IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100026557 


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.  his disability rating is solely based on his back injury and does not accurately reflect his level of disability;

	b.  his disability rating does not include his stomach and post-traumatic stress disorder (PTSD) conditions which date back to 1991 during Operation Desert Storm;

	c.  the Department of Veterans Affairs (VA) granted him a combined disability rating of 60 percent based on all three (back, stomach, PTSD) in the line of duty conditions;

	d.  he was injured and/or made significantly worse while serving on active duty; and

	e.  prior to deploying to Iraq, he was medically discharged from the Army after completing 17 years of honorable service plus two additional disputed qualifying years for a total of 19 years service without any type of retirement.

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

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* letter, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 14 September 2007
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* letter, U.S. Army Physical Disability Agency (USAPDA), dated 10 April 2008
* discharge orders, dated 5 June 2007 and 4 March 2008
* VA Rating decision, dated 19 October 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he last enlisted in the U.S. Army Reserve (USAR) on 18 October 2006 for a 6-year period after having prior Active and Reserve Component service.  He served in military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  81st Regional Readiness Command, Birmingham, AL, Orders 07-156-00072, dated 5 June 2007, ordered the applicant to active duty in support of Operation Iraqi Freedom (OIF).  On 18 June 2007, he entered active duty as a member of the USAR.

3.  On 19 December 2007, a physical evaluation board (PEB) in Washington, DC, considered the applicant's case.  It determined his diagnosed "chronic low back pain in a setting of degenerative joint disease" rendered him unfit to perform the duties of his MOS and grade.

4.  The PEB assigned a disability rating of 10 percent (percent) under the VA Schedule for Rating Disabilities (VASRD) code 5237 based on the applicant's "chronic low back pain" condition.  It also determined two other conditions identified by the applicant's medical evaluation board (MEB) met medical retention standards and therefore were not rated.

5.  The PEB finally recommended that the applicant be separated by reason of disability with a 10-percent disability rating with severance pay.

6.  On 7 January 2008, the applicant concurred with the PEB findings and waived consideration of his case by a formal hearing.  He also requested continuance on active duty (COAD).

7.  A DA Form 18 (Revised PEB), dated 10 April 2008, shows the USAPDA administratively corrected the applicant's PEB Proceedings in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-22c(1), to increase his disability rating from 10 to 20 percent.

8.  On 4 March 2008, Headquarters, U.S. Army Garrison, Fort Bragg, NC, issued Orders 064-0266 which directed the applicant's discharge from the Army effective 14 April 2008.  These orders also indicated he was authorized disability severance pay.

9.  On 14 April 2008, the applicant was discharged by reason of disability with severance pay – non-combat related – in the rank of sergeant/E-5.  The DD Form 214 he was issued shows he completed 9 months and 27 days of active military service for the period 18 June 2007-14 April 2008.

10.  During the processing of this case an advisory opinion was obtained from the USAPDA legal advisor.

11.  The USAPDA advisory opinion outlines the following information pertaining to the applicant's processing through the Army's Physical Disability Evaluation System (PDES):

	a.  The applicant's MEB completed on 1 November 2007 indicated his "chronic low back pain," his chief complaint at the time, did not meet retention standards.

	b.  The MEB indicated the applicant's listed conditions of seasonal rhinitis and hypercholesterolemia were found to meet medical retention standards.

	c.  The applicant listed frequent indigestion or heartburn and nervous troubles as past medical problems on his DD Form 2807-1 (Report of Medical History).

	d.  A DD Form 2808 (Report of Medical Examination) shows the reporting physician indicated:

* the applicant's psychiatric and stomach conditions were considered normal
* the applicant's indigestion and stomach problems were minimal (gastro esophageal reflux disease (GERD), for which he was taking no medications)
* the applicant was previously diagnosed with PTSD but required no use of psychiatric medication for over 3-4 years
* the applicant did not object to his PTSD and stomach condition not being listed on his MEB as not meeting medical retention standards
* the PEB details and findings
* the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physically disability and only those conditions found unfit for duty are compensable by the military
* the PEB's findings were correct and supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation
* his recommendation not to change the applicant's military record

12.  On 7 March 2011, the applicant was forwarded a copy of the advisory opinion for his comments or rebuttal.  No response was received.

13.  A U.S. Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 1 June 2001, shows the applicant completed 13 years and 3 months of military service that qualified toward nonregular retirement.

14.  The applicant provides a VA rating decision which shows he was granted the following ratings based on the indicated disabilities:

* 30 percent – PTSD
* 10 percent – GERD
* 20 percent – degenerative disc disease of L4-5 disc bulge

15.  Army Regulation 635-40 establishes the Army 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.  It contains the following guidance:

	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.

16.  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.

17.  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's contention that the 20-percent disability rating he received upon his discharge from the Army should be increased due to additional conditions he had at that time based on the VA rating he subsequently received was carefully considered.  However, the evidence is not sufficient to support this claim.

2.  The evidence of record confirms a PEB determined the applicant was unfit for further service based on his "chronic low back pain" after examining all the medical evidence, assigned a disability rating of 10 percent which was later corrected to a 20-percent disability rating, and recommended his separation with severance pay.  The record further confirms the applicant was properly processed through the 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 at a higher percentage by the VA based on additional service-connected medical conditions, 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.

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 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 10-percent disability rating assigned to the applicant by the PEB at the time of his discharge.

6.  In response to the applicant's concern regarding his disputed qualifying years of additional service, he is informed that he may submit a request for correction of his years of service to the U.S. Army Human Resources Command, ATTN:  Veterans Services Branch, 160 Spearhead Division Avenue, Fort Knox, KY  40122, the office responsible for calculating his total military service.

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)                                         AR20100026557



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ABCMR Record of Proceedings (cont)                                         AR20100026557



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