IN THE CASE OF:	  

		BOARD DATE:	    15 October 2013

		DOCKET NUMBER:  AR20130003752 


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 records to show she was medically retired in 1997 instead of honorably discharged with entitlement to severance pay.

2.  The applicant states:

* she was rated at 20 percent (%) by the Army but received a 60% service-connected disability compensation by the Department of Veterans Affairs (VA) for the same condition
* the neurology doctor's assessment was that she should retire based on the results of her injury

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Separation orders
* Line of Duty determination
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* VA rating decision

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 on 9 November 1995 and she held military occupational specialty (MOS) 92A (Automated Logistical Specialist).  She held the rank/grade of private first class (PFC)/E-3. 

3.  She suffered a line of duty injury on 28 November 1996.  She suffered a severe traction injury to her right arm and shoulder when she reportedly attempted to prevent a very heavy object from falling off a truck flatbed by holding on to it with her right upper extremity.  Consequently, she experienced incapacitating pain to her right upper extremity and back, exacerbated with lifting and movement.  Her narrative summary (NARSUM) shows: 

	a.  She was initially treated with Ibuprofen without significant improvement of her pain.  However, she did not take the medication frequently during the daytime due to side effects.  She underwent physical therapy but her pain symptoms still did not improve.  Her motor strength was limited by severe pain but appeared to be within normal limits. 

	b.  She had chronic post-traumatic right upper extremity and neck pain with an apparently normal neurological evaluation.  This symptom which has been unresponsive to medication and physical therapy is significantly interfering with her military duties.  She was unfit for duty per Army Regulation 40-501 (Standards of Medical Fitness).  

	c.  She was recommended for medical retirement for post-traumatic right upper extremity and neck pain.  She should be referred to a PEB for adjudication.

4.  On 28 April 1997, an MEB convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of post-traumatic, chronic right upper extremity and neck pain with apparently normal neurological evaluation, unresponsive to medication and rehabilitative therapy and degenerative changes to the C5-6 spine.  The MEB recommended her referral to an informal PEB.  On 9 June 1997, she was counseled and agreed with the MEB's findings and recommendation.

5.  18 June 1997, an informal PEB convened and found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to chronic post-traumatic pain, right upper extremity and neck, without neurological abnormality.  The PEB noted that the applicant's chronic pain and profile restrictions precluded the performance of her duties.  

6.  The PEB rated her under the VA Schedule for Rating Disabilities (VASRD) code 5003 and granted a 20% disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

7.  Throughout the disability process, she appears to have been counseled by a PEB Liaison Officer and informed of her rights at each step of the process.  Subsequent to this counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

8.  On 22 August 1997, she was honorably discharged under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability, severance pay.  The DD Form 214 she was issued shows she completed 1 year, 9 months, and 14 days of creditable active service and she received severance pay.

9.  On 2 January 1998, the VA awarded her service-connected disability compensation for degenerative changes of the cervical spine with disc bulge at the rate of 60% effective 23 August 1997. 

10.  Army Regulation 635-40 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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition that 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.  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% to 100%, rising in increments of 10%.

12.  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%.

13.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  VASRD Code 5003, in effect at the time, was used in the case of Arthritis, degenerative (hypertrophic or osteoarthritis).  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10% is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, rate as below:  With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20%; and with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint, 10%. 

14.  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 an injury that warranted her entrance into the PDES.  She underwent an MEB which recommended her referral to a PEB.  The PEB found her medical condition prevented her from reasonably performing the duties required of her grade and military specialty.

2.  The PEB determined she was physically unfit for further military service.  The PEB rated her essentially for pain without neurological abnormality and recommended separation with entitlement to severance pay with a 20 percent disability rating.  The applicant agreed with the findings and recommendation and waived her right to a formal hearing of her case.

3.  The applicant's rating was assigned based on a finding that at the time of separation examinations noted there was pain without neurological abnormality.  According to the VASRD in effect at the time of her separation in 1997, such condition is rated at 20%. 

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated at 20% and there is no evidence to support a higher rating for her condition.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated her condition 20 percent disabling.  There is no evidence that she should have been awarded a higher rating.  Since this rating was less than 30%, by law she was only entitled to severance pay.

6.  She was awarded service-connected disability compensation by the VA.  However, 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.

7.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  She has not submitted substantiating evidence or an argument that would show an error or injustice occurred in her case.

8.  In view of foregoing, there is 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 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)                                         AR20130003752





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ABCMR Record of Proceedings (cont)                                         AR20130003752



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