IN THE CASE OF:	  

		BOARD DATE:  11 June 2013

		DOCKET NUMBER:  AR20120021545 


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 reconsideration of his request for correction of his records to show he was retired due to physical disability.

2.  The applicant states he did not send any documents in support of his initial request because most all of the documents are in his military service records.  He asserts that he first injured his back during basic training in 1986.

   a.  He states that he was briefed by the Physical Evaluation Board Liaison Officer (PEBLO) and told that because he elected to have the Department of Veterans Affairs (VA) evaluate him for disability, it was customary for the Physical Evaluation Board to assign a 10% disability rating.

   b.  He was also told that, to speed up the process, the board does not review the records of these cases because of the case load of Soldiers who were pending evaluation.  In addition, if he elected to appear before the board, the VA option would no longer be available to him.

   c.  He recently learned that this policy changed and he is attempting to have his Army disability rating increased.

3.  The applicant provides copies of his:

* Medical Evaluation Board (MEB) proceedings
* Physical Evaluation Board (PEB) proceedings
* VA rating decision
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110019864, on 12 April 2012.

2.  The applicant had prior enlisted service in the U.S. Army Reserve that included active duty for training.  He enlisted in the Regular Army on
29 December 1989.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 April 2001, states the applicant injured his low back region while doing a drill in basic training when he fell on a tree in July 1986.  It also states the medical documentation to support this injury was burned in a house fire.  The approving authority found the injury to have been incurred in line of duty (LOD).

4.  A DA Form 3947 (MEB Proceedings), dated 11 April 2001, shows the applicant's chronic low back pain with sciatica due to degenerative lumbar disk disease that originated (approximately) in July 1986.

   a.  The MEB found the condition was incurred while the applicant was entitled to base pay and that it was permanently aggravated by service.

   b.  The MEB recommended the applicant be referred to a PEB.

   c.  The applicant indicated he did not desire to continue on active duty, that the MEB accurately covered all of his medical conditions, and he concurred with the MEB's findings and recommendations.

5.  A DA Form 199 (PEB Proceedings), dated 30 May 2001, shows an informal PEB found the applicant physically unfit for continuation on active duty due to chronic low back pain due to degenerative lumbar disk disease without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion.

   a.  The PEB recommended separation under VA Schedule for Rating Disabilities (VASRD) codes 5299 and 5295 and a 10% disability rating with severance pay.

   b.  The applicant concurred with the PEB's findings and waived a formal hearing.

   c.  On 25 June 2001, the PEB was approved for the Secretary of the Army.

6.  A DA Form 5892-R (PEBLO Estimated Disability Compensation Worksheet) shows the applicant's estimated disability severance pay.  It also shows in the Remarks section, "To initiate paperwork for VA compensation you may contact Fort Polk Transition Point.  If you are not in the area you may contact a local VA representative in your area."

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 4 August 2001 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with entitlement to severance pay.

8.  In addition to copies of his MEB and PEB proceedings, the applicant provides a copy of his VA Rating Decision, dated 25 June 2003, that shows a temporary evaluation of 100% was assigned effective 11 March 2002 based on surgical (i.e., a left L3 microdiscectomy - the surgical removal of herniated disc material that presses on a nerve root or the spinal cord)
 or other treatment necessitating convalescence.  An evaluation of 40% was assigned from 1 October 2002 and an evaluation of 60% was assigned from 27 March 2003.  It also shows evaluation of degenerative joint disease, spine, cervical, which was then
10% disabling, was continued.

9.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.  Chapter 3 (Policies) provides in:

    	(1)  paragraph 3-8 (Counseling provided to Soldier) that the appointed PEBLO at the medical treatment facility (MTF) is responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.  For this purpose, the MTF commander will name an experienced and qualified officer, noncommissioned officer, or civilian employee as the PEBLO.

    	(2)  Counseling will cover as a minimum, the following areas:  legal rights (including the sequence of and the nature of disability processing); effects and recommendations of the MEB and PEB findings; estimated disability retired or severance pay (after receipt of PEB findings and recommendations); probable grade upon retirement; potential veteran's benefits; recourse to and preparation of rebuttals to PEB findings and recommendations; Disabled Veterans Outreach Program; and post-retirement insurance programs and the Survivor Benefit Plan.

    	(3)  Counseling by the appointed legal counsel is provided when the Soldier requests a formal hearing.
   
   b.  Chapter 4 (Procedures), paragraph 4-18 (Initial processing), shows that upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete.  If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation. The PEB may return a case to the MTF commander for additional information.

   c.  Appendix B, provides guidance for the Army's application of the VASRD. 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.  Once a Soldier is determined to be physically unfit for further military service, a percentage rating is applied to the unfitting condition from the VASRD.  The percentage is applied based on the severity of the condition.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30% disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30% disabling.

11.  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 physically unfit 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do 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 Physical Disability Evaluation System (PDES).


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for correction of his records to show he was retired due to physical disability should be reconsidered because the board did not consider his entire medical record and he was provided inaccurate or incorrect information by the PEBLO regarding the PDES process.

2.  The evidence of record shows the PEB considered the applicant's entire case file, including the LOD finding and his MEB proceedings.  Moreover, the applicant certified that the MEB accurately covered all of his medical conditions when his case was referred to a PEB.

3.  The PEB found the applicant medically unfit due to chronic low back pain due to degenerative lumbar disk disease without neurologic abnormality or documented chronic paravertebral muscle spasms.  He received a 10% disability rating with severance pay.

4.  Records show that after the applicant's PEB findings and recommendations were approved, and the PEBLO provided the applicant information about applying for VA compensation.

5.  Despite the applicant's contentions, there is no evidence of record and the applicant provides insufficient evidence to show that he was provided inaccurate or incorrect information regarding the Army PDES process.

6.  The evidence of record clearly shows that the applicant's case was thoroughly reviewed and carefully considered throughout the PDES process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning his disability processing.  Therefore, the applicant's MEB/PEB proceedings are considered proper and equitable.

7.  In addition, the previous Board also had access to, and considered, all the available medical documentation.

8.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.
9.  In view of all 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110019864, dated 12 April 2012.




      _______ _  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)                                         AR20120021545



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ABCMR Record of Proceedings (cont)                                         AR20120021545



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