IN THE CASE OF:	  

		BOARD DATE:	    15 May 2012

		DOCKET NUMBER:  AR20110021459 


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 reconsideration of his earlier request to void his discharge by reason of disability that existed prior to service (EPTS) and to be retired by reason of permanent disability.

2.  The applicant states:

	a.  In his previous request he specifically requested on his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) to appear before the Army Board for Correction of Military Records (ABCMR) along with a Veterans of Foreign Wars representative, if available.  He feels he was not afforded representation as outlined by the DD Form 149, nor did the Board explain why it would not be warranted.  It was his intent to provide verbal testimony and possibly bring supporting evidence.  He is respectfully asking the Board to reconsider his case.

	b.  The only entity that determined a pre-existing condition and not aggravated by military service was the physical evaluation board (PEB).  He did not fully understand what was happening at his discharge and thus did not comprehend his PEB appeal rights.  In fact, he wanted to appeal the PEB findings, but was told "no."

	c.  The medical evaluation board (MEB) report stated the condition "was not pre-existing."  Although he was then referred to the PEB, he feels the MEB's findings also carry considerable weight.

	d.  The Department of Veterans Affairs (VA) granted him service-connected disability.  The VA does not grant this if the disability was pre-existing and not aggravated beyond natural progression which was the PEB's findings.  This is according to the Code of Federal Regulations.

	e.  Given that both the MEB and VA decided in his favor, he feels the PEB was less than fair to him.  Combined with the ABCMR ignoring his request for a personal hearing, he feels his case should be reviewed again.

3.  The applicant provides:

* VA Form 21-4138 (Statement in Support of Claim)
* ABCMR Record of Proceedings, dated 19 July 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100026151 on 19 July 2011.

2.  The applicant's military record shows he enlisted in the Regular Army on 24 May 1995 with prior enlisted Reserve service.  He served as a food service specialist in military occupational specialty (MOS) 92G.  He served in Germany from 8 June 1995 through 7 June 1997.

3.  In a Commander's Evaluation memorandum, dated 12 May 1998, the applicant's company commander stated:

	a.  He was rendering his evaluation of the applicant's inability to physically perform the duties of his MOS.  His evaluation was based on the applicant's permanent physical profile and reported observations from his chain of command.

	b.  The applicant's inability to perform very basic physical tasks such as running, jumping, and any high-impact activity reduced his unit and the applicant's ability to complete their wartime mission.  MOS 92G had many physically demanding needs.  The applicant could not complete many of those tasks efficiently.  He believed the applicant's limitations were so restrictive that they precluded satisfactory physical performance in any MOS or specialty code for which the Army had a need.  He recommended the applicant's referral to the Army's Physical Disability Evaluation System (PDES).

4.  On 14 July 1998, an MEB convened and considered his diagnoses of stress-induced reaction bilateral feet and bilateral cavus feet (high arches).  The MEB indicated the applicant's foot pain was related to ongoing military duty and eventually resolution of that syndrome could occur with the cessation of the demands of his MOS.  The prognosis for continued military duty at that time was poor.  The MEB stated that in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-13(b)(3), it would appear that the applicant could be unfit for continuation on active duty at that time.  The MEB recommended the applicant's referral to a PEB for final adjudication.  He concurred with the MEB's findings and recommendations.

5.  On 5 August 1998, an informal PEB convened and determined his condition to be EPTS and was not permanently aggravated.  The PEB reviewed the medical evidence of record and concluded that there was sufficient evidence to substantiate an EPTS condition for which the applicant was now unfit and that his condition had not been aggravated by service, but was a result of natural progression.  The PEB recommended his separation from the service without disability benefits.

6.  On 24 August 1998, the applicant concurred with the PEB and waived his right to a formal hearing.

7.  He was honorably discharged on 15 October 1998 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), for disability, EPTS, PEB.  He was credited with 3 years, 4 months, and 22 days of net active service.

8.  In a VA Rating Decision, dated 27 October 1998, he was awarded a 
50-percent service-connected disability rating for a bilateral foot condition effective 16 October 1998.  On 14 July 1999, he was granted an additional 
20-percent disability rating for a condition of the skeletal system.

9.  Army Regulation 635-40 establishes the Army 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.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, 

chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Army Regulation 635-40 also specifies that PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and a recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. 
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.  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.

13.  The VASRD percentage ratings represented – as far as could practicably be determined – the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD were applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and were intended to provide guidance under laws and policies applicable only to the VA.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for military service.  It awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability.  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 rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a military career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.


15.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  In this case, there is sufficient evidence for the ABCMR to review his case based solely on the documents submitted and those contained in his military records.  As such, a personal hearing is not required.

2.  His contentions have been noted; however, his medical evidence was considered and his PEB process was carried through to conclusion.  There is no evidence of an error or injustice in his physical evaluation process for his conditions or in the PEB's findings.  There also is no evidence he was precluded from offering any relevant material evidence in his case and he provides no evidence to show his medical conditions were not properly considered or rated.  His contentions and the documents he submitted do not demonstrate error or injustice in his MEB or PEB processing or an error or injustice in the disposition of his case.

3.  He has not shown with the evidence submitted and the evidence of record that he should have received retirement due to permanent physical disability.  The evidence shows he had feet with high arches and associated deformities that had been present since birth.  When his MOS required him to spend hours on his feet, they became symptomatic (stressed from overuse) and he was found to be unfit due to an EPTS condition.  In the absence of pain symptoms, his condition would not have been disqualifying for active duty.  Any job he attempts that requires standing for hours on concrete floors – such as his Army MOS – will cause pain in his feet.  But once he need not perform those duties, the symptoms resolve.  Therefore, the condition was not permanently aggravated by his military service.

4.  The award of a VA rating or an increase in a VA rating does not establish entitlement to a higher Army disability rating, medical discharge, and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (i.e., service connected). 
In this case, he was properly evaluated and he is being compensated for his service-connected medical conditions by the VA.


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 to amend the decision of the ABCMR set forth in Docket Number AR20100026151, dated 19 July 2011.




      _______ _  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)                                         AR20110021459



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ABCMR Record of Proceedings (cont)                                         AR20110021459



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