IN THE CASE OF:	  

		BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130012459 


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 reconsideration of his appeal for disability retirement rather than severance pay.

2.  The applicant states the original decisional document incorrectly states the Department of Veterans Affairs (VA) gave him a 25 percent rating for his back.  He questions the statute of limitations for applications to the Board, indicating he was not briefed about such things at separation.  In effect, the x-ray report was for the wrong portion of his back and had the proper level of injury been reviewed a more favorable rating would have been given.

3.  The applicant provides a copy of a 6 July 2000 medical evaluation and four letters of support. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120015570, on 21 March 2013.

2.  The applicant provides new evidence/argument that will be considered.

3.  The applicant, a Regular Army specialist (E-4), served on active duty from 12 August 1997 through 30 April 2001.  
4.  The applicant's contention that the 3-year statute for applying to the Board is without merit.  His case was fully reviewed.  The inclusion of the 3-year statute citation had no affect on the evidence considered by the Board or its findings.  Therefore, this issue will not be addressed further.

5.  The applicant's contention that the prior review included an incorrect VA rating percentage is without merit as the applicant gave this percentage on his original application.  Therefore, this issue will not be discussed further.

6.  The medical report provided was of record at the time of the prior review and was noted in both the medical records related to his Medical Evaluation Board and the prior Board action.  Therefore, it does not constitute new evidence.  

7.  In her letter, the applicant's wife states that a year after his discharge the VA found he had a 25 percent fracture of his T-12, and his back condition causes him pain to this date.  She also relates that her husband has developed depression and at one point committed himself to the VA psychiatric care due to homicidal and suicidal thoughts.

8.  In his letter, the applicant's father-in-law states he has observed the applicant's deterioration from a hard working man through depression and his efforts at reeducation and improvement of his appearance and attitude.

9.  In the letter from a friend, she states she has observed that the applicant's physical pain has a definite negative effect on him.  She believes the applicant is suffering from Post-Traumatic Stress Disorder (PTSD) and Attention Deficit Hyperactivity Disorder (ADHD) that warrant an increase in his benefits.

10.  In the letter from the service officer, he states that he believes the applicant is exhibiting definite symptoms of PTSD and is in an enormous amount of pain in his back.  In his opinion, the applicant warrants a physical disability retirement.

11.  The applicant’s narrative summary noted that CT scans of his lumbar and thoracic spines were normal.  An MRI of the lumbar and thoracic spines was normal.  Cervical and thoracic spine x-rays were normal except for some cervical muscle spasm.  A bone scan was normal.  His orthopedic Service examinations were essentially negative except for limited range of motion.  All movements were reported as limited by pain.

12.  On 30 April 2001 he was discharged due to disability, due to low back pain, with severance pay under VA Schedule for Rating Disabilities (VASRD) code 5295 and a 10 percent disability rating.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.

14.  The VASRD, code 5295 (lumbrosacral strain), states a 10 percent rating is given when the condition has characteristic pain on motion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and record does not contain any evidence he was suffering from any mental, emotional, psychological or psychiatric problems that was interfering with his ability to perform his assigned duties. 

2.  In the absence of evidence that at the time of the discharge he complained of or received any treatment for PTSD and that he was unable to perform his duties because of PTSD, the PTSD issue does not demonstrate an error or an injustice in the discharge or warrant a reevaluation of his disability rating.

3.  The available evidence shows the applicant’s primary problem at the time was back pain.  It appears he was given the proper rating in accordance with the VASRD.  If his pain has gotten worse it is the VA’s responsibility to evaluate that change and, if appropriate, update his disability rating.

4.  The evidence provided by the applicant was already available or is insufficient to show the condition for which the applicant was medically discharged warranted a higher disability evaluation.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120015570, on dated 21 March 2013.



      ______________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)                                         AR20130012459





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ABCMR Record of Proceedings (cont)                                         AR20130012459



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