IN THE CASE OF:	   

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019307 


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 he be given a higher disability rating.

2.  The applicant states the Physical Evaluation Board (PEB) did not specify the origin of his chronic hip pain, neck pain, or coccyx fracture/separation with nerve weakness.  His hypertension, sleep apnea, and the weakness in his left arm and hand were not rated by the PEB.  His injuries were incurred at the Joint Readiness Training Center (JRTC), Fort Polk, LA and should be shown as the result of simulated combat training.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), three physical profile sheets, his Medical Evaluation Board (MEB) proceedings, PEB proceedings, 11 pages of clinical records, an Army Physical Fitness Test Scorecard, Record Firing Scorecard, 21 pages of Department of Veterans Affairs (VA) records, and an Army Achievement Medal recommendation and award certificate, 

CONSIDERATION OF EVIDENCE:

1.  The applicant, with prior service in the Marine Corps, enlisted in the Regular Army on 18 June 2001 in military occupational specialty 68M (Nutritional Care Specialist).

2.  On 26 August 2002, the applicant was awarded the Army Achievement Medal for his efforts during the February 2009 JRTC Rotation.
3.  The applicant was issued two temporary profiles on 5 April and 17 September 2007 and a permanent profile on 29 May 2008.  Each showed significant limits to his physical activities arising from impairments in the upper and lower extremities.  The last profile recommended that he be referred to an MEB.

4.  New York Medical College, Neurosurgery Report, dated 19 March 2008, shows the applicant had a separation of the coccyx, and degenerative disc disease at L4-L5, C4-C5, and C7-T1.  The attending physician opined that due to these conditions the applicant was not fit for active duty.

5.  On 9 August 2008, an MEB evaluated the applicant for nine conditions.  The following five were considered not to meet retention standards low back pain, bilateral hip degenerative joint disease, cervical pain, and cervical degenerative disc disease.  The remaining four met retention standards left shoulder pain, bilateral plantar fasciitis (flat feet), evaluated transminases (enzymes released into the bloodstream as the result of liver or heart damage), and coccygeal pain.  The MEB shows his physical activities limited him to light duty and that he could not perform the duties of his MOS.  His case was referred to a PEB on only three conditions, his right hip pain, neck pain, and low back pain. 

6.  On 3 August 2008, an informal PEB determined his chronic right hip, neck, and low back pain were unfitting and each warranted a 10 percent evaluation for a combined 30 percent evaluation.  It was recommended that he be permanently retired due to physical disability.

7.  On 10 September 2008, the applicant concurred with the PEB and waived his right to a formal hearing on his case.

8.  On 24 September 2008, the applicant was referred to the Arden Hill Hospital Sleep Study Clinic for a sleep study.  Follow-up notes indicate that Arden Hill could not complete the study within the required time and the applicant was advised to get follow-up through the VA.

9.  On 2 January 2009, he was released from active duty and permanently retired due to physical disability.

10.  All of the available evidence shows the applicant's neck, back, and hip pain, were onset as a result of a fall from the back of a truck while the applicant was at JRTC in July 2002.

11.  The VA granted the applicant a combined total (100 percent) disability rating, effective 3 January 2009.  The VA rated the applicant for 17 conditions and granted him a 50 percent rating for sleep apnea and a 10 percent rating for hypertension.

12.  On 14 December 2011, the Army Physical Disability Agency provided an advisory opinion recommending no relief.  It was noted that neither hypertension nor sleep apnea were evaluated by the MEB and a follow-up review of his left arm did not find any evidence of radiculapathy.  The applicant's commander stated the only conditions that hindered the applicant's performance of duty were his back and hip pain.  Hypertension and sleep apnea were not noted by the commander, and the conditions were not referenced on his physical profiles, and not formally diagnosed until after the PEB was finalized.  The other conditions referenced in the MEB were found not unfitting.  It was further noted that while the unfitting conditions had their onset during JRTC rotation they were not shown to have been the result of any actual act of simulated combat.

13.  A copy of the advisory opinion was forwarded to the applicant.  In his response, the applicant disagreed with the opinion.  He states that his service medical records are incorrect and do not reflect that his service connected injuries were incurred during the JRTC rotation.  He had toughed it out to avoid being flagged for promotion.  He earned the benefits and entitlements of a retired service member.

14.  Combat-Related Special Compensation provides military retirees a monthly compensation that replaces their Department of Veterans Affairs disability offset.  The 2008 National Defense Authorization Act expanded Combat Related Service Compensation eligibility to include Chapter 61 medical retirees with a 
30 percent or greater disability rating.  Qualified military retirees must be an active duty or Reserve retiree with 20 or more years of creditable service or a Title 10 USC Chapter 61 medical retiree; be receiving military retired pay; have a 10 percent or greater VA rating for a combat related injury; and have their military retired pay reduced by receipt of or entitlement to VA disability payments.  For the purpose of this section Combat-related includes an injury that was a result of one of the following:

* Training that simulates war (e.g., exercises, field training) 
* Hazardous duty (e.g., flight, diving, parachute duty) 
* An instrumentality of war (e.g., combat vehicles, weapons, Agent Orange) 
* Armed conflict (e.g., gunshot wounds [Purple Heart], punji stick injuries)

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  Paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

16.  Title 38, U.S. Code, sections 310 and 331, 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 physically 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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the PEB did not specify the origin of his chronic hip pain, neck pain, or coccyx fracture/separation with nerve weakness.  His hypertension, sleep apnea, and the weakness in his left arm and hand were not rated by the PEB.  His injuries were incurred during JRTC rotation at Fort Polk, LA and should be shown as the result of simulated combat training.  

2.  The majority of the applicants VA rated conditions were either not rated by the MEB or were not shown to be significant enough to warrant referral to the PEB. 

3.  The three additional conditions the applicant requests to be considered for a higher disability evaluation are sleep apnea, hypertension, and a left shoulder/arm problem.  The left shoulder/arm condition was addressed by the MEB and no significant findings of impairment were found.  His sleep apnea was not raised as a possibility until after his PEB and not formally diagnosed until after his retirement.  The available medical records do not document any elevated blood pressure reading during the applicant's period of active service nor do they show when he was formally diagnosed with this condition.  The earliest diagnosis is in the VA rating decision.

4.  Based on the above facts there is insufficient evidence to warrant revising the applicant's military physical disability determination by including these conditions. 

5.  While the actual PEB proceedings may not have fully stated the cause of his neck, back, and hip conditions, nowhere in the available evidence is there any indication that they were caused by anything other than a fall from a truck during a JRTC rotation.  There is no evidence that that the fall occurred during the actual participation in a simulated combat exercise.  Therefore, these conditions cannot be shown to have been the result of simulated combat training.

6.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA operating under its own policies and regulations and may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20110019307



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ABCMR Record of Proceedings (cont)                                         AR20110019307



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