IN THE CASE OF:	  

		BOARD DATE:	       23 October 2012

		DOCKET NUMBER:  AR20120006022 


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, in effect, his disability rating be increased to 
30 percent.

2.  The applicant states all injuries, regardless of the type, should start at a 
30 percent disability rating.

3.  The applicant provides a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), which convened on 1 December 2009.

CONSIDERATION OF EVIDENCE:

1.  On 3 December 2008, having had prior active duty, Army National Guard, and U.S. Army Reserve service, the applicant reenlisted in the Regular Army.  He held military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  The complete facts and circumstances of his injuries/illnesses are unavailable; however, the record shows that, on 1 December 2009, an informal PEB convened at Fort Sam Houston, TX, and found:

   a.  His condition of degenerative arthritis of the lumbar spine, described as lumbago and L5-S1 facet joint arthropathy did not prevent him from performing his MOS duties; however, he was unable to tolerate long drives in tactical vehicles due to his back pain.  Therefore, he was determined to be unfit.  The PEB rated him under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5242, for degenerative arthritis of the lumbar spine incurred while entitled to basic pay, incurred or aggravated in line of duty, and the proximate result of performing duty.  He was granted a combined disability rating of 20 percent.
   
   b.  His hyperlipidemia and intermittent chronic shoulder pain meet retention standards per the DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and were found by the PEB to not be unfitting either independently or in combination with any other conditions as the preponderance of evidence supports that they were not a significant limitation on the Soldier's ability to perform his primary MOS.  He did not receive a disability rating for these conditions.

3.  On 8 December 2009, he concurred with the findings and recommendations of the PEB and waved a formal hearing in his case.

4.  On 27 February 2010, he was honorably discharged by reason of disability with severance pay, noncombat related.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of staff sergeant (SSG)/E-6 and he had completed 15 years and 21 days of active military service.  It also shows he received $118,473.00 as severance pay.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES).

   a.  Those members who do not meet medical retention standards will be referred to a PEB to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded.
   
   b.  Paragraph 3-5 of the disability regulation contains guidance on rating disabilities.  It states 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.  Further, 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.

   c.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments. 
   
6.  The VASRD states that Code 5242 (degenerative arthritis of the spine) with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is rated at 20 percent when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion (ROM) of the thoracolumbar spine not greater than 120 degrees; or, the combined ROM of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

7.  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.  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, in effect, that his disability rating be increased to
30 percent.

2.  The evidence of record confirms he was properly processed through the PDES, found unfit for duty, and assigned a 20 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 available evidence shows that his degenerative arthritis of the lumbar spine was the only condition he had that rendered him unfit at the time of his separation and he was unfit only because he could not tolerate long drives in tactical vehicles.  It appears he was properly given a 20 percent rating.

4.  He failed to provide any evidence to support a higher rating or that would show the medical opinions rendered at the time of his medical processing were flawed.

5.  It is unclear whether or not the applicant received a higher VA rating, but as a point of clarification he should be aware that 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 failed 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)                                         AR20120006022



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ABCMR Record of Proceedings (cont)                                         AR20120006022



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