IN THE CASE OF:	  

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20130015364 


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 record to show the Physical Evaluation Board (PEB) awarded him the same disability rating that he was awarded by the Department of Veterans Affairs (VA). 

2.  The applicant states:

	a.  His military occupational specialty (MOS) 92G (cook) required him to use his hands, arms, and upper body.

	b.  Paragraph 2 of the DA Form 199 (PEB Proceedings) "says it was not commented on by the commander."

	c.  He has a letter from his command which talks about his shoulder problems.

	d.  All of his conditions were problems when he was in the Army and should be considered because his primary MOS required constant use of his hands, arms, and shoulders.

3.  The applicant provides:

* Memorandum for Record (MFR), dated 28 March 2012
* DA Form 199, dated 5 December 2011
* DA Form 5892 (Physical Evaluation Board Liaison Officer Estimated Disability Compensation Worksheet)
* VA Disability Evaluation System Proposed Rating, dated 29 November 2011
* VA Benefits Estimate, dated 3 December 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 November 2008.  He completed training as a food service operations specialist.

2.  On 20 July 2011, the applicant underwent an examination/interview for the purpose of Medical Evaluation Board (MEB) consideration.  The MEB Narrative Summary states that because of his need for ongoing medication to control his diabetes, he was determined to have reached a medical retention determination point.  His past history included:

* Some depression
* Bronchitis
* Some hearing loss
* Type II diabetes mellitus
* Rectal pain and anal fissures, which had been evaluated by general surgery
* Left elbow pain with rotation
* hypertension and increased cholesterol
* occasional low back pain
* frequent heartburn

3.  During his examination/interview, the doctor noted that the applicant had recently undergone a sleep study and was using a continuous positive airway pressure machine on a nightly basis with decrease in daytime sleepiness.

4.  The MEB Narrative Summary states:

* The applicant had bilateral shoulder pain with no specific injuries
* He had recent injections and was still in treatment
* He was seen by the endocrinology clinic for evaluation on 15 April 2011 with the finding of diabetic mellitus poorly controlled that fails retention standards
* He was seen by ophthalmology on 18 April 2011 with no evidence of diabetic retinopathy
* He was seen by orthopedics with the conclusion that his treatment for his right shoulder was not completed
* Injections [for his shoulder] were given with improvement in symptoms and he was felt to meet retention standards at that time

5.  On 12 September 2011, an MEB convened to evaluate the applicant's conditions and to determine whether he should be referred to a PEB for consideration.  The MEB diagnosed the applicant as follows:

* Diabetes mellitus
* Right shoulder impingement syndrome (meets retention standards)
* Left shoulder tendonitis (meets retention standards)
* Left elbow lateral epicondylitis (meets retention standards)
* Sleep apnea (meets retention standards)
* Hypertension (meets retention standards)
* Allergic rhinitis (meets retention standards)
* Gastroesophageal reflux (meets retention standards)
* Hyperlipidemia (meets retention standards)

6.  The MEB recommended that the applicant be referred to a PEB.  The MEB's findings and recommendation were approved on 19 September 2011.  After being informed of the board's approved findings and recommendation, the applicant elected not to agree.  He submitted an appeal; however, the appeal is not available for review.  After considering his appeal, the approval authority forwarded the report to the PEB.

7.  On 29 November 2011, a VA Disability Evaluation System (DES) Proposed Rating was completed on the applicant under the DES Pilot Program.  This program is an initiative between the Department of Defense (DOD) and the VA and its purpose is to assign evaluations to the service member's unfit conditions for member's potential entitlement to VA disability compensation.  The VA made the following service-connected disability rating proposals:

* Diabetes mellitus, Type II, rated at 20 percent (DES Proposed)
* Sleep apnea, rated at 50 percent (VA Benefits Only)
* Right shoulder impingement syndrome, rated at 20 percent (VA Benefits Only)
* Gastroesophageal reflux disease, rated at 10 percent (VA Benefits Only)
* Left shoulder tendonitis, rated at 10 percent (VA Benefits Only)
* Left elbow lateral epicondylitis, rated at 10 percent (VA Benefits Only)
* Hypertension, rated at 10 percent (VA Benefits Only)
* Allergic rhinitis, rated at 0 percent (VA Benefits Only)

8.  Service connection for gastroenteritis was not proposed.  The VA proposed a combined service-connected disability rating of 80 percent for his unfitting and claimed disabilities.  The applicant was notified of the VA Benefits Estimate on 3 December 2011.

9.  On 5 December 2011, the PEB convened to determine the applicant's fitness for retention on active duty.  The PEB rated his Diabetes mellitus, Type II at 20 percent unfitting as it impaired his ability to perform warrior tasks and battle drills including adapting to changing operational environments.  The PEB found that all of his other conditions met retention standards as cited in the MEB Proceedings).  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified.

10.  The applicant elected not to concur with the PEB's findings and demanded a formal hearing with a personal appearance.  He requested a regularly appointed counsel to represent him with his formal PEB hearing.

11.  On 1 March 2012, the applicant was notified that he was scheduled to appear for a formal hearing before the PEB.  

12.  He provides an MFR from his commanding officer (CO), dated 28 March 2012, contending that he was unable to fulfill his duties in the I Corps Dining Facility due to his injured shoulders.  His CO stated:

* His injury was so severe that he could no longer lift any items of significance
* Lifting was a key requirement for all dining facility personnel
* He was limited to running the cash register in the dining facility
* He was filling a modified table of organization slot that could be filled by a fully capable Soldier

13.  On 13 April 2012, he withdrew his demand for a formal hearing stating that he did not contest the informal PEB rating at that time.  He stated that pursuant to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-20f(2), should he discover any new or additional evidence, he reserved the right to submit a request for reconsideration.

14.  On 17 July 2012, the applicant was honorably discharged with severance pay under the provisions of Army Regulation 635-40, chapter 4, due to physical disability, non-combat (enhanced).  He received a 20 percent disability rating.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  An MEB is convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines that the Soldier does not meet retention standards the board will recommend referral of the Soldier to a PEB.

16.  Army Regulation 40-501, chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

17.  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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been carefully considered.

2.  However, he has not shown an error or injustice in the decision made by the Army.  The available medical evidence does not show he was on a permanent physical profile for shoulder pain while he was in the Army.  The evidence shows the MFR dated 28 March 2012 was provided by the applicant's CO, but then he withdrew his demand for a formal hearing on 13 April 2012.  Additionally, the MEB Narrative Summary states that injections were given for his shoulder with improvement in symptoms and it was felt that he met retention standards at that time.

3.  His contention that the DA Form 199, paragraph 2, states "it was not commented on by the commander" has been considered.  However, the DA Form 199 also states that with regard to his right shoulder impingement and sleep apnea, the PEB did not find his conditions to be unfitting.  Therefore, they were not ratable as they met medical retention standards.  The case file contained no evidence that these diagnoses independently, or combined, rendered him unfit for assigned duties.  

4.  The evidence shows the PEB rated his Diabetes mellitus, Type II 20 percent unfitting as it impaired his ability to perform warrior tasks and battle drills including adapting to changing operational environments.  The PEB found that all of his other conditions met Army retention standards.

5.  The fact that the VA, in its discretion, has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish error or injustice in the decision made by the Army.

6.  The applicant's contentions do not demonstrate an error or injustice in the disability rating assigned by the Army, nor an error or injustice in the disposition of his separation action.

7.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20130015364



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ABCMR Record of Proceedings (cont)                                         AR20130015364



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