IN THE CASE OF: 

		BOARD DATE:	    23 October 2012

		DOCKET NUMBER:  AR20120008114 


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 his records to show he was discharged with a higher percentage of disability.

2.  The applicant states he was medically discharged on 1 September 2005 with a disability rating of 0% for his lower back pain/degenerative disc disease.

	a.  Effective the day after he was discharged, the Department of Veterans Affairs (VA) granted him service-connection for post-traumatic stress disorder (PTSD), right shoulder injury, tinnitus, Baker's cyst, pes planus, hemorrhoids, double hernia, and lower back lipomas (benign fatty tumor).

	b.  He states he had all of the above conditions while he was serving on active duty and they should have been considered and evaluated by the Army's medical authorities.

3.  The applicant provides a copy of his Medical Evaluation Board (MEB) proceedings and VA claims file.

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 had prior honorable enlisted service in the U.S. Army Reserve, Regular Army (RA), and Army National Guard of the United States that spanned the period 21 March 1985 through 14 July 1995 and from 31 July 1998 through
2 February 1999.

3.  He was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

4.  The applicant enlisted in the RA on 3 February 1999.

5.  On 19 July 2005, an MEB was conducted by the Guthrie Army Health Center at Fort Drum, NY.

	a.  The MEB Narrative Summary (NARSUM), based on a medical examination conducted on 30 June 2005, shows the applicant's chief complaint was lower back pain.  The examining physician recorded the applicant's lumbar flexion range of motion (ROM) as 0-48 active and 0-92 passive.  The physician also listed the applicant's other conditions as bilateral tibial stress reaction and tendonitis (right elbow).  He noted the applicant's lower back pain/degenerative disc disease did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39h (Nonradicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine, whether idiopathic or secondary to degenerative disc or joint disease, that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity).

	b.  The DA Form 3947 (MEB Proceedings) shows, based on consideration of clinical records, laboratory findings, and physical examinations, the applicant was diagnosed as having lower back pain/degenerative disc disease.

	c.  The MEB determined the applicant did not meet the retention standards of Army Regulation 40-501, paragraph 3-39h; recommended his entry into the Physical Disability Evaluation System; and referred him to a Physical Evaluation Board (PEB).


	d.  The findings and recommendations of the MEB were approved on
3 August 2005.

	e.  On 4 August 2005, the applicant indicated with his signature that he agreed with the approved findings and recommendation of the MEB.

6.  The applicant's DA Form 199 (PEB Proceedings) is not available in his military personnel records.

7.  Orders 237-1043, issued by Headquarters,10th Mountain Division (Light Infantry), Fort Drum, dated 25 August 2005, discharged the applicant from the RA on 1 September 2005 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a disability rating of 0%.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 1 September 2005 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), based on physical disability (with severance pay).  He completed 10 years, 1 month, and 17 days of net active service this period; 3 years, 1 month, and 4 days of total prior active service; and 3 years, 4 months, and 23 days of total prior inactive service.

9.  In support of his request, the applicant provides copies of his VA claim files spanning the period 2 December 1994 through 16 December 2011.  The records show:

	a.  on 25 January 1995, service-connection was granted for his right knee condition with an overall or combined rating of 0%, effective 20 January 1995;

	b.  on 19 December 2005:

		(1)  service-connection was granted with an overall or combined rating of 50%, effective 2 September 2005, for:

* adjustment disorder with depression and anxiety – 30%
* tinnitus – 10%
* degenerative disc disease – 10%
* osteoarthritis right acromioclavicular joint, with mild impingement, right shoulder – 10%
* lipomas lower back – 0%
* left and right inguinal hernia with post operative scar and superficial sensory nerve anesthesia – 0%


* hemorrhoids – 0%
* bilateral pes planus – 0%

		(2)  service-connection was not granted for:

* PTSD
* Bilateral hearing loss, impairment
* nose condition, removed deviated nasal septum
* vasomotor rhinitis and sinusitis
* right elbow epicondylitis
* shin splints, left
* right shin splints
* sprain, right ankle
* sprain, left ankle
* compression neeuropraxia interdigital nerves

	c.  on 19 March 2009, service-connection was denied for obstructive sleep apnea; and

	d.  on 5 October 2011:

		(1)  service-connection was granted with an overall or combined rating of 50%, effective 2 September 2005, for:

* PTSD – 30%
* osteoarthritis right acromioclavicular joint, with mild impingement, right shoulder – 10%
* degenerative disc disease – 10%
* tinnitus - 10%
* Baker's cyst right knee – 0%
* bilateral pes planus – 0%
* hemorrhoids – 0%
* left and right inguinal hernia with post-operative scar and superficial sensory nerve anesthesia – 0%
* lipomas lower back – 0%

		(2)  service-connection was not granted for:

* right elbow epicondylitis
* exposure to environmental hazards in the Gulf War


* right shin splints
* shin splints, left
* sprain, left ankle
* sprain, right ankle
* bilateral hearing loss, impairment
* nose condition, removed deviated nasal septum
* vasomotor rhinitis and sinusitis
* exposure to asbestos
* obstructive sleep apnea
* venous insufficiency of lower extremities
* compression neuropraxia interdigital nerves

10.  In the processing of this case, on 15 May 2012, an advisory opinion was obtained from the U.S. Army Physical Disability Agency, Arlington, VA

	a.  The advisory official recommends no changes to the applicant's military records.

	b.  The advisory official notes the applicant complained of chronic back pain in 2005 and he was referred to an MEB.

		(1)  On 30 June 2005, he completed a DD Form 2807-1 (Report of Medical History) listing his main complaint was chronic back pain; he did not list any mental health symptoms or problems, and only noted that he had stress counseling in the past.

		(2)  The examining physician noted on a DD Form 2808 (Report of Medical Examination), dated 30 June 2005, that there were some reports of hemorrhoids and mild foot discomfort, but the main problem was the applicant's chronic low back pain.  His recorded flexion ROM of his back was 49 active and 92 passive.  At the time, his psychiatric condition was noted to be "normal."  The NARSUM noted only back pain as affecting his performance of duty and listed all other physical and mental systems as "noncontributory."

	c.  The applicant's MEB was completed on 19 July 2005 and it had only one listed diagnosis:  low back pain.  It was the only condition that limited his duty performance; there were no other listed conditions and the commander's statement confirmed those findings.  In addition, the applicant agreed with the MEB's findings and recommendation.


	d.  On 11 August 2005, an informal PEB found the applicant unfit for his back pain and awarded a 0% rating based on his normal passive ROM.  The applicant concurred with the PEB findings and waived his right to a formal hearing.

	e.  The advisory official opines, "The applicant has not provided any evidence of any errors in his MEB or PEB processing.  He simply states that since he was rated higher by the VA that his military rating should be the same."

		(1)  He adds, "Even if the applicant's back condition was rated at the VA level of 10%, it would result in no changes to the applicant's final disposition as a 10 or 20 percent rating of his back pain and would not change the ultimate separation or amount of separation pay provided to the applicant in 2005."

		(2)  He concludes, "Although the VA ultimately decided to rate other various conditions after the applicant's separation from the military, a review of the applicant's MEB/PEB case files clearly supports that, even if other conditions had been listed, they would not have been found to be unfitting."

11.  On 16 May 2012, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  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%.

13.  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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating 


the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be corrected to show he was discharged with a higher percentage of disability was carefully considered.

2.  The evidence of record shows an MEB was conducted on 19 July 2005 that had only one listed diagnosis:  low back pain.  The MEB determined the applicant did not meet the Army's retention standards and referred him to a PEB.  The applicant concurred with the findings and recommendation of the MEB.

3.  The available evidence, including that held by the U.S. Army Physical Disability Agency, shows, on 11 August 2005, an informal PEB found the applicant unfit for his back pain and awarded a 0% rating.  The applicant concurred with the PEB findings and waived his right to a formal hearing.  Accordingly, he was discharged based on a disability rating of 0% with severance pay.

4.  The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the physical disability evaluation process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant's MEB/PEB proceedings are considered proper and equitable.

5.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair(s) the individual's industrial or social functioning.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120008114



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ABCMR Record of Proceedings (cont)                                         AR20120008114



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