IN THE CASE OF: 

		BOARD DATE:	  29 November 2012

		DOCKET NUMBER:  AR20120003331 


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 he be granted a disability rating for his back injury.

2.  The applicant states that he had a few “ER” visits due to having back pain to the point that he could not walk anymore.  He goes on to state that he tried to get his leadership’s help in getting him an exam on his back so that he could get a diagnosis but it was never done; however, he went straight to the Department of Veterans Affairs (VA) and they made their findings.  

3.  The applicant provides copies of his medical treatment records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 February 2008 for a period of 3 years and 20 weeks.  He completed basic training at Fort Jackson, South Carolina and advanced individual training as a supply specialist at Fort Lee, Virginia before being transferred to Korea for a 1-year tour.  He completed his tour and was transferred to Fort Lewis, Washington.

2.  On 18 November 2010, a Medical Evaluation Board (MEB) at Madigan Army Medical Center evaluated the applicant’s diagnosed medical conditions of chronic knee pain, lumbar strain, insomnia, and bee sting allergy.  The MEB determined that his chronic knee pain existed prior to service (EPTS), but it was aggravated by his service.  It also determined that his lumbar strain and insomnia were incurred during service and that his bee sting allergy was an EPTS condition.  Additionally, the MEB determined that his lumbar strain, insomnia, and bee sting allergy met retention standards.  The MEB recommended that he be referred to a Physical Evaluation Board (PEB).   The applicant agreed with the findings and recommendation of the MEB.

3.  On 10 January 2011, a PEB convened at Fort Lewis, Washington and determined that his left knee pain residual injury and surgical intervention was an EPTS condition; but it was aggravated by service.  The PEB also determined that his conditions of lumbar strain and insomnia met retention standards and that his condition of bee sting allergy was not compensable.  The PEB determined that he was physically unfit and recommended that the disposition of his case be delayed pending a VA rating.

4.  On 24 January 2011, the VA made a disability determination under the Disability Evaluation System (DES) Pilot Program, a joint initiative between the Department of Defense (DoD) and the VA.  The disability determination was prepared to assign evaluations to service member’s unfit condition for use by DoD in determining a final disposition for unfit conditions as well as to determine the member’s potential entitlement to VA disability compensation.  The VA proposed a 10% disability rating for the PEB-referred condition (his left knee condition) and a service-connected 10% disability rating for lumbar strain (low back pain) for a combined 20% disability rating.  

5.  On 3 February 2011, the PEB determined that he should be granted a 10% disability rating for his left knee condition and recommended that he be separated with severance pay.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 19 May 2011, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 4, due to disability severance pay, non-combat (Enhanced) with a 10% disability rating, and $12,704.40 in severance pay.  He had completed 3 years, 3 months, and 6 days of active service.

7.  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 there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  


8.  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 medically 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.

9.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to show the applicant’s disability was not properly rated in accordance with the VA Schedule for Rating Disabilities and his separation action was not in compliance with laws and regulations in effect at the time, there appears to be no basis to grant his request.

2.  The MEB diagnosed the applicant with four conditions; however, it found that three of the conditions -- lumbar strain, insomnia, and bee sting allergy -- met retention standards.  The applicant agreed with the findings of the MEB.

3.  The applicant was found unfit for duty for his one unfitting condition -- knee pain -- as it existed at the time of his PEB hearing.  Department of the Army disability decisions are based on observations and determinations existing at the time of the PEB hearing.  His PEB proceedings indicate at the time that his back condition was not unfitting for service. 

4.  The applicant has not provided sufficient evidence to show he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB were incorrect.

5.  The fact that the VA, in its discretion, may have awarded the applicant a higher disability rating or awarded service connection for a condition that the Army did not find to be unfitting is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.  

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20120003331



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ABCMR Record of Proceedings (cont)                                         AR20120003331



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