, dated 14 December 2009, which states the applicant has been a patient and followed regularly at the clinic since 1993.  In summary, he clearly had onset of his severe degenerative arthritis during his years in the service due to injuries sustained during his years of service.  He was discharged due to an inability to perform his duties as an infantryman due to arthritis in the right foot and ankle and synovitis and adhesive capsulitis of the left shoulder.  While he also had evidence of early bilateral knee arthritis, it is unclear that the degree of arthritis alone would have prevented him from performing his duties.  His back pain was chronic in 1992 and given the evidence of disc herniation and chronic complaints of pain it is unlikely he would have been able to carry significant weight if required.  Due to arthritis in his right ankle and foot he was rated 10 percent disabled.  He was rated 20 percent disabled due to his left shoulder according to a Medical Examination for Disability Evaluation dated 5 May 1993; however, the applicant stated the left shoulder had been rated at 10 percent.  

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 MEBs, 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 Army Regulation 40-501(Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Army Regulation 635-40 also specifies 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 recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  The VA Schedule for Rating Disabilities (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.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.  

17.  The VASRD percentage ratings represented, as far as could practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD were applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and were intended to provide guidance under laws and policies applicable only to the VA.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in 1990 he underwent an MEB after being diagnosed with degenerative arthritis, right foot and left shoulder impingement syndrome, moderate with partial rotator cuff tear and synovitis.  The MEB referred him to a PEB.  On 12 February 1991, an informal PEB found him unfit 
based on degenerative arthritis, right foot and left shoulder impingement syndrome, moderate with partial rotator cuff tear and synovitis.  He was rated 10 percent for each condition, for a total of 20 percent and the recommendation was that he be separated with severance pay.  The PEB did not find his back and psychiatric condition unfitting.  He non-concurred and requested a formal hearing.  

2.  After a formal PEB and reconsideration of his formal hearing, the PEB again rated him 10 percent for each condition and recommended that he be separated with severance pay.  He non-concurred, submitted a rebuttal, and requested additional time to submit medical documentation for his back and knee.  He was advised he had until the final disposition was made of his case to submit those documents.  On 20 November 1991, the PEB affirmed its original findings and recommendations.  He was discharged on 15 May 1992 with severance pay.

3.  His contention the PEB should have also considered his heart disease and rated him accordingly is not supported by the evidence.  The available evidence shows at the time of his medical boards he had been diagnosed with degenerative arthritis, right foot and left shoulder impingement syndrome, moderate with partial rotator cuff tear and synovitis.  There is no evidence any of his other conditions rendered him unfit to perform his duties at the time.  There is no evidence and he provided no evidence that his heart disease required imposition of assignment limitations or even referral to an MEB for medical separation processing.  

4.  During the course of his PEB, he was given the opportunity to submit additional medical documentation in support of his case.  The information he submitted was considered and his PEB process was carried through to conclusion.   There is no evidence of an error or injustice in his physical evaluation process for his conditions or in the PEB's findings.  There is also no evidence he was precluded from offering any relevant material evidence in his case and he provides insufficient evidence to show his back and heart conditions were not properly considered or rated.  His contentions and the documents that he submitted do not demonstrate error or injustice in his MEB or PEB processing nor an error or injustice in the disposition of his case.

5.  He has failed to show with the evidence submitted and with the evidence of record that he should have received a higher disability rating and retirement due to permanent physical disability.  He has several new medical problems rated by the VA that were not unfitting at the time of discharge.  

6.  The award of a VA rating or an increase of a VA rating does not establish entitlement to a higher Army disability rating, medical discharge, and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, he was properly evaluated and he is being compensated for his service-connected medical conditions by the VA.

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 AR20080006779, dated 16 December 2008.



      _______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)                                         AR20090021982



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ABCMR Record of Proceedings (cont)                                         AR20090021982



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