BOARD DATE:	  21 May 2014

		DOCKET NUMBER:  AR20130013127


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 discharge by reason of "Disability, Severance Pay, Non-Combat Related" be changed to "Medical Retirement."

2.  The applicant states:

   a.  a physical evaluation board (PEB) determined his service-connected spinal cord injury was physically unfitting and rated him 20 percent (%) disabling;
   
   b.  the Department of Veterans (VA) later rated the same condition 40% disabling effective on 13 December 2010, the date following his discharge; and
   
   c.  the VA rating is likely more accurate and, if his disability was rated at 40% at the time of his discharge, he should have been granted a medical retirement instead of simply receiving a disability discharge with severance pay.
   
3.  The applicant provides:

* two Department of Veterans Services Letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 Medical Evaluation Board (MEB) Proceedings
* MEB Narrative Summary (4 pages)
* six Standard Forms 600 (Chronological Record of Medical Care)
* DA Form 199 Physical Evaluation Board (PEB) Proceedings
* DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet)
* three VA Award Letters
* VA Rating Decision with hearing examination results

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 March 2008.  He was trained in and awarded military occupational specialty 11C (Indirect Fire Infantryman).

2.  A narrative summary (NARSUM) by Blanchfield Army Medical Center, Fort Campbell, Kentucky, prepared for a Medical Evaluation Board (MEB) documents the applicant’s 8 February and 20 May 2010 medical examinations for his chief complaint of lumbar spine pain.  The NARSUM shows:

   a.  He first sustained a lumbar spine injury with pain in September or October 2008 after moving a twin mattress up three floors while stationed at Fort Campbell.  He felt a sharp pain in his lower back radiating down his left leg/thigh to his right knee.  An MRI administered in November 2008 showed an L5-S1 mild central disk protrusion; a second MRI with contrast in February 2009 showed nerve root compromise bilaterally; and an electromyogram administered on 18 March 2009, showed decreased motor unit activity.
   
   b.  He was referred to an off post neurosurgeon in May or June 2009, where a computerized tomography (CT) myelogram was performed and he was scheduled for surgery.  Immediately following surgery, his neuropathy improved.  He was treated with physical therapy for 3 months and returned to staff duty in December 2009, sitting at a desk for 24 hours once every three days.  He had low back pain from the first day of sitting and from standing longer than ten minutes.  In January 2010, he was reassigned to human resources doing paperwork.
   
   c.  He could not perform his current military occupational specialty as a mortarman because he could no longer lift thirty pound shells above his head.  He was no longer flexible enough to bend at the waist to use the site to aim his mortar. He could not carry a rucksack, run, or wear individual body armor.  In his current assignment at the time, he could not sit at a desk for the required six hours without changing position.  On 11 August 2010, the applicant was seen by his neurosurgeon in Nashville, Tennessee who determined his CT, MRI, and EMG were normal and no sign of nerve root compression was found.
   
   d.  His diagnosis was that his lumbar pain, status post L-5-S1 fusion did not meet retention standards and was medically unacceptable in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  His prognosis indicated it was unlikely the applicant would regain sufficient painless lumbar flexibility to return to being a mortarman.  He was recommended for entry into the physical disability evaluation system (PDES).

3.  On 17 June 2010, a medical evaluation board (MEB) convened and after consideration of clinical records and physical examinations, the MEB found the applicant’s diagnosis of “radicular pain, status post L5-S1 fusion, was medically-unacceptable and referred him to a physical evaluation board (PEB).  The MEB found the following diagnosis were medically acceptable:

* Anxiety disorder
* Depression disorder
* Marital problems
* Occupational problems
* Acute urinary retention

4.  On 6 July 2010, a PEB convened and found the applicant's spinal fusion, L5-S-1 unfitting.  The PEB noted this condition rendered the applicant unable to perform military functional activities, lift over 10 pounds, stand longer than 10 minutes, or perform any Army Physical Fitness Test (APFT) aerobic event.  The PEB found his thoracombular combined range of motion was 150 degrees and forward flexion was 50 degrees and rated these conditions at 20% due to his limited forward flexion.  The PEB determined the applicant's remaining five conditions under review were not unfitting.

5.  The PEB rated his unfitting condition under the VA Schedule for Rating Disabilities (VASRD) and granted a 20% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

6.  On 12 December 2010, the applicant 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 2 years and 9 months of active service and he received severance pay.

7.  He submitted two letters from a VA representative who supports his request for medical retirement.  He also provides three VA rating decisions which show he was granted service connection for postoperative lumbar fusion at L5-S1 and degenerative disc disease of the throacolumbar spine status post laminectomy spinal cord injury and rated at 40% effective from 13 December 2010.  The first of these rating decisions was accomplished on 27 April 2012.

8.  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.

9.  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.

10.  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%.

11.  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.

12.  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 (spinal cord injury 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 20% disability rating.

2.  The VA granted the applicant service connection for his unfitting condition on 27 April 2012, more than a year after his discharge and rated him 40 %.  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 awards a disability rating for a scar.  However, there is no evidence to show a scar, in of itself, renders an individual 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.

5.  Finally, the evidence also confirms the applicant is properly receiving treatment from the VA, which is the appropriate agency to render long-term care and disability evaluation for service-connected medical conditions.  The VA can evaluate him throughout his lifetime, adjusting the disability rating percentage.


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)                                         AR20130013127



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ABCMR Record of Proceedings (cont)                                         AR20130013127



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