BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120006202 


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 correction of her records to show she was medically retired instead of honorably discharged with entitlement to severance pay.  

2.  The applicant states due to the injuries she received while on active duty, she has not been able to work since before her discharge.  These injuries have also caused her to have other major medical issues – major depression, high blood pressure, insomnia, numbness in hands and feet, dizziness, chronic pain, and chronic headaches.  All of these injuries have only worsened since her discharge.  The Department of Veterans Affairs (VA) rated her at 80 percent (80%) service connected disability and she is currently being evaluated for an increase.

3.  The applicant provides:

* VA rating decision 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Procedure note and follow-up note

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 August 2007 and she held military occupational specialty 25B (Information Technology Specialist).  

2.  On 17 December 2007, she fell on her buttock during a barracks fire drill.  She subsequently experienced right sided hip, back, and shoulder pain.  A follow-up evaluation on 11 January 2008 documented low back pain.  She was started on  physical therapy and an appropriate rehabilitation program for joint pain but her pain persisted.  

3.  She was evaluated in June 2008 upon arrival at Fort Huachuca, AZ, and continued her treatment for low back pain.  Following additional rehabilitative programs and instructions on appropriate rehabilitation for L5-S-1 problems, she related that she wanted out of the Army.

4.  Her narrative summary (NARSUM) shows:

	a.  She was issued multiple consults for pain management, physical medicine, and rheumatology.  She also underwent a nerve conduction study and deep bone scan.  She related that she could not be a Soldier and was "just taking up wasted space."  She failed to meet retention standards.

	b.  From the history, review of the medical record, and the physical examinations, she appeared to have pelvic girdle pain that involved the S1 joint, the right superior rumus, the right ischrum, and the symphysis pubis.  The pain prevented her from training, performing her military specialty, and from performing the duties of the common Soldier. 

	c.  Her final diagnosis was that of lumbar back pain and girdle pain that did not meet retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  She was also diagnosed with hypertension, headaches, and mental issues of a sleep disorder, major depression, and anxiety, all of which met retention standards.  She was recommended for entry into the physical disability evaluation system (PDES).

5.  On 2 June 2009, a medical evaluation board (MEB) convened at Fort Huachuca, AZ, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of lumbar back pain and pelvic girdle pain and the medically acceptable conditions of hypertension, headaches, and mental health issues (sleep disorder, major depression, and anxiety).  The MEB recommended her referral to a physical evaluation board (PEB).  She was counseled and agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty.

6.  On 11 June 2009, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to lumbosacral strain with onset of lumbar and pelvic girdle pain.  The PEB noted that:

* Imaging noted acute curvature of the distal sacrum and mild disc protrusion of the L5/S1; L5/S1 desiccation and degeneration without nerve root compression
* She was unable to participate in the rigors of military duties
* Examinations noted tenderness to palpation, spasm flexion of 60 degrees, guarding and increased lordosis; examination also noted overreaction

7.  She was rated under the VA Schedule for Rating Disabilities (VASRD) code 5237 and granted a 20% disability rating.  The PEB also considered her other conditions of hypertension, headaches, and mental health issues (sleep disorder, major depression, and anxiety) but they were determined to have met retention standards.  As they were not unfitting, they were not ratable.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

8.  Throughout the disability process, she was counseled by a PEB Liaison Officer (PEBLO) and informed of her rights at each step of the process.  Her counseling culminated on 12 June 2009 when she was counseled by a PEBLO regarding her medical condition, the findings of the MEB, the PEB process, and her rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

9.  On 23 August 2009, she was honorably discharged under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, severance pay, non-combat related. The DD Form 214 she was issued shows she completed 2 years and 27 days of active service and received severance pay in the amount of $8,898.20

10.  She submitted a VA rating decision, dated 31 August 2009, and some related medical documents subsequent to her discharge.  The VA awarded her service-connected disability compensation at the combined rate of 80% for lumbar spine degenerative disc disease, depressive disorder, migraine headaches, right hip bursitis, spine degenerative disc disease, and hypertension. 

11.  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.  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.  

12.  Army Regulation 40-501 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 PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

13.  Title 10, U.S. Code, 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%.  Title 10, U.S. Code, 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%.

14.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  In the applicant's case, several factors were considered to reach the rating indicated:

	a.  4.10 (Functional Impairment):  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness of these parts or systems, especially in self-support.  This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity.  In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.

	b.  4.40 (Musculoskeletal System):  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

	c.  4.45 (Joints):  As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); 
(d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; or (f) Pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  For the purpose of rating a disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints.  The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

	d.  4.59 (Painful motion):  With any form of arthritis, painful motion is an important factor of the disability, the facial expression, wincing, etc., on pressure or manipulation should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.

	e.  4.71a (Schedule of Ratings for the Musculoskeletal System).  VASRD Code 5237applies to lumbosacral or cervical strain.  For spine injuries, a 10% rating is assigned when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

	f.  ratings for spine injuries change as follows: Unfavorable ankylosis of the entire spine, 100%; unfavorable ankylosis of the entire thoracolumbar spine, 50%; unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, 40%; forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine, 30%; and forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 
60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is 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, 20%. 

15.  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.  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 applicant sustained an injury that warranted entrance into the PDES.  She underwent an MEB which recommended that referral to a PEB.  The PEB found her medical condition prevented her from reasonably performing the duties required of her grade and military specialty.  She was determined to be physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay with a 20% disability rating.  The applicant agreed with the findings and recommendations and waived her right to a formal hearing of her case.

2.  The applicant's rating was assigned based on a finding that at the time of separation examinations noted tenderness to palpation, spasm flexion of 60 degrees, guarding and increased lordosis.  According to the VASRD, such a finding warranted a 20% disability rating.  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.  The applicant was properly rated at 20% and there is no evidence to support a higher rating for her condition.

3.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated her condition 20% disabling.  There is no evidence that she should have been awarded a higher rating.  Since this rating was less than 30%, by law she was only entitled to severance pay.

4.  The PEB also considered her other conditions, those that during the medical examination were found to be medically acceptable:  hypertension, headaches, and mental health issues (sleep disorder, major depression, and anxiety) but they were determined to have met retention standards.  As they were not unfitting, they were not ratable.  

5.  An award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  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.  For example, the VA awarded her a disability rating for hypertension.  However, there is no evidence to show this condition rendered her unable to perform her duties.

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  She has not submitted substantiating evidence or an argument that would show an error or injustice occurred in her 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)                                         AR20120006202



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006202



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1