IN THE CASE OF:  

		BOARD DATE:  15 January 2015	  

		DOCKET NUMBER:  AR20140008269 


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, an increase in his disability rating to 30 percent which would afford him a medical retirement and military identification (ID) card privileges.

2.  The applicant states:

	a.  He was diagnosed with lumbar radiculopathy (radicular pain in the low back and legs) at Walter Reed Army Medical Center in 1993, but the condition was not rated by the medical evaluation board (MEB) or physical evaluation board (PEB).

	b.  He additionally suffers from lumbar spondylosis (osteoarthritis of the lumbar spine), scar tissue pain, numbness in the legs, moderate loss of use of lower extremities, degenerative arthritis of the spine, and intervertebral disc syndrome (lower back pain and/or radiating pain, numbness or weakness in the legs stemming from a degenerated spinal disc).

	c.  He did not fail in his commitment to faithfully serve his country; thus, he deserves the issuance of an ID card as he was deemed unfit to continue to serve by medical professionals.

3.  The applicant provides:

* Department of Veterans Affairs (VA) Rating Decision, dated 6 March 2014
* DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States), dated 18 March 2014
* Army Review Boards Agency letter to the applicant, dated 15 April 2014
* Central Alabama Veterans Health Care System (HCS) Progress Notes, printed on 26 February 2014
* Central Alabama HCS Consult Requests, printed on 26 February 2014
* Central Alabama HCS Radiology Reports, printed on 26 February 2014
* Charleston VA Medical Center (VAMC) Progress Notes, printed on 1 October 2013
* Charleston VAMC Consult Requests, printed on 1 October 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  After prior periods of active and inactive service, the applicant enlisted in the Regular Army on 11 March 1986 and trained as a fire support specialist (13F).

3.  The applicant's records contain a DA Form 3349 (Physical Profile), dated 3 May 1995, which shows he was issued a permanent physical profile rating of 3 in his lower extremities for spine fusion.

4.  In January 1996, an MEB diagnosed him with L5-S1 spondylolisthesis (the forward shift in the fifth lumbar vertebra in the lower back) which was deemed to be medically unacceptable.  His Narrative Summary noted his low back pain with radicular symptoms and improvement in symptoms since the onset with the posterior spinal fusion and subsequent treatments received.  No other medical conditions were diagnosed or deemed medically unacceptable by the MEB and there is no evidence of record that he was diagnosed with other medical conditions.
5.  The MEB recommended his referral to a PEB and the applicant agreed with the board's findings and recommendations on 31 January 1996.

6.  On 9 April 1996, a PEB found him physically unfit due to chronic lower back pain post L5-S1 fusion for spondylolisthesis.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented the satisfactory performance of duty in the applicant's grade and primary military occupational specialty.

7.  The PEB recommended a combined 10-percent disability rating and separation with severance pay using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5295, Lumbosacral strain.  On 12 April 1996, he concurred with the PEB findings and waived his right to a formal hearing.

8.  On 17 April 1996, the U.S. Army Physical Disability Agency approved the PEB's findings.

9.  On 5 June 1996, he was honorably discharged by reason of disability, severance pay, non-combat related.

10.  The applicant provided a copy of his VA Rating Decision, dated 6 March 2014, which shows:

* service connection for lumbar radiculopathy, right lower extremity, is granted with an evaluation of 20 percent effective 17 October 2013
* service connection for lumbar radiculopathy, left lower extremity, is granted with an evaluation of 20 percent effective 17 October 2013
* service connection for surgical scar, lumbar spine surgery, and donor site scar, left iliac crest, is granted with an evaluation of 0 percent effective 6 June 1996
* evaluation of lumbar degenerative disc disease with fusion and invertebral disc syndrome, currently 20-percent disabling is continued (previously VASRD code 5293, not currently identified).

11.  The applicant also provided multiple medical documents from VA medical facilities which appear to have been used in the VA rating determination process corroborating his disabilities.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

13.  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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.  Paragraph B-5, at the time, states that pyramiding is the term used to describe the application of more than one rating to any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis, for rating purposes, unless specifically exempted.

15.  VASRD code 5295 identifies the following conditions and corresponding ratings for lumbosacral strain:

* with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, 20 percent
* with characteristic pain on motion, 10 percent
* with slight subjective symptoms only, 0 percent

16.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has multiple disabilities that were rated by the VA, but not rated and assigned a disability percentage upon his discharge from the Army.  However, he agreed with the MEB's findings and recommendations on 31 January 1996 and he did not present views in his own behalf.

2.  The evidence shows the PEB determined his condition to be chronic low back pain post L5-S1 fusion for spondylolisthesis, using the corresponding VA code 5295.  His radicular symptoms were considered by the MEB, but at the time the rating of any radiculopathy symptoms would have been pyramiding.  No other conditions were rated by the PEB.  

3.  Under the provisions of VA Book C - Schedule for Rating Disabilities, code 5295, lumbosacral (lower back) strain with characteristic pain on motion, requires a disability rating of 10-percent.  The PEB recommended a combined 10-percent disability rating and separation with severance pay.  He concurred with the PEB findings and waived his right to a formal hearing on 12 April 1996.

4.  To be eligible for the issuance of a military ID card as the applicant requests, he would have had to have received a disability rating of at least 30 percent.

5.  There is insufficient evidence to show the applicant's unfitting condition was improperly rated by the PEB or that he suffered from unfitting conditions that were not rated by the PEB.

6.  His combined VA rating of 60 percent granted 17 years after his Army PEB rating of 10 percent was noted.  However, the rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings independent of the Army's ratings.  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 career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  

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 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)                                         AR20140008269



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ABCMR Record of Proceedings (cont)                                         AR20140008269



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