IN THE CASE OF:	  

		BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20130015891 


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 her records to show she was rated with a higher percentage (%) of disability and placed on the permanent disability retired list (PDRL).

2.  The applicant states she submitted her disability claim to the Department of Veterans Affairs (VA) and was granted a rating of 60 percent for herniated nucleus pulposus status post (s/p) hemilaminectomy and discectomy L5-S1 with surgical scars (claimed as low back pain).  The Army assigned a rating of 
10 percent to the very same disabling and unfitting condition.  In a six-page,
self-authored letter the applicant describes her military career, VA disability ratings, and post-service challenges, stating that she:

* broke her ankle during her last week of basic training (1982)
* was offered a medical discharge, but declined
* arrived overseas in Germany (April 1983)
* was detailed to unload baggage and hospitalized the next day for lower back pain
* was given 30 days to prepare for the Army Physical Fitness Test (APFT)
* had a physical profile, but passed the AFPT and hurt her back
* learned to be a good Soldier and leader during her overseas assignment
* was assigned to Fort Campbell, KY (June 1986)
* performed additional duties (equal opportunity and drug and alcohol)
* trained and learned from the Army Field Manual
* was assigned to Fort Carson, CO (March 1989)
* deployed to the Gulf War (1990) and received the Bronze Star Medal
* experienced back problems due to physical training
* was diagnosed for a pulled hamstring muscle without proper diagnosis
* had back surgery (1994-1997) and was issued a physical profile
* went to the mental health clinic to discuss her stress-related issues
* was assigned to Madigan Army Medical Center for PEB processing
* encountered substandard Army leadership in the unit
* was not promoted and reached the 15-year retention control point 
* was rated by the Army with a 10 percent disability rating
* was rated by the VA with a 90 percent disability rating
* suffers from several medical conditions and is currently on medication

3.  The applicant provides copies of her medical records and VA ratings.

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 (RA) on 1 October 1982 for a period of 3 years.  She was awarded military occupational specialty (MOS) 75B (Personnel Administrative Specialist).  Through a series of reenlistments in the RA she continued to serve on active duty.

3.  Headquarters, 1st Personnel Group, Fort Lewis, WA, memorandum, subject:  Summary of MOS/Medical Retention Board (MMRB) Proceedings, shows the applicant appeared before the board on 21 May 1996.  Members of the MMRB considered all records, reports, and pertinent information and recommended the applicant be placed in a probationary status in order to have her condition reevaluated for possible surgery.

4.  During the course of her medical processing, the applicant requested retention on active duty for medical reasons.  Her requests were approved and her expiration of term of service was adjusted to 22 October 1998, unless her hospitalization, treatment, and medical disability processing was completed prior to that date.

5.  A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) shows an MEB was conducted at Madigan Army Medical Center, Fort Lewis, WA, on 
27 July 1998.

	a.  The MEB proceedings show the applicant was diagnosed with:

* chronic low back pain
* s/p lumbar discectomy, L5-S1 left
* allergic and nonallergic chronic asthmatic bronchitis with mild to abnormal pulmonary function tests, stable
* essential hypertension, poorly controlled
* mild degenerative joint disease of left knee, left shoulder and left ankle
* stress incontinence
* fibrocystic disease of the breast
* tinnitus

   b.  The MEB determined that the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The findings and recommendation of the board were approved, the applicant agreed with the board's findings and recommendations, and her case was referred to the Physical Evaluation Board (PEB).

6.  A DA Form 199 (PEB Proceedings) shows, on 31 July 1998, an informal PEB reviewed the applicant's MEB proceedings, along with her medical records, and found her physically unfit due to chronic low back pain and s/p lumbar discectomy, L5-S1 left.

   a.  The remaining diagnoses listed on the MEB proceedings were considered by the PEB and found to be not unfitting and, therefore, not ratable.

	b.  The PEB recommended separation under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5295, a 10 percent disability rating, and separation with disability severance pay.

   c.  On 13 August 1998, the applicant indicated that she did not concur with the PEB's findings.  She requested a formal hearing, a regularly appointed counsel to represent her, and increase of the 10 percent rating to a minimum of 20 percent.

   d.  The PEB Liaison Officer (PEBLO) affirmed with his signature that he had informed the applicant of the findings and recommendations of the PEB, explained to her the results of the findings and recommendations, and advised her of her legal rights.  He also confirmed the applicant made the elections shown on the PEB proceedings.

   e.  On 18 August 1998, the applicant withdrew her appeal of the informal PEB findings and accepted those findings of separation with severance pay, if otherwise qualified, with a 10 percent disability rating.

	f.  The PEB proceedings were approved on 26 August 1998.

7.  Headquarters, I Corps, Military Personnel Division, Fort Lewis, WA, Orders 251-0005, dated 8 September 1998, assigned the applicant to the transition center for separation processing on 11 October 1998 with a disability rating of 
10 percent and disability severance pay.

8.  On 11 October 1998, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  She completed 16 years and 11 days of net active service this period.

9.  In support of her application the applicant provides her VA rating decisions, spanning the period 26 January 1999 to 15 February 2008, that show, effective 12 October 1998, she was granted service-connection with a combined total rating of 90 percent for:

* herniated nucleus pulposus s/p hemilaminectomy and discectomy L5-S1 with surgical scars (claimed as low back pain) - 60%
* asthma - 30%
* vaginal hysterectomy due to dysmenorrheal and leiomyomata - 30%
* degenerative joint disease, left shoulder - 20%
* hypertension - 10%
* stress incontinence due to hysterectomy - 10%
* degenerative joint disease, left knee - 10%
* degenerative joint disease, left ankle - 0%
* pes planus bilateral - 0%
* tinnitus - 0%
* fibrocystic breast disease, right breast - 0%

10.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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. 
   a.  Chapter 3 (Policies), paragraph 3-5 (Use of the VASRD), shows that 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.  Any non-ratable defects or conditions will be listed on the DA Form 199, but will be annotated as non-ratable.

   b.  Appendix B provides guidance for the Army's application of the VASRD. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, a percentage rating is applied to the unfitting condition from the VASRD.  The percentage is applied based on the severity of the condition.

   c.  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.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30 percent disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30 percent disabling.

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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

   a.  The VA is not required by law to determine medical unfitness for further military service.  Thus, an award of a higher VA rating does not establish error or injustice in the Army rating.  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.

   b.  Consequently, due to the two concepts involved, an individual's medical condition(s), although not considered physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.

   c.  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 (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the physical disability evaluation system (PDES).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her military records should be corrected to show she was discharged with a higher percentage of disability and placed on the PDRL was carefully considered.

2.  Upon review of the applicant's MEB proceedings, along with her medical records, the PEB found the applicant medically unfit due to chronic low back pain and status post lumbar discectomy (L5-S1 left).  She received a 10 percent disability rating with disability severance pay.

	a.  Except for the rated conditions, there is no evidence of record that shows any of the other medical conditions the applicant was diagnosed with at the time of her MEB/PEB processing were medically unfitting for retention in accordance with Army Regulation 40-501.

	b.  After initially indicating she would appeal the informal PEB proceedings, the applicant concurred with the PEB's findings, waived a formal hearing, and did not appeal the PEB proceedings.

3.  The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the PDES process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning her disability processing.  Thus, the applicant's MEB and PEB proceedings are presumed proper and equitable. Therefore, the applicant is not entitled to correction of her records to show she was medically retired with a permanent disability rating of 30 percent (or more).
4.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

5.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary 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)                                         AR20130015891



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ABCMR Record of Proceedings (cont)                                         AR20130015891



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