IN THE CASE OF:    

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140001237 


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 Army Physical Evaluation Board (PEB) to reflect his Department of Veterans Affairs (VA) Rating Decision by showing he was awarded disability ratings for the following conditions:

* Bilateral knee pain with a 10 percent disability rating for right knee chrondromalacia and a 10 percent disability rating for left knee chrondromalacia
* Post-traumatic stress disorder (PTSD)
* Hypertension
* Left hip degenerative joint disease
* Depression
* Alcohol dependence

2.  The applicant states he was medically discharged from the Army after 16 years of service with a 10 percent disability rating for chronic lower back pain (LBP).  The Department of Defense (DoD) Physical Disability Board of Review (PDBR) subsequently upgraded the disability rating to 20 percent.  However, the PDBR did not give him a rating for any of the conditions listed above in paragraph 1.

3.  The applicant provides:

* PDBR results and notification letter, dated 14 November 2012
* VA summary letter, dated 16 August 2010
* VA Personal Information Report, dated 19 December 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 July 1990.  He held military occupational specialty (MOS) 92A (Automated Logistical Specialist). 

2.  Neither his Narrative Summary (NARSUM) nor his Medical Evaluation Board (MEB) Proceeding are available for review with this case.  However, based on a subsequent review of his entire medical records by the PDBR:

	a.  The applicant first presented for LBP in 1994 and again in 1996, but responded to medications and light duty.

	b.  In February 2005, he presented with a 3-year history of LBP from the use of a flak vest while deployed in 2003 and aggravated by vigorous activity, and treated conservatively.

	c.  Conservative treatment was inadequate for the applicant to meet the physical requirements of his MOS or satisfy physical fitness standards so, in April 2005, he was issued an L3 profile.

	d.  In June 2005, he presented to the emergency room with LBP and was given quarters for 4 days.  His LBP was managed with medications, duty modification, physical therapy, and chiropractic treatment.

	e.  in October 2005, after not responding to treatment and declining the use of epidural steroids, he was found to be non-deployable, issued a permanent P3 profile for his LBP, and referred for an MEB.

	f.  His MEB examination was performed on 21 November 2005.  Hypertension, bilateral knee pain, alcohol dependence, heart murmur, mild pes planus, and smoking conditions were also identified and forwarded by the MEB to the Informal PEB (IPEB) as meeting retention standards.

	g.  The IPEB adjudicated the LBP as the only unfitting condition, rated 10 percent, with probable application of the VA Schedule for Rating Disabilities (VASRD) rating.  The IPEB determined the applicant’s LBP alone made him medically unfit to perform the duties of his grade and primary specialty and recommended his separation with entitlement to severance pay.

	h.  The applicant made and then subsequently withdrew a request for a Formal PEB (FPEB).
	i.  Subsequent to counseling, he concurred with the IPEB's finding and recommendation and waived his right to a formal hearing of his case.  

3.  On 4 October 2006, Headquarters, U.S. Army Garrison, Fort Carson, CO, published Orders 277-0004 ordering his discharge effective 12 November 2006 by reason of physical disability with a disability rating of 10 percent and entitlement to disability severance pay. 

4.  He was honorably discharged from active duty on 12 November 2006 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, with entitlement to severance pay in the amount of $60,638.40.  He completed 16 years, 4 months, and 2 days of active service. 

5.  On 13 November 2006, the VA awarded him service-connected disability compensation for chronic low back degenerative joint disease at the rate of 20 percent.  The VA did not render a disability rating for his heart murmur or pes planus conditions and determined that his smoking and alcohol dependence were not ratable.  Additionally, the VA awarded him not service-connected disability compensation for/at a rate of:

* Hypertension, 0 percent
* Right knee chondromalacia, 10 percent
* Left knee chondromalacia, 10 percent

6.  The applicant provides a letter from the VA Regional Office located in Nashville, TN, dated 16 August 2010.  The letter was rendered in reply to his request for a statement verifying his service-connected disabilities.  His VA records showed his service-connected disabilities/disability percentages as follows:

* Chronic low back degenerative joint disease with leg neuropathy, 
20 percent
* Left knee chrondromalacia, 10 percent
* Right knee chrondromalacia with degenerative joint disease, 10 percent
* Left hip degenerative joint disease, 0 percent
* Hypertension, 0 percent
* Headaches, 0 percent
* Combined rating, 40 percent



7.  On 1 November 2012, the DOD PDRB reviewed his application and found his disability rating should be modified but not to the degree that would justify changing his separation for disability with severance pay to a permanent retirement or increasing his amount of disability severance pay.  The PDBR recommended a modification of the disability rating previously assigned for his chronic LBP to reflect a rating of 20 percent rather than 10 percent, without re-characterization of the separation.  This recommendation was accepted and the applicant was so notified on 14 November 2012.  The PDBR reiterated the fact that the scope of its review as defined in the DOD Instruction 6040.44, enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined to be unfitting by the PEB.

8.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC


	c.  The PDES assessment process involves two distinct stages: the MEB and PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

9.  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 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.  

10.  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 VA Schedule of rating Disabilities.  Ratings can range from 0% to 100%, rising in increments of 10%.




11.  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 at less than 30 percent.

12.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

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.  The evidence of record shows the applicant sustained a physical condition that failed retention standards.  Although his NARSUM, MEB, and PEB Proceedings are not available for review with this case, other evidence clearly indicates chronic LBP was the only condition that failed retention standards.  There were no other conditions identified anywhere on any military records that failed retention standards or were found unfitting.  

2.  This one condition was considered by an IPEB that determined this condition was unfitting.  The IPEB rated the condition at 10 percent and recommended his separation with entitlement to severance pay.  He was counseled and initially non-concurred, then concurred, and waived his right to a formal hearing of his case.  The DOD PDRB later determined the rating should have been 20 percent vice 10 percent and the applicant's records were corrected accordingly.  

3.  He appears to believe since the VA awarded him disability ratings for multiple conditions, the Army should have, in effect, done the same.  This contention is without merit.  

	a.  Under the legacy PDES, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency do not establish error by the Army.  Operating under different laws and its 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.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA may rate all service-connected conditions.

	c.  In the applicant's case, aside from the lower back condition, there was no diagnosis for any medical, physical or behavioral, conditions being a disabling factor at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant did not have any other conditions that failed retention standards and/or was found unfitting.  Referral to the Army disability system requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  None of the VA service-connected conditions were determined to have failed Army retention standards and/or found unfitting.  

5.  The applicant has failed to support his contention.  There does not appear to be an error or an injustice in his case.  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 

________  ________  ________  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)                                         AR20140001237



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ABCMR Record of Proceedings (cont)                                         AR20140001237



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