IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120018948 


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 an increase in his Army disability rating.

2.  The applicant states:

	a.  The Army physical evaluation board (PEB ) did not evaluate his left ankle sprain condition that was listed on his narrative summary (NARSUM).

	b.  A bone scan and magnetic resonance image of his left ankle which showed "a 3mm [millimeter] defect in the articular cartilage of the lateral talar dome with underlying 6mm subchondral cyst formation and surrounding bone marrow edema" was never added to the conditions listed on his PEB which he believes would have resulted in a higher disability rating.

	c.  He believes the 10-percent disability rating he received for degenerative disc disease is inaccurate due to incorrect medical documentation.

3.  The applicant provides the following documents in support of his application:

* DA Form 5893 (Soldier's Medical Evaluation Board (MEB)/PEB) Counseling Checklist)
* Dwight D. Eisenhower Army Medical Center (DDEAMC) NARSUM
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (PEB Proceedings)
* radiology results, 4 pages
* Department of Veterans Affairs (VA) Rating Decision with Progress Notes
CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 9 July 2003.  He was trained in and served in military occupational specialty (MOS) 68W (Health Care Specialist).

2.  A NARSUM from the DDEAMC, Fort Gordon, Georgia, prepared for an MEB documents his 10 January 2010 physical examination.  It shows:

	a.  The applicant's back pain condition which began in Korea in 2006 currently affected his performance in his MOS due to his increased pain wearing his battle gear and aid bag and during prolonged rides in vehicles.  While this diagnosed "lumbar degenerative disc disease at L4-L5 and L5-S1 with residual pain" prognosis was unknown, it was determined chronic and stable and did not meet retention standards.

	b.  The additional following diagnoses were determined to meet retention standards:

* closed avulsion fracture left fourth metacarpal
* insomnia
* gastroesophageal reflux disease
* bilateral pes planus with associated plantar fasciitis
* exercise-induced asthma
* headaches
* left intermittent groin pain
* left ankle sprain with intermittent pain

3.  On 10 March 2010, the applicant was diagnosed by the MEB for each of the medical conditions listed in the NARSUM above, with the exception of his "left ankle sprain with intermittent pain" condition.  Item 13 (Diagnosis) provides a space for eight medical conditions and item 30 (Continuation) provides space for any additional information.  The "left ankle sprain" condition is not included in the MEB Proceedings.

4.  On 12 March 2010, the MEB recommended the applicant's referral to a PEB.  The applicant was informed and agreed with the MEB findings and recommendations on 17 March 2010.

5.  On 25 March 2010, a PEB at Fort Sam Houston, Texas, found the applicant unfit for further service due to "lumbar degenerative disc disease at L4-L5 and L5-S1 under VA Schedule Rating for Disabilities (VASRD) code 5242.  The PEB recommended the applicant's separation with severance pay with a rating of 10 percent.  The PEB also considered his other medical conditions as listed in the MEB Proceedings, but found them not to be unfitting.

6.  On 31 March 2010, the applicant concurred with the formal PEB findings.

7.  On 9 April 2010, Headquarters, U.S. Army Garrison, Fort Gordon, Georgia, issued Orders 099-0903 which directed the applicant's discharge on 4 July 2010.  These orders indicated he received a 10-percent disability rating.

8.  On 4 July 2010, the applicant was honorably discharged by reason of disability with severance pay, non-combat related.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years, 11 months, and 26 days of active military service.

9.  The applicant provides two partial VA Rating Decisions, undated, which show he received the following ratings for the conditions indicated:

* obstructed sleep apnea – 50 percent
* degenerative arthritis with L5-S1 lumbar spine degenerative disc disease – 20 percent
* left sinus tarsi syndrome, also claimed as left ankle sprain – 10 percent
* exercise-induced asthma – 10 percent
* hiatal hernia with gastroesophageal reflux disease – 10 percent
* dyssomnia, not otherwise specified and specific phobia situational type, also claimed as claustrophobia – 10 percent
* status post left ring finger fracture, also claimed as hand finger fracture – 0 percent
* left varicocele status post varicocelectomy, also claimed as left groin pain – 0 percent
* tension headaches – 0 percent

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.

	a.  Paragraph 3-1 provides guidance for standards of fitness.  It states 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.

	b.  Paragraph 3-5 contains guidance for rating disabilities.  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.

11.  Title 38, U.S. Code, sections 310 and 331, 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.  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.

12.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's employability.  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 for further military service, thus compensating the individual for loss of a military career, while the VA may rate any service-connected impairment to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the disability rating he received upon his discharge from the Army should be increased because his left ankle sprain condition as listed in his NARSUM was not evaluated by the PEB.  The applicant's left ankle sprain was not listed on the MEB Proceedings and therefore could not be recommended for consideration by the PEB.

2.  By regulation, 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 degree of the physical disability with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Only unfitting conditions or defects or those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  In this case, it is unknown why the applicant's left ankle sprain condition was listed in the NARSUM but not included in the MEB or PEB Proceedings.  However, this appears to be harmless as this condition met retention standards.  The available evidence shows that only his back condition rendered him unfit to perform his duties. 
                                                                                                                                                                                                                                                                                                                                                                                 
3.  The evidence of record confirms a PEB, after examining all the medical evidence, determined the applicant was unfit for further service based on his lumbar degenerative disc disease at L4-L5 and L5-S1 condition and he received a 10 percent disability rating.  The record further confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

4.  Although the applicant was granted a higher disability rating by the VA based on multiple other conditions which included his left ankle sprain, this fact alone does not support a change to the disability rating assigned by the PEB.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  The Army assigns disability ratings only for conditions that are considered unfitting for further military service.  Medical conditions that exist during service that are not determined to be unfitting are not rated by the PEB.  As a result, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

6.  The applicant is now being properly treated and compensated for service-connected medical conditions that were not unfitting for further military service during his PDES processing by the VA.  Therefore, absent any error or injustice in the applicant's PDES processing, there is an insufficient evidentiary basis to change the 10-percent disability rating assigned to the applicant by the PEB at the time of his discharge.


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)                                         AR20120018948



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ABCMR Record of Proceedings (cont)                                         AR20120018948



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