IN THE CASE OF:	 

		BOARD DATE:	 30 September 2014 

		DOCKET NUMBER:  AR20140003708 


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, a review of his medical separation from the Army to show a higher rating and a subsequent medical retirement.  He also requests a review of the rating assigned by the Department of Veterans Affairs (VA).

2.  The applicant states his disability processing was incomplete.  He did not undergo a disability physical and he was not counseled properly by the military attorney.  He was given severance pay when he should have received a medical retirement.  His injuries were incurred in service and aggravated by service.  The medical evaluation board (MEB) did not list all his medical conditions and thus the physical evaluation board did not rate those conditions or improperly rated them. He adds: 

	a.  He was injured during advanced individual training but he did not receive the proper x-rays and treatment.  Upon arrival in Germany, he began experiencing back and neck pain.  He became sick in February 1980 and he was admitted to the hospital.  They should have medically boarded him for a spine injury at that time.  

	b.  In August 1980, he was involved in an off-duty motor vehicle accident wherein he reinjured his lumbar and cervical spine.  He also sustained contusions to the leg.  He was rushed to the hospital in Frankfurt.  He again should have been boarded for the spine injury.

	c.  He suffered from a possible mental condition, now known as post-traumatic stress disorder (PTSD), and organic brain syndrome schizophrenia.  He should have been boarded for excessive worry, depression, and nervous trouble. 

	d.  His Hepatitis C did not only require hospitalization and was service-connected, a rating for this condition, together with a rating for the lumbar spine, would have changed the outcome of his combined rating. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Multiple in-service Chronological Records of Medical Care
* DA Form 3947 (MEB Proceedings)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 502 (Narrative Summary (NARSUM))
* DA Form 199 (PEB Proceedings), informal and formal
* Separation memorandum
* VA claim and rating decision
* Line of Duty Determination
* Correspondence from the Board of Veterans' Appeals
* Formal PEB verbatim minutes
* Post-service correspondence jail examination/findings
* Other post-service medical documents and pathology reports

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.  The applicant's records show he enlisted in the Regular Army on 26 January 1979 and he held military occupational specialty (MOS) 95B (Military Police).  He served in Germany from 10 June 1979 to around January 1981.  

3.  His NARSUM shows: 

	a.  He injured his back in April 1979 while at Fort McClellan, AL, in a judo class.  He had moderate discomfort on flexion extension, which transiently improved.  He did not have any x-rays.  He was sent to Germany and assigned as a guard at a nuclear site.  He had gone on sick call multiple times complaining of recurrent back pain and he was referred to the orthopedic clinic, 97th General Hospital where x-rays were taken and disclosed avulsion fractures of the spinous processes at L-2, L-3, and L-4.  He was given a permanent physical profile and he was disqualified as a guard due to the restrictions. 

	b.  He had been on physical therapy and medications without any relief of his pain.  Due to the chronic low back pain, secondary to the avulsion fractures, he is a non-functional Soldier.  He is unable to stand in formations for more than 15 minutes, and he cannot perform any lower extremities physical training without an aggravation of the pain.  He cannot lift over 15 pounds with both arms without causing an increase in pain.  He also contacted hepatitis in February 1980 and he was referred to the CDAAC (now called Army Substance Abuse Program) for alcohol abuse.   He was released from the program after it was determined he did not have a significant drinking problem. 

	c.  His present physical examination of the eyes, nose, ears, throat, heart, lungs, chest, abdomen, upper and lower extremities, and neurological is within normal limits.  On examination of the spine, he was able to flex to 30 degrees forward and 15 degrees backward without aggravating his pain.  He has a 30 degree limitation range of motion on lateral bending.  He is tender over the spinous processes of L-1, L-2, L-3, and L-4.  Some paravertebral muscle spasm is noted adjacent to these tender areas. 

	d.  Although there appears to be some degree of functional overlay to his pain complaints, the x-rays demonstrate clearly that avulsion fractures are present at L-2, L-3, and L-4 and that local tenderness is present at these sites.  His condition was determined to have failed retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36.  His diagnosis is chronic low back pain (secondary to avulsion fractures of L-2, L-3, and L-4, spinous processes) and hepatitis, type unknown, resolved. 

	e.  It is the unanimous recommendations of the medical board that the applicant be permanently retired in that he had reached maximum hospital benefits and maximum medical benefits.  He is unable to perform the duties of his office and grade in such a manner as to reasonably fulfill the purpose of his employment in the military.  The board unanimously recommends against placing him on the temporary disability retired list (TDRL). 
4.  On 23 July 1980, at the 97th General Hospital, Germany, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of chronic low back pain (secondary to avulsion fractures of L-2, L-3, and L-4, spinous processes) and hepatitis, type unknown, resolved.  The MEB recommended his referral to a PEB.  

5.  The applicant was counseled on 25 September 1980.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.  The MEB proceedings were approved.

6.  On 8 October 1980, an informal PEB convened at Walter Reed Army Medical Center: 

	a.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to chronic low back pain with local tenderness and limitation of motion of the lumbar spine (moderate).  

	b.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5295/5292, and granted a 20 percent disability rating.  The PEB also considered his other condition (Hepatitis) but since it had resolved, it no longer failed retention standards and/or was unfitting and thus not ratable.  The PEB recommended his separation with entitlement to severance pay, if otherwise qualified.  

7.  On 22 October 1980, the applicant was counseled by a PEB Liaison Officer who explained to him his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, the difference between an informal and formal PEB, and the role of the U.S. Army Physical Disability Agency (USAPDA).  His counseling culminated in his non-concurrence with the PEB's findings and recommendations and demand for a formal hearing of his case. 

8.  On 2 December 1980, a formal PEB convened at Walter Reed Army Medical Center with the applicant and his counsel present.  Based on a review of the medical evidence of record, applicant's testimony, and presentation by his counsel, the formal PEB concluded that the findings and recommendations of the informal PEB are appropriate as stated in paragraph 2-1 of Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation).  

	a.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and MOS (employment in the Army).  The PEB considered the proper disposition to be separation with severance pay.
	b.  He was rated under the VASRD, assigned codes 5295/5292, and granted a 20 percent disability rating.  The PEB also considered his other condition (Hepatitis) but since it had resolved it no longer failed retention standards and/or was unfitting and thus not ratable.  The PEB recommended his separation with entitlement to severance pay, if otherwise qualified.  

9.  On 2 December 1980, the applicant submitted a rebuttal statement to the PEB President.  He indicated that he desired his appointed counsel act in his behalf and that he submit a rebuttal if he deemed it in his best interest. 

10.  On 5 December 1980, the applicant's counsel submitted a rebuttal statement.  He stated the applicant should have received a higher percentage of his disability for his low back pain.  He had marked limitations of forward flexion.  His back was constantly painful and causes him constant discomfort walking, standing, or sitting.  He also had persistent neck pain and limitations of motion in his neck.  He should have received a disability rating for the problems in his neck.  He asked the PEB President to reconsider the applicant's case for a proper rating. 

11.  On 8 December 1980, by memorandum, the PEB President notified the applicant that he reviewed his counsel's rebuttal statement, dated 5 December 1980.  The review affirmed the formal PEB's recommended findings.  His case would be forwarded to the USAPDA. 

12.  On 26 January 1981, an adhoc review board conducted a review of the applicant's records for the purpose of determining his disability separation grade. His grade was determined to be private (PV2)/E-2 and he was eligible for severance pay in accordance with Title 10, U.S. Code, section 1203 at the highest grade satisfactorily held, E-2.   He completed 1 year, 11 months, and 4 days of active service and 1 year, 11 months, and 6 days of service for pay. 

13.  He was honorably discharged on 27 January 1981 under the provisions of paragraph 4-24e(3) of Army Regulation 635-40 by reason of physical disability with entitlement to severance pay.  

14.  On 10 March 1981, he filed a claim with the VA and on 24 August 1981, the VA awarded him service-connected disability compensation as follows: 

* Residuals avulsion fractures L-1/2/34 with low back with traumatic arthritis
* Arthralgia cervical spine
* Residuals of laceration right wrist
* Residuals hepatitis 
* Pain in left leg
15.  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 USAPDA, 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 Department of Defense Directive 1332.18 and Army Regulation 635-4.

	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, chapter 3, as evidenced in an MEB
* 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 the 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 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.

16.  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.  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.

17. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  

18.  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 of less than 30 percent.

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 an 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 sustained a back injury during initial entry training.  He continued to experience pain and discomfort during his tour in Germany.  He was seen by various medical specialists and recommended for entry into the PDES due to chronic low back pain (secondary to avulsion fractures of L-2/3/4, spinous processes) and hepatitis, type unknown, resolved.  He underwent an MEB which recommended his referral to a PEB. 

2.  The informal PEB found his chronic low back pain prevented him from performing his duties and determined he was physically unfit for further military service.  The informal PEB recommended his separation with entitlement to severance pay.  He did not concur.  A formal PEB affirmed this finding.  He still did not concur.  His rebuttal was reviewed and again the PEB affirmed the finding of separation with entitlement to severance pay.  He was discharged by reason of disability on 27 January 1981. 

3.  With respect to his arguments:

	a.  The reason for the applicant's entry into the PDES was his low back condition.  The injury originated during initial entry training and was apparently aggravated by his motor accident.  This is the only condition that failed retention standards and was found unfitting.  His disability rating was not intended to be a prediction of his future medical condition.  The fact that he may have later developed new medical issues does not invalidate the PEB determination.

	b.  The applicant was diagnosed with Hepatitis C.  However, according to his medical records at the time he received treatment for this condition and it resolved then.  Since it resolved, it no longer failed retention standards and/or was found unfitting.  Conditions that are not unfitting are not ratable or compensable.  Likewise, conditions that are not unfitting are neither assigned a VASRD Code nor a rating.  A key element of the Army's disability system is the Soldier's condition at the time of separation.  His contention that this or any other condition may have worsened with time is noted but rejected.  Conditions that worsen after a Soldier is separated may be treated by and are compensated for by the VA.

	c.  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

	d.  There is no evidence in his records and he provides none that show he suffered from and was diagnosed by competent medical authorities with any mental or behavioral health conditions, including PTSD.  His contention that he suffered from a possible mental condition, PTSD, and/or organic brain syndrome schizophrenia, is not supported by any evidence.  

	e.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army.  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) and 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.

	f.  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 (emphasis added).  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.  VA decisions are not within the purview of this Board.  

4.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his condition 20 percent disabling.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  Aside from his dissatisfaction, 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, he is not entitled to 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)                                         AR20140003708





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ABCMR Record of Proceedings (cont)                                         AR20140003708



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