IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110004582 


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 correction of his records to show an increase in his physical disability rating to at least 30 percent and a medical disability retirement.

2.  The applicant states the Department of Veterans Affairs (VA) examination which was performed within 2 months of his discharge indicated the following medical conditions:

	a.  forward flexion of the thoracolumbar spine of 30 degrees or less,

	b.  post-traumatic stress disorder, and

	c.  forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or a combined range of motion of the cervical spine not greater than 170 degrees.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), National Guard Bureau Form 22 (Report of Separation and Record of Service), VA Rating Decision, VA Compensation and Pension Reports, DA Form 199 (Physical Evaluation Board (PEB) Proceedings, DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), and service 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.  Having prior enlisted service in the Regular Army and in the U.S. Army Reserve, the applicant enlisted in the Army National Guard on 22 October 2003.  He was ordered to active duty as a member of the Washington Army National Guard in support of Operation Iraqi Freedom effective 15 November 2003.

3.  On 21 January 2005, he was examined by an MEB and was diagnosed with the following:

	a.  lumbar disk disease,

	b.  migraine with aura associated with homonymous visual defect, and

	c.  cervical neck pain.

4.  The MEB concluded the applicant failed to meet medical retention criteria and referred him to a PEB.  The MEB Narrative Summary indicated his chief complaint was back pain.

5.  On 3 February 2005, an informal PEB convened to evaluate the applicant's case.  The PEB assigned a 10-percent disability rating under VA Schedule of Rating Disabilities (VASRD) code 5241 for chronic radiating low back pain with onset in the early 1990's and a 0-percent disability under VASRD code 8100 for chronic and recurring non-prostrating migraine headaches since September 2004 with homonymous hemianopsia during auras.  The PEB found him physically unfit and recommended a 10-percent disability rating and his separation with severance pay.  The PEB also concluded the disabilities existed prior to mobilization and were not permanently aggravated by military service, but were compensable in accordance with Title 10, U.S. Code, section 1207a (8-year rule).
6.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.

7.  On 3 March 2005, he was honorably discharged by reason of physical disability with severance pay.

8.  He provides a VA Rating Decision that indicates he is receiving service-connected disability compensation with a combined rating of 80 percent for a number of medical conditions.

9.  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 a physical disability.  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.

10.  Appendix B of Army Regulation 635-40 provides guidance for the Army's application of the VASRD.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated less than 30-percent disabling.  It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

12.  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 Physical Disability Evaluation System.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his disability rating by the PEB should have been higher has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The available evidence clearly shows the applicant was medically unfit and evaluated by a PEB.  He received a 10-percent disability rating and severance pay for chronic low back pain.

3.  The documentary evidence provided by the applicant shows the VA reevaluated his medical conditions and granted a combined 80-percent disability rating for a number of conditions.  However, the applicant provides insufficient evidence to show he was unable to perform his military duties due to PTSD or any condition other than his low back pain and migraines that caused a visual defect during aura.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  Based on the foregoing, there is no basis to grant the requested relief.


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)                                         AR20110004582



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ABCMR Record of Proceedings (cont)                                         AR20110004582



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