IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017372 


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 an increase in her physical disability rating to at least 30 percent and a medical disability retirement.

2.  The applicant states her post-surgery unfitting conditions (left hip pain due to coxa saltans with arthritis and nerve damage to left leg including foot pain, cervical strain, and lumbosacral strain) were not collectively rated to allow her to obtain the 30 percent disability rating needed for retirement.  

3.  The applicant provides her service medical records (approximately 
400 pages), DA Form 199 (Physical Evaluation Board (PEB) Proceedings), Department of Veterans Affairs (VA) Rating Decision, and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 2 December 1982.  

3.  On 9 April 1996, she was examined by a Medical Evaluation Board (MEB) and she was diagnosed with left hip chronic coxa saltans (snapping hip).  The MEB concluded she did not meet medical retention standards and referred her to a PEB.  The MEB Narrative Summary indicated her chief complaint was left hip pain.  

4.  The DA Form 3947 (MEB Proceedings) includes the following statement.  "I [the Soldier] certify that this medical board accurately covers all of my medical conditions, that all health records pertaining to my case have been turned over to proper authorities and that I have been counseled in accordance with appendix C-6 [Counseling/MEB], AR 635-40 [Personnel Separations-Physical Evaluation for Retention, Retirement, or Separation]."

5.  Informal PEB Proceedings, dated 1 May 1996, show the applicant was assigned a 10-percent disability rating under VA Schedule of Rating Disabilities (VASRD) codes 5255 and 5003 (5255 denotes anatomic site) for chronic pain in the left hip due to coxa saltans.  The PEB found her physically unfit and recommended a 10-percent disability rating and separation with severance pay.  

6.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of her case.

7.  On 26 June 1996, she was discharged by reason of physical disability with severance pay.

8.  She provides a VA Rating Decision, dated 18 November 1996, which indicates she was granted service connected disability for the following conditions:

* post surgery of left hip for coxa saltans with arthritis and nerve damage to left leg including foot pain (10 percent)
* post laceration left middle finger with scar (0 percent)
* lumbosacral strain (0 percent)
* cervical strain (10 percent)

9.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.

10.  Appendix B of Army Regulation 635-40 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, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

11.  Army Regulation 635-40 at the time stated that the VASRD guidance on codes 5003 and 5255 further states inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or to measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  However, lack of objective findings does not constitute a valid reason for finding a Soldier unfit by analogy to a neuropsychiatric disability or assuming that the Soldier is malingering.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value. 

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

13.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her disability rating from the PEB should have been higher has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The PEB Proceedings, dated 1 May 1996, show her unfitting diagnosed conditions were rated under VASRD 5003 for hip pain.  The VASRD guidance for code 5003 states a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  It further states there is a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  

3.  The applicant’s disability was properly rated in accordance with the VASRD and her separation action with severance pay was in compliance with laws and regulations.  It is also noted that the VA did not give her a 30 percent rating.  There is no evidence of error or injustice in this case.

4.  Based on the foregoing, there is no basis 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)                                         AR20130017372



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ABCMR Record of Proceedings (cont)                                         AR20130017372



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