BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130012593 


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 his post-traumatic stress disorder (PTSD) was a disabling condition. 

2.  The applicant states he is receiving 100 percent (%) disability compensation from the Department of Veterans Affairs (VA).  He had started having PTSD symptoms before he was discharged from the Army.  He saw the doctor only one time and he was told it was just bad dreams due to combat.  He did not know he had PTSD until 4 years later when he was seen by the VA. 

3.  The applicant provides:

* VA Rating Decision, dated 16 January 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 March 2006
* Department of Defense (DOD) Physical Disability Board of Review decision
* selected service and VA medical 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.  Having had prior enlisted service, the applicant enlisted in the Regular Army on 29 September 2004 and he held military occupational specialty 92A (Automated Logistical Specialist).  He served in Kuwait/Iraq from 15 March 2003 to 15 July 2003. 

3.  In February 2006, he complained of back and left hand pain.  His narrative summary (NARSUM) shows:

	a.  He began experiencing back pain in 2002 at Fort Lee, VA, aggravated by lifting heavy equipment and being in the motor pool.  He was treated with physical therapy, shots, and a physical profile and he was able to perform his soldiering activities until his separation in December 2003.  He reentered active duty in 2004 and served in Korea.  However, upon his return to Fort Stewart, GA, he began experiencing back pain and spasms. 

	b.  His diagnosis was that of chronic low back pain consistent with degenerative disc disease that did not meet retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  He was also diagnosed with left flexor digitorum profundus rupture with tendon transplant repair that did not meet retention standards.  He was recommended for entry into the physical disability evaluation system (PDES).

4.  On 23 February 2006, 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 conditions of chronic low back pain consistent with degenerative disc disease and left flexor digitorum profundus rupture with tendon transplant repair.  The MEB recommended his referral to a physical evaluation board (PEB). The applicant was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

5.  On 1 March 2006, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to chronic low back pain consistent with degenerative disc disease.  The PEB noted that his left flexor digitorum profundus rupture with tendon transplant repair was not separately unfitting.  

6.  The PEB rated his condition under the VA Schedule for Rating Disabilities (VASRD) and granted a 10% disability rating.  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 3 March 2006 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 31 March 2006, he was honorably discharged under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, severance pay.  The DD Form 214 he was issued shows he completed 1 year, 6 months, and 2 days of active service and he received severance pay.

9.  He submitted:

	a.  Various service and VA medical records, examinations, profiles, and other medical documents related to his knee and back pain.  

	b.  VA rating decision, dated 9 January 2013.  The VA awarded him service-connected disability compensation for PTSD, low back strain, patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, ankle scar, finger scar, residuals of left ring finger ruptured flexor tendon, and external hemorrhoids. 

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%.  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.  

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 a physical medical condition (back pain) that warranted his entrance into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his 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% disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.

2.  There is no evidence in his records and he provides none to show he was diagnosed with any behavioral health issues, including PTSD, or that such issues failed retention standards and/or were found unfitting and/or prevented him from performing his military duties.  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.  

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 scar.  However, there is no evidence to show his scar rendered him unable to perform his 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.  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)                                         AR20130012593





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ABCMR Record of Proceedings (cont)                                         AR20130012593



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