BOARD DATE: 8 September 2011
DOCKET NUMBER: AR20100028517
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 reconsideration of his request to be retired by reason of physical disability in pay grade E-7 instead of being discharged with severance pay.
2. The applicant states he is submitting new evidence to show he was improperly diagnosed with low back pain instead of degenerative disc disease (DDD) which consists of an evaluation made by his Miami Department of Veterans Affairs (VA) physician. The physical evaluation board (PEB) got his diagnosis wrong. He states that had he been properly diagnosed, he would have been medically retired which is supported by the fact the VA raised his disability rating from 20 percent to 60 percent.
3. The applicant provides a copy of a primary care clinic note from a VA physician indicating the physician diagnosed him with having DDD [the physician gave no written opinion of the applicant's diagnosis] and a copy of his VA Rating Decision.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010033 on 14 January 2010.
2. The clinic note provided is new evidence that will be considered by the Board.
3. On 25 November 1998, a medical evaluation board (MEB) found he had chronic low back pain and microscopic hematuria. Both were considered to have been incurred while entitled to active duty pay. The DA Form 3947 (Medical Evaluation Board Proceedings) shows the applicant initialed the block checked "does not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)." The case was referred to a PEB.
4. On 15 December 1998, the informal PEB found the applicant unfit due to chronic low back pain rated at 10 percent and recommended separation with severance pay. The applicant concurred and waived a formal hearing of his case. The U.S. Army Physical Disability Agency approved the recommendation and the applicant was discharged due to physical disability with $51,364.80 in severance pay on 24 March 1998. He completed 18 years, 11 months, and 7 days of total active service.
5. On 6 January 2000, the applicant was granted a 20-percent disability rating by the VA for DDD effective 25 March 1999.
6. On 18 August 2010, the applicant was granted a 60-percent disability rating by the VA for DDD effective 21 April 2000.
7. There is no copy of the VA exam in the available evidence to explain the VA's rationale for increasing his rating.
8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
9. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
10. 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting 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's contention that he was improperly diagnosed by the MEB and PEB which is evidenced by his increase in VA ratings has been noted and appears to lack merit.
2. The applicant was discharged in 1999 with a 10-percent disability rating from the Army and he was subsequently granted a 20-percent disability rating by the VA, neither of which would have met the 30-percent criteria that would have entitled him to retirement. His increase to 60 percent by the VA did not occur until 2010.
3. The applicant has not provided sufficient evidence to show 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 disability rating in excess of 30 percent 11 years later is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.
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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090010033, dated 14 January 2010.
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) AR20100028517
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ABCMR Record of Proceedings (cont) AR20100028517
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