BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011776 


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 medical discharge be changed to a medical retirement.

2.  He states the rating from his Medical Evaluation Board (MEB) was 10 percent (%), but his rating from the Department of Veterans Affairs (VA) shows he was 80% disabled.

3.  He provides his VA Rating Decision dated 8 May 2012, DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 3947 (MEB Proceedings), and Army Medical Evaluation Board Narrative Summary.

CONSIDERATION OF EVIDENCE:

1.  After having had prior active and inactive service, the applicant enlisted in the Regular Army on 7 October 2002.

2.  On 14 February 2011, he was evaluated by an MEB.  After consideration of clinical records, laboratory findings, and a physical examination, the MEB found the applicant had the following medical conditions:

   a.  left knee patellofemoral pain (medically unacceptable);
   
   b.  chronic left knee pain (medically acceptable);
   
   c.  Post-Traumatic Stress Disorder (PTSD) (medically acceptable);
   d.  intermittent tingling in fingers of right hand (medically acceptable);
   
   e.  low back pain (medically acceptable);
   
   f.  chronic cough (medically acceptable);
   
   g.  hypertension (medically acceptable);
   
   h.  hypercholesterolemia (medically acceptable);
   
   i.  migraine headaches (medically acceptable);
   
   j.  internal hemorrhoids (medically acceptable);
   
   k.  history of kidney stone (medically acceptable); and
   
   l.  history of left eye foreign body puncture (medically acceptable).

3.  He agreed with the findings and recommendation of the MEB and was referred to a Physical Evaluation Board (PEB).  He acknowledged that he had reviewed the contents of the MEB packet and read the DA Form 3947 (MEB Proceedings) and the DA Form 3349 (Physical Profile).  He indicated:

	a.  in regard to issues relating to fitness for duty and disability compensation, he understood the PEB would consider and review only those conditions listed on the DA Form 3947;

	b.  the DA Form 3947 included all of his current medical conditions and whether or not they met medical retention standards;

	c.  the conditions which did not meet medical retention standards were 
properly listed on the DA Form 3947, the Narrative Summary, and the DA Form 3349;

	d.  all documentation of military medical care in his possession had been provided to the PEB Liaison Officer for inclusion in this MEB;

	e.  he agreed that this MEB accurately covered all his current medical conditions; and

	f.  if he did not agree with any of these statements and/or he did not agree with the contents of the MEB as reflected in his election at item 24 (Action by Patient), above, he had provided all his disagreements and concerns in the attached appeal.

4.  On 6 May 2011, an informal PEB determined he was physically unfit for degenerative arthritis in the left knee, listed as left knee patellofemoral pain and chronic left knee pain on the DA Form 3947.  The VA Schedule for Rating Disabilities (VASRD) code was listed as 5003.  The PEB recommended separation with severance pay with a 10% combined disability rating.  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.  

5.  He was honorably discharged on 23 July 2011 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of physical disability with severance pay, combat related.  He completed 8 years, 9 months, and 17 days of active military service.

6.  He provides his VA Rating Decision, dated 8 May 2012, which indicates he was granted service-connection for PTSD (50%), lumbar sprain (10%), left knee strain (10%), left knee impairment, lateral instability (10%), and tinnitus (10%).

7.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  

8.  Army Regulation 635-40, appendix B, states the VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition at the time of separation.  

9.  The VASRD assigns code 5003 (arthritis, degenerative (hypertrophic or osteoarthritis)) a 10% rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations and a 10% rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.

10.  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 rated at least 30%.

11.  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 rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant states he has received an 80% disability rating by the VA, the award of VA compensation does not mandate disability retirement or separation from the Army.  The VA operating under its own policies and regulations may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

2.  An informal PEB found him unfit for military service for degenerative arthritis in the left knee with a 10% disability rating.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay with 8 years, 9 months, and 17 days of creditable military service.

3.  The VASRD assigns disability ratings of 10% and 20% for degenerative arthritis (code 5003).  

4.  He provided no evidence which shows his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 10 percent.  He provided no evidence to show any of his other conditions rendered him unable to perform his duties.  Therefore, his discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change his medical discharge to a medical retirement.

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)                                         AR20120011776



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ABCMR Record of Proceedings (cont)                                         AR20120011776



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