BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110009187 


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 a medical retirement.

2.  The applicant states the Department of Defense (DOD) unfairly did not allow her to retire based on her disabilities and she did not know she could apply for retirement.  She states she received a 40 percent (%) disability rating from the Department of Veterans Affairs (VA) shortly after her discharge.  She understands DOD is now required to rate the same as the VA.  She states her VA-rated problems were sufficient to deny continuation in an active duty status.

3.  She provides service treatment records, her DD Form 214 (Certificate of Release or Discharge from Active Duty), a VA Rating Decision, and two DA Forms 199 (Physical Evaluation Board (PEB) Proceedings).

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.  After graduating from the U.S. Military Academy (USMA), the applicant was appointed as a Regular Army second lieutenant in the Military Police Corps on 28 May 2005.  

3.  She provides a DA Form 199 showing, on 10 May 2006, an informal PEB found she had three unfitting conditions:

* Multiple arthralgias (joint pain) associated with fatigue and hypoglycemia with onset of symptoms in 2001 while a cadet at USMA 
* Chronic left hip pain with onset of symptoms in October 2003 
* Chronic bilateral knee pain since 2003 with the left being unfitting 

4.  The PEB found her functional limitations in maintaining the appropriate level of ability, caused by her physical impairments, made her medically unfit to perform the duties required of a Soldier of her rank and primary specialty.  The PEB further found her:

* unfitting conditions were neither service-incurred nor permanently aggravated by military service 
* impairments originated when she was not entitled to basic pay and increased only to the extent of its accepted normal and natural progress, therefore there was no permanent service aggravation
* conditions were not service incurred or permanently aggravated, she was ineligible for disability compensation and was therefore separated without disability benefits

5.  The PEB did not assign a disability percentage to any of her unfitting conditions.

6.  On 16 May 2006, she indicated she did not concur with the PEB findings and demanded a formal hearing.  She also requested a personal appearance with appointment of counsel to represent her.

7.  She provides a second DA Form 199 showing she received informal reconsideration of her case by a PEB on 13 June 2006.  

	a.  This PEB found the same conditions unfitting as the first PEB.  This PEB found her chronic left hip pain to be an existing condition permanently aggravated by military service and recommended a 0% disability percentage for this diagnosis.  The PEB Proceedings note this diagnosis was rated for "pain - minimal, frequent."  The PEB recommended no rating for the other two preexisting unfitting conditions.  

	b.  The PEB noted that her disability rating was less than 30% and informed her that for Soldiers with such a rating and with less than 20 years of active Federal service, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) required separation from service with severance pay.  

	c.  The PEB recommended a combined rating of 0% and separation with severance pay if otherwise qualified.

8.  On 13 June 2006, she concurred with the PEB findings and waived a formal hearing of her case.  

9.  On 21 June 2006, the U.S. Army Physical Disability Agency approved the PEB findings and recommendation.

10.  Her DD Form 214 shows she was discharged due to a disability with severance pay on 28 July 2006.  She completed 1 year, 2 months, and 1 day of active military service.  

11.  She provides a VA Rating Decision, dated 14 May 2007, showing she applied for compensation and/or pension for numerous conditions.  The VA granted her a service-connected disability rating for:

* labrum tear, left hip (10%)
* meniscal tear, left knee, with patellofemoral syndrome, crepitus and tendinitis (10%)
* patellofemoral syndrome, right knee with crepitus and tendinitis (10%)
* lumbosacral strain syndrome (10%)
* cognitive disorder and mild depression (10%)
* chronic headaches (0%)
* irritable bowel syndrome, with food sensitivity, lactose intolerance (0%)
* Bankart lesion, right shoulder, status post repair, with scar (0%)
* Bilateral pes cavus (claimed as foot pain) (0%)
* fatigue/exhaustion, to include memory and confusion; chills/fever (0%)

12.  The VA denied service connection for 15 additional conditions.




13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.  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.  Separation by reason of disability requires processing through the PDES.

14.  Paragraph 1-4a of Army Regulation 635-40 states Title 10, U.S. Code, Section 1217 (10 USC 1217), excludes cadets of service academies from eligibility for disability benefits under Title 10, U.S. Code, Section 61.  However, USMA cadets may be entitled to compensation administered by the VA under Title 38, U.S. Code, Section 101(21)(D).

15.  In 2004, Public Law 108-375 amended 10 USC 1217 to establish disability benefit eligibility for cadets of service academies, but only with respect to physical disabilities incurred after 28 October 2004.  

16.  Appendix B of Army Regulation 635-40 states if a disability at the time of entrance into the service is not ascertainable in terms of the VA Schedule for Rating Disabilities (VASRD), no deduction higher than 0% will be assigned.  If the disability at the time of evaluation is not greater than the disability that existed prior to service, the condition cannot be considered service aggravated and will be listed as not ratable.  

17.  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 empowered 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.

18.  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 utilize the VASRD to the extent feasible.
19.  The VASRD, Subpart A, Section 4.22 states in cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time.  

20.  Title 10, U.S. Code, Section 1201, states, in pertinent part, a member of the Regular Army who is unfit to perform the duties of his or her office, grade, rank, or rating because of physical disability incurred while entitled to basic pay may be retired for disability if the disability:

* is of a permanent nature and stable
* is not the result of the member’s intentional misconduct or willful neglect
* was not incurred during a period of unauthorized absence
* is at least 30% under the standard schedule of rating disabilities in use by the VA at the time of the determination  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show, nor has the applicant provided evidence showing the PEB erred in assigning her a 0% disability rating or that her discharge with severance pay was improper.   

2.  The Army found her physically unfit to reasonably perform her duties due to three unfitting diagnoses.  Each of her unfitting diagnoses was found to have been incurred prior to 28 October 2004, while she was a USMA cadet.  

3.  Her diagnosis of chronic left hip pain was found to have been permanently aggravated by military service.  The record does not show that this condition was ascertainable in terms of the VASRD when she entered active duty.  Therefore, the PEB appropriately rated the condition at 0%.  

4.  The PEB determined her other two unfitting diagnoses were not aggravated by her active duty service.  As such, they were not ratable by the Army.  

5.  A VA service-connected disability rating does not establish entitlement to a medical retirement from the Army.  The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  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 applicant should note that the VA is also authorized by law to compensate individuals for disabling conditions incurred while a cadet at a service academy.  The Army may only rate such conditions if they were incurred after 28 October 2004.

6.  In the absence of evidence showing an error or injustice in the applicant's medical discharge processing, there is no basis for granting the relief she requests.  

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)                                         AR20110009187



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ABCMR Record of Proceedings (cont)                                         AR20110009187



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