IN THE CASE OF:	    

		BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016241 


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 reconsideration of his earlier request for correction of his military records to show he was retired due to physical disability.

2.  The applicant provides his argument for reconsideration in a 6-page narrative as summarized below.

	a.  He does not see where his degenerative activity was even looked at by the physicians.  He contends he did have it while in the military and it was diagnosed but was not included in his medical records when he was discharged.

	b.  He was a 20-21 year old private first class.  He was used to doing what he was told to do.  He did not know what was in his medical records and no one told him.  He does know that his degenerative disc began while he was in the service.

	c.   He did not see the accident report, but on the side of a hill at Fort Hunter Liggett, California, he heard his first sergeant yell for someone to catch someone. The applicant caught another private first class.  Both the applicant and that other private first class could have died on that day.  The applicant's career was cut short that day.

	d.  He did not want to get out of the military service.  He learned to do paperwork in the arms room and supply room.  When needed he did typing and filled in when needed in the unit or at headquarters.  When the Army had inspection concerning the weight carried in rucksacks, he was the one who packed his rucksack and turned it in.
	e.  He was asked to go to Ranger School.  He was promoted twice in a year.  The Army was his whole life.  He did not want to get out, but his military lawyer told him that it would be best for him if he did.  The Army would not let him stay.

	f.  He questions whether the Army knew about his degenerative disc and spinal stenosis.  These conditions showed up within a year of his discharge.  Also trachanteric bursitis of his hips and plantar flexion are not listed on his medical evaluation board.  He had these conditions while in the Army.  His lawyer never told him to get these conditions added to his Army records.  He now asks why the Army never added them.

	g.  Within a year and a half after his discharge he had an abnormal electrocardiogram, hypertension, and high blood pressure.  The VA awarded him service connection for these conditions.  He was not told until 2012 that he could have been medically retired because his back condition had worsen resulting in a disability rating of 60 percent effective back to 1990.  He does not understand why the Army did not look at all of his medical problems.

	h.  Also, the severance pay he received had to be paid back.  It was only a loan.  The Army did not give him anything.

3.  The applicant provides copies of:

* A Medical Record Report, Silas B. Hays Army Community Hospital, dated 1 November 1985 (first page only)*
* Standard Form 88 (Report of Medical Examination) dated 24 March 1986
* Standard Form 93 (Report of Medical History) dated 24 March 1986
* A Medical Record Report, Silas B. Hays Army Community Hospital, dated 17 April 1986 (first and second page only)
* Medical Evaluation Board Proceedings, dated 9 June 1986 (first page only)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 
12 May 1987
* A roster, undated, showing the applicant's disease or injury, date of treatment, and location of treatment
* Department of Veterans Affairs (VA) Form 20-8993, letter establishing service connection for back strain, dated 2 December 1987
* Letter, State Veterans Affairs Commission, dated 17 December 1987
* A Radiologic Consultation Report, dated 27 July 1988
* VA Form 21-6796-1 (Rating Decision), dated 14 September 1988
* Standard Form 509 (Progress Note) dated 18 November 1988
* Letter, State Veterans Affairs Commission, dated 13 February 1991*
* VA Form 21-0584 (confirmed Rating Decision), dated 25 July 1991
* Page 3 of a VA payment decision effective 5 April 1990
* A Compensation and Pension Exam Report, dated 16 July 1993 (first page only)*
* VA Form 10-10M (Medical Certificate), dated 6 October 1993
* VA Rating Decision, dated 15 September 2004 (first page only)*
* Applicant's statement in support of VA claim, dated stamped by the VA on 20 June 2012*

*  These documents are not attached to the original Board proceedings or otherwise identified as having been previously considered.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120018270, on 30 April 2013.

2.  The majority of the enclosures provided by the applicant with this application were considered by the original Board and are not new evidence meriting a relook.  However, he did submit five documents that were not specifically seen by the Board and do constitute new evidence that require Board consideration.  In summary, they are:

	a.  A Medical Record Report, Silas B. Hays Army Community Hospital, dated 1 November 1985 (first page only).  This document indicates that the applicant was admitted on 24 October 1985 and was discharged from the hospital on 
1 November 1985.  He had recently been seen and diagnosed as having a mild bursitis.  He had been given medication but did not get relief.  Also, he had a sacroiliac and LS spine series which were determined to be normal.  An examination of his neck revealed an anterior cervical node bilaterally.

	b.  Letter, State Veterans Affairs Commission, dated 13 February 1991.  This letter addressed to the applicant informed him that his claim for increased disability compensation had been denied.  It stated that supine straight leg raising revealed that even a minimal lifting of the legs caused lower back pain.  Reflexes and sensation are intact in the lower extremities.  A cardiovascular examination showed a history of hypertension since 1986 with an episode of chest pain in 1988 with no further such episodes and no history of peripheral edema.

	c.  A Compensation and Pension Exam Report, dated 16 July 1993 (first page only).  This document provides the applicant's statement of events in 1985 at Fort Ord, California concerning his assistance of another Soldier who had fallen resulting in both of them sustaining back injuries.  He further related he had bursitis of the hips, gets nauseated, and his pain influences his blood pressure.

	d.  VA Rating Decision, dated 15 September 2004 (first page only).  This document indicates that the VA assigned a 40 percent disability rating for the applicant's degenerative disc disease and spinal stenosis of the lumbar spine low back strain with bulging disc L4-5, status post laminectomy with traumatic arthritis.

	e.  Applicant's statement in support of VA claim, dated stamped by the VA on 20 June 2012.  In this statement the applicant indicates he wanted to file for a medical retirement from the military but was told he should have done so prior to leaving the military.  He argues in this statement that he had degenerative activity while in the military in 1986.  Within a year of his subsequent discharge from the military in 1987 he had degenerative osteophyte, spinal stenosis and other conditions for which he was granted service connection by the VA going back to 1990.  He contends that these conditions existed earlier and asked the VA to grant service connection effective with his discharge from the military.  He contends that he had these conditions while in the military and was never given medical treatment.  He asked the VA to look into this matter to see if he is correct.

3.  The original ROP stated the applicant enlisted in the Regular Army on 
27 November 1984, for duty as an indirect fire infantryman.  He attained the rank and grade of private first class (PFC)/E-3.

	a.  In July 1985, the applicant suffered a back injury when he fell down a hill.  He was seen the following day and treated with medications.  He was then given a series of medical evaluations resulting in a recommendation for his entry into the Physical Disability Evaluation System (PDES).

	b.  In August 1986, the applicant was evaluated by an informal PEB.  He was found medically unfit for duty due to chronic lumbar strain with concealed L4-5 disc and abnormal electromyography (EMG)/nerve conduction velocity (NCV) study.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5299/5293, and granted a 20 percent disability rating.  The applicant did not concur with these findings and demanded a formal hearing of his case.

	c.  In May 1987, a formal PEB convened.  It determined that the applicant's condition prevented him from performing the duties required of his grade and military occupational specialty due to chronic lumbar strain with concealed L4-5 disc and abnormal EMG)/NCV study.  He was rated at 20 percent disabled under the VASRD assigned codes 5299/5293.  The applicant was counseled about these findings and he concurred.

	d.  The applicant was honorably discharged on 18 June 1987 due to a physical disability with entitlement to severance pay.

	e.  The VA subsequently awarded the applicant service-connected disability compensation at the rate of 40 percent for degenerative disc disease and spinal stenosis of the lumbar spine and low back strain with bulging disc, status post laminectomy with traumatic arthritis.  Later this compensation was increased to 60 percent.

	f.  The Board noted that the applicant had been injured while on active duty and that his injury prevented him from performing his duties.  Accordingly, he was discharged due to his disability and given severance pay.  The applicant was further informed that the Board had recognized his conditions had worsened over time.  He was advised that the VA provides continuing treatment and compensation for Soldiers after they leave the military service.

	g.  The Board also noted that none of the conditions now in question were determined to be unfitting while he was in the military.  He was informed that the Army's disability rating is based on the level of disability at the time of separation.

	h.  The Board did not find any error or injustice in the applicant's case.  Accordingly, his request was denied.

4.  Army Regulation 635-40 establishes the 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.

5.  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 of less than 30 percent.

6.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 contends that his military records should be corrected to show he was retired due to physical disability.

2.  The applicant's physical disability evaluation appears to have been conducted in accordance with law and regulations.  There does not appear to be an error or an injustice in his case.  The argument and documentation he has provided with this case does not support his belief and allegation that his medical condition at the time of his discharge was improperly or inaccurately evaluated.

3.  The applicant's questions about whether the Army knew of his degenerative disc and spinal stenosis are noted.  However, he states these conditions showed up within a year after his discharge.  He also contended that he suffered from trachanteric bursitis of his hips and plantar flexion while in the Army.  If he had these conditions at the time, and if they had risen to the level of preventing him from doing his military duties, then the PEB would have considered them.  Unfortunately, the available evidence is not sufficiently convincing to show that he had these conditions prior to his discharge, or that, if he did, that they caused him to be unfit.  Rather, the evidence indicates that his medical conditions have simply worsened since his discharge and requires treatment and compensation by the VA.

4.  In view of the above, the applicant's request should be denied.


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 to amend the decision of the ABCMR set forth in Docket Number AR20120018270, dated 30 April 2013.




      ____________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)                                         AR20130016241





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016241



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1