IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110022533 


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 his disability rating be increased to 30 percent or higher.

2.  The applicant states that both the Department of Veterans Affairs (VA) and the Social Security Administration (SSA) has rated him 100 percent disabled due to the medical conditions he had at the time of discharge.  Therefore, he does not believe that the rating he was assigned at the time of discharge accurately reflect his medical conditions.

3.  The applicant provides copies of his disability ratings from the VA and SSA.

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.  On 20 August 2007, the applicant was ordered to active duty for training while serving with the Indiana Army National Guard.

3.  The complete facts and circumstances of the applicant's injury/illness are unavailable; however, the record shows that, on 25 February 2008, an informal Physical Evaluation Board (PEB) convened at Fort Sam Houston, TX, and found his condition of nonradicular lower back pain with radiographic evidence of mild degenerative changes at L1-2 prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) codes 5299/5242, for nonradicular lower back pain incurred while entitled to basic pay, and incurred or aggravated in line of duty.  He was granted a combined disability rating of 10 percent.

4.  The PEB also found he suffered from an adjustment disorder but this condition does not constitute a physical disability; therefore.  He did not receive a disability rating for this condition.

5.  He concurred with the findings and recommendations of the PEB on 
27 February 2008.

6.  On 18 March 2008, he was honorably discharged by reason of disability with severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of private (PV2)/E-2 and he had completed 6 months and 28 days of active military service.  It also shows he received $3,019.80 as severance pay.

7.  His complete service and/or VA medical records are not available for review with this case.  However, he provided correspondence from the VA which shows he was granted individual unemployability, effective 30 January 2009, for the following service connected disabilities:

* Lumbar Spine Degenerative Disc Disease, 10 percent from 19 March 2008 and 40 percent from 30 January 2009
* Major Depressive Disorder, 30 percent
* Residuals of Left Elbow Fracture, 10 percent
* Tinnitus, 10 percent
* Bilateral Lower Extremity Radiculopathy, 10 percent each

8.  In addition, he provided documents from the SSA which show that based on his back impairment, depression, and panic disorder he was determined to be "disabled" as defined by the Social Security Act since  2 September 2008.


9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES).
Paragraph 3-5 of the disability regulation contains guidance on rating disabilities.  It states that the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of chapter 61 of Title 10 of the 
U. S. Code (10 USC) these ratings are assigned in accordance with the VASRD.

10.  Title 38, USC, 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 the military service.  It awards disability ratings to veterans for conditions that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his disability rating be increased to 30 percent or higher.

2.  The evidence of record confirms he was properly processed through the PDES, found unfit for duty, and assigned a 10 percent disability rating based on VASRD guidelines.

3.  The Army must find unfitness for duty before a member may be medically retired or separated.  The only evidence available shows that his lower back pain, that was nonradicular, was the only condition he had that rendered him unfit at the time of his separation.

4.  The evidence he provided shows that in addition to lower back pain he was diagnosed with other conditions that may have manifested themselves or gotten worse over a period of time; therefore, the VA awarded him individual unemployability, effective 30 January 2009.  As far as the condition for which the Army found him unfit, lower back pain, the VA originally awarded him only a 10 percent rating, the same rating granted by the Army.

5.  However, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

6.  The evidence of record and independent evidence submitted by the applicant fail to show any error or injustice related to his processing through the Army’s PDES.  As a result, there is insufficient evidence to support correcting or amending the PEB's determination. 

7.  In view of the above, his request should be denied.

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)                                         AR20110022533



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ABCMR Record of Proceedings (cont)                                         AR20110022533



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