IN THE CASE OF:    

		BOARD DATE:  30 October 2014	  

		DOCKET NUMBER:  AR20130019724 


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 an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The applicant states:

	a.  He is suffering from a number of medical conditions which he incurred during his active duty service.

	b.  He was an infantry/airborne Soldier and he deployed twice   All his diagnoses are as a result of deployments and are combat-related because he was blown up a couple of times while serving in Iraq. 

	c.  He is having nightmares as a result of his service in the front lines and he also suffers from insomnia.  

	d.  He did not have the time to see his care providers while he was in combat because he was taking care of other Soldiers and he was trying to get promoted.  
	e.  He never suffered from knee pain prior to joining the Army.  

	f.  The Army only gave him a 10 percent disability rating for his back, zero percent for his knees, and zero percent for his post-traumatic stress disorder (PTSD) and/or sleep apnea.  He feels the ratings should be reviewed because his back pain is chronic.  
	g.  The Department of Veterans Affairs (VA) proposed a 20 percent disability rating for his knees but the final rating was zero percent.  

	h.  His PTSD was diagnosed before the medical board was completed.  The doctor diagnosed him with anxiety but the diagnosis was incorrect based on what he told the doctor.  

	i.  He is suffering from PTSD but he got nothing from the Army.  The VA gave him a 30 percent disability rating for PTSD.

	j.  His back pain has been going on for awhile.  He saw in his records that he was diagnosed with discitis. 

	k.  While he was going through the medical board, he had scheduled appointments but he could only take the times and dates they had.   

	l.  His medical board was being rushed by his chain of command and he could not appeal it because he was under a lot of pressure.  He felt that he was being forced by his chain of command to sign everything without getting what he deserved as an infantry combat Soldier.  

	m.  The knee and back x-rays and records were not included with the medical board process.  The x-rays were done after the VA physical and there were some changes in his conditions.

	n.  The sleep apnea test was done while in the military and he received the continuous positive airway pressure (CPAP) treatment during 2013-2014.

	o.  The Army gave him a 10 percent rating but the VA gave him 40 percent. Originally, it was supposed to be 70 percent by the VA but since the Army did not give him a rating for his knees, the VA took 30 percent away.

	p.  He feels that he should have been retired instead of a discharged with severance pay.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* separation orders
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement 
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM)
* VA Disability Evaluation System Proposed Rating, dated 3 March 2013
* VA Rating Decision
* VA/Department of Defense (DoD) Joint Disability Evaluation Board Form 
* DA Form 3349 (Physical Profile)
* approximately 300 pages of military and civilian medical records

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 30 January 2004 and he held military occupational specialty 11B (Infantryman).  He served in Iraq from 8 November 2005 to 28 October 2006 and from 2 October 2008 to 27 September 2009.

2.  On 5 December 2012, the applicant's immediate commander completed a 
DA Form 7652 and indicated the applicant was unable to complete the Army Physical Fitness Test (APFT) and he was unable to wear his body armor and kevlar due back pain and arthritis.  The pain in his back limited his ability to ride in tactical vehicles so they were forced to utilize him only in an office environment.  The commander recommended the applicant’s evaluation by an MEB.

3.  A DA Form 3349, dated 29 January 2013, shows he was given a permanent physical profile for lumbar degenerative disc disease and paresthesia syndrome, patellofemoral syndrome, anxiety disorder, and sided rib cage sprain.  The profiling officer indicated the applicant did not meet medical retention standards and recommended evaluation by an MEB.

4.  An MEB convened to evaluate his medical conditions.  The MEB NARSUM indicates he was evaluated for nine medical conditions.  Of the evaluated conditions, only the following conditions were found medically unacceptable for retention:

* lumbar sacral degenerative disc disease and central canal neuroforaminal stenosis, and left lower extremity paresthesia
* left knee patellofemoral syndrome/arthralgia

5.  A VA Disability Evaluation System Proposed Rating, dated 3 March 2013, shows that while he was still on active duty he underwent a disability assessment from the VA at the request of the Department of the Army.  The assessment shows he was assigned the following proposed disability ratings:

* 10 percent for lumbar degenerative disc disease
* non-compensable evaluation for right patellofemoral syndrome (diagnosed as right knee arthralgia/claimed as chronic knee pain)
* non-compensable evaluation for left patellofemoral syndrome (diagnosed as right knee arthralgia/claimed as chronic knee pain)
* 40 percent for neuritis of his radiculopathy (claimed as lumbar radiculopathy, bilateral lower extremities)
* 30 percent for anxiety disorder not otherwise specified (NOS), with alcohol abuse in remission (claimed as PTSD)
* 10 percent for tinnitus 
* non-compensable evaluation for allergic rhinitis
* non-compensable evaluation for left rib cage sprain

6.  A DA Form 199 (PEB Proceedings) reports that an informal PEB convened on 4 April 2013 at Fort Sam Houston, TX, to consider his case.

	a.  The PEB assigned a 10 percent disability rating for lumbar degenerative disc disease.  The PEB concluded the applicant was physically unfit and recommended his separation with severance pay.  

	b.  The PEB further indicated his disability occurred while he was entitled to basic pay, was in the line of duty, and did not result from a combat-related injury.

	c.  The counselor indicated that he had informed the applicant of the PEB decision and explained to him the results of findings and recommendations.  

	d.  The applicant concurred with the proceedings and waived a formal hearing.

7.  His DD Form 214 indicates he was honorably discharged on 18 June 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of non-combat related disability with entitlement to severance pay.  

8.  A VA Rating Decision, dated 29 August 2013, and a letter from the VA, dated 30 August 2013, indicates he was evaluated by the VA for eight medical conditions and that the VA awarded him a combined 40 percent disability rating for the following service-connected disabilities:

* 30 percent for anxiety disorder NOS, with alcohol abuse in remission (claimed as PTSD)
* 10 percent for lumbar degenerative disc disease
* 10 percent for tinnitus

9.  The VA assigned him non-compensable evaluation ratings for five medical conditions.
10.  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.

	a.  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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  It states the NARSUM to the MEB is the heart of the disability evaluation system.  In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures.

	c.  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.

	d.  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.

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

12.  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 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.  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 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 lumbar degenerative disc disease.  The PEB found him medically unfit and assigned a 10 percent disability rating.  He concurred with the PEB findings and recommendations.  Accordingly, he was discharged with severance pay.

3.  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.

4.  The VA determined that he suffered from several other medical conditions which were not identified as unfitting at the time of his discharge from active duty. The fact that the VA gave these conditions a rating does not mean any of the conditions were misdiagnosed by the Army.  There is no evidence to show he was ever unfit to perform his duties due to those other conditions.

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)                                         AR20130019724



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ABCMR Record of Proceedings (cont)                                         AR20130019724



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