IN THE CASE OF:	   

		BOARD DATE:	  30 April 2013

		DOCKET NUMBER:  AR20120015818 


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, in effect, an increase in the percentage of disability that he received from the Army.

2.  The applicant states:

	a.  There were and still are other medical issues that should have been included in the overall decision, namely injuries to his back.

	b.  Injuries sustained to his back while he was on active duty between 1996 and 2002 were never investigated as a cause, if not all, of his severe left leg/thigh pain.

	c.  His medical records from basic combat training through separation show many visits for back pain as well as physical profiles limiting the amount of work he was allowed to do and his physical therapy.

	d.  He believes that because of the physical condition he was in at the time, his ability to perform different tasks/exercises regardless of pain may have hurt him in the long run.

	e.  He learned to live with his back pain and back strain.

	f.  His back pain and back strain were not included in his "proceedings."

	g.  Some Soldiers have everything, physical and mental, included in their medical board proceedings.

	h.  He still has an entire list of issues which never made it into his official medical records.

	i.  The nail bed of his left "Great-Toe" was cauterized, never to grow a nail again and it never showed in his medical records.  It was not included in his Medical Evaluation Board (MEB) or his Physical Evaluation Board (PEB) physicals.

	j.  He developed trench foot and neck pain and because his records do not reflect this information, he had nothing to "stand on" with the Department of Veterans Affairs (VA).

	k.  He finds himself constantly fighting severe back pain with morphine tablets three times a day.

	l.  He has feet that are constantly cracked, uncomfortable, and missing a toe-nail.

	m.  It is not worth being in the situation he is in today.  He is begging the Board to add his back to his medical discharge.

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 January 2002
* DA Form 5893-R (PEBLO Counseling Checklist/Statement), dated 28 January 2002
* PEB Memorandum, dated 9 January 2002
* DA Form 5889-R (PEB Referral Transmittal Document), dated 16 January 2002
* FH MDA Form 40 (PEBLO/PEB Checklist), dated 2 November 1998
* DA Form 3947 (Medical Evaluation Board Proceedings), dated 8 January 2002
* MEB, dated 28 November 2001
* DD Form 2808 (Report of Medical Examination), dated 21 September 2001
* DA Form 2807-1 (Report of Medical History), dated 20 September 2001
* 
DD Form 2697 (Report of Medical Assessment), dated 20 September 2001
* Darnall Army Community Hospital Patient Lab Inquiry for 20 September through 21 September 2001
* VA Rating Decision, dated 31 July 2010
* Five VA Forms 3288 (Request for and Consent to Release of Information from Individual's Records), dated 9 August 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A self-authored letter to the Board, dated 8 August 2012 
* Letters from his wife, children, and friends attesting to his inability to maintain employment, his lack of energy, and constant pain
* Activity Journal Information (Personal Health Journal) from "My Healthe Vet"
* Army Board for Correction of Military Records (ABCMR) Application Packet Inventory
* Grays Harbor Community Hospital Records, dated 4 September 2010, 23 May 2010, and 20 May 2010
* Letters from the Chief, Review Boards Office, Air Force Review Boards Agency, dated 18 October 18 October 2012 and 17 September 2012

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 enlisted in the Oregon Army National Guard (ORARNG) on 30 January 1996.  He was discharged from the ORARNG on 6 October 1997 to enlist in the Regular Army (RA).  

3.  He enlisted in the RA on 7 October 1997.  He was awarded military occupational specialty (MOS) 91W (health care specialist).

4.  A DA Form 2807-1, dated 20 September 2001, shows that the applicant reported to medical officials that he had back pain since basic training, in January 1996.  He also reported that he was not taking any medication at the time.

5.  On 8 January 2002, an MEB convened to determine whether the applicant should be referred to a PEB for evaluation.  The MEB diagnosed the applicant with snapping left hip syndrome recalcitrant to operative management.  The MEB determined that his condition did not meet retention standards in accordance with Army Regulation 40-501 and they recommended that he be referred to a PEB.  On 15 January 2002, the applicant indicated that he had no desire to continue on active duty and he agreed with the board's findings and recommendation of the MEB.

6.  On 17 January 2002, a PEB convened to determine whether the applicant should remain on active duty or be discharged from the service.  The PEB considered his diagnosis of snapping left hip syndrome, rated as slight.  The PEB found him unfit for continued service with a combined service-connected disability rating of 0 percent.  The PEB stated that based on a review of the objective medical evidence of record, his medical and physical impairment prevented reasonable performance of duties required by grade and military specialty.  The PEB recommended the applicant be separated with severance pay if otherwise qualified.  On 28 January 2002, he concurred with the PEB's findings and recommendations.

7.  A DA Form 5893-R, dated 28 January 2002, indicated the applicant read the MEB report and Narrative Summary and that the PEBLO inquired of the applicant whether all medical conditions and physical defects were covered n the Narrative Summer and whether they were adequately described.  The applicant signed the form.

8.  He was honorably discharged with severance pay on 1 April 2002, under the provisions of Army Regulation 635-40, due to physical disability.  

9.  The applicant provides VA Rating Decision, dated 31 July 2010, showing he has been awarded a 20 percent service-connected disability rating for chronic low back strain, and a 10 percent service-connected disability rating for left hip snapping syndrome.  He provides letters from friends and family members attesting to his limited abilities and current level of pain.  He provides copies of his Personal Health Journal and medical records pertaining to his back pain.


10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.

11.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides standards for medical retention and separation, including retirement.  Basically, members with conditions as severe as those listed in this chapter are considered medically unfit for further military service.  

12.  Department of Defense Instruction 1332.38 provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in 
Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

14.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be 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.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties of physical disability.  It states:

	a.  The mere presence of an 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 the degree of the 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.

	b.  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.

	c.  The Narrative Summary to the MEB is the heart of the disability evaluation system.  In describing a Soldier's condition, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluation by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of the appeal procedures.

16.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

17.  Title 10, U.S. Code, section 1203 provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  He has provided no evidence to substantiate his contention that the ratings he received from his MEB and PEB were incorrect.

3.  The available evidence does not show that he was suffering from any other unfitting conditions, other than what was specified by the MEB and PEB, which would have resulted in his being processed for discharge through medical channels.

4.  The supporting letters he provided from his family members have also been considered.  However, the available evidence suggests that he was assigned a disability rating based on the information available at the time and in accordance with the VASRD based on the severity of his condition(s).

5.  The applicable regulation states that Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.  The DA Form 5893 shows that he was given that opportunity and elected not to appeal and of the information/diagnoses made at the MEB.  

6.  As previously stated, the VA 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.  If he believes that his medical conditions are worsening, he should contact the VA and request reevaluation.

7.  The applicant has failed to show error or injustice in the actions taken by the Army in his case.  In view of the foregoing, his request should be denied.

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)                                         AR20120015818





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ABCMR Record of Proceedings (cont)                                         AR20120015818



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