IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110024699


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 change of his disability rating from 20 percent (%) to a rating of more than 30%.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired.

2.  The applicant states his discharge was improper because his Traumatic Brain Injury (TBI) was not considered.

3.  The applicant provides:

* DD Form 214
* Compact disc containing his service medical records
* Department of Veterans Affairs (DVA) Rating Decision

CONSIDERATION OF EVIDENCE:

1.  The applicant's medical record contains a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 25 April 2008.  This record of treatment indicates an assessment of the applicant was made regarding a TBI that included a brain scan.  The impression noted by the examining physician was that there was no evidence of intracranial abnormality.

2.  On 3 September 2008, the applicant's case was evaluated by a physical evaluation board (PEB).  The PEB determined the applicant was unfit for further 


service based on chronic right shoulder pain and chronic left shoulder pain both rated at 10%.  The PEB assigned a combined disability rating of 20% under Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5099, 5003, 5279.  The PEB recommended the applicant's separation, by reason of disability, with severance pay.

3.  The PEB indicated that conditions 3, 4, and 5 listed by the medical evaluation board (MEB) were determined to meet medical fitness standards by the military treatment facility and as such were not ratable.  These conditions were not identified and the MEB proceedings were not in the available record.  On
15 September 2008, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

4.  On 15 December 2008, the applicant was honorably discharged by reason of disability with severance pay.  The DD Form 214 he was issued at the time shows he held the rank/grade of sergeant (SGT)/E-5 and he had completed
4 years, 7 months, and 4 days of creditable active service.  It also shows he received $22,473.00 of severance pay.

5.  The applicant provides a DVA rating decision, dated 20 May 2009, that granted the applicant service-connection for a TBI with a 40% disability rating effective 16 December 2008.

6.  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, in pertinent part, 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 Title 10, U.S. Code, chapter 61 these ratings are assigned from the VASRD.  VASRD Code 5299 (Condition of the Skeletal System) analogous to code 5284 (Foot Injuries) rating guidance states a 30% rating will be assigned if the condition is severe, a 20% rating will be assigned if the condition is moderately severe, and a 10% rating will be assigned if the condition is moderate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was properly processed through the PDES based on the diagnosed conditions of "chronic left and chronic right shoulder pain" which were the only unfitting conditions identified by the MEB.  The PEB determined these conditions were unfitting and assigned a combined disability rating of 20% under VASRD codes 5099, 5003, 5279.

2.  The evidence of record confirms the applicant concurred with the findings and recommendation of the PEB and while this does not prohibit a review by this Board it does show the applicant believed he was properly evaluated through the PDES and he agreed with the final fitness determinations.  This clearly shows he understood his unfitness was related only to his shoulder conditions and he made no objection to this determination at the time.  The applicant’s concurrence with the PEB also shows he did not believe an evaluation of his TBI condition was necessary or appropriate during this process.

3.  Further, although there is an SF 600 in the applicant's record that contains an evaluation for TBI, this treatment record gives no indication this condition was severe enough to render the applicant unfit for further service at the time.  The applicant fails to provide the MEB proceedings completed at the time which could have documented the clinical evaluation of the applicant’s TBI condition.  As a result, absent any medical evidence showing his TBI was unfitting for further service at the time of his processing through the PDES, there is an insufficient evidentiary basis to support a conclusion it should have been rated by the PEB.

4.  Army regulations and DOD authorities state that a medical impairment alone does not constitute a physical disability for DOD rating purposes.  Furthermore, determinations of fitness or unfitness rest with the military departments.  In this case, the applicant was properly evaluated through the PDES and he was properly advised and counseled regarding his options throughout the process.  All regulatory and legal requirements appear to have been met and the rights of the applicant were fully protected throughout the process.

5.  The evidence of record and independent evidence submitted by the applicant fail to show any error or injustice related to the applicant’s processing through the Army’s PDES process.  As a result, there is an insufficient evidentiary basis to support correcting or amending the determinations made by the PEB.

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)                                         AR20110021407



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ABCMR Record of Proceedings (cont)                                         AR20110024699



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