BOARD DATE:	 19 August 2014 

		DOCKET NUMBER:  AR20130021072 


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 that he had additional unfitting conditions, was rated with a higher percentage of disability by the Army, and placed on the Permanent Disability Retired List (PDRL).

2.  The applicant states he feared being ridiculed by fellow Soldiers and superiors during his military service, so he tried to hide his troubles as best he could.  

   a.  He states he was ridiculed by sergeants and officers while serving in Korea because of the swelling on his face that was caused from Lupus.  This ridicule shut him down and instilled the mindset that he could not trust his superiors.  He worried that, if they could criticize him so freely with a condition that he had which could be seen, what would they do if they found out that he was struggling with mental issues?  He refers to two photographs that he provides as evidence that show the swollen left side of his face.

   b.  While being treated at the 121st Medical Evacuation Hospital in Yongsan, Korea in 2010, the doctors were unable to diagnose his condition.  He spent a week in the hospital and was placed under quarantine while doctors and nurses wore masks and gloves to administer treatment to him.  He took leave, returned to United States, and sought out a doctor in New Jersey.  The doctor referred him to a dermatologist who properly diagnosed his condition as Lupus.  He adds that Army doctors were unable to diagnose what was wrong with him and this is also true with regard to his mental diagnosis.

   c.  He was diagnosed with Adjustment Disorder with Depressed Mood (claimed as Depression and Memory Loss) in 2011 and the Department of Veterans Affairs (VA) rated his condition as service connected.  He adds that his condition is considered severe and should be given a higher rating.

   d.  He states that he still battles with suicidal thoughts and oftentimes wishes to be left alone, finding it hard to deal with people on a daily basis.  He adds that he forgets names and places and needs to be reminded of them by his wife.
 
3.  The applicant provides copies of two photographs, his military and civilian medical records, and VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 June 2008 for a period of
6 years.  He was awarded military occupational specialty 94T (Avenger System Repairer) and he served in Korea form 12 January 2009 to 12 January 2010.

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

3.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
10 July 2012, shows an informal PEB reviewed the applicant's MEB proceedings, along with his medical records, 

   a.  The PEB found him physically unfit due to -

* Limitation of flexion of the thigh, due to right hip strain – 10%
* Limitation of flexion of the thigh, due to left hip strain – 10%
* Impairment of the thigh, due to left hip strain – 0%
* Impairment of the thigh, due to right hip strain – 0%

	b.  The following conditions were determined by the medical treatment facility to meet retention standards -

* Cutaneous lupus erythematosus without systemic involvement
* Recurrent bilateral tinnitus
* Mild, functional hearing loss both ears
* Bilateral upper arm biceps muscle strain
* Migraine headaches
* Bilateral feet plantar fasciitis
* Bilateral ankle Achilles tendonitis
* Cervical strain (meets Army retention standards)
* Lumbar strain
* Hypertension (meets Army retention standards)
* Amblyopia (meets Army retention standards)
* Glaucoma 
* Obstructive sleep apnea (meets Army retention standards)

    	(1)  The PEB noted the case file contained no evidence that the above conditions independently or in combination rendered the applicant unfit for assigned duties.  Accordingly, the PEB found the conditions not to be unfitting and, therefore, not ratable.

    	(2)  The PEB also considered MEB Diagnosis #14 (Adjustment disorder with depressed mood) and found it to be not compensable as it is not deemed to constitute a physical disability, although it may be administratively unfitting.

	c.  The PEB recommended the applicant's separation under the VA Schedule for Rating Disabilities (VASRD), codes 5252 and 5253; a 20-percent disability rating; and separation with disability severance pay.
   
   d.  The PEB proceedings show the applicant's case was adjudicated as part of the Integrated Disability Evaluation System IDES) under the Policy and Procedure Directive-type Memorandum (DTM) 11-015, dated 19 December 2011.

   e.  The PEB Liaison Officer affirmed with her signature that she informed the applicant of the findings and recommendations of the PEB, and explained the results of the findings and recommendations to him.

	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 VA ratings.

	g.  The PEB proceedings were approved on 24 August 2012.

4.  Directorate of Human Resources, Military Personnel Division, Transition Center, Joint Base Lewis-McChord, WA, Orders 242-0021, dated 29 August 2012, assigned the applicant to the transition point for separation on 28 October  2012 with a disability rating of 20 percent and disability severance pay in pay grade E-5 based on 4 years, 4 months, and 26 days of creditable service.

5.  On 28 October 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).

6.  The applicant provided copies of the following in support of his request:
   
   a.  two photographs of himself, one that shows swelling of the left face;

	b.  six military medical treatment records spanning the period 1 June 2009 to 
26 January 2011 that show he was diagnosed with and treated for periorbital cellulitis of the face, cutaneous lupus erythematosus, recurring headaches, and viral syndrome;

   c.  civilian medical treatment records that show he was diagnosed with and treated for turnid lupus (in July 2009) and adjustment disorder with depressed mood (in September 2011); and

	d.  his VA rating decision, dated 24 December 2012, that shows he was:

    	(1)  granted service connection for the following conditions - 

* Adjustment disorder with depressed mood – 70%
* Severe obstructive sleep apnea – 50%
* Lumbar strain - 10%
* Limitation of flexion of the thigh, due to left hip strain – 10%
* Limitation of flexion of the thigh, due to right hip strain – 10%
* Left ankle Achilles tendonitis – 10%
* Right ankle Achilles tendonitis – 10%
* Tinnitus – 10%
* Chronic lupus erythematosus – 10%
* Cervical strain – 0%
* Impairment of the thigh, due to left hip strain – 0%
* Impairment of the thigh, due to right hip strain – 0%
* Left foot plantar fasciitis – 0%
* Right foot plantar fasciitis – 0%
* Left upper arm bicep strain – 0%
* Right upper arm bicep strain – 0%
* Bilateral hearing loss – 0%
* Hypertension – 0%
* Migraine headaches – 0%


    	(2)  denied service connection for the following conditions - 

* Left arm-hand pain with numbness
* Right arm-hand pain with numbness
* Left knee strain in remission
* Right knee strain in remission
* Glaucoma
* Amblyopia
* Heart murmur
* Status post left hand thumb surgery

    	(3)  The VA granted the applicant an overall or combined rating of 90%. 

7.  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.


8.  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.

9.  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 based on limitation of flexion of the thigh, due to right hip strain; limitation of flexion of the thigh, due to left hip strain; impairment of the thigh, due to left hip strain; and impairment of the thigh, due to right hip strain.  He received a 20-percent disability rating with disability severance pay.

	a.  Except for these rated conditions, 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 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.  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.

5.  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 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)                                         AR20130021072



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ABCMR Record of Proceedings (cont)                                         AR20130021072



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