IN THE CASE OF:	   

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120009410 


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 his discharge be changed to a medical retirement.

2.  He states his Medical Evaluation Board (MEB) was "pushed through" without rating him for injuries and illnesses he was being treated for at the time and for which he continues to receive treatment through the Department of Veterans Affairs (VA).  This resulted in him being discharged rather than retired.  He states he feels he gave the Army the best part of him and did so diligently, skillfully, and proudly.  He feels he deserves to be treated better.  Retirement status would give him healthcare and on-post privileges that would help his family.  

3.  He provides a VA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  On 22 March 2002, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 19K (M1 Armor Crewman).

2.  On 4 May 2009, a Physical Evaluation Board (PEB) convened to consider his fitness for continued service based on nine MEB diagnoses.  

3.  The PEB found he was unfit due to low back pain from intervertebral disc syndrome resulting from an initial injury by improvised explosive device blast exposure in Iraq.  The PEB recommended a 10 percent (%) disability rating based on this diagnosis and recommended he be separated with severance pay if otherwise qualified.

4.  The PEB found the other eight MEB diagnoses met medical retention standards.  Those diagnoses were listed as:

* arthralgia right ankle
* arthralgia right shoulder
* post-concussion headache
* myopia
* hyperlipidemia
* anxiety disorder, not otherwise specified (NOS)
* mild right carpal tunnel syndrome
* cervical degenerative disc disease

5.  On 8 May 2009, he concurred with the PEB findings and recommendations and waived a formal hearing of his case.  On 15 May 2009, the PEB findings and recommendations were approved.

6.  On 28 July 2009, he was honorably discharged with severance pay by reason of combat-related disability.

7.  On 9 April 2010, he applied to the Physical Disability Board of Review (PDBR) for review of his disability rating.  In his application, he stated he was not evaluated for post-traumatic stress disorder (PTSD) or degenerative disc disease in his cervical spine.  He stated he was being treated for PTSD at Fort Hood, TX, but for the purpose of his MEB, the diagnosis was "downgraded to an anxiety disorder."  

8.  On 17 May 2011, the PDBR convened to consider his case.  The PDBR compared the PEB's rating to his VA rating and determined, in effect, the PEB had reviewed all VA-rated conditions with the exception of tinnitus.  After a comparison of the PEB and VA-rated conditions and a review of the available medical records, the PDBR determined he was entitled to an increase in his disability rating to 20% for his low back pain condition and unanimously recommended no change from the PEB adjudications of not unfitting for all other MEB diagnoses.  

9.  The PDBR found tinnitus and several other non-acute conditions were noted in his VA rating decision proximal to separation, but were not documented in his Physical Disability Evaluation System (PDES) file.  The PDBR noted it did not have the authority to render fitness or rating recommendations for any conditions not considered by the PDES.
10.  On 8 June 2011, he was notified the PDBR's recommendation was approved, that the decision was final, and that he had exhausted his recourse within the Department of Defense and the Department of the Army.

11.  He provides a VA Rating Decision showing he has received service-connected ratings from 29 July 2009 as follows:

* chronic, moderate PTSD with depression and anxiety (50%)
* lumbosacral spondyloarthropathy with early degenerative disc disease (20%)
* early degenerative disc disease of the cervical spine (20%)
* right shoulder tendinopathy (10%)
* right ankle sprain (10%)
* tinnitus (10%)
* mild traumatic brain injury with post-concussive headaches (10%)
* carpal tunnel syndrome, right wrist (10%)

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

   a.  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.  

   b.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the 


Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

   c.  This regulation further provides that to be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more.  

13.  Department of Defense (DoD) Instruction 6040.44, subject: Lead DoD Component for the PDBR, establishes policy, assigns responsibilities, and provides instructions for PDBR operation and management.  It states the purpose of the PDBR is to reassess the accuracy and fairness of the combined disability ratings assigned Service members who were discharged as unfit for continued military service by the Military Departments with a combined disability rating of 20% or less and were not found to be eligible for retirement.  To that end, the PDBR reviews the combined disability ratings assigned individuals upon the individuals’ request or upon its own motion and, where appropriate, recommends that the Military Departments correct discrepancies and errors in such ratings.  The PDBR reviews appeals by eligible individuals pertaining to conditions identified but not determined to be unfitting by the PEB of the Military Department concerned.  The recommendation of the PDBR, once accepted by the respective Military Department, is final.  

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service.  The VA, however, is not empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change his discharge to a medical retirement.

2.  The PDBR reviewed the disability rating given to the applicant by the PEB and recommended his rating be increased to 20%.  The PDBR recommendation was approved, and this rating is now the rating of record.  

3.  The ABCMR cannot further revise a PEB rating that has been reviewed by the PDBR.  However, the PDBR's authority to review PEB ratings is limited to unfitting conditions identified during PDES processing.  If evidence is presented showing an unfitting condition was present during PDES processing and was not properly identified and considered by the PEB, the ABCMR could recommend a PEB convene to determine if such a condition warranted a disability rating.

4.  In this case, the PDRB noted tinnitus and several other non-acute conditions were listed in his VA rating decision shortly after his discharge, but were not documented in his PDES file.  

5.  Neither identification of a condition by the VA nor award of a VA service-connected disability rating is evidence that a condition was unfitting.  There is no evidence showing tinnitus or other non-acute conditions that were not considered during his PDES processing precluded the successful performance of his military duties.  In the absence of such evidence, there is no basis for recommending consideration of these conditions by a PEB.  

6.  In view of the foregoing, there is no basis for granting 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)                                         AR20120009410





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ABCMR Record of Proceedings (cont)                                         AR20120009410



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