BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140009397 


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 reevaluation of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings because they failed to consider his conditions of post-traumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus that have been rated as service-connected by the Department of Veterans Affairs (VA).

2.  The applicant states, in effect, these conditions were never considered during his medical evaluation processing.

3.  The applicant provides:

* his VA Rating Decision, dated 15 March 2011
* DA Form 294 (Application for Review by the Physical Disability Board of Review (PDBR)), dated 28 October 2013 and allied documents
* DD Form 149 (Application for Correction of Military Record) with allied documents

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.  He enlisted in the U.S. Army Reserve on 16 April 1999 and served as a chemical operations specialist.

3.  His complete medical records are not available.

4.  On 29 March 2005, an MEB Narrative Summary was completed which shows the applicant's chief complaint was right knee pain.  The examiner indicated the applicant failed to meet retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-41a, for his medical condition of patellofemoral syndrome, right.  

5.  On 26 April 2005, the MEB found that his medical condition was incurred while entitled to base pay.  The board recommended that his case be referred to a PEB.

6.  On 3 May 2005, he was notified of the preliminary findings of the MEB and he indicated that he did not desire to continue on active duty, agreed with the board's findings and recommendation, and certified that the MEB accurately covered all of his medical conditions.

7.  On 11 May 2005, his condition was evaluated by an informal PEB.  The PEB assigned a combined 10 percent disability rating under the VA Schedule for Rating Disabilities (VASRD).  The PEB recommended he be separated with severance pay if otherwise qualified.

8.  On 23 May 2005, he concurred with the findings and recommendation of the informal PEB and waived a formal hearing.  On 3 June 2005, he was discharged due to disability with severance pay.

9.  The applicant provides:

	a.  His VA rating decision, dated 15 March 2011.  This document does not show he was evaluated or given a rating for PTSD but does show his medical conditions of tinnitus, left knee strain, thoracolumbar strain were determined to be service connected and assigned a 10 percent rating.  This form also shows that the VA denied a service-connected disability rating for his bilateral hearing loss.
	b.  The PDBR’s denial of recharacterization of his disability and separation determination.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  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.

	b.  This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

	c.  Appendix B provides guidance on the Army's application of the VASRD.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

11.  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 VASRD.

12.  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 any VA rating does not establish an error or injustice by 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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 that his PTSD, bilateral hearing loss, and tinnitus were not evaluated during his MEB/PEB processing.

2.  His contention that he suffered from additional medical conditions is not in question, but the mere presence of an injury or illness is not evidence of an error.  A PEB makes determinations of unfitness based on the physical requirements of the Soldier's particular office, grade, rank, or rating.  In this case, the available records show no evidence of any other additional potentially unfitting medical conditions that would have warranted evaluation at the time.

3.  In view of the above, his 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)                                         AR20140009397





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ABCMR Record of Proceedings (cont)                                         AR20140009397



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