IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120015769 


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 medically retired due to physical disability.

2.  The applicant states:

* he has been rated 90-percent disabled by the Department of Veterans Affairs (VA) for service-connected disabilities from the date of his discharge
* he believes a rating of 30 percent or greater from the date of discharge authorizes a medical retirement
 
3.  The applicant provides:

* VA Rating Decision, dated 3 May 2012
* VA medical records

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 was ordered to active duty from the Army National Guard on 27 February 2006 in support of Operation Enduring Freedom.  He served in area of concentration 19A (Armor Officer) in Afghanistan from 7 June 2006 to 14 June 2007.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 14 June 2007, shows he injured his lower back on 7 May 2007 in Afghanistan while riding in a 5-ton truck that hit several pot holes.

4.  On 4 August 2008, a medical evaluation board (MEB) diagnosed the applicant with:

* back pain
* right clavicle pain status post-fracture and open reduction and internal fixation (meets retention standards)
* left wrist pain status post-distal radius fracture and open reduction and internal fixation (meets retention standards)

5.  The MEB recommended his referral to a physical evaluation board (PEB).  On 6 August 2008, he agreed with the findings and recommendations.

6.  On 18 August 2008, a Physical Evaluation Board (PEB) found him physically unfit due to degenerative arthritis of the thoracolumbar spine in accordance with VA Schedule for Rating Disabilities (VASRD) code 5242, 10 percent.  The disability description on the DA Form 199 (PEB Proceedings) states:

	a.  He has a long history of back pain since a military tactical vehicle accident in 1995 per approved line-of-duty determination in his medical records.  The condition worsened during his deployment to Operation Enduring Freedom in 2007 from multiple convoy operations.  Imaging showed multilevel degenerative changes.  His back pain and physical profile prevent effective duty in his primary specialty.  The examination shows satisfactory evidence of painful motion and localized tenderness for which he was rated 10-percent disabled.

	b.  The functional limitations in maintaining the appropriate level of stamina caused by the physical impairments recorded above make him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.

	c.  The conditions listed as medical board diagnoses 2 and 3 were determined to meet retention standards by the military treatment facility.  Further consideration by the PEB found the conditions not to be unfitting and not ratable.  The Department of Defense Physical Disability Evaluation System (PDES) may only rate an illness or injury that is service incurred or permanently aggravated by military service and would cause the Solder to be separated or retired.  Although the PDES cannot compensate him for these conditions, he may still apply for a disability rating for them through the VA since the VA operates under different regulations and guidelines and may compensate any service-connected condition, even if not unfitting at the time of separation.

7.  The PEB recommended a combined 10-percent disability rating and separation from the service with severance pay.  On 2 September 2008, he did not concur with the PEB findings and recommendations and demanded a formal hearing.  On 25 September 2008, he withdrew his request for a formal hearing and stated, "This request is based upon the PEB's decision, dated 8 AUG 2008, to rate my degenerative arthritis of the thoracolumbar spine at 10%, which I choose to not contest."

8.  On 2 October 2008, the U.S. Army Physical Disability Agency approved the PEB's findings.

9.  On 28 October 2008, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability, severance pay, non-combat related.

10.  He provided VA documentation which shows he was granted service connection for:

* post-traumatic stress disorder (70 percent)
* traumatic brain injury (40 percent)
* thoracic vertebral fractures with limited range of motion with mechanical myofascial lumbar strain without radiculopathy (20 percent)
* right acromioclavicular joint degenerative joint disease and limited movement (10 percent)
* right ankle mild degenerative joint disease and internal disruption/strain of talocalcaneal ligament (10 percent)
* tinnitus (10 percent)
* gastroesophageal reflux disease and irritable bowel syndrome (10 percent)
* scars of the central back and chest (10 percent)
* residual scar from right clavicle fracture (10 percent)
* left volar wrist disfiguring scar and mild limited movement (0 percent)

11.  His overall or combined VA rating is 90 percent.

12.  Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

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 percent.  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 of less than 30 percent.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of the rating.

15.  The VASRD is the standard under which percentage rating decisions are made for disabled military personnel.  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.  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.

16.  The VASRD states that VASRD code 5242 (degenerative arthritis of the spine) with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is rated as:

	a.  10-percent disabling when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or a combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined ROM of the cervical spine 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;

	b.  20-percent disabling when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees; or the combined ROM of the cervical spine 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;

	c.  30-percent disabling when forward flexion of the cervical spine is 15 degrees or less or favorable ankylosis of the entire cervical spine;

	d.  40-percent disabling when there is unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine;

	e.  50-percent disabling when there is unfavorable ankylosis of the entire thoracolumbar spine; and

	f.  100-percent disabling when there is unfavorable ankylosis of the entire spine.

17.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant concurred with the findings and recommendation of the PEB on 25 September 2008; however, he now wants his disability rating increased to match his VA rating and correction of his records to show he was medically retired due to physical disability.

2.  The available evidence does not show his degenerative arthritis of the spine met the criteria for a higher rating.  Since there is insufficient evidence to show his disability was improperly rated by the PEB in 2008, there is no basis for granting the applicant's request to increase his disability rating.

3.  His contention that the VA rated him 90-percent disabled for service-connected disabilities was carefully considered.  However, a rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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 a different disability rating based on the same impairment.  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 may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability

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 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)                                         AR20120015769



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ABCMR Record of Proceedings (cont)                                         AR20120015769



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