IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110009192 


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 he receive a medical retirement.

2.  He states an Army Physical Evaluation Board (PEB) gave him a 10 percent (%) rating for a back condition and a 0% rating for moderate sleep apnea.  The Medical Evaluation Board (MEB) also included sinusitis, anxiety, and his neck.  The Department of Veterans Affairs (DVA) gave him a 100% rating for the same disabilities for which he received severance pay.  He states he didn't realize medical retirement was an option.

3.  He provides a DVA Rating Decision, his DD Form 214 (Certificate of Release or Discharge from Active Duty), medical records, and MEB and 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.  The applicant served as an enlisted member of the U.S. Marine Corps (USMC) and USMC Reserve from 22 June 1987 to 21 June 1995.  On 11 January 2005, he enlisted in the Army National Guard.  

3.  His DD Form 214 shows he entered active duty in support of Operation Iraqi Freedom on 7 February 2005.

4.  His record in the interactive Personnel Electronic Records Management System (iPERMS) does not include medical records or MEB/PEB proceedings.

5.  He provides medical records showing the following.  

   a.  On 16 February 2006, he underwent a magnetic resonance imaging (MRI) scan at Western Neurological Associates, P.C., Salt Lake City, UT.  
   	
      (1)  A scan of his cervical spine showed mild findings: "a small focal C6/7 soft disc herniation, and disc bulging C4/5."  
   
      (2)  In his lumbar spine, the examining physician found "an L4/5 focal right central soft disc herniation is present producing spinal stenosis.  It is associated with a hypertrophic spur."  
   
	b.  On 20 April 2006, the applicant contacted his physician at Western Neurological Associates indicating he had tried physical therapy but was continuing to have pain.  He was offered the option of taking nerve modulating medication or being referred to pain management, and elected the latter.

	c.  On 21 April 2006, he again contacted his physician at Western Neurological Associates requesting a surgical referral.  His physician indicated he would mail him a referral to see a Dr. P------ for surgical consultation for disc herniation at L4/5 with spinal stenosis.

	d.  He provides the first page of an examination summary, dated 5 May 2006, that appears to have been prepared by Dr. P------.  

   	(1)  The summary shows the applicant reported his neck and back pain began when he was on top of a jeep and thrown to the ground by a roadside bomb.  His greatest concern was significant low back pain, which he described as debilitating and affecting him on a daily basis.  He described his low back pain as representing 60% of his pain and sciatica pain representing the remaining 40%.  
   
   	(2)  The examining physician found his strength "5/5" in his bilateral lower extremities with some slight weakness involving his anterior tibialis on the right side, which the examining physician graded as "4+/5."

6.  He provides a corrected copy of a DA Form 3947 (MEB Proceedings) showing that, after consideration of clinical records, laboratory findings, and physical examination, an MEB found he had the following six medical conditions/defects:  (1) low back pain secondary to degenerative disk disease at L4-5, (2) obstructive sleep apnea requiring CPAP (continuous positive airway pressure), (3) right shoulder pain secondary to acromioclavicular joint degenerative changes and biceps tendonitis, (4) ethmoid sinusitis, (5) anxiety disorder, and (6) neck pain.  

7.  The MEB found diagnoses 3 through 6 met retention standards and recommended he be referred to a PEB.  On 17 October 2006, the findings and recommendation of the MEB were approved.  On 23 October 2006, the applicant indicated he did not agree with the MEB's findings and recommendation and submitted an appeal.

8.  In his appeal of the MEB findings and recommendation, the applicant stated the MEB Proceedings did not address his upper back/neck or his headaches/migraines.  

9.  On 24 October 2006, he was notified that his appeal had been considered and a determination had been made.  

   a.  The approving authority informed him he nonconcurred with his request to list his neck injury as a failing medical condition as his cervical spine MRI showed "no evidence of significant spinal canal stenosis or neural foraminal narrowing."  The appeal authority stated "neck pain" would be added to the DA Form 3947.   

	b.  The approving authority further informed him:

* his comments regarding his headaches were noted
* they responded "fairly well" to Motrin
* evaluation of the headaches at Madigan Army Medical Center/OIF Clinic, Fort Lewis, WA, had shown ethmoid sinusitis as the likely cause, which was already shown on his DA Form 3947
* there was no evidence of a brain tumor, skull fracture, brain damage, or intracranial bleed that would cause headaches 
10.  On 25 October 2006, the approving authority noted the appeal had been considered and forwarded the MEB report to a PEB.

11.  He provides a DA Form 199 (PEB Proceedings) showing a PEB convened on 9 November 2006.  

   a.  The PEB found MEB diagnoses 1 and 2 to be unfitting conditions and recommended a disability percentage of 10% for diagnosis 1 and 0% for diagnosis 2.  

   b.  The PEB further found that MEB diagnoses 3 through 6 met retention standards, were not unfitting, and therefore were not ratable.  The PEB noted the Department of Defense Physical Disability Evaluation System (PDES) may only rate an illness or injury that is service-incurred or permanently aggravated by military service and, by itself, would cause the Soldier to be separated or retired.  The PEB further noted that, although the PDES could not compensate him for these conditions, he could apply for a disability rating for them through the DVA. 
   
   c.  The PEB recommended a combined disability rating of 10% and that he be separated with severance pay if otherwise qualified.  The PEB noted that his disability rating was less than 30% and informed him 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.  

12.  On 27 November 2006, he indicated he did not concur with the PEB findings and recommendation and demanded a formal hearing with personal appearance.  

13.  On 8 December 2006, he submitted a request to withdraw his demand for a formal hearing and to accept the original findings that he be separated with severance pay if otherwise qualified.

14.  His DD Form 214 shows he was discharged for disability with severance pay on 23 December 2006.  

15.  The DVA Rating Decision he provides shows he was given a 100% combined disability rating effective 24 September 2006.  The DVA granted him a service-connected disability rating for:

* post-traumatic stress disorder (70%)
* sleep apnea (50%)
* recurrent lumbar strain with L4/5 herniation (40%)
* acromioclavicular separation, right shoulder (30%)
* cervical spine, hernia of C6/7 (10%)
* nasal septal reconstruction (0%)
* subpatellar chondromalacia, right knee (0%)
* scar, right breast, history of gynecomastia (0%)

16.  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.

17.  Chapter 4 of Army Regulation 635-40 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

18.  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.

19.  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

The disability must be at least 30% under the standard schedule of rating disabilities in use by the Department of Veterans Affairs 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 him a 10% disability rating or that his discharge with severance pay was improper.  

2.  A DVA 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 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 from the Army.

3.  In the absence of evidence showing error or injustice in the applicant's medical discharge processing, there is no basis for granting the relief he 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)                                         AR20110009192





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009192



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1