IN THE CASE OF:	  

		BOARD DATE:	  14 February 2011

		DOCKET NUMBER:  AR20100017988 


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 his Army disability rating.

2.  The applicant states:

	a.  the Army physical evaluation board (PEB) did not rate him for mood disorder;

	b.  on 28 December 2009, the Department of Veterans Affairs (VA) rated him 70 percent for mood disorder;

	c.  the VA Schedule for Rating Disabilities (VASRD) states that upon finding a service member unfit for duty and eligible for disability benefits, the PEB determines the percentage of disability based on guidelines set by the VA;

	d.  the VASRD is used by both the military and the VA to evaluate service members disabilities; and

	e.  the VA provides that members with mood disorders who demonstrate grossly inappropriate behavior, persistent danger of hurting themselves or others, or an intermittent inability to perform activities of daily living which are three of the representative symptoms listed for a 100-percent rating would clearly support a rating of total disability even if they do not exhibit other symptoms, such as gross impairment in the thought processes, delusions, or hallucinations.


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

* DA Form 199 (Physical Evaluation Board Proceedings)
* VA letter, dated 8 May 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 9 October 1992.  He was trained in and served in military occupational specialties (MOS) 15W (Unmanned Aerial Vehicle Operator) and 42A (Human Resources Specialist).

2.  On 22 October 2009, a formal PEB convened at Fort Sam Houston, Texas, and considered the applicant's case.  It determined that his diagnosed "intervertebral disc syndrome "(or chronic low back pain with mild L-4-L5 disc degeneration) and "chronic groin pain" rendered him unfit to perform the duties in his primary MOS of 15W.  The PEB also found he had significant difficulty performing the duties in his secondary MOS of 42A.

3.  The PEB rated his conditions under the VASRD and granted a 20-percent disability rating for code 5243 (intervertebral disc syndrome) and 20-percent ratings for codes 8699 and 8630 (chronic groin pain).  The PEB also considered his other medical conditions, which included "mood disorder," but found them not to be unfitting.

4.  The PEB recommended that the applicant be separated by reason of permanent disability retirement with a 40-percent combined disability rating.  On 22 October 2009, the applicant concurred with the formal PEB findings.

5.  On 30 October 2009, Headquarters, III Corps and Fort Hood, Texas, issued Orders 303-0106 which directed the applicant's retirement on 27 December 2009.  These orders also indicated he received a 40-percent disability rating.

6.  On 27 December 2009, the applicant was honorably retired in the rank of staff sergeant/E-6 by reason of permanent disability, non-combat related.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 17 years, 2 months, and 19 days of active military service.


7.  The applicant provides a VA Rating Decision, dated 8 May 2010, which shows he received following ratings for the conditions indicated:

mood disorder	70 percent
intervertebral disc syndrome, lumbar spine	10 percent
gastro-esophageal reflux disease	10 percent
hearing loss, left ear	0 percent
hemorrhoids	0 percent
atrophy of the right testicle and left varicocele 
(chronic groin pain)	0 percent
muscle tension headaches	0 percent

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.

	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.

9.  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.

10.  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 contends the disability rating he received upon his retirement should be increased due to his additional condition of "mood disorder" he had at that time based on the VA rating he subsequently received.

2.  The evidence of record confirms a PEB, after examining all the medical evidence, determined the applicant was unfit for further service based on his intervertebral disc syndrome (20 percent) and chronic groin pain (20 percent); assigned a combined disability rating of 40 percent; and recommended that he receive a permanent disability retirement.  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 70-percent disabled by the VA based on his mood disorder, 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.  This is evident in the VA's rating assignments of the applicant's conditions of intervertebral disc syndrome at 10 percent and chronic groin pain at 0 percent, which is lower than the ratings assigned by the PEB upon his release from the Army.

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 his 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 40-percent disability rating assigned to the applicant by the PEB at the time of his 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 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)                                         AR20100017988



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017988



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1