IN THE CASE OF:	  

		BOARD DATE:	  31December 2013

		DOCKET NUMBER:  AR20130005364 


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 record to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states:

* the medical evaluation board (MEB) diagnosed him with headache syndrome, mild traumatic brain injury (TBI), and anxiety disorder
* the physical evaluation board (PEB) only considered his gunshot wound and separated him with a 20 percent disability rating with severance pay
* he was evaluated through the Department of Veterans Affairs (VA) Disability Evaluation System (DES) Pilot Program while still on active duty
* the VA examined and evaluated his various combat-related conditions
* while the PEB stated his TBI/anxiety disorder was mild, the VA indicated it was moderately severe and rated him with a 50 percent disability rating
* the PEB did not take into consideration the DES rating
* based on his physical profile, dated 31 August 2011, he should have not been fit for duty
* the VA rated his psychiatric care at 50 percent disabling and issued him an 80 percent overall disability rating
* he feels the Army made a mistake by not considering the narrative of the MEB, DES, and final VA rating

3.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 199 (PEB Proceedings)
* a DA Form 3349 (Physical Profile)
* his VA Rating Decision
* his DES Proposed Rating Decision
* a VA Form 21-0820c (Report of Defense Finance and Accounting Service)
* 80 pages of Standard Forms (SF) 600 (Medical Record) and allied documents
* 73 pages of VA Electronic Medical Documents

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 November 2002.  He was deployed to Iraq where he sustained a gunshot wound to his right thigh.

2.  He submitted:

	a.  90 pages of his SFs 600 and allied documents, dated between 
15 September 2010 and 17 August 2011, that noted his diagnosis and treatment of:

* psychological counseling
* adjustment disorder with disturbance of emotions

	b.  a DA Form 3349, dated 31 August 2011, that shows he received a permanent profile due to chronic right thigh pain with intermittent paresthesias (tingling) from a through and through gunshot wound into the right proximal anterior of his thigh with assignment limitations of no prolonged standing (nothing over 30 minutes), no lifting over 30 pounds, no access to firearms or live ammunition, and no assignment remote from definitive psychiatric care, and an MEB was pending.

	c.  his DA Form 199, dated 2 May 2012, which found:

		(1)  him unfit for the one listed condition of chronic right thigh neuralgia, without unfitting scar, listed on his DA Form 3349 as pain and paresthesas.  He experiences recurrent pain of up to 7-8/10 in his right thigh that limits his activities despite nerve blocks, medications, and other measures.  [His condition] is unfitting as he cannot run, jump, tolerate impact activities or prolonged standing, carry a combat load or perform function tasks.  Stable, rated 20 percent.  


		(2)  the conditions listed as MEB (which were not available to this Board) diagnosis number 2 (anxiety disorder) was considered by the PEB.  Even though the military treatment facility determined the condition failed to meet retention standards, the condition was found to not be unfitting and therefore not ratable.

		(3)  conditions number 3 (headache syndrome), 4 (mild TBI with subjective symptoms), 5 (right knee tendonitis), 6 (right hip with retained foreign bodies due to gunshot injury), 7 (bilateral epididymal cyst on recent ultrasound), 
8 (erectile dysfunction), 9 (onychomycosis), 10 (eczematous dermatitis), and 
11 (gastroesophageal reflux disease) were found to not be unfitting and therefore not ratable.

	d.  his DES Proposed Rating Decision, dated 23 April 2012, for the purpose of evaluation for the following service-connected conditions entitled to VA benefits:

* post-traumatic stress disorder (PTSD) with neurocognitive disorder due to TBI and major depressive disorder, 50 pecent
* bilateral tinnitus, 10 percent 
* gastroesophageal reflux disease, 10 percent
* oncychomycosis bilateral toes and eczematous dermatitis right thigh, 
10 percent
* temporomandibular joint condition with joint pain, 10 percent
* right knee tendonitis, 10 percent
* left knee patellofemoral syndrome, 10 percent

	e.  the applicant was counseled on the PEB findings and his rights to a formal hearing, and on 17 May 2012 he concurred with the PEB findings and waived his right to a formal hearing.

	f.  his DD Form 214, which shows he was honorably discharged on 12 June 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay combat related (enhanced).  He completed 9 years, 6 months, and 29 days of creditable active service.  His DD Form 214 shows he received disability severance pay in the amount of $62,862.00.

	g.  a VA Form 21-0820c, dated 31 July 2012, which shows in item 12c (Verified Separation/Separation Pay) that on 12 June 2012 he received $62,862.00 (gross) and $47,146.50 (net) severance pay.



	h.  his VA Rating Decision, dated 2 August 2012, for the purpose of  evaluation of the following service-connected conditions which were entitled to VA benefits:

* PTSD with neurocognitive disorder due to TBI and major depressive disorder, 50 percent evaluation
* status post gunshot injury right thigh with retained foreign bodies, femoral nerve damage and muscle group involvement, 20 percent
* right hip retained foreign bodies due to gunshot injury, limited flexion, 
10 percent
* bilateral tinnitus, 10 percent 
* gastroesophageal reflux disease, 10 percent
* oncychomycosis bilateral toes and eczematous dermatitis right thigh, 
10 percent
* temporomandibular joint condition with jaw pain, 10 percent
* right knee tendonitis, 10 percent

	i.  73 pages of his VA Electronic Medical Documents, dated from 14 August to 30 October 2012, which show he was evaluated and treated for TBI and PTSD. 

3.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 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.  

4.  Army Regulation 635-40 also provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

5.  Army Regulation 40-501 (Standards of Medical Fitness) 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 percent, rising in increments of 
10 percent.
6.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

7.  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 rated at less than 30%.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

8.  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 contends his record should be corrected to show he was medically retired based on the findings of the MEB, DES and VA Decision Rating instead of honorably discharged with entitlement to severance pay based on the findings of the PEB.

2.  Evidence of record shows he was treated for and referred to an MEB for several conditions to include his right thigh gunshot wound and anxiety disorder.  The PEB reviewed all the available and appropriate evidence and only found him unfit for chronic right thigh neuralgia, without unfitting scar, due to a gunshot injury.  His anxiety disorder, headache syndrome, mild TBI with subjective symptoms, right knee tendonitis, right hip with retained foreign bodies due to gunshot injury, bilateral epididymal cyst, erectile dysfunction, onychomycosis  eczematous dermatitis, and gastroesophageal reflux disease were found to not be unfitting conditions.  The PEB recommended separation with entitlement to severance pay with a 20 percent disability rating.  He agreed with the PEB's findings and recommendations.

3.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's findings and recommendations.  There is no error or injustice in this case.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  There is no evidence to show any of his other conditions, physical or mental, rendered him unfit to perform his duties.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.

5.  In view of the foregoing, he is not entitled to 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 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)                                         AR20130005364





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ABCMR Record of Proceedings (cont)                                         AR20130005364



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