IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100014685 


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 correction of his military records to show he was retired due to physical disability.

2.  The applicant states he is currently rated by the Department of Veterans Affairs (VA) as 90 percent disabled.  The three medical issues for which the U.S. Army based his unfitness were lumped together into a single diagnostic code.  However, the VA has assigned each condition a separate code, resulting in a higher rating.  He believes the U.S. Army should have rated his left knee, spine, and ankle separately and given him a rating of 30 percent and a medical retirement.

3.  The applicant provides a medical board summary of his physical examination of 2 September 1992; a DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 30 December 1992; a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 21 January 1993; and his VA Rating Decision, dated 12 October 2000.

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.  On 2 March 1983, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 54B (Chemical Operations Specialist).

3.  The applicant served through a series of assignments and was promoted to staff sergeant, pay grade E-6 on 1 October 1990.

4.  The medical summary provided by the applicant reports that he underwent a physical examination on 2 September 1992.

	a.  He complained of a constant pain in his left knee.  He was not able to put any pressure on it or move suddenly.  He could not stand for long periods.  This complaint was first documented on 26 April 1984, diagnosed as a strained ligament, and treated with a non-steroid anti-inflammatory medicine and rest.  In 1986, he was referred to physical therapy for strengthening exercises.  In 1990 and 1991, he was further diagnosed with patellofemoral syndrome of the left knee, treated with non-steroids and rest.

	b.  He also had pain in the area of his left heel.  In October 1987, he was diagnosed with Achilles tendonitis.  His treatment consisted of non-steroids and rest.

	c.  He also had constant pain in his left shoulder and was unable to lift anything above his head or to hold his arm behind his back without severe pain. The applicant was first diagnosed on 2 August 1991 with tendonitis, left shoulder.  He was treated with non-steroids and rest.  During 1991 and 1992, he made several trips to orthopedics and physical therapy.  He was recommended for a permanent profile and referral to an MEBD.

5.  On 29 December 1992, an MEBD convened to assess the applicant's medical condition.  The applicant did not present any views on his own behalf and indicated that he did not desire to continue on active duty.   He agreed with the MEBD findings and recommendations.  The MEBD referred the applicant to a PEB for a determination of fitness for duty based on chronic tendonitis of the left supraspinatus tendon, left patellar tendon, and the left Achilles tendon.

6.  On 21 January 1993, a PEB convened to consider the applicant's medical condition.  The PEB found the applicant unfit due to tendonitis, chronic of the left supraspinatus tendon, left patellar tendon, and the left Achilles tendon, rated at 10 percent disabling.  The PEB recommended separation with severance pay.
	
7.  On 28 January 1993, the applicant concurred with the PEB's determination and waived a formal hearing of his case.

8.  On 18 February 1993, the applicant was discharged due to physical disability, with severance pay.  He had completed 9 years, 11 months, and 17 days of creditable active service.

9.  The VA Rating Decision provided by the applicant discusses the following five issues:

	a.  Whether the decision to deny service connection for left patellar tendonitis and left shoulder bursitis was clearly and unmistakably erroneous.  No revision was found to be warranted.

	b.  Service connection for tendonosis, left supraspinatous tendon with degenerative changes.  Service connection was granted effective 1 May 2000, with a disability rating of 10 percent.

	c.  Service connection for degenerative changes, medial and lateral meniscus, left knee.  Service connection was granted effective 1 May 2000, with a disability rating of 10 percent.

	d.  Whether the rating decision of 4 January 1994 contains clear and unmistakable error concerning failure to address the issue of service connection for hypertension.  Service connection was granted effective 16 April 1993, with a disability rating of 10 percent.

	e.  Evaluation of tinnitus currently rated at zero percent disabling.  Service connection was granted effective 10 June 1999, with a disability rating of 
10 percent.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

11.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically unfit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he was retired due to physical disability.  He argues that his medical conditions should have been rated under three separate medical codes as was done by the VA.

2.  The available evidence clearly shows the applicant was medically disabled and evaluated by a PEB.  He received a 10-percent disability rating and severance pay for chronic tendonitis of his left supraspinatus tendon, left patellar tendon, and the left Achilles tendon.

3.  The available documentary evidence, provided by the applicant, shows the VA reevaluated his medical conditions in October 2000 and granted 10 percent disability ratings for each of the applicant's four medical conditions.

	a.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  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 social or industrial adaptability.  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.

4.  In view of the above, the applicant's request should 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 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)                                         AR20100014685





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ABCMR Record of Proceedings (cont)                                         AR20100014685



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