IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130002939 


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, correction of his records to:

* show he was medically retired instead of honorably discharged with entitlement to severance pay
* award him a 10 percent (%) service-connected disability for left knee pain 
* award him a 10% service-connected disability for right knee pain 
* award him a 30% service-connected disability for adjustment disorder with anxiety

2.  The applicant states that the Army awarded him a 10% service-connected disability rating for his lower back condition.  However, his knees were found to be medically acceptable for military service even though he received numerous profiles since 2008.  The Department of Veterans Affairs (VA) awarded him a 10% service connected disability for each knee and he feels the Army should award him the same percentage as the VA.  Additionally, the VA awarded him a 30% service-connected disability rating for his adjustment disorder and he feels the Army should award him the same percentage of disability for this disorder.  He feels the Army's finding with regard to his knees and adjustment disorder are in error because these conditions were not addressed at his Physical Evaluation Board (PEB).  Despite the Army's findings, his knees did render him unfit and kept him from performing the duties of his rank and military occupational specialty (MOS) for at least 4 years.  His profiles clearly show his knees prevented him from performing as a Soldier and his medical record shows he 

received numerous shots in his knees for pain.  He was continually left behind because he was unable to perform his duties.  As a result he developed an adjustment disorder which manifested with a tremendous amount of anxiety, depression, and difficulty adjusting.

3.  The applicant provides:

* four DA Forms 3349 (Physical Profile), dated 16 October 2008, 
23 December 2009, 21 December 2011, and 17 January 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA rating decision, 2 July 2012
* Letter from the VA, dated 17 July 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 January 2007, served through one reenlistment, and held MOS 88K (Watercraft Operator).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

2.  His record contains a Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care), dated 17 January 2012, which stated he was being seen by a medical evaluation board (MEB) for chronic back pain, bilateral knee pain, and shaving bumps.  The MEB physician stated:

* the applicant was referred to the MEB for degenerative disk disease of the lumbar spine
* he has a long history of right knee pain and a permanent P-2 profile since 2009; however, he has not required significant treatment since that time
* he has a history of pseudofolliculitis barbae (shaving bumps) and has a permanent shaving waiver
* he was previously followed by behavioral health for attention deficit disorder (ADD) but the Strattera was recently discontinued and he has had no scheduled follow-up with behavioral health
* an MEB will be initiated for degenerative disk disease
* a VA referral was generated
* P-2 profile for knee was continued but was not included in MEB referral because he was able to maintain full duty status since 2009 with his existing profile
* the remainder of his medical conditions meet medical retention standards

3.  His record contains an audited narrative summary (NARSUM) which shows the documents reviewed and/or used to prepare the NARSUM included:

* an interview with the applicant conducted on 17 January 2012
* DA Form 3349, last updated 18 January 2012
* The Armed Forces Health Longitudinal Technology Application (AHLTA) - Electronic Health Record (EMS), review from 22 January 2007 to 
11 January 2012
* VA compensation and pension exam with psychology, dated 27 January 2012

	a.  His degenerative disk disease of the lumbar spine has required significant physical restrictions despite adequate conservative management.  This condition did not meet retention standards under Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39h.

	b.  The following additional diagnoses met medical retention standards:

		(1)  Bilateral knee pain:  Applicant had a history of bilateral knee pain which dated back to at least 2007.  He was treated with physical therapy and synvisc injections.  He was placed on a permanent (L-2) profile in December 2009.  He has worked in his MOS and has not required significant treatment since that time.  This condition met retention standards under Army Regulation 40-501, paragraph 3-41e.1.

		(2)  Pseudofolliculitis barbae:  Applicant had a history of pseudofolliculitis barbae which is treated with shaving restrictions.  This condition does not require frequent medical follow-up or impair duty performance.  This condition met retention standards under Army Regulation 40-501 paragraph 3-38a-f.

		(3)  Adjustment disorder:  As per the applicant's VA psychology evaluation, he had a diagnosis of adjustment disorder with anxiety.  He was diagnosed with an adjustment disorder through Army Behavioral Health in July 2011.  He was not currently receiving any treatment.  Adjustment disorders are not considered to render a Soldier unfit due to physical disability.  As per Army Regulation 40-501 paragraph 3-36, this condition would be handled administratively if it were felt to interfere with satisfactory performance of duty.

4.  His record contains a DA Form 3947 (MEB Proceedings), dated 2 February 2012, which shows the MEB determined that his degenerative disk disease of the lower lumbar spine was medically unacceptable under Army Regulation 40-501, paragraph 2-39h.  The MEB further determined that his bilateral knee, peudofolliculitis barbae, and adjustment disorder were all medically acceptable conditions.  The MEB referred him to a PEB.  Additionally, the applicant agreed with the MEB findings.

5.  His record contains a memorandum from the VA Disability Evaluation System (DES) Pilot Rating Site, dated 4 April 2012, notifying the U.S. Army Physical Disability Agency and the president of the applicant's PEB that the Integrated Disability Evaluation System (IDES) proposed rating decision had been completed.  This memorandum included an attached decision review, dated 
21 March 2012, wherein the VA stated the PEB could adjust the VA disability ratings for the proposed disabilities that resulted from or were aggravated as a result of the applicant's non-compliance with prescribed treatment, or for conditions deemed to have existed prior to service.  The VA decision proposed:

	a.  For PDES purposes, a 10% evaluation was proposed for lumbar degenerative disk disease.  For purposes of entitlement to VA benefits, service-connection for lumbar degenerative disk disease as directly related to military service with a 10% evaluation.

	b.  For purposes of entitlement to VA benefits service-connection for adjustment disorder with anxiety (claimed as ADD) as directly related to military service with a 30% evaluation.

	c.  For purposes of entitlement to VA benefits, service-connection for left knee strain as directly related to military service with a 10% evaluation.

	d.  For purposes of entitlement to VA benefits, service-connection for right knee strain as directly related to military service with a 10% evaluation.

	e.  For purposes of entitlement to VA benefits, service-connection for pseudofolliculitis barbae as directly related to military service with a 0% evaluation.

6.  On 11 May 2012, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his MOS and determined that he was physically unfit due to lumbar degenerative disk disease. The PEB noted that the condition was non-battle related and the onset occurred in 2010 without any clear antecedent injury.

7.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 5237 and granted a 10% disability rating.  The PEB also considered his other conditions of bilateral knee pain and pseudofolliculitis barbae but they were determined to have met retention standards.  As they were not unfitting, they 
were not ratable.  The PEB recommended that the applicant be separated with 

entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB findings, waived his right to a formal hearing of his case, and did not request a reconsideration of his VA ratings.

8.  On 25 May 2012, he was honorably discharged under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, severance pay, non-combat related. His DD Form 214 shows he completed 5 years, 4 months, and 8 days of active service and received severance pay in the amount of $22,665.00.

9.  He provided a DA Form 3349 issued on 16 October 2008 which shows he received a temporary physical profile for knee pain of the lower extremities (L) with the numerical designation of "3" (L-3) signifying that he had one or more medical condition or physical defect that may require significant limitations.  His temporary L-3 profile expired on 16 December 2008.

10.  He provided a DA Form 3349 issued on 23 December 2009 which shows he received a permanant physical profile for knee pain with the numerical designation of "2" (L-2) signifying that he possessed some medical condition or physical defect that may require some activity limitations.  This profile also indicated, at a minimum, the profile would be reviewed and validated at every periodic exam or after five years of the date of issue.

11.  He provided a DA Form 3349 issued on 21 November 2011 which shows he received a temporary physical profile for chronic back pain and bilateral knee pain (L-3) and shaving bumps.  His also received the numerical designation of "2" for his physical capacity or stamina (P) indicating he had defects or diseases which affected his general physical capacity (P-2).  Additionally, his profile indicated that he had been referred to an MEB for his back and knee conditions.  His temporary P-2/L-3 profile contained an expiration date of 20 March 2012.

12.  He provided a DA Form 3349 issued on 18 January 2012 which shows he received a permanent physical profile for chronic back pain and bilateral knee pain, and shaving bumps (P-2/L-3).  Additionally, his profile indicated that he had been referred to an MEB for his back and knee conditions

13.  He provided VA rating decision, dated 2 July 2012, which shows the VA awarded him a service-connected disability rating of:

* 30% for an adjustment disorder with anxiety
* 10% for lumbar degenerative disk disease
* 10% for right knee strain

* 10% for left knee strain
* 0% for pseudofolliculitis barbae

14.  Army Regulation 635-40 establishes the Army 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.  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.  

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

16.  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%.  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 at less than 30%.

17.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained injuries that warranted entrance into the PDES.  He underwent an MEB which determined that only his degenerative disk disease of the lower lumbar spine was medically unacceptable.  Additionally, the MEB determined that his bilateral knee and adjustment disorder were both medically acceptable conditions.  He agreed with the MEB's findings.

2.  Sometime between the MEB and the PEB he agreed to be examined by VA medical personnel under the IDES, and to allow the VA's recommendations to be used at the PEB.  Further, the PEB agreed to accept the VA recommendations.  The VA's rating determinations were divided into two categories, those that were being rated for the purpose of the Army PDES only and those that were being rated for the purpose of the VA benefits only.  The only condition the VA rated for the purpose of the PDES was his lumbar degenerative disk disease.  The VA recommended he receive a 10% disability rating for this condition.  

3.  The VA also evaluated him for lumbar degenerative disk disease with a 10% service-connected disability rating, adjustment disorder with anxiety (claimed as ADD) with a 30% service-connected disability rating, left knee strain with a 10% service -connected disability rating, and right knee strain with a 10% service-connected disability rating.  However these ratings were for the purpose of VA benefits only.

4.  The PEB accepted the VA's recommendations and found his medical condition, degenerative disk disease, prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined to be physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay with a 10% disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so with the assistance of the VA and rated his condition 10% disabling.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

6.  The PEB also considered his other conditions, those that during the medical examination were found to be medically acceptable, but they were determined to have met retention standards.  As they were not unfitting, they were not ratable the Army PDES.  

7.  An award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  For example, the VA awarded him a disability rating for adjustment disorder with anxiety, left, left knee strain, and right knee strain.  However, there is no evidence to show these conditions rendered him unable to perform his duties.

8.  His physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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 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)                                         AR20130002939





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ABCMR Record of Proceedings (cont)                                         AR20130002939



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