IN THE CASE OF:	   

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130004854 


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 his records to show the following conditions should have been considered by the physical evaluation board (PEB): left foot, right ankle, post-traumatic stress disorder, lumbar strain, degenerative joint disease, dry eye, tinnitus, chronic headaches, chronic left ankle strain, and hypertension.

2.  The applicant states he was rated for the above conditions during his Department of Veterans Affairs (VA) service-connected disability process just
3 months after discharge.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* DA Form 199 (PEB Proceedings)
* VA rating decision
* VA medical records
* Selected service medical records
* Multiple DD Forms 1172 (Application for Uniformed Services Identification Card - DEERS Enrollment)
* Certificate of live birth
* Reassignment orders
* DA Form 31 (Request and Authority for Leave)
* 
DA Form 3349 (Physical Profile)
* Other personnel and/or administrative 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 on 16 January 2003 and he held military occupational specialty (MOS) 21B (Combat Engineer).  He served in Iraq from 13 March 2004 to 13 March 2005.  

3.  In 2006, he sustained an injury during a parachute landing.  He subsequently underwent treatment and/or evaluations.  His physical examination revealed a slight limp.  He had tenderness to palpation, no erythma or pitting edema. and a range of motion limited by pain.  X-rays of the left foot showed a fracture in the 4th metatarsal.  His pain persisted and affected his ability to perform his duties.  He subsequently entered the physical disability evaluation system (PDES).

4.  On 19 July 2007, a medical evaluation board (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 condition of chronic left foot pain due to status post closed fracture of the tarso metatarsal joint.  No other condition was diagnosed.  The MEB recommended his referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

5.  On 17 August 2007, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to metatarsalgia, left foot with onset in 2006 following an injury during a parachute landing.

6.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 5279 and granted a 10 percent disability rating.  The PEB did not consider any other conditions since no other conditions were found to be unfitting.  The PEB recommended that the applicant be separated 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 22 August 2007 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.  On 27 November 2007, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 due to disability with severance pay.  The DD Form 214 he was issued shows he completed 4 years, 10 months, and 12 days of active service and received severance pay.

9.  He submitted a VA rating decision, dated 19 February 2008, and some related medical documents.  The VA awarded him service-connected disability compensation at the combined rate of 90 percent for post-traumatic stress disorder, lumbar strain, degenerative joint disease, left foot, dry eye, tinnitus, and chronic headaches.

10.  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.

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 at 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.  In the applicant's case, several factors were considered to reach the rating indicated:

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 his entrance into the PDES.  He underwent an MEB which found only one condition that did not meet retention standards and recommended his referral to a PEB.  The PEB found this medical condition 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 percent disability rating.  He agreed with the findings and recommendations and waived his right to a formal hearing of his case.

2.  The applicant's rating was assigned based on a finding that at the time of his PDES processing X-rays noted evidence of a fracture in the 4th metatarsal of the left foot.  No other unfitting conditions were found.  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 10 percent and there is no evidence to support a higher rating for his condition. The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his condition at 10 percent disabling.

3.  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 a dry eye.  However, there is no evidence to show this condition or any condition other than his left foot pain rendered him unable to perform his military duties.

4.  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.

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 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)                                         AR20130004854



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004854



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1