BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130019435 


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 his:

	a.  DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to add the conditions and disability ratings of:

* Traumatic Brain Injury (TBI) – 40 percent (%)
* dysphagia/gastroesophageal reflux disease (GERD) - 10%
* kidney stones – 10%
* neurogenic bladder – 20%

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty) to add the Meritorious Service Medal.

2.  The applicant states his conditions of TBI, kidney stones, and dysphagia (difficulty swallowing) were not listed on his DA Form 199 or considered during his PEB.

	a.  His TBI and kidney stones are associated with his 2005 deployment to Iraq.  He has orders for award of the Combat Action Badge and sworn statements to support his contention with respect to his TBI.

	b.  He injured his neck prior to his deployment in 2007.  The dysphagia was a result of the cervical neck treatment plan which included two surgeries.  After his first surgery in July 2011, his swallowing and breathing became difficult.  

3.  The applicant provides:

* two self-authored statements
* Orders Number 336-726, dated 1 December 2004
* travel roster/manifest, dated 1 December 2004
* Patient Record Cover Sheet, dated 12 February 2005
* Standard Form (SF) 558 (Emergency Care and Treatment), dated 
12 February 2005
* Medical Record, undated 
* two DA Forms 2823 (Sworn Statement), dated 31 July 2005
* Permanent Orders (PO) 316-008D, dated 11 November 2005
* four SFs 600 (Chronological Record of Medical Care), dated 11 January 2007, 16 April 2012, 30 May 2012, and 27 September 2013
* a Curriculum and Attendance for Anger Management, dated from 
13 February 2007 to 17 April 2007
* three Medical Records, dated 16 June 2008, 6 December 2012, and 
15 January 2013
* Physician Discharge Summary, dated 21 July 2011
* Department of Veterans Affairs (VA) proposed rating (pages 1, 2, 4, 5, 
and 6), dated 5 June 2013
* DA Form 199, dated 16 July 2013
* Referral and Authorizations – Referral Details, dated 10 September 2013
* DA Form 638 (Recommendation for Award), dated 28 August 2013
* certificate for award of the Meritorious Service Medal, dated 3 October 2013
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 August 1991 and held military occupational specialties (MOS) 35F (Intelligence Analyst) and 42A (Human Resources Specialist).  The highest rank/grade he attained while serving on active duty was sergeant first class/E-7.

2.  His military medical records did not contain a diagnosis of neurogenic bladder.

3.  His record contains an Optional Form (OF) 275 (Medical Record Report) [Narrative Summary (NARSUM)], dated 10 January 2013.  The medical conditions and diagnosis were based on a compensation and pension examination conducted at the VA.  His NARSUM included a listing which shows, in part, the following medical conditions were considered:

	a.  Not medically disqualifying:

* concussion with no loss of consciousness [type of TBI]
* headaches

	b.  Medically disqualifying:

* congenital spinal cord narrowing with multilevel disc disease within the cervical spine, most prominent at C5-6 with moderate to severe compression of the spinal cord and associated cord edema 
* myelopathy at C7-8 distribution status post posterior spinal instrumented fusion C4-7, improving, diagnosed at the VA as no diagnosis
* lower lumbar degenerative changes most pronounced at L4-5 with both L4-5 and L5-S1 disk extrusions

4.  His record contains a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 19 February 2013.  

	a.  The MEB determined the following conditions were considered medically acceptable:

* concussion 
* renal calculi (kidney stone) 
* dysphagia
* GERD

	b.  The MEB determined the following conditions were considered medically unacceptable:

* congenital spinal cord narrowing with multilevel disc disease within the cervical spine, most prominent at C5-6 with moderate to severe compression of the spinal cord and associated cord edema 
* myelopathy at C7-8 distribution status post posterior spinal instrumented fusion C4-7, improving, diagnosed at VA as no diagnosis
* lower lumbar degenerative changes most pronounced at L4-5 with both L4-5 and L5-S1 disk extrusions

	c.  On 13 February 2013, the applicant initialed and dated a block on this form indicating he did not agree with the MEBs findings and requested an independent medical review.


	d.  An appeal was considered and the MEB proceedings/findings were approved by the Chief of MEBs on 19 February 2013.  The record did not contain any additional or supplemental reports.  It appears the initial MEB findings were left intact.  

5.  His record contains a DA Form 199 dated 16 July 2013 showing the PEB considered his unfitting conditions on 13 June 2013.  However, he appealed the decision and his case was reconsidered on 16 July 2013.

	a.  The PEB found the following conditions to be medically unfitting:

* cervical disc disease with spinal cord compression – the PEB recommended a disability rating of 30% 
* lumbar degenerative changes – the PEB recommended a disability rating of 10%

	b.  The PEB also considered the MEB diagnoses of concussion, renal calculi, dysphasia, and GERD both individually and in combination with other conditions. These conditions are not associated with profile limitations and do not impact his ability to perform any one of the ten functional activities.  The MEB indicated these conditions met medical retention standards.  Therefore, these conditions are not unfitting.

	c.  The PEB recommended a combined disability rating of 40% and stated the applicant's case was adjudicated as part of the Integrated Disability Evaluation System (IDES).  The specific VA Schedule for Rating Disabilities (VASRD) codes to describe the applicant's condition and the disability percentage were determined by the VA.  The disposition recommendation was determined by the PEB based on the VA disability rating proposed and the applicable statutes and recommendations for the Physical Disability Evaluation System (PDES).

	d.  The applicant concurred with the PEB's findings, waived his right to a formal hearing, and did not request a reconsideration of his VA ratings.  

6.  His DD Form 214 shows he was honorably retired by reason of a permanent disability on 24 October 2013.  Additionally, he was authorized or awarded the:

* Afghanistan Campaign Medal with campaign star
* Joint Service Commendation Medal
* Army Commendation Medal (5th Award) 
* Army Achievement Medal (3rd Award)


* Joint Meritorious Unit Award
* Army Good Conduct Medal (7th Award)
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Service Medal
* Korea Defense Service Medal 
* Iraq Campaign Medal with campaign star
* Noncommissioned Officer Professional Development Ribbon with Numeral 3
* North Atlantic Treaty Organization Medal
* Combat Action Badge
* Air Assault Badge
* Driver and Mechanic Badge with Mechanic Bar

7.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) on 20 November 2013.  The advisory official stated:

	a. The applicant's MEB was completed on 19 February 2013.  The only conditions listed that did not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) were congenital cervical spinal compression, myelopathy caused by cervical compression, and lower lumbar degenerative changes.  The other 24 conditions, to include headaches, concussion, renal calculi (kidney stones), and dysphagia, were all considered to meet medical retention standards in accordance with chapter 3, Army Regulation 40-501.  The applicant did not concur with the MEB findings.  The MEB considered the appeal, and on 19 February 2013, however, the initial findings were not changed.  The MEB found no evidence that any of the 24 listed conditions had any significant affect on his ability to perform his military duties.  

	b.  On 16 July 2013, an informal PEB found the applicant unfit for his cervical and lumbar conditions.  The PEB accepted the VA ratings for these conditions and awarded a total of 40% permanent disability retirement.  The PEB did not find any of his other conditions unfitting.  On 26 July 2013, the applicant concurred with the PEB findings.

	c.  The applicant has provided no new evidence that any of the other 24 conditions, to include headaches, concussion, renal calculi (kidney stones), and dysphagia caused him to be unfit for his military duties.  Just because a condition may have been rated by the VA, or listed as a condition on an MEB, does not automatically require, or result in, a PEB finding a Soldier unfit for said condition(s).  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions that are found to be unfitting can be compensated in the military disability system.
	d.  The PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  The applicant has not provided sufficient evidence to prove his military records are incorrect or unjust based on a review of the case file.  The advisory official recommended no changes be made to the applicant's military records.

8.  The applicant did not respond to the advisory opinion.

9.  He provided an excerpt of his VA proposed rating, dated 5 June 2013.  This proposal shows the VA recommended a 40% rating for TBI – for the purpose of entitlement to VA benefits only.  Additionally, the portion of the proposal he provided did not contain any information regarding a rating for dysphagia/GERD, kidney stones, or a neurogenic bladder.

10.  He provided a DA Form 638, dated 28 August 2013, showing Permanent Orders (PO) Number 276-03, issued by Headquarters, U.S. Army Intelligence and Security Command, Fort Belvoir, VA, on 3 October 2012 awarded him the Meritorious Service Medal.

11.  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 or her 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.  

12.  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 VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

13.  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.  PO awarded the applicant the Meritorious Service Medal; therefore, he is entitled to correction of his DD Form 214 to add this award.

2.  The applicant sustained injuries that warranted entrance into the PDES.  He underwent an MEB which determined that only his conditions of congenital cervical spinal compression, myelopathy caused by cervical compression, and lower lumbar degenerative changes were medically unacceptable.  The MEB determined that his concussion (TBI), renal calculi (kidney stones), and dysphagia were all medically acceptable conditions.  He agreed with the MEB's findings.

3.  Sometime between the MEB and the PEB he agreed to be examined by VA medical personnel under the IDES and to allow the VA's recommendations to be used at the PEB.  Further, the PEB agreed to accept the VA recommendations.  The VA's rating determinations were divided into two categories, those that were being rated for the purpose of the Army PDES only and those that were being rated for the purpose of the VA benefits only.  The only conditions the VA rated for the purpose of the PDES were his cervical disc disease with spinal cord compression (30%) and lumbar degenerative changes (10%).  

4.  The VA appears to have also evaluated him for TBI, dysphagia/GERD, and kidney stones.  However these ratings were for the purpose of VA benefits only.

5.  The evidence of record (VA documents, MEB/PEB) did not list the condition of neurogenic bladder.

6.  The PEB accepted the VA's recommendations and found his medical conditions, cervical disc disease with spinal cord compression and lumbar degenerative changes, prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined to be physically unfit for further military service.  The PEB recommended he be medically retired with a 40% disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.

7.  The PEB also considered his other conditions, those that during the medical examination were found to be medically acceptable, but they were determined to have met retention standards.  As they were not unfitting, they were not ratable by the Army PDES.  

8.  An award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their 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.  For example, the VA awarded him a disability rating for TBI.  However, there is no evidence to show these conditions rendered him unable to perform his duties.

9.  His physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB.  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 

____X____  __X______  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his DD Form 214 to add the Meritorious Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DA Form 199 to add additional medical conditions.  



      __________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)                                         AR20130019435





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ABCMR Record of Proceedings (cont)                                         AR20130019435



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