BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20120020702 


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 her evaluation by the physical evaluation board (PEB) to add her diagnosed conditions of Sjögren's syndrome, lupus, anemia, migraine headaches, and major depressive disorders as unfitting conditions.

2.  The applicant states, in effect, the symptoms were present during the time the PEB process was being conducted but no follow up was conducted or diagnoses made.  She felt the physician was only focused on the hip and back unfitting conditions and not the other medical symptoms and illnesses.  She believed she would have a better chance of finding out what was wrong with her by getting out of the Army and seeking community health care.

3.  The applicant provides a self-authored letter and copies of her medical evaluation board (MEB) and PEB summaries, her DD Form 214 (Certificate of Release or Discharge from Active Duty), her Department of Veterans Affairs (VA) Rating Decisions, and her medical treatment 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 enlisted in the Regular Army in pay grade E-4 on 22 October 1998 for a period of 4 years, training as a motor transport operator, the Loan Repayment Program, and assignment to Europe.  She completed training and was transferred to the Supreme Headquarters Allied Power Europe in Brussels, Belgium, for duty as a chauffeur.

3.  On 5 April 2001, an MEB was conducted at Landstuhl Regional Medical Center, Germany, to evaluate the applicant's diagnosed conditions consisting of severe left chronic trochanteric bursitis, bilateral ischial tuberosity bursitis with tight muscles of the lower extremities, and major depressive disorder.  The applicant was present during the MEB.

4.  The MEB determined that the applicant did not meet retention standards and recommended her referral to a PEB.  The applicant indicated that she did not desire to continue on active duty and that she did not agree with the board's findings and recommendations.

5.  On 9 April 2001, she submitted a three-page memorandum indicating that her other conditions should be considered in the MEB evaluation and submitted a list of recurring symptoms she believed should be considered.  The list included headaches, nausea, fatigue, moodiness, unexplained bleeding, fluctuating weight gain and loss, light headedness, difficulty concentrating and focusing, dry mouth, rashes, and fever.

6.  On 22 May 2001, a PEB convened in Washington, DC, which determined that her condition of left hip and back pain with a clinical assessment of severe left chronic trochanteric bursitis and bilateral ischial tuberosity bursitis with tight muscles were unfitting and recommended a 10-percent disability rating.  The PEB determined that her other diagnosed conditions were not unfitting.  The applicant concurred with the recommendation of the PEB and waived a formal hearing of her case.

7.  On 11 September 2001, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay.  She completed 2 years, 11 months, and 16 days of active service.

8.  On 21 June 2002, the VA awarded the applicant a 40-percent service-connected disability rating for lumbosacral strain and a 0-percent service-connected disability rating for left trochanteric bursitis.  The VA determined that her conditions of anemia, chronic sinusitis, bronchitis, bilateral ischial tuberosity bursitis, left knee pain, and history of migraine behavior were not service connected.

9.  On 17 June 2004, the VA awarded the applicant a 60-percent service-connected disability rating for Sjögren's syndrome with a history of anemia and a 10-percent service-connected disability rating for migraine headaches.

10.  On 24 April 2009, the VA awarded the applicant a 60-percent service-connected disability rating for Sjögren's syndrome with systemic lupus erythematosus (previously identified as Sjögren's syndrome with a history of anemia).

11.  On 11 March 2011, the VA awarded the applicant a 30-percent service-connected disability rating for migraine headaches and a 30-percent service-connected disability rating for depression.

12.  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 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.  Title 10, U.S. Code, chapter 61, provides for 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.

14.  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.  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.

15.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and her separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and she was assigned a disability rating of 10 percent for her unfitting condition (severe left chronic trochanteric bursitis and bilateral ischial tuberosity bursitis) as it existed at the time of her PEB hearing.  She concurred with the findings and recommendation of the PEB.  There is no evidence to show her other conditions rendered her unfit to perform her duties.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show she was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  The fact that the VA, in its discretion, awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120020702



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ABCMR Record of Proceedings (cont)                                         AR20120020702



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