IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20130018458 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show he was retired due to medical disabilities instead of discharged with severance pay.  

2.  Counsel states:

	a.  Note 1 of the General Rating Formula for Disease and Injuries of the Spine states that veterans' neurologic abnormalities should be rated separately under the appropriate diagnostic code (DC).

	b.  The Physical Evaluation Board (PEB) failed to rate the applicant's radiculopathy, left, lower leg, separately.  This argument is supported by the Department of Veterans Affairs (VA) Rating Decision, dated 14 September 2012, which properly separated the applicant's radiculopathy and assigned a 10 percent (%) rating under DC 8520.  The VA used the same evidence as the PEB.

	c.  The 14 September 2012 rating decision granted a combined 40% service-connected disability rating for the following conditions:

* 20% for back condition under DC 5242
* 10% for tinnitus under DC 6260
* 10% for radiculopathy, left, lower leg, under DC 8520
* 10% for temporomandibular joint disorder under DC 9905
* 0% for gastroesophageal reflux disease under DC 7346

	d.  The 14 September 2012 rating decision properly assigned a separate rating for radiculopathy.  Although the applicant has filed a notice of disagreement to the rating decision, the current percentage assigned would meet the requirements for disability retirement.  

	e.  The PEB and the Disability Evaluation System (DES) Proposed Rating were clearly erroneous in failing to separate the applicant's neurological abnormalities.  He should receive a combined 30% disability rating for back condition and radiculopathy, therefore meeting disability retirement under the provisions of Title 10, U.S. Code, section 1201.

	f.  The Army Board for Correction of Military Records is bound by the VA Schedule for Rating Disabilities (VASRD) to include any applicable interpretation of the schedule by the U.S. Court of Appeals for Veterans Claims.

	g.  The compensation and pension (C&P) examination, dated 14 October 2011, noted active range of motion on flexion 0-50, pain at 20 degrees of flexion. Fatiguing 0-45, loss of degrees with repetition due primarily to pain.  He is currently rated under DC 5242 at 20% disabling.

	h.  The 14 September 2012 rating decision claims to address functional loss due to pain, fatigue, weakness or lack of endurance, incoordination, and flare-ups under the provisions of Title 38, Code of Federal Regulations, sections 4.40 and 4.45.  However, the rating specialist only addresses the applicant's loss of active range of motion due to fatiguing and did not considered additional loss of active range of motion due to pain.  

	i.  Active range of motion due to pain starts at 20 degrees.  Although the examiner notes "It would be pure speculation to state what the functional decrease in range of motion would be secondary to repetitive movements or flare-ups," the symptomatology noted in the C&P examination supports additional functional loss based on flare-ups and pain.  Symptomatology includes:

* the back pain is sharp and burning; the left leg pain is shooting
* the left leg pain is especially excruciating
* the back and left leg pain is constant
* the back will severely flare twice a week for 4 hours at a time
* during a flare, the service member stops all activity and rests until medication resolves the pain
* his work is limited to what he can tolerate due to his back pain so if there is heavy lifting, bending, pushing or pulling involved with the job, he cannot do it

	j.  A 40% evaluation is warranted for the applicant's back condition based on forward flexion of the thoracolumbar spine 30 degrees or less based on the functional loss due to pain, fatigue, flare-ups, and repetitive movement. 

	k.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.

	l.  Based on the above arguments, the applicant clearly meets the 30% disability rating needed for a disability retirement.  Also, a 40% rating is warranted for the applicant's back condition and a separate 40% rating for radiculopathy, left lower leg, based on the 14 October 2011 C&P examination.  This would give a total combined 60% rating for the applicant's disabilities, which currently fail to meet Army retention standards.  

3.  Counsel provides:

* C&P Examination Note
* Joint DOD/VA Disability Evaluation Pilot Referral
* VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DES Proposed rating
* DA Form 199 (PEB Proceedings)
* VA Rating Decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* correspondence between the Veterans Advocates Group and the VA 
* approximately 500 pages of medical records

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 December 2008.  He was awarded military occupational specialty 21K (Plumber) upon completion of initial entry training.  

2.  On 21 September 2011, he was referred to the Joint Department of Defense (DOD)/VA Disability Evaluation Pilot Program.  He completed a VA Form 
21-0819 and listed lumbar degenerative disc disease (DDD) as the medical condition to be considered as the basis of fitness for duty determination.  
3.  On 27 October 2011, an MEB diagnosed him with DDD, lumbar spine, which was deemed medically unacceptable for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was also diagnosed with five additional ailments which were determined to meet retention standards.  The medical conditions include gastroenteritis; temporomandibular joint and muscle disease; mild high frequency sensorineural hearing loss, left ear; tinnitus; and vertigo, bilateral.  He agreed with the MEB's findings and recommendations and he was subsequently referred to a PEB.

4.  As part of a Joint Pilot Program between the VA and DOD, his disability ratings were provided by the VA.

5.  A DES Proposed Rating from the VA, dated 13 December 2011, provided the following proposed disability ratings for the PEB referred proposed DES service-connected disabilities:

* DDD of the lumbar spine with radiculopathy of the left lower extremity (PEB referred as DDD, lumbar spine (claimed as lumbar DDD) 20% disabling

6.  On 17 February 2012, a PEB found the applicant physically unfit for DDD of the lumbar spine with radiculopathy of the left lower extremity (PEB referred as DDD, lumbar spine) (claimed as lumbar DDD).

7.  The PEB recommended a rating of 20% and the applicant's separation with entitlement to severance pay.

8.  On 27 February 2012, he acknowledged he had been advised of the findings and recommendation of the PEB and that he had received a full explanation of the results of the findings and recommendation and his legal rights pertaining thereto.  He concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  He did not request reconsideration of his VA disability ratings.

9.  Orders 074-0505, dated 14 March 2012, issued by Fort Lee, VA, directed his discharge from the Regular Army effective 28 May 2012.  His percentage of disability was 20%.

10.  A VA Rating Decision, dated 14 September 2012, shows he was granted a combined 40% service-connected disability rating for the following conditions:

* DDD, lumbar spine, 20% under DC 5242
* tinnitus, 10% under DC 6260
* radiculopathy, left lower extremity, 10% under DC 8520
* temporomandibular joint disorder 10% under DC 9905
* gastroesophageal reflux disease 0% under DC 7346

11.  The 14 September 2012 VA Rating Decision includes an additional DC 
(DC 8520 (Sciatic nerve, paralysis)).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	a.  Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
 
   b.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VASRD.  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.  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.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

14.  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.

15.  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 on the part of the Army.  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, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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.
16.  The medical term "radiculopathy" is the radiation of pain originating at or near a nerve root in the spine to another location that is innervated by that nerve. It is normally caused by compression/irritation to the nerve root.  Radiculopathy can present in the form of pain, numbness, or tingling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's counsel contends that the applicant's records should be corrected to show an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The evidence shows a PEB diagnosed him with DDD of the lumbar spine with radiculopathy of the left lower extremity (PEB referred as DDD, lumbar spine) (claimed as lumbar DDD).  The PEB found him medically unfit and assigned a 
20% disability rating.  He concurred with the PEB findings and recommendations. Accordingly, he was discharged with severance pay.  

3.  Radiculopathy of the left lower extremity, by itself, was not found to be an unfitting medical condition at the time of the applicant's separation.  The VA Rating Decision, dated 14 September 2012, which was accomplished over 
3 months after the applicant's separation, assigned a separated DC for radiculopathy (DC 8520) and assigned a 10% rating.  It appears the rating given is indicative of the worsening or natural progression of the disease.  Therefore, the rating is reflective of new evidence of changes to the applicant's condition after his discharge.  

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations.  There is no evidence of error or injustice in this case.

6.  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)                                         AR20130018458



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ABCMR Record of Proceedings (cont)                                         AR20130018458



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