IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130004253 


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 his military records be corrected to reflect that he was found unfit for post-traumatic stress disorder (PTSD) at the time of his disability separation from the military in 2012 and that his disability percentage be changed to reflect that additional diagnosis. 

2.  The applicant states he was medically discharged from the Army with a 20 percent rating.  However, the Department of Veterans Affairs (VA) awarded him a service-connected rating of 40 percent for the same condition.  Also, not all his conditions were listed at the time, such as PTSD.  He believes he should have received a 40 percent disability rating which would have established his retirement. 

3.  The applicant provides selected chronological records of medical care. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 28 March 2007 and he held military occupational specialty (MOS) 88M (Motor Transport Operator).  

2.  He reenlisted in the RA on 31 October 2008 and served in Iraq from 27 December 2008 to 23 December 2009 and in Kuwait from 25 May 2010 to 6 June 2010.  He was assigned to Fort Eustis, VA. 

3.  In August 2011, he complained of low back pain and bilateral knee arthropacy.  His narrative summary shows:

	a.  He had been symptomatic for more than 3 years and continues to require significant profile restrictions despite adequate conservative treatment.  He is not considered a surgical candidate and he continues to follow up with pain management.  However, given the chronicity of his symptoms, significant improvement and return to full duty would not be expected.  

	b.  He reported onset of back pain symptoms in 2006 when he was undergoing initial training to reenter the Army.  He was doing night land navigation and stepped into a hole injuring his back and knee.  He did not report the injury at the time because he was afraid he would be recycled in his training course.  He was initially evaluated for this injury in 2007.  

	c.  He localizes the pain to the midline of his low back.  His pain is aggravated by standing for long periods or bending.  He was treated by a chiropractor in 2007 and he also tried physical therapy.  He had some mild relief and he was able to perform in his MOS and successfully deploy.  However, his condition deteriorate din 2010.  He had an MRI done in June 2011 which showed degenerative disc disease and annular bulge at L4-5.  Neurosurgery did not feel he had any surgical indication and he was referred for pain management.

	d.  He is likely to suffer from lumbago and mechanical low back pain for the foreseeable future.  His low back pain has continued to require significant physical restrictions despite adequate conservative treatment.  This does not met retention standards under paragraph 3-39 of Army Regulation 40-501 (Standards of Medical Fitness). 

	e.  His condition of bilateral knee arthropacy also does not meet retention standards.  He has had a long history of knee problems dating back to prior to his entry on active duty.  It appears he had surgery on his left knee prior to service but it has since healed.  He had a right knee injury in 2007 and underwent medial meniscus in December 2007.  He continued to have right knee problems and underwent a medial meniscus debridement in October 2008.  He also started to develop pain in his left knee.  He ultimately underwent a left knee arthroscopy in June 2011 for debridement of the medial meniscus.  

	f.  He has bilateral knee arthropacy that has persisted despite adequate conservative and surgical intervention.  This condition continues to necessitate significant physical restrictions and precluded him from several functional tasks required of all Soldiers.  This does not meet retention standards in accordance with paragraph 3-41 of Army Regulation 40-501. 
4.  On 21 December 2011, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions.  The MEB recommended the applicant's referral to a physical evaluation board (PEB).  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1. Lower back pain

X
2. Bilateral knee athropacy 

X
3. Hypertension
X

4. Hyperlipidema
X

5. Erectile dysfunction
X

6. Gastroesophageal Reflux Disease
X

7. Obstructive sleep apnea
X

8. Pinguecula
X

9. Adjustment Disorder
X

10. Bilateral ankle sprain
X

5.  The applicant was counseled and agreed with the MEB's findings and recommendation.  He acknowledged:

* he reviewed the contents of the MEB, physical profile, and narrative summary
* he understood the PEB would only consider the conditions listed on his physical profile
* the physical profile included all his conditions and whether they did not meet retention standards
* the conditions that did not meet retention standards were properly listed
* he provided all medical documents in his possession to be included in the MEB
* he agreed that the MEB accurately covered his medical conditions at the time

6.  On 22 March 2012, an informal PEB convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to below conditions.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:  




VASRD Code
Condition 
Percentage
5003/5242
Degenerative disc disease, lumbar spine (also referred to as lumbar back pain)
10%
5261
Knee strain, right, claimed as athropacy, bilateral knee
10%
The PEB also considered the applicant's other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended a 20 percent combined disability rating and separation with entitlement to severance pay if otherwise qualified.

7.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 2 April 2013 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law. Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

8.  He was honorably discharged on 21 May 2012 by reason of disability with entitlement to severance pay under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 1 month, and 24 days of active service during this period and he received severance pay.

9.  He provided selected Standard Forms 600 (Chronological Record of Medical Care), dated between February and March 2012.  These forms relate to his low back pain.  However, one document from the Behavioral Health Clinic shows on 27 February 2012, he was diagnosed as follows:

* Axis I: Depressive Disorder, Not Otherwise Specified, post-deployment 
* Axis II: No Diagnosis
* Axis III: No Diagnosis
* Axis IV: Moderate, pending medical board separation
* Axis V: Global Assessment of Functioning (GAF) score of 68

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 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.

	a.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement pay and have access to all other benefits afforded to military retirees.

	b.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

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 percent to 100 percent, rising in increments of 10 percent.

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 percent.  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 of less than 30 percent.

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.

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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 various injuries and/or illnesses that warranted his entry in the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical conditions of degenerative disc disease and knee strain 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.

2.  The PEB also considered his other medical conditions despite their having been determined to have met retention standards and found those other conditions to be not unfitting and therefore not ratable.  The PEB recommended separation with entitlement to severance pay with a 20 percent disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing.

3.  The applicant does not provide medical evidence to support a diagnosis of PTSD or that such diagnosis failed retention standards and/or was unfitting at the time of his separation.   PTSD does not meet retention standards when persistent or recurrent symptoms require extended or recurrent hospitalization; necessitate limitations of duty or duty in a protected environment; or result in interference with effective military performance.  These considerations closely track considerations for unfitness including whether the condition interferes with adequate performance; poses a decided risk to the Soldier or to other service members; and whether the condition imposes unreasonable requirements to maintain and protect the Soldier.  

4.  Furthermore, his contention that since the VA awarded him service-connected disability for his conditions at a higher rate, the Army should have, in effect, done the same, is without merit.  There are two important concepts that require clarification.

	a.  One, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and its 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) that affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA may rate all service-connected conditions.

	c.  In the applicant's case, there was no diagnosis for PTSD being a disabling factor at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

5.  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 20 percent disabled for his degenerative disc disease.  There is no evidence to support rating any other medical condition.

6.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him 20 percent disabled for his condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.
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.  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)                                         AR20130004253





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ABCMR Record of Proceedings (cont)                                         AR20130004253



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