IN THE CASE OF:  	  

		BOARD DATE:  24 February 2015	  

		DOCKET NUMBER:  AR20140009379 


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 disability findings to add the following unfitting conditions and to increase his disability rating to at least 30 percent for medical retirement:

* left shoulder injury
* right shoulder injury
* neck injury

2.  The applicant states:

	a.  He sustained these injuries during his military service and they should have been rated by the physical evaluation board (PEB) and included in the record.

	b.  All injuries were incurred during military service, are annotated in his service treatment record, and should have been rated.

	c.  He was not aware these injuries could have been rated along with the lumbar spine injury.  He believes multiple spine surgeries warrant a higher rating.

	d.  He should be fairly rated for all injuries incurred during active duty, whether unfitting or not, and those ratings should be added to his record.

	e.  If a rating of 30 percent or higher is confirmed, his record should reflect medical retirement and he should be awarded all benefits.

	f.  At the time of his PEB he was not informed that the left shoulder injury, right shoulder injury, and neck injury could be rated.  He was told the PEB's main focus was on the unfitting rating of his lumbar spine injury.

3.  The applicant provides:

* service medical records
* Department of Veterans Affairs (VA) medical records and ratings

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 enlisted in the Regular Army on 2 September 1998 for 4 years.  He completed his training and was awarded military occupational specialty (MOS) 25U (signal support systems specialist).

3.  He provided a DA Form 3349 (Physical Profile), dated June 2002, which shows he was issued a temporary physical profile rating of 3 for chronic neck pain.

4.  He provided a DA Form 3349, dated May 2003, which shows he was issued a permanent physical profile rating of 2 for chronic left trapezius pain.  His unit commander determined the permanent change in profile serial did not require a change in the applicant's MOS or duty assignment.

5.  In June 2005, a medical evaluation board (MEB) diagnosed him with degenerative disc disease.  The MEB recommended his referral to a PEB.  On 8 July 2005, he concurred with the board's findings and recommendation.

6.  In August 2005, a PEB found him physically unfit due to chronic low back pain with L5/S1 laminectomy and re-operation for a cyst of the S1 nerve root.  The PEB recommended a 10-percent disability rating and separation with severance pay.  On 10 August 2005, he did not concur with the recommendation of the PEB and demanded a formal hearing of his case.

7.  On 7 September 2005, a formal PEB found him physically unfit due to chronic low back pain with L5/S1 laminectomy and re-operation for a cyst of the S1 nerve root.  The formal PEB recommended a 10-percent disability rating and separation with severance pay.  On 13 September 2005, he concurred with the recommendation of the formal PEB.

8.  On 15 December 2005, he was honorably discharged by reason of disability with severance pay.

9.  He provided service medical records that show he was treated for:

* right shoulder pain
* cervicalgia
* tendonitis bicipital
* shoulder sprain acromioclavicular joint
* shoulder separation
* left shoulder pain
* neck pain

10.  He also provided VA documentation which shows he was granted service-connected disability for the following medical conditions effective 16 December 2005 and his overall or combined rating was 40 percent:

* residuals of right shoulder injury with separation (10 percent)
* residuals of left shoulder injury with tendopathy (10 percent)
* residuals of neck injury with disc protrusions (10 percent)
* residuals of a low back injury with herniated nucleus pulposus and scar, PO (10 percent)

11.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P – physical capacity or stamina
* U – upper extremities
* L – lower extremities
* H – hearing and ears
* E – eyes
* S – psychiatric

12.  The numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  A physical profile of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect which may require some activity limitations.

13.  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 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.

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

15.  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.

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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the addition of left shoulder injury, right shoulder injury, and neck injury as unfitting conditions and an increase in his disability rating to at least 30 percent for medical retirement.

2.  His MEB did not list left shoulder injury, right shoulder injury, or neck injury as diagnoses and he agreed with the MEB findings and recommendation.  There is no available evidence to show he was ever given anything less restrictive than a permanent physical profile rating of 2.  He provided no evidence to show these conditions rendered him unfit to perform his military duties.  Therefore, there is insufficient evidence to support adding these medical conditions as unfitting conditions.

3.  The evidence shows the formal PEB found him physically unfit due to chronic low back pain.  He concurred with the PEB findings and recommendation on 13 September 2005.

4.  There is insufficient evidence to show his unfitting condition was improperly rated by the PEB in 2005.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

5.  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 as it sees fit.

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)                                         AR20140009379



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ABCMR Record of Proceedings (cont)                                         AR20140009379



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