IN THE CASE OF:	  

		BOARD DATE:  30 August 2012

		DOCKET NUMBER:  AR20110022396 


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 his combined disability rating be changed to 
90 percent (%) and that he be provided compensation for this rating.

2.  The applicant states in September 2010 he asked the Department of Veterans Affairs (VA) to determine if he has Post-Traumatic Stress Disorder (PTSD) and other previously unlisted injuries.  On 22 June 2011, the VA determined that his 1970 Vietnam War injuries for which he had previously received a permanent disability rating of 80% in 1972, also included PTSD, Traumatic Brain Injury (TBI), and hip damage.  His adjusted overall combined disability rating is now 90%, effective 8 September 2010.

3.  After he received his Defense Finance and Accounting Service (DFAS) statement which indicated he would not receive additional monies from the VA rating increase, he was told by the VA that since he had an existing jointly-funded retirement, he needed to ask the Department of Defense for the increased amount.  He then asked the Combat-Related Special Compensation (CRSC) Branch for the additional monies and he was informed that he needed to apply to the Army Board for Correction of Military Records (ABCMR).

4.  The applicant provides:

* self-authored statement
* letter from the CRSC Branch
* letter from the VA
* VA Rating Decision
* Letter Orders Number D9-593
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Retiree Account Statement
* News article
* Numerous extracts from his personnel and medical files 

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.  The applicant was appointed as a Reserve commissioned officer of the Army and executed an Oath of Office with concurrent call to active duty on 
17 November 1968.  He completed the infantry unit commander course and Ranger school.

3.  He served in Vietnam from 29 September 1969 to 5 February 1970.  He was assigned to Company B, 2nd Battalion, 28th Infantry Regiment, 1st Infantry Division.  He was wounded in action on 26 January 1970 by the explosion of a claymore mine, evacuated to Camp Zama, Japan, and later treated at the U.S. Naval Hospital, St. Albans, New York.

4.  On 4 June 1970, a Medical Evaluation Board (MEB) convened at the U.S. Naval Hospital, St. Albans, NY, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was medically unfit due to having the medically-unacceptable conditions listed below.  The MEB recommended referral to a Physical Evaluation Board (PEB).  

* Open Fracture, Gunshot Wound, Left Humerus
* Neuropathy, Left Median Nerve
* Absence, Acquired, Spleen
* Multiple Soft Tissue Wounds of the Head, Neck, Back, Left Upper Limb, and Right Thigh
5.  On 11 June 1970, a PEB convened at Valley Forge General Hospital, Phoenixville, PA.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to:

* Disability Code 8515, Median Nerve, paralysis of, incomplete, left, severe
* Disability Code 7706, Splenectomy
* Disability Code 5202, Humerus, malunion of, left, with marked deformity
* Disability Code 5320, Group XX muscles, injury of, right, moderate
* Disability Code 7800, Scars, disfiguring, head and neck, moderate
* Disability Code 5207, Forearm limitations of biceps and triceps, to 
60 degrees

6.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD), assigned appropriate disability codes (8515: 40%; 7706: 30%; 5202: 20%; 5320: 10%; 7800: 10%; and 5207: 10%), and granted him a 70% combined disability rating.  The PEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL) with reexamination in June 1971.  

7.  On 6 July 1970, the applicant’s PEB results were reviewed and modified to show he was entitled to an 80% disability rating.

8.  On 5 August 1970, he was honorably retired in the rank of first lieutenant and placed on the TDRL by reason of temporary disability.  His DD Form 214 shows he completed 1 year, 8 months, and 17 days of creditable active service.

9.  On 2 September 1971, he underwent a TDRL physical examination.  On 
19 April 1972, an MEB convened at the U.S. Naval Hospital, St. Albans, NY, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had improved somewhat, but not excessively over the past year.  On 6 June 1972, the applicant concurred with the findings of his TDRL physical.

10.  On 12 July 1972, an informal TDRL PEB convened at Fort Gordon, GA.  The PEB found the applicant's conditions still prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to the conditions listed below.  He was considered sufficiently stable for final adjudication:

* Splenectomy
* Median Nerve, paralysis of, incomplete, moderate, left, minor

* Forearm, limitations of extension of, extension limited to 60 degrees, left, minor, 
* Scars, disfiguring, neck, slight

11.  The PEB determined he remained unfit, awarded him a 50% disability rating, and recommended permanent retirement.  The applicant did not concur with the PEB's findings and recommendations and he demanded a formal hearing without a personal appearance on 24 July 1972.

12.  On 9 August 1972, the U.S. Army Physical Evaluation Board (USAPEB) reevaluated his physical conditions.  Based on a thorough review of his most recent medical evaluation, all other available medical records, current laws and Army Regulations, the USAPEB determined he remained unfit, and recommended awarding him a combined rating of 80%, and that he be permanently retired from the service.  The applicant concurred with the findings of the PEB and authenticated his election with his signature.

13.  On 15 Septembr 1972, the Adjutant General published Letter Orders Number D9-593 removing him from the TDRL, effective 30 September 1972, and permanently retiring him under Title 10, U.S. Code, section 1201, with an 80% disability rating.

14.  He submitted:

   a.  VA rating decision, dated 22 June 2011, which shows the VA awarded him a service-connected disability rating of 90% which now includes degenerative arthritis of both hips and headaches associated with diffuse axonal injury (claimed as TBI).

   b.  CRSC decision, dated 22 July 2011, awarding him a total combat-related disability rating of 90%, effective October 2010, which now includes degenerative arthritis of both hips and headaches associated with diffuse axonal injury (claimed as TBI).

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states, after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.


16.  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.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

17.  Public Law 107-314, Section 636, effective June 1, 2003, created CRSC for certain retirees with combat-related disabilities.  CRSC entitlements for retirees who retired due to physical disability cannot exceed the amount their retired pay would be if computed based on years of service.  Furthermore, the CRSC entitlement must be reduced by the difference between the calculation of retired pay based on disability percent and based on years of service.  The difference between the two calculations is commonly referred to as the Method A Offset.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained multiple injuries during his Vietnam service.  He was treated, evacuated, and ultimately found physically unfit.  He underwent a medical examination that warranted his entry into the PDES.  He underwent an MEB which recommended referral to a PEB.  The PEB found his conditions prevented him from performing his military duties and determined he was physically unfit. 

2.  The PEB was tasked to assess the degree of disability at the time of discharge; therefore, he was determined to be 80% disabled due to his physical conditions.  There is no evidence he was diagnosed with PTSD or any other mental condition.  Since his rating was over 30% and he was considered not sufficiently stable for final adjudication, he was placed on the TDRL, effective      5 August 1970.

3.  He underwent a TDRL physical examination; therefore, he was reevaluated by the USAPEB and his condition was considered sufficiently stable for final adjudication, he was rated 80% disabled and permanently retired on 
30 September 1972.

4.  Subsequent to his discharge and over the years, the VA awarded him service-connected disability compensation for various conditions, including those that rendered him physically unfit for military service.  Recently, the VA and CRSC Branch evaluated him and rated him on various conditions including degenerative arthritis of his hips and headaches associated with diffuse axonal injury (claimed as TBI) and increased his rating to 90%.  

5.  There are two important concepts involved in his case that require clarification. 

	a.  One, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  Two, when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated by the PEB.  However, the VA could potentially rate all service-connected conditions. 

	c.  Since he did not have the conditions he now contends at the time of separation in 1972, they would not have been rated.  But even if he did have these conditions at the time, there is no evidence that they would have rendered him physically unfit.  

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  

7.  The applicant is a disability retiree.  His retired pay computed on his disability percentage exceeds the amount that his retired pay would have been if it were computed on his qualifying years of service.  Because his retired pay is currently calculated and paid based on his disability percentage, his CRSC entitlement is fully reduced each month by the Method A Offset, leaving a net CRSC entitlement of $0.  CRSC entitlements for retirees who retired due to physical disability cannot exceed the amount their retired pay would be if computed based on years of service.  Furthermore, the CRSC entitlement must be reduced by the difference between the calculation of retired pay based on the disability percent and based on years of service.  

8.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20110022396



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ABCMR Record of Proceedings (cont)                                         AR20110022396



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