IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100023846 


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 evaluation and an increase of the 20 percent final combined disability rating granted by the Physical Evaluation Board (PEB). 

2.  The applicant states there was a disparity and injustice in the combined disability rating she was granted by the PEB.  She claims the 20 percent rating she received for “Fibromyalgia” was unjust and that other diagnosed conditions listed on her Medical Evaluation Board (MEB) were not considered by the PEB and should be included and evaluated now.   

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

* DA Form 199 (PEB Proceedings)
* DA Form 3937 (MEB Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Doctor’s Letter, dated 2006
* VA (Department of Veterans Affairs) Disability Award, dated 2007
* VA Disability Award, dated 2003



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 13 December 2001, while the applicant was a member of the United States Army Reserve (USAR) serving on active duty as a member of the Active Guard Reserve (AGR) program, a MEB at Fort Gordon, Georgia evaluated her case.  The MEB indicated the applicant suffered from the following three diagnosed conditions:

* Chronic pain syndrome (pain moderate/constant)
* Cervical degenerative joint disease (pain moderate/constant)
* Fibromyalgia (pain moderate/constant)

3.  The MEB found the applicant’s diagnosed conditions were incurred in the line of duty and did not exist prior to service, and finally referred the applicant’s case to a PEB. 

4.  On 17 December 2001, a PEB convened at Fort Sam Houston, Texas to consider the applicant’s case.  The PEB assigned a 20 percent disability rating under VASRD codes 5099 and 5003 for chronic pain, multiple joints, non-restrictive sleep, morning stiffness.  It commented that the applicant’s condition did not meet the American College of Rheumatology 1990 criteria for the classification of “fibromyaligia” and confirmed that the three diagnosed conditions noted on the MEB were in fact included in this final diagnosis and rating.  The proceedings further indicated the applicant’s disability did not result from a combat related injury.  

5.  The PEB determined the applicant’s medical and physical impairment prevented reasonable performance of her duties and concluded she was physically unfit for further service and recommended a combined disability rating of 20 percent (%) and separation with severance pay. 
6.  On 19 December 2001, the applicant concurred with the findings and recommendations of the PEB, and the PEB proceedings were approved by proper authority on behalf of the Secretary of the Army.   

7.  On 31 January 2002, the applicant honorably discharged by reason of physical disability with severance pay.  The DD Form 214 she was issued shows she held the rank of sergeant first class/E-7 and had completed a total of 
15 years, 5 months and 8 days of active military service.  It further shows she received $71,402.40 of severance pay at separation.  

8.  The applicant provides a VA rating decision, dated 18 June 2003, which shows the VA granted service connection for the following conditions at the disability percentage indicated, effective 1 February 2002:

* Fibromyalgia, claimed as chronic pain syndrome (40%)
* Hysterectomy (30%)
* Dermatitis, Seborrheic and Psoriasis (30%)
* Degenerative Joint Disease, Neck (10%)
* Carpal Tunnel Syndrome, Left  (10%)
* Carpal Tunnel Syndrome, Right (10%)
* Major Depressive Disorder (10%)

9.  A 20 July 2007 VA decision granted the applicant entitlement to unemployability, effective 23 March 2005, based on her service connected conditions.   

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph
4-17 provides guidance for PEB's.  Specifically, it states that PEB's are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  

11.  The VASRD guidance for rating under code 5099 (Chondromalacia of right knee) is rated analogous to 5003 (Arthritis, degenerative, hypertrophic, and pain conditions rated by analogy to degenerative arthritis).  VASRD code 5003 states a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  



12.  The VASRD guidance on code 5003 further states inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  However, lack of objective findings does not constitute a valid reason for finding a Soldier unfit by analogy 
to a neuropsychiatric disability or assuming that the Soldier is malingering.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for
a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value. 

13.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.

14.  Title 38, U.S. Code, sections 1110 and 1131, 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do 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.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention her disability rating from the PEB was unjust and should have been higher has been carefully considered.  However, there is insufficient evidence to support this claim.

2. The DA Form 199 prepared to document the proceedings of the 17 December 2001 PEB completed on the applicant shows her diagnosed conditions were rated under VASRD 5099/5003 as chronic pain.  The PEB noted the applicant’s  the medical evidence available at the time failed to meet the American College of Rheumatology criteria for the classification of Fibromyalgia and was instead rated as chronic pain, moderate/constant.  

3.  The VASRD guidance for code 5003 states a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  It further states there is a  20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value. 

4.  The DA Form 199 also shows the applicant concurred with the findings and recommendations of the PEB on 4 October 1994.  As a result, there is no apparent error or injustice related to the PEB process or its findings and recommendations in the applicant's case. 

5.  The VA rating decisions provided by the applicant was also carefully considered.  However, 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.  

6.  An award or 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 based on the medical evidence and the severity of a condition as it existed at the time.   As a result, absent any evidence the disability ratings assigned the applicant by the PEB were not properly based on the VASRD based on the existing medical evidence at the time, it is concluded the applicant was properly assigned a disability rating from the Army based on the unfitting diagnosed conditions at the time of his discharge, and is now properly being treated and compensated for all his service-connected conditions by the VA.

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.




      __________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)                                         AR20100023846



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ABCMR Record of Proceedings (cont)                                         AR20100023846



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