BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130018385 


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 records to show he was rated with a higher percentage of disability by the Army, retired, and placed on the Permanent Disability Retired List (PDRL).

2.  The applicant states his physical evaluation board (PEB) proceedings were rushed and his subsequent separation was incomplete.

	a.  He states his unit believed that his problems staying awake were due to the medication he was taking for pain.  He had severe sleep apnea and the condition was quickly added during the medical evaluation board (MEB) process.  However, his command was not afforded the opportunity to comment on the medical condition.

	b.  He was medically discharged based on his lower back issues.  However, his sleep apnea and depression were not correctly noted or taken into account during his PEB.  He states he was not properly diagnosed with post-traumatic stress disorder (PTSD) until shortly after he was medically discharged.

3.  The applicant provides copies of his military and Department of Veterans Affairs (VA) medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior active duty enlisted service in the Regular Army from 19 August 1997 through 12 September 2000.  He was awarded military occupational specialty (MOS) 75H (Personnel Specialist), later re-designated as MOS 42A (Human Resources Specialist).  He had inactive service in the U.S. Army Reserve from 13 September 2000 through 25 November 2002.

2.  The applicant enlisted in the Army National Guard of the United States and Kansas Army National Guard on 26 November 2002.  He was ordered to active duty in support of Operation Enduring Freedom on 4 February 2004.

3.  He enlisted in the Regular Army while serving as a mobilized Reserve Component Soldier on 23 January 2006.  He reenlisted in the Regular Army on 13 February 2007.

4.  A review of the applicant's Official Military Personnel File failed to reveal a copy of a DA Form 3947 (MEB Proceedings).

5.  A DA Form 199 (PEB Proceedings), dated 6 June 2012, shows an informal PEB reviewed the applicant's MEB proceedings, along with his medical records, and found him physically unfit due to thoracic strain, lumbar spine intervertebral disc syndrome, degenerative arthritis, and L4-L5 and L5-S1 degenerative disc disease with central protrusion contacting the thecal sac and the bilateral traversing L5 and S1 nerve roots (MEB diagnosis #1).

	a.  His condition of severe obstructive sleep apnea (MEB diagnosis #2) was considered by the PEB.  Even though the medical treatment facility (MTF) determined the condition to fail retention standards, the condition was found not to be unfitting and, therefore, not ratable as it was not commented upon by the commander as hindering the applicant's performance and the case file contained no evidence that the diagnosis rendered the applicant unfit for assigned duties.  The PEB noted the condition was compatible with his primary MOS duties and expected billeting conditions.

	b.  His conditions of cervicalgia (cervical myalgia) (MEB diagnosis #3) and post-operative old traumatic acromioclavicular joint separation (MEB diagnosis #4) were determined to meet retention standards by the MTF.  Further consideration by the PEB found the conditions not to be unfitting and, therefore, not ratable as they met medical retention standards, were not commented upon by the commander as hindering the applicant's performance, and the case file contained no evidence that the diagnoses, independently or combined, rendered the applicant unfit for his assigned duties.

	c.  The remaining diagnoses listed in the MEB proceedings were determined to meet retention standards by the MTF.  Further consideration by the PEB found the conditions not to be unfitting and, therefore, not ratable.  They were not listed in the physical profile as limiting any of the applicant's functional activities, the commander did not consider the conditions as hindering the applicant's performance, and the case file contained no evidence that the diagnoses, independently or combined, rendered the applicant unfit for his assigned duties.  These conditions included:

Diagnosis #	Medical Condition

5	depressive disorder (depression) – not otherwise 
	specified
6	bilateral refractive error
7	constant bilateral tinnitus
8	hypertension
9	degenerative arthritis of right acromioclavicular joints
10	left knee patellar tendinopathy
11	status post left ankle sprain
12	mild right hip strain and trochanteric bursitis
13	mild left hip strain and trochanteric bursitis
14	left cubital tunnel syndrome
15	hammertoe left fourth toe with callus formation over the 
	fourth metatarsal head
16	gastroesophageal reflux disease and gastritis
17	small internal hemorrhoids
18	irritable bowel syndrome
19	superficial scars
21	essential triggers
22	tension type headaches
23	testicular painful granulomas after vasectomy

	d.  His condition of obesity (MEB diagnosis #20) was considered by the PEB and found not to be compensable as it was not deemed to constitute a physical disability, although it might be administratively unfitting.

	e.  The PEB recommended the applicant's separation under the VA Schedule for Rating Disabilities (VASRD), code 5242; a 10-percent disability rating; and separation with disability severance pay.

	f.  The applicant indicated that he concurred with the PEB's findings.  He waived his right to a formal hearing of his case and he did not request reconsideration of his disability ratings.

	g.  The PEB Liaison Officer affirmed with his signature that he informed the applicant of the findings and recommendations of the PEB, explained the results of the findings and recommendations to him, and advised him of his legal rights.  He also confirmed the applicant made the elections shown in the PEB proceedings.

	h.  The PEB proceedings were approved on 22 June 2012.

6.  U.S. Army Garrison-Hawaii, Schofield Barracks, HI, Orders 177-0027, dated 25 June 2012, assigned the applicant to the transition center for separation on 18 September 2012 with a disability rating of 10 percent and disability severance pay based on 10 years, 7 months, and 19 days of creditable service.

7.  On 18 September 2012, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, non-combat (enhanced).  He completed 5 years, 7 months, and 6 days of net active service during this period.

8.  The applicant provided copies of the following in support of his request:

	a.  his military treatment records spanning the period 2 February 2007 to 16 August 2013 that show he was diagnosed with and treated for lower back pain, sleep apnea, and depression; and

	b.  his VA medical records spanning the period 1 January 2013 to 3 July 2013 that show he was diagnosed with and treated for lower back pain, sleep apnea, depression, and PTSD.

9.  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.  The Physical Disability Evaluation System (PDES) is a performance-based system.  The mere presence of a condition does not constitute a physical disability.

	d.  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.

10.  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 in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

11.  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 an 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 unfitting 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 military 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 in ratings 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 PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be corrected to show he was discharged with a higher percentage of disability and placed on the PDRL based on findings of unfitness for additional medical conditions was carefully considered.

2.  Upon review of the applicant's MEB proceedings and his medical records, the PEB found the applicant medically unfit due to thoracic strain, lumbar spine intervertebral disc syndrome, degenerative arthritis, and L4-L5 and L5-S1 degenerative disc disease with central protrusion contacting the thecal sac and the bilateral traversing L5 and S1 nerve roots.  He received a 10-percent disability rating with disability severance pay.

	a.  Except for this rated condition, there is no evidence of record that shows any of the other medical conditions the applicant was diagnosed with at the time of his MEB/PEB processing, including his sleep apnea and depressive disorder, were medically unfitting for retention (i.e., that any of them prevented him from performing his duties) in accordance with Army Regulation 40-501 (Medical Retention Standards).

	b.  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 his disability processing.  Thus, the applicant's MEB and PEB proceedings are presumed to be proper and equitable.  Therefore, the applicant is not entitled to correction of his records to show he was medically retired with a permanent disability rating of 30 percent or more.

4.  There is no evidence of record that shows the applicant was diagnosed with PTSD during the period of service under review.  The evidence of record shows the VA diagnosed the applicant with PTSD subsequent to his discharge from the Army.  Thus, the evidence of record does not support the applicant's contention that his MEB/PEB proceedings should have considered this condition.  Therefore, there is an insufficient evidentiary basis for correcting his records in this instance.

5.  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.

6.  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 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)                                         AR20130018385



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ABCMR Record of Proceedings (cont)                                         AR20130018385



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