BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100026151 


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 discharge by reason of disability that existed prior to service (EPTS) be voided and that he be retired by reason of permanent disability.

2.  The applicant states that he was discharged due to a pre-existing condition; however, his records show that his disability did not exist prior to his military service and he believes that he should have been given at least a 30 percent (%) disability rating percentage because the Department of Veterans Affairs (VA) gave him a 50% disability rating percentage.

3.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a copy of his VA Rating Decision, dated 27 October 1998 and 24 May 2002
* a copy of his Medical Evaluation Board (MEB) Summary, transcribed on 19 June 1998
* copies of documents from his medical records

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 initially enlisted in the Minnesota Army National Guard (MNARNG) on 11 March 1991.  He completed his training as a food service specialist at Fort Jackson, SC.

3.  On 24 May 1995, he enlisted in the Regular Army as a food service specialist for a period of 3 years and assignment to Europe.  He was assigned to an armor battalion in Vilseck, Germany.  On 29 May 1997, he reenlisted for a period of 4 years.

4.  On 14 July 1998, an MEB was conducted at the 67th Combat Support Hospital and diagnosed him as having stress induced reaction bilateral feet and bilateral cavus feet.  The MEB indicated that his stress induced reaction bilateral feet originated in August 1997 and did not exist prior to service and that his origin of bilateral cavus feet was unknown and did not exist prior to service.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to continue on active duty and he concurred with the findings and recommendation of the MEB.

5.  On 5 August 1998, a PEB was convened at Walter Reed Army Medical Center (WRAMC) in Washington, D.C. and determined that the applicant’s condition existed prior to service and was not permanently aggravated.  The PEB reviewed the medical evidence of record and concluded that there was sufficient evidence to substantiate an EPTS condition for which he was now unfit and that his condition was not aggravated by service but was the result of natural progression.  The PEB recommended that he be separated from the service without disability benefits.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 15 October 1998, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4) by reason of disability, EPTS, PEB.  He had served 3 years and 9 months of total creditable active service.


7.  On 27 October 1998, the applicant was granted a 50% service-connected disability rating by the VA for bilateral foot condition, effective 16 October 1998.  On 14 July 1999, he was granted an additional 20% disability for “Condition of the skeletal system,” for a combined total of 70% service connected disability.

8.  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.

9.  Army Regulation 635-40 states 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.  That regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  

11.  Pes cavus (high arch also high instep) in medical terminology is a human foot type in which the sole of the foot is distinctly hollow when bearing weight.  A high arch is the opposite of a flat foot and somewhat less common.  The term Pes cavus is Latin for hollow foot and it may be hereditary or acquired.  Pes cavus is sometimes – but not always – connected through hereditary motor and sensory neuropathy type 1 (Charcot-Marie-Tooth Disease) and Friedreich’s Ataxia; many other cases of pes cavus are natural.  Population based studies suggest that the prevalence of the cavus foot is 10%.  Pes cavus is almost always congenital.

DISCUSSION AND CONCLUSIONS:

1.  An award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 incurred or aggravated in service 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 civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.

2.  By virtue of the fact that there is no evidence to show that the applicant had any of the diseases that cause pes cavus, it is reasonable to presume that his condition was congenital and it appears that the determination of the PEB that his condition existed prior to his service was a correct diagnosis.

3.  The applicant has not provided sufficient evidence to show that the evaluation and the rating rendered by the PEB was incorrect or that he should have received a higher disability rating at the time of his separation. 

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating and determined his condition is service-connected 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x_  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the 


United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20100026151



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ABCMR Record of Proceedings (cont)                                         AR20100026151



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