BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120010868 


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 records to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay in 2007.

2.  The applicant states the medical evaluation board (MEB) and physical evaluation board (PEB) did not consider all his disabilities.  Had all his disabilities been considered, he would have qualified for a medical retirement. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) rating decision
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (PEB Proceedings)
* U.S. Marine Corps (USMC) DD Form 214
* Bachelor of Science Diploma and other civilian education diplomas
* Separation orders and Honorable Discharge Certificate
* Multiple letters of appreciation and/or commendation
* Insurance Election Certificate
* DA Forms 1059 (Service School Academic Evaluation Reports)
* Certificates of Training and/or Completion
* Service medical records, charts, progress notes, x-rays, consults, records of medical care, and other medical documents throughout his military service

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.  Having had prior service in the Army National Guard (ARNG) through 4 September 1986 and the USMC, 28 December 1987 to 27 December 1993, the applicant enlisted in the Missouri Army National Guard on 10 January 1999 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  

3.  He served through multiple extensions, including a transfer to the Kansas ARNG (KSARNG), including service on active duty in Germany from 21 February to 27 August 2002.  He entered active duty on 24 October 2004 and subsequently served in Kosovo from 8 February 2005 to 12 January 2006.  

4.  His narrative summary is not available for review with this case; however, it appears he entered the Army physical disability evaluation system (PDES).  

5.  On 16 November 2006, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant's intervertebral disc degeneration of the lumbar region was medically-unacceptable.  The MEB also determined that his localized joint knee pain and cubital tunnel syndrome met retention standards.  The MEB recommended referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation.  He also indicated he did not desire to continue on active duty

6.  On 5 December 2006, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty.  It was also determined that he was physically unfit due to chronic low back pain with a traumatic onset beginning in 1990, secondary to intervertebral disc degeneration.  Additionally, the PEB noted:

	a.  Imaging showed non-compressive, multilevel degenerative changes at 
L5-S1.  Examination showed tenderness to palpation with no spasm.  Motion was pain-limited and symptoms and profile prevented the performance of duties as an indirect fire infantryman, rated for tenderness with no mechanic loss of motion. 

	b.  His functional limitations in maintaining the appropriate level of flexibility and mobility, caused by the physical impairment stated above, made him physically unfit to perform the duties required of a Soldier of his rank and primary specialty.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5299/5237, and granted a 10-percent (10%) disability rating.  

	c.  The PEB also considered all of the other conditions listed on the MEB which were determined to have met retention standards and found those conditions not to be unfitting and therefore not ratable.   

	d.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

7.  Throughout the disability process, it appears the applicant was counseled and informed of his rights at each step of the process regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, it appears the applicant concurred with the PEB's finding and recommendation, and waived his right to a formal hearing.

8.  He was honorably discharged on 24 January 2007 by reason of disability with entitlement to severance pay under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 he was issued shows he completed 2 years, 
3 months, and 1 day of active service during this period.  He received severance pay in the amount of $80,170.00.

9.  On 18 July 2007, the VA awarded him service-connected disability compensation for the following conditions at the rates below:

* Post-traumatic stress disorder (PTSD) – 30%
* Prostatitis – 20%
* Left knee sprain – 10%
* Right knee torn meniscus – 10%
* Left arm, hand, elbow cubital tunnel syndrome – 10%
* Residuals of low back strain – 10%


10.  An advisory opinion was obtained on 31 July 2012 from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case.  A USAPDA official recommended no change to the applicant's rating and stated:

	a.  The applicant's MEB was conducted in November 2006 and contained only one condition that did not meet retention standards: intervertebral disc generation of the lumbar region.  The additional listed conditions of joint pain localized in knee and cubital tunnel syndrome were both determined to meet medical retention standards.  

	b.  "The physical findings revealed full strength symmetrically; deep tendon reflexes were 2/4 symmetrically; sensation was grossly intact; and peripheral senses were positive and equal bilaterally.  There was some tenderness to palpation of his spine in the L4-S1 region and there were no spasms noted.  There was a negative straight leg raise and negative Patrick and fabere tests.  His active flexion range of motion (ROM) averaged 55 degrees.  There were some complaints of numbness and tingling in the left elbow and hand, but all physical findings and ROMs were normal."  

	c.  He also complained of right knee pain, but all ROMs and physical findings, except for some mild medial joint line tenderness, were normal.  A radiology report, dated 23 May 2006, revealed no evidence of any obstructive uropathy (kidney stones) and there were no complaints of kidney stone symptoms while the applicant's MEB/PEB was being processed.  The entries on the November 2006 DA Form 2607-1 (Report of Medical History) revealed no complaints related to mental health.  His main complaint was back pain, painful right knee, and numbness and tingling in left elbow and hand.  He had reported prostatitis in June 2006; which had been treated and controlled.  His DA Form 2808 (Report of Medical Examination), dated 9 November 2006, indicated his psychiatric condition was normal and noted his urology reports and back conditions.  His 
DA Form 3349 (Physical Profile), dated 16 November 2006, listed his lumbar spine as the only condition which required limitations regarding the performance of his assigned duties.  He concurred with the MEB's findings and recommendation. 

	d.  On 5 December 2006, an informal PEB found him unfit due to his lumbar condition and recommended a 10% rating and separation with severance pay.  A review of the flexion ROM limitations revealed that he could have been eligible for 20% rating in accordance with VASRD code 5237.  But, this would not have increased his overall military disability compensation and would not have resulted in a change to his disposition from the military.  He was still not eligible for a military retirement in accordance with Title 10, U.S. Code (USC), sections 1201/1203. He was counseled, concurred, and waived his right to a formal hearing of his case.  

	e.  He was rated by the VA on 18 July 2007, based on his military records and VA examinations completed in March, April, and May 2007.  The VA rated several other conditions not considered by the MEB/PEB.

	f.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are authorized to be compensable by the military disability system.  The only condition that was actively limiting his ability to perform his military duties in the fall of 2006 was his lumbar pain.  All other conditions that might have been present at the time met medical retention standards and would not have been found unfitting or compensable.  

	g.  The applicant did not present any evidence of an MEB or PEB error that would require a change to his military records.  The PEB findings were supported by the preponderance of the evidence and were neither capricious nor arbitrary.  

11.  The applicant was provided a copy of this advisory opinion but he did not respond. 

12.  Army Regulation 635-40 establishes the 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 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.  

13.  Army Regulation 635-40 states the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

14.  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% to 100%, rising in increments of 10%.

15.  Title 10, 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%.  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%.

16.  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.  

17.  Title 38, USC, 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 applicant sustained a physical condition that warranted his entry into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical condition of intervertebral disc generation of the lumbar region prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined he was physically unfit for further military service.  

2.  The PEB also considered his other medical conditions despite having been determined to have met retention standards and found those other conditions not to be unfitting and therefore not ratable.  The PEB recommended separation with entitlement to severance pay with a 10% disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.

3.  The applicant does not provide medical evidence to support a higher rating or state specifically which condition should have been considered should have been rated. However, he contends since the VA awarded him service-connected disability for various conditions including PTSD; prostatiatis; left knee sprain; right knee torn meniscus; left arm, hand, elbow cubital tunnel syndrome; and residual of low back pain, the Army should have, in effect, done the same.  There are two important concepts of clarification.  

	a.  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.  If and 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.  However, the VA could potentially rate all service-connected conditions. 

	c.  In the applicant's case, the only condition that was actively limiting his ability to perform his military duties in the fall of 2006 was his lumbar pain.  There was no diagnosis of any other condition being disabling at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

4.  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 10% for his intervertebral disc generation of the lumbar region.  There is no evidence to support rating any other medical condition.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him at 10% for his condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

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.  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)                                         AR20120010868



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ABCMR Record of Proceedings (cont)                                         AR20120010868



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