IN THE CASE OF: 

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20130016013 


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 the disabilities which the Department of Veterans Affairs (VA) found to be service-connected be added to his Army Physical Evaluation Board (PEB). 

2.  The applicant states, in effect, the VA awarded him service-connected disability compensation for multiple conditions that are not listed on his PEB.  

3.  The applicant provides:

* VA summary letter, dated 11 July 2013
* VA rating decision, dated 11 July 2011
* PEB documents, dated 25 February 2013 (not enclosed or received)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 February 2003.  He held military occupational specialty 11B (Infantryman).  He was assigned to the 2nd Battalion, 35th Infantry, Schofield Barracks, HI. 

2.  Neither his Narrative Summary nor his Medical Evaluation Board (MEB) Proceeding are available for review with this case.  However, based on a subsequent review of his entire medical records by the DOD Physical Disability Board of Review:


	a.  In May 2003, while in basic training, he stepped in a hole and injured his lower back.  He received conservative treatment from physical therapy, physical medicine and rehabilitation, and pain management to include rehabilitative back exercises, medications and injections.  Subsequently, he was seen by neurosurgery and after a confirmed magnetic resonance imaging (MRI) of spondylolisthesis of L5-S1 was offered surgery but declined.  His profile limitations included no running, jumping, sit-ups, marching, wearing of rucksack or load-bearing vest, lifting greater than 40 pounds, plyometric exercises, and no physical fitness testing.  

	b.  At the MEB exam, he reported pain was constant which increased with activity with intermittent radiation into lower extremities and upper back and that he had not received lasting benefit from any treatment.  The MEB physical exam demonstrated tenderness bilaterally from T8-S1 (thoracic-sacral), greatest at the L1 (lumbar) bony prominence and paraspinals, positive Waddell’s 5/5 connoting a nonorganic disease process contributing to the back pain, flexion to 100 degrees without pain for rectal exam and no neuromuscular findings.  MRI revealed spondylolisthesis of L5-S1 (movement of one bony prominence on another away from normal), a possible spina bifida occulta in the sacral segment (congenital defect) and an incidental small left paracentral protrusion at L4-5, without stenosis.  A computer tomography (CT) revealed L5 spondylolysis with Grade II anterolisthesis.  The medical examiner diagnosed spondylolysis and low back pain without focal neurological deficit and additionally documented the applicant was unable to lift greater than 20 pounds or wear a Kevlar helmet. 

3.  On 1 Mach 2004, an informal PEB convened and determined the applicant's functional limitations in maintaining an appropriate level of flexibility, caused by the physical impairments, made him medically unfit to perform the duties of his grade and primary specialty.  The PEB rated his condition of Spondylolysis with Grade II anterolisthesis without radiculopathy, chronic, at a 10 percent rating and recommended his separation with entitlement to severance pay.  

4.  Subsequent to counseling, on 4 March 2004, he concurred with the PEB's finding and recommendation and waived his right to formal hearing of his case.  

5.  On 24 March 2004, Headquarters, Troop Command, U.S. Army Garrison, Schofield Barracks, HI, published Orders 084-003 ordering his discharge effective 20 April 2004 by reason of physical disability with a disability rating of 10 percent. 

6.  He was honorably discharged from active duty on 20 April 2004 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, with entitlement to severance pay.  He completed 1 year, 2 months, and 1 day of active service. 

7.  On 13 July 2011, the VA awarded him service-connected disability compensation for/at the rate of: 

* Post-traumatic stress disorder (PTSD) with major Depressive Disorder and Polysubstance abuse, 30 percent effective 1 August 2010; 50 percent effective 17 March 2011, and 100 percent effective 13 July 2011
* Surgical scar, status post L4-S1, rated at 0 percent is increased to 10 percent effective 17 March 2011
* Herniated nucleus, L1-L2 with spondylolisthesis, currently 40 percent disabling, is continued
* Right ankle strain, currently 10 percent disabling, is continued
* Left ankle strain, currently 10 percent disabling, is continued
* Chondromalacia patella, right knee, currently 10 percent disabling, is continued
* Chondromalacia patella, left knee, currently 10 percent disabling, is continued
* Right hip strain, currently 10 percent disabling, is continued
* Left hip strain, currently 10 percent disabling, is continued
* Traumatic brain injury (TBI) is denied
* Cervical strain [claimed as neck condition secondary to TBI and back surgery] is denied
* Lipoma left lower post rib cage (claimed as fatty tumor left lower rib cage secondary to back brace following back surgery) is denied

8.  On 12 January 2012, the Army Board for Correction of Military Records denied his request to change the narrative reason for separation from "Disability, Severance Pay" to "Medical Discharge."

9.  On 6 December 2012, the DOD PDRB reviewed his application and found his disability rating should be modified but not to the degree that would justify changing his separation for disability with severance pay to a permanent retirement.  The PDBR recommended a modification of the disability rating previously assigned to reflect a rating of 20 percent rather than 10 percent, without re-characterization of the separation.  This recommendation was accepted and the applicant was so notified on 11 January 2013. 

10.  On 11 February 2013, Headquarters, U.S. Army Garrison, Schofield Barracks, HI, published Orders 042-0006 ordering his discharge effective 20 April 2004 by reason of physical disability with a disability rating of 20 percent. 

11.  He provides another VA rating, dated 9 July 2013 and a VA letter summarizing his service-connected disability conditions, compensation, and effective dates. 

12.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the MEB and PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

13.  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 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.  

14.  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 VA Schedule of rating Disabilities.  Ratings can range from 0% to 100%, rising in increments of 10%.

15.  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 percent.  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 percent.

16.  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. 

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 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 evidence of record shows the applicant sustained a physical condition that failed retention standards.  Although his NARSUM and MEB Proceedings are not available for review with this case, extensive other evidence clearly indicates spondylolysis was the only condition that failed retention standards.  There were no other conditions identified anywhere on any military records that failed retention standards or were found unfitting.  

2.  His one condition was considered by an informal PEB that determined this condition was unfitting.  It rated the condition at 10 percent and recommended his separation with entitlement to severance pay.  He was counseled, concurred, and waived his right to a formal hearing of his case.  The DOD PDRB later determined the rating should have been 20 percent vice 10 percent and the applicant's records were corrected accordingly.  

3.  He appears to believe since the VA awarded him service-connected disability for multiple conditions, the Army should have, in effect, done the same.  This contention is without merit.  

	a.  Under the legacy PDES, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency do not establish error by the Army.  Operating under different laws and its 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) that affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA may rate all service-connected conditions.

	c.  In the applicant's case, aside from the spondylolysis, there was no diagnosis for any medical, physical or behavioral, conditions being a disabling factor at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

4.  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.  The applicant did not have a condition that failed retention standards and/or was found unfitting.  Referral to the Army disability system requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  None of the VA service-connected conditions were determined to have failed Army retention standards and/or found unfitting.  

5.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's discharge and can only be accomplished through the PDES.  

6.  The applicant has failed to support his contention.  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)                                         AR20130016013



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ABCMR Record of Proceedings (cont)                                         AR20130016013



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