BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100011910 


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 that his Physical Evaluation Board (PEB) findings of 3 November 2004 be increased to a 30 percent (%) disability rating percentage or greater.

2.  The applicant states he is specifically requesting that all of his fitting conditions be reconsidered for unfitness based on the medical documentation provided from the Department of Veterans Affairs (VA), the Social Security Office, and the U.S. Special Operations Command (USSOCOM) memorandum to the Board, dated 28 January 2010.  He goes on to state that the PEB found only two of his six conditions as unfitting for a combined rating of 20%; however, the VA rated him at 100% disabled and unemployable for Post-Traumatic Stress Disorder (PTSD) and the Social Security Administration concurred in granting him Social Security Disability Insurance (SSDI) benefits.  He continues by stating that not only has the VA rated him at 100% for PTSD, they have also rated his other service-connected disabilities at 70% with an effective date of
15 November 2004, which was prior to his retirement on 10 January 2005. 

3.  The applicant provides:

* A memorandum from USSOCOM, dated 28 January 2010
* A copy of his retirement orders
* Copies of his separation documents
* Copies of his VA Rating Decisions and medical records


* Copies of his Noncommissioned Officer (NCO) Evaluation Reports
* Copies of his sleep study reports
* Copies of his PEB Proceedings
* Copies of documents related to his appeals of VA Decisions

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 was born on 26 March 1954 and he was serving as a special forces senior sergeant in the pay grade of E-8 in the Maryland Army National Guard (MDARNG) on 15 June 2004 when a Medical Evaluation Board (MEB) at Walter Reed Army Medical Center (WRAMC) recommended his referral to a PEB for:

* Right shoulder recurrent rotator cuff tear (medically unacceptable)
* Obstructive sleep apnea (medically unacceptable)
* Cervical degenerative joint disease with gradual worsening of pain (medically unacceptable)
* Axis I:  PTSD (medically acceptable)
* Left shoulder pain status post repair (medically acceptable)
* Left knee pain (medically acceptable)
* Low back pain (medically acceptable)

3.  On 3 November 2004 a formal PEB convened at WRAMC with the applicant present and represented by counsel.  The PEB determined that his conditions were as follows:

* Diagnosis 1 -  Chronic right shoulder pain secondary to an injury in 2000 was unfitting and rated at 10%
* Diagnosis 2 - Obstructive sleep apnea was not unfitting/not rated 


* Diagnosis 3 - Chronic neck pain secondary to cervical degenerative joint disease incurred in an accident in 1974 was unfitting and rate at 10%
* Diagnosis 4-7- All were found to be medically acceptable

4.  The PEB recommended the applicant's separation with severance pay if otherwise qualified with a combined 20% disability rating.  The applicant concurred with the findings and recommendations of the PEB.  He subsequently elected to forfeit disability severance pay and request transfer to the Retired Reserve and to receive Reserve Retired pay at age 60 (26 March 2014).

5.  On 15 November 2004, the applicant filed a claim for disability compensation with the VA requesting service-connected compensation for:

* Neck and back pain
* Residuals fractured right distal metacarpal
* Status post repair anterior abdominal wall hernia
* Sleeping disorder
* Residuals of cold injury
* PTSD
* Persistent back pain
* Recurring bilateral shoulder pain, status post rotator cuff repair
* Recurring bilateral knee locking
* Left leg torn tendon

6.  On 11 January 2005, he was honorably discharged from the MDARNG and he was transferred to the U.S. Reserve (USAR) Control Group (Retired).  He had 27 years of creditable service for retired pay purposes.

7.  On 3 April 2006, the VA granted him service connection for neck, back condition with an evaluation of 10% effective 15 November 2004 (date of his application).  The VA granted him service-connection for residual fractured right distal metacarpal and post repair anterior abdominal wall hernia with a 0% evaluation effective 15 November 2004.  He was also denied service-connection for:

* Sleeping Disorder
* Cold injury
* PTSD (denied due to no clear diagnosis or acceptable stressors)
* Persistent back pain
* Recurring bilateral shoulder pain, status post rotator cuff repair


* Recurring bilateral knee locking
* Left leg torn tendon

8.  The applicant filed a Notice of Disagreement on 9 May 2009 and on 1 August 2007, after the applicant submitted additional documents for consideration, the VA granted the applicant a combined disability rating of 70% based on a new rating of:

* Rotator cuff tear, left shoulder - 20%
* Rotator cuff tear, right shoulder - 20%
* Degenerative disc disease, cervical spine - 20%
* Degenerative disc disease, lumbar spine - 20%
* Degenerative joint disease, left knee - 10%
* Degenerative joint disease, right knee - 10%

9.  The applicant again filed a Notice of Disagreement and on 31 August 2007, a VA examination conducted at the VA Medical Center (VAMC) in Baltimore, MD diagnosed him with PTSD with depression linked to PTSD.  The examining psychiatrist who conducted the compensation examination stated that the lack of proper anesthesia and the applicant’s experience of awaking in pain and disbelief are traumatic events that are the source of his disability.  On 12 September 2007, the VA granted him a 100% disability rating for PTSD.

10.  The memorandum from the USSOCOM, Department of Defense Recovery Care Coordinator opines, in effect, that the applicant should have received a higher disability rating from the PEB as evidenced by the VA and SSDI decisions in his case and the evidence submitted by the applicant.

11.  The VA determines the effective date of an approved entitlement based on the date a claim was received or, if filed within 1 year of separation from the military, entitlement will be from the day following separation from the military.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when 


a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  

14.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

15.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay (which the applicant waived) was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a combined disability rating of 20% for his unfitting conditions as they existed at the time of his formal PEB hearing.   Department of the Army disability decisions are based 


upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.  

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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.

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      __________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)                                         AR20100011910



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ABCMR Record of Proceedings (cont)                                         AR20100011910



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