BOARD DATE:	  26 March 2014

		DOCKET NUMBER:  AR20130013721 


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, in effect, correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to add additional medical conditions and increase his percentage of disability.

2.  The applicant states the PEB did not take all of his injuries into account when he was medically discharged.  According to the PEB, his disability rating was based solely on his lower back injuries.  His upper back injuries, tinnitus, and insomnia were not included in his overall rating.

3.  The applicant provides:

* 58 Standard Forms 600 (Chronological Record of Medical Care) ranging in date from 31 January 2006 to 21 May 2009
* three Patient Laboratory Inquires
* DD Form 2216E (Hearing Conservation Data), dated 3 September 2008
* DD Form 2215E (Reference Audiogram), dated 21 October 2008
* Leave and Earnings Statement (LES) for the period ending 31 March 2009
* DA Form 3349 (Physical Profile), dated 23 April 2009
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 23 April 2009
* DD Form 2807-1 (Report of Medical History), dated 27 April 2009
* DD Form 2808 (Report of Medical Examination), dated 27 April 2009
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 28 April 2009
* DA Form 3947 (MEB Proceedings), dated 30 April 2009
* DA Form 5889 (MEB Referral Transmittal Document), dated 30 April 2009
* DA Form 199, dated 21 May 2009
* Physical Disability Information Report, dated 9 June 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* Enlisted Record Brief
* Department of Veterans Affairs (VA) Rating Decision, dated 18 December 2009

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 30 October 2001 and served through a series of reenlistments.  He held military occupational specialty 11B (Infantryman) and attained the rank/grade of staff sergeant/E-6.

3.  He provided 58 Standard Forms 600 ranging in date from 31 January 2006 to 21 May 2009 which show:

	a.  On 27 July 2008, he was seen at the Army Health Center in Vicenza, Italy. He complained he had been suffering with lumbar back pain for 2 years.  He was diagnosed with a backache.  This was the first time he was seen for back pain.  Additionally, these forms show he was seen on numerous occasions for issues relating to lower back pain, attended various forms of physical therapy, and had a magnetic resonance image.

	b.  On 3 September 2008, he was seen at the Vicenza Medical Service Center for a complaint of hearing loss and a sharp pain in his right ear (tinnitus).  He was referred to audiology for a hearing test.

	c.  On 21 October 2008, he was seen at the Audiology Clinic at Landsthul Hospital, Germany.  Tests revealed he has a slight hearing loss in his right ear which was considered borderline.  However, the audiologist indicated he maintained a hearing (H) physical profile rating of 1 for his right ear and he had normal hearing in his left ear.  His hearing loss met medical retention standards.

	d.  On 30 March 2009, he was seen in the neurosurgery clinic at Landsthul Hospital, Germany.  His physician diagnosed him with degenerative disc disease L5-S1 and L3-L4, discogenic syndrome L5-S1 and L3-L3, and intermittent right L5 greater than left L5 radiculopathy.

	e.  These forms do not contain any evidence showing he was ever seen for, ever complained of, or was ever diagnosed with, insomnia or upper back pain.

4.  He provided a DA Form 3349, dated 23 April 2009, showing he had a permanent lower extremities (L) physical profile rating of 3 for herniation of the nucleus pulposus (HNP) (a slipped/bulging disc).  The examining physician recommended his referral to an MEB/PEB.

5.  He provided a DD Form 2807-1 and DD Form 2808, dated 27 April 2009.  These forms show he indicated he either was suffering from or had suffered from hearing loss and recurrent back pain, and he had frequent trouble sleeping.  He explained that this was due to back pain (herniated discs).  The examining physician diagnosed him as having lumbar HNP and lower back pain.

6.  He provided an MEB NARSUM dated, 28 April 2009, showing he was diagnosed with HNP L5-S1 with radiculopathy and degenerative lumbar disc disease.

7.  He provided an DA Form 3947, dated 30 April 2009, showing the MEB considered him for the conditions of HNP L5-S1 with radiculopathy and degenerative lumbar disc disease and found them medically unfitting under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  The MEB referred him to a PEB.  He agreed with the MEB findings and recommendations.

8.  His records contain a DA Form 199, dated 21 May 2009, showing the PEB considered his condition of chronic lower back pain.  The PEB found his condition to be medically unfitting, recommended a 20-percent disability rating, and recommended his separation with severance pay.  He concurred with the PEB findings and recommendations and waived his right to consideration before a formal PEB.

9.  His DD Form 214 shows he was honorably discharged on 6 September 2009 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of a combat-related disability with severance pay.

10.  He provided a VA Rating Decision, dated 18 December 2009, showing the VA:

* awarded him a 10-percent service-connected disability for degenerative disc disease with spinal canal stenosis lumbar spine
* awarded him a 10-percent service-connected disability for right ear hearing loss
* denied service connection for left ear hearing loss
* deferred the decision on entitlement to compensation for insomnia

11.  His records show he applied to the Department of Defense Physical Disability Board of Review (PDBR) for an increase in his disability rating.  He stated his condition of tinnitus was not factored into the PEB's final rating decision.  The PDBR informed him that tinnitus would not be addressed because that condition was not addressed or determined to be unfitting by the PEB and, therefore, not within the PDBR's purview.  He was informed that he could address his condition of tinnitus and any other conditions not included in his application to the ABCMR.

12.  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.

13.  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's records do not contain any evidence to show he complained of upper back pain or that he was treated for and diagnosed with this condition.  Soldiers are not referred to an MEB/PEB for conditions that are not documented in their medical records.

2.  The evidence of record shows he had an H-1 physical profile rating for hearing.  His loss of hearing was slight and met the medical retention standards for this condition.  As such, his condition of hearing loss or "tinnitus" was not unfitting and did not require referral to an MEB/PEB.

3.  The only reference to insomnia was the DD Form 2807-1, dated 27 April 2009, wherein he indicated he had "frequent trouble sleeping."  However, he indicated it was due to his back pain.  There is insufficient evidence to show this condition as unfitting.

4.  An award of a different rating by another agency does not establish error in the rating assigned by the Army 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) which affects the individual's civilian employability.  For example, the VA awarded him a disability rating for hearing loss in his right ear.  However, there is no evidence to indicate this condition rendered him unable to perform his military duties.

5.  His physical disability evaluation was conducted in accordance with law and regulations and he 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 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)                                         AR20130013721



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ABCMR Record of Proceedings (cont)                                         AR20130013721



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