IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140002259 


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 military records to show he was retired due to physical disability.

2.  The applicant states that at the time of his discharge from active duty he was not evaluated for post-traumatic stress disorder (PTSD), interstitial lung disease, or chronic lumbar sprain with degenerative disc disease. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his Department of Veterans Affairs (VA) Form     10-5345 (Request for and Authorization to Release Medical Records or Health Information), dated 27 January 2014, and multiple VA Rating Decisions dated    19 March 2007, 12 June 2007, 14 September 2007, 29 October 2007,               18 January 2008, 15 August 2008, 29 November 2008, 29 September 2010, and 6 May 2013.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 29 July 1997, the applicant, a prior service Soldier, enlisted in the Regular Army (RA).  He was trained as a motor transport operator.

3.  A DA Form 3349 (Physical Profile), dated in August 2004, shows he was given a permanent physical profile for chronic bilateral ankle pain, severe flat feet, and bilateral talar avascular necrosis.  Due to the severity of his conditions, he was required to appear before a medical evaluation board (MEB) and/or a physical evaluation board (PEB).

4.  A DD Form 2808, dated 17 August 2004, indicates that a physician determined he was not qualified for service due to the conditions listed on his physical profile form.

5.  He appeared before an MEB.  A DA Form 3947 (MEB Proceedings), dated in October 2004, reports: 

	a.  an MEB convened to evaluate his medical conditions:

* Chronic bilateral ankle pain
* Severe bilateral pes planus
* Bilateral talar avascular necrosis

	b.  all of the evaluated conditions were found to be unacceptable and he no longer met medical retention standards;

	c.  he did not desire to continue on active duty; and

	d.  the findings were approved and he agreed with the board's findings and recommendation for referral to a PEB.

6.  A DA Form 199 (PEB Proceedings), dated in October 2004, reports that an informal PEB convened at Fort Lewis, WA to consider his case.

	a.  The PEB assigned a 20 percent (%) disability rating percentage under the VA Schedule for Rating Disabilities (VASRD) codes 5003 and 5099 for chronic bilateral ankle pain secondary to bilateral avascular necrosis of the talus and pes planus.  The condition prevented the applicant from performing full soldier functions and full duty function in his primary military occupational specialty.
	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 PEB determined his medical and physical impairment prevented reasonable performance of his duties and concluded he was physically unfit for further service and recommended a combined disability rating of 20%.

	d.  The counselor indicated that he had informed the applicant of the PEB decision and explained his legal rights.  The applicant concurred with the proceedings and waived a formal hearing.

	e.  The Secretary of the Army approved the PEB proceedings on 29 October 2004.

7.  The applicant's DD Form 214 indicates he was separated on 3 December 2004, under the authority of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3).  He was assigned a separation program designator (SPD) code of JFL, a narrative reason for his separation as "Disability, Severance Pay," and a reentry eligibility (RE) code of "3."  He had completed a total of 11 years, 3 months, and 24 days of creditable active duty service.

8.  A VA Rating Decision provided by the applicant, dated 19 March 2007, indicates that the VA awarded him a combined 60% disability rating percentage for his service-connected conditions.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004
* 5099-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004

9.  A VA Rating Decision provided by the applicant, dated 12 June 2007, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004 and of 80% from 
3 May 2007.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004 and 70% from 3 May 2007
* 5099-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004

10.  A VA Rating Decision provided by the applicant, dated 14 September 2007, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004 and of 80% from 
3 May 2007.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004 and 70% from 3 May 2007
* 5099-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* Applicant was granted unemployability from 3 May 2007

11.  A VA Rating Decision provided by the applicant, dated 29 October 2007, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004 and of 80% from 
3 May 2007.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004 and 70% from 3 May 2007
* 5099-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* Applicant was granted unemployability from 3 May 2007

12.  A VA Rating Decision provided by the applicant, dated 18 January 2008, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004 and of 80% from 
3 May 2007.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004 and 70% from 3 May 2007
* 5099-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* Applicant was granted unemployability from 3 May 2007

13.  A VA Rating Decision provided by the applicant, dated 15 August 2008, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004; of 80% from 
3 May 2007; and of 90% from 2 June 2008.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004 and 70% from 3 May 2007
* 5003-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* 5237:  Chronic lumbar sprain with degenerative disc disease, Gulf War incurred at 20% from 2 June 2008
* Applicant was granted unemployability from 3 May 2007

14.  A VA Rating Decision provided by the applicant, dated 29 November 2008, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004; of 80% from 
3 May 2007; of 90% from 2 June 2008; and of 100% from 8 October 2008.  The following VASRD conditions were listed as being subject to compensation:

* 5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004; 70% from 3 May 2007; and 100% from 8 October 2008
* 5003-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* 5237:  Chronic lumbar sprain with degenerative disc disease, Gulf War incurred at 20% from 2 June 2008
* Applicant granted unemployability from 3 May 2007

15.  A VA Rating Decision provided by the applicant, dated 29 September 2010, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004; of 80% from 3 May 2007; of 90% from 2 June 2008; and of 100% from 8 October 2008.  The following VASRD conditions were listed as being subject to compensation:

* 5299-5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004; 70% from 3 May 2007; and 100% from 8 October 2008
* 5003-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* 5237:  Chronic lumbar sprain with degenerative disc disease, Gulf War incurred at 20% from 2 June 2008
* Applicant granted unemployability from 3 May 2007

16.  A VA Rating Decision provided by the applicant, dated 6 May 2013, indicates that the VA awarded him a combined disability rating for his service-connected conditions of 60% from 4 December 2004; of 80% from 3 May 2007; of 90% from 4 October 2007; and of 100% from 2 June 2008.  The following VASRD conditions were listed as being subject to compensation:

* 5299-5276:  Bilateral pes planus with bilateral ankle pain, Gulf War aggravated at 30% from 4 December 2004
* 9411:  PTSD, Gulf War Incurred at 30% from 4 December 2004; 70% from 3 May 2007; and 100% from 8 October 2008
* 5003-5260:  Chrondromalacia, right knee, Gulf War incurred at 10% from 4 December 2004
* 5099-5260:  Chrondromalacia, left knee, Gulf War incurred at 10% from   4 December 2004
* 5237:  Chronic lumbar sprain with degenerative disc disease, Gulf War incurred at 20% from 2 June 2008
* 6899-6825:  Interstitial lung disease, Gulf War incurred at 60% from           4 October 2007
* Applicant granted unemployability from 3 May 2007
17.  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.

	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.

18.  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.

19.  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, in effect, that his DD Form 214 should be corrected by showing he was retired due to physical disability.

2.  The evidence shows he agreed with the findings of the MEB, which diagnosed him with chronic bilateral ankle pain, severe bilateral pes planus, and 
bilateral talar avascular necrosis.  The only physical profile available indicates that only those conditions affected the performance of his duties.  He was referred to the PEB, where he was found to be medically unfit and assigned a 20-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/mental 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 and service connection does not mean any of the conditions were misdiagnosed by the Army.

	a.  The VA doctors rendered a diagnosis of PTSD after his discharge and granted him a 30% disability rating from the day after his discharge.  However, there is no evidence showing that this condition caused him to be unfit prior to or at the time of his discharge.  The VA subsequently increased this rating to 100% presumably based on a worsening of the condition.

	b.  The VA doctors rendered a diagnosis of chronic lumbar sprain with degenerative disc disease, Gulf War incurred at 20% from 2 June 2008.  This indicates that the condition had not manifested itself while he was on active duty.  Therefore, it could not have been considered an unfitting condition.

	c.  The VA doctors rendered a diagnosis of interstitial lung disease, Gulf War incurred at 60% from 4 October 2008.  This indicates that the condition had not manifested itself while he was on active duty.  Therefore, it could not have been considered an unfitting condition.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140002259





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002259



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1