BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110010973 


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, in effect, the findings of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) be set aside, nullified, voided, or modified to match the Department of Veterans Affairs (VA) disability rating of 100 percent.  He also requests that he be provided all other appropriate legal and equitable relief.

2.  The applicant states, in effect, his MEB/PEB process was flawed and the outcome was wrong.  The MEB/PEB findings should have been identical to the VA findings which were approximately 100 days apart.  

3.  The applicant provides:

* a self-authored statement
* Medical Conditions and Ratings List
* DD Form 2807-1 (Report of Medical History)
* DD Form 2808 (Report of Medical Examination)
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (PEB Proceedings)
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings
* Revised PEB Proceedings
* VA Rating Decision
* seven pages of VA Form 2507 (Compensation and Pension Exam Report)
* a one-page Spirometery Report
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests "a de novo review to correct the injustice and inequitable results" in the applicant’s case.

2.  Counsel states the incongruous results of the applicant’s MEB/PEB versus the VA rating would not have occurred today.  The MEB/PEB process was inadequate as it failed to fully investigate and address known complaints as noted on the applicant’s DD Form 2807-1 and DD Form 2808.  He further states, passage of the National Defense Authorization Acts (NDAA) of 2008 and 2011 should be applied to this case.

3.  Counsel provides a four-page document essentially addressing the following issues:

* the applicant's MEB/PEB process was inadequate
* the intent of the revised law and new rules and procedures of the 2008 and 2011 NDAA is to avoid these types of results
* the applicant’s conditions precluded him from properly questioning the MEB/PEB results

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 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 previous enlisted service in the Armed Forces of the United States, the applicant enlisted in the U.S. Army Reserve, on 31 October 2001, for a period of 8 years, in pay grade E-5.  On 31 January 2003, he entered active duty and he was deployed to Iraq in support of Operation Enduring Freedom.  

3.  On 29 March 2004, an MEB convened and considered the applicant’s conditions under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 of:

* right hand pain and dysfunction
* status post-electrical burn
* post-concussive syndrome
* bilateral sensorineural hearing loss
* hypercholesterolemia (not disqualifying)

4.  The MEB recommended that the applicant be referred to a PEB.  On 6 April 2004, the findings and recommendations of the MEB were approved.  On 
19 April 2004, the applicant was informed and agreed with the approved findings and recommendations of the MEB.

5.  On 11 May 2004, an informal PEB convened and considered the applicant’s disabilities of right hand pain, post-electrical burn accident, with the physical examination noting some non-ratable decreases in active finger extension and grip strength weakness.  Post-concussive headaches and reported blackouts were also noted.  The PEB determined that his other medical conditions, bilateral sensorineural hearing loss and hypercholesterolemia were not unfitting and non-disqualifying; therefore, they were not ratable.  The PEB reviewed all available medical records and determined the applicant’s medical condition prevented performance of duty in his grade and specialty.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent and separation with severance pay, if otherwise qualified.  The PEB also advised that Soldiers with ratings of less than 30 percent and less than 20 years of active service were required to be separated with severance pay in lieu of retirement. The applicant was also advised that he should contact the VA to learn about available benefits.  The PEB noted that the voting membership of the PEB included an officer of the Reserve Components.  On 13 May 2004, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 2 July 2004, the applicant was honorably discharged from active duty, in pay grade E-5, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(3), for disability with severance pay.  

7.  In an attempt to receive an increased disability rating of 30 percent or greater the applicant requested that the ABCMR consider his additional medical conditions related to the electrical burn injury he sustained in Iraq.  On
1 September 2009, the ABCMR rendered a favorable decision to:

   a.  show the applicant was rated under VASRD Code 8612 for neuritis of the right hand, mild, rated 20 percent disabling, and awarded a combined disability rating of 30 percent by an informal PEB on 11 May 2004;
   b.  voiding the applicant’s DD Form 214, dated 2 July 2004, which separated him for disability with severance pay;
   
   c.  showing the applicant was separated from active duty on 2 July 2004 by reason of physical disability, rated 30 percent disabling, and transferring him to the Retired Reserve, with entitlement to retired pay at the rank of SGT, pay grade E-5; and 
   
   d.  providing him retired pay as a result of the above corrections and recouping his severance pay monthly not to exceed his monthly retired pay or less as negotiated between the Defense Finance and Accounting Service and the applicant.

8.  The applicant provides a VA Rating Decision, dated 14 January 2005, which shows he received service connection for anxiety disorder with amnesic disorder due to electrical injury (claimed also as PTSD, head injury, and difficulty with memory) with a combined rating of 100 percent effective 3 July 2004.  These conditions were rated as follows:
   
   a.  right hand electrical injury with paresthesias with an evaluation of
50 percent.  
   
   b.  chronic obstructive pulmonary disease due to electrical injury with an evaluation of 60 percent.
   
   c.  cervical spine injury with strain and post concussion headaches, each evaluated at 30 percent.

   d.  degenerative disc disease with arthritis, lumbosacral spine with midback strain and radiculopathy with an evaluation of 10 percent. 
   
   e.  tinnitus, bilateral hearing loss, and impotence, each evaluated at 
0 percent.

9.  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.

10.  Paragraph 3-5 of Army Regulation 635-40 contains guidance on rating disabilities.  It states that 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.

11.  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.

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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes his MEB/PEB process was inadequate because it failed to fully investigate and address known complaints noted in his medical records.  He further states his MEB/PEB results (initially showing a combined rating of 20 percent) should be set aside, nullified, voided, or modified to match the VA rating (a combined rating of 100 percent) which was determined approximately 100 days after completion of the MEB/PEB process.  

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.  The record shows the PEB ultimately determined the applicant was unfit for further service and granted him a 20 percent disability rating (later increased to
30 percent by the ABCMR).  The applicant and his counsel have provided no evidence which supports their contention the applicant’s condition precluded him from properly questioning the results of the MEB/PEB at the time.

3.  Other conditions were considered by the MEB/PEB and were determined as being either not unfitting or not disqualifying for military service.  The diagnosis of bilateral sensorineural hearing loss was found to have existed prior to his service.  The condition was not permanently aggravated by his service and the board determined the condition as not unfitting; therefore, it was not rated.  The diagnosis of hypercholesterolernia was deemed not disqualifying.

4.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  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 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.  

5.  The VA rating decision and medical treatment records provided by the applicant confirm he is being treated for several service-connected conditions that support the higher disability rating and permanent disability determination by the VA.  However, the VA is not required by law to determine medical unfitness for further military service.

6.  The existing evidence of record and the independent evidence provided by the applicant and counsel fail to provide sufficient evidence of a compelling nature which would support a conclusion of error or injustice related to his MEB/PEB processing.  The regulatory burden of proof to show error or injustice related to this process rests with the applicant, not with the members of the Board.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.


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)                                         AR20110010973



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010973



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1