IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120003593 


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 an increase in the disability rating assigned by the 1970 physical evaluation board (PEB) to match or exceed that assigned by the Department of Veterans Affairs (VA) in 2011.  

2.  The applicant states the increase is requested due to the persistent pain in both the left and right legs, numbness in the right forearm, and post-traumatic stress disorder (PTSD).  Additionally, he had to have two hip replacements which he believes was due to his injuries as well as a back procedure and a varicose vein procedure.  The medical review board at the time did not consider what would occur in the future, i.e. the increase in pain and discomfort, PTSD, and additional surgery as well as continued physical therapy.

3.  He also states that while he was on the temporary disability retired list (TDRL) his disability rating was 100 percent (100%).  Additionally, the VA rated him at 60% in 2005 and increased it to 80% in 2011.  

4.  The applicant provides:

* General Orders (GO) Number 2403, award of the Purple Heart
* GO Number 145, award of the Purple Heart
* GO Number 114, award of the Purple Heart 
* Medical document related to his hip replacement, dated August 2011
* Letter to the Defense Finance and Accounting Service
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 8-118 (Medical Evaluation Board (MEB) Proceedings)
* Narrative Summary (NARSUM)
* Standard Form 88 (Report of Medical Examination)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* 2011 VA rating decision
* Letter from the VA
* Combat-Related Special Compensation (CRSC) Decision Letter

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.  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 8 November 1967.  He completed the infantry unit commander course. 

3.  He served in Vietnam from 17 May 1968 to 18 June 1969.  He was assigned to the U.S. Military Assistance Command – Vietnam.  He was wounded in action on three separate occasions. 

4.  On 1 June 1969, he sustained multiple fragment wounds to his legs and the left aspect of the back.  He was initially treated at the 12th Evacuation Hospital and then the 106th General Hospital in Japan and St. Albans Hospital, NY, and ultimately Fitzsimons General Hospital, CO.

5.  His NARSUM shows, after a physical examination, laboratory work, X-ray data, and treatment records, his diagnosis was that indicated below.  The military doctors recommended his entry into the physical disability evaluation system (PDES):

* Multiple fragment wounds to left lower extremity, right lower extremity, and back
* Gunshot wound to the skin of the right volar surface of the forearm
* Gunshot wound to the right buttock
* Partial paralysis, flexor hallucis longus and flexor digitorum communis, along with gastroc-soleus of the left lower extremity
* Anesthesia of posterior tibial nerve, left foot
* Anesthesia, peroneal nerve, left foot
* Multiple painful scars, left leg and right forearm
* Limited motion, left ankle

6.  On 30 March 1970, an MEB convened at Fitzsimons General Hospital, CO, 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 condition listed below.  The MEB recommended referral to a PEB.  He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty.

* Partial paralysis, flexor hallucis longus and flexor digitorum communis, along with gastroc-soleus of the left lower extremity, secondary to multiple fragment wounds in the lower extremity
* Limited motion, left ankle, secondary to injuries/multiple fragment wounds in the lower extremity 
* Anesthesia of the posterior tibial nerve, left foot, secondary to the multiple fragment wounds/injuries
* Anesthesia, peroneal nerve, left foot, secondary to the multiple fragment wounds/injuries

7.  On 4 May 1970, an informal PEB convened at Fitzsimons General Hospital, CO.   The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to:

* Disability Code 8520, Sciatic nerve, left paralysis, incomplete with limitation of motion of ankle, moderately severe
* Disability Code 5313, muscle injury, Group XIII, right and left leg, moderate bilateral
* Disability Code 5307, muscle injury, Group VII, right arm, moderate, major
* Disability Code 6297, impairment of hearing, bilateral with tinnitus

8.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD), assigned appropriate disability codes (8520: 40%; 5313: 10%; 5307: 10%; and 6297: 0%), and granted him a 60% combined disability rating.  The PEB recommended that the applicant be placed on the TDRL with reexamination in November 1971.  

9.  He was honorably retired in the rank of captain on 8 June 1970 and placed on the TDRL by reason of temporary disability.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 7 months, and 1 day of creditable active service.

10.  On 31 January 1972, he underwent a TDRL physical examination.  His NARSUM shows he did not have full dorsiflexion of the left ankle and he was limited to approximately 10 degrees, possibly due to tightness of Achilles tendon. However, he was able to ambulate on his toes with his heel off the ground on the left and on his heels with the forefoot off the ground on the left.  His TDRL diagnosis was that of:

* Sciatic nerve, left paralysis, incomplete with limitation of motion of ankle, moderately severe
* Muscle injury, Group XIII, right and left legs, moderate bilateral
* Muscle injury, Group VII, right arm, moderate, major

11.  On 12 April 1972, an MEB convened at Fitzsimons General Hospital, CO, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was still medically unfit due to having the medically-unacceptable condition listed below.  The MEB recommended referral to a PEB due to:

* Sciatic nerve, left paralysis, incomplete with limitation of motion of ankle, moderately severe
* Muscle injury, Group XIII, right and left legs, moderate bilateral
* Muscle injury, Group VII, right arm, moderate, moderate

12.  On 10 May 1972, an informal TDRL PEB convened at Fitzsimons General Hospital, CO.  The PEB found the applicant's condition still prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to the below conditions.  His condition was considered sufficiently stable for final adjudication:

* Sciatic nerve, left, paralysis of, incomplete with limitation of motion of ankle, moderate
* Muscle injury, Group XIII, bilateral, moderate
* Muscle injury, Group VII, right, moderate, major
* Impairment of hearing, bilateral with tinnitus

13.  The PEB determined he remained unfit, awarded him a 50% disability rating, and recommended his permanent retirement.  The applicant concurred with the findings and recommendations of the reconsideration board.
14.  On 23 June 1972, the Adjutant General published Order D6-1310 removing him from the TDRL effective 30 June 1972 and permanently retiring him under Title 10, U.S. Code, section 1201, with a 50% disability rating.

15.  He submitted:

* Three sets of orders awarding him three awards of the Purple Heart.
* Recent CRSC decision and medical documents related to his hips 
* VA rating decision, dated 3 August 2011, which shows the VA awarded him service-connected disability compensation for the following conditions at the indicated rates:

* Anxiety disorder, not otherwise specified, increased from 30% to 50%, effective 20 April 2011
* Varicose veins, left lower extremity, unchanged, 10%
* Varicose veins, right lower extremity, unchanged, 10%
* Bilateral hearing loss, unchanged, 0%

16.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

17.  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.

18.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100%, rising in increments of 10%.

19.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

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 of sciatic nerve, left paralysis; muscle injury, Group XIII, right and left leg; muscle injury, Group VII, right arm; and impairment of hearing 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.  The PEB did so and rated him at 60% (not 100% as he claimed) for his physical conditions.  There is no evidence he was diagnosed with an anxiety disorder, PTSD, varicose veins, or any other conditions that rendered him physically unable to perform the duties required of his grade or military specialty. Since his rating was over 30% and was considered not sufficiently stable for final adjudication, he was placed on the TDRL, effective 9 June 1970.

3.  He underwent a TDRL physical examination and he was again found physically unfit for the same conditions that rendered him unfit at the time of separation from active duty.  As his condition was considered sufficiently stable for final adjudication, he was rated at 50% and permanently retired on 30 June 1972.

4.  Subsequent to his retirement 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 evaluated and rated various conditions including his anxiety disorder and varicose veins.  

5.  There are two important concepts involved in his case and 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 his separation in 1970, they would not have been rated.  But even if he did have theses 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 recommendations 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.  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)                                         AR20120003593





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ABCMR Record of Proceedings (cont)                                         AR20120003593



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