IN THE CASE OF:	   

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140011256 


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 physical evaluation board (PEB) disability processing.  

2.  The applicant states he was diagnosed with a herniated disc by the Department of Veterans Affairs (VA) after his discharge from the Army in 1999.  His shin splints and fascial hernia were combined and rated as one debilitating condition instead of two separate debilitating conditions.  He was treated by being given a heel cup for pain in his heel and he was authorized to wear tennis shoes in lieu of Army boots to help alleviate the pain in his feet.  He was counseled by his supervisor and threatened with malingering under Article 15 of the Uniform Code of Military Justice if he continued to seek medical attention for his medical conditions to include his back and feet pain.  He was also told the best course of action for treatment or evaluation for his medical conditions was to wait until he was separated and seek help from the VA.  He was diagnosed with plantar fasciitis by the VA after his discharge.  

3.  The applicant provides:

* Page 1 of DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* Standard Form 93 (Report of Medical History)
* Standard Form 88 (Report of Medical Examination) 
* Chronological Records of Medical Care
* Screening Notes for Acute Medical Care 
* DA Form 199 (Physical Evaluation Board ((PEB) Proceedings) 
* VA rating decision 
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 28 November 1995 and he held military occupational specialty (MOS) 19K (M-1 Abrams Armor Crewmember).  He reenlisted on 1 April 1998. 

3.  His narrative summary is not available for review with this case.  However, he provides a Standard Form 93 and a Standard Form 88 that show he underwent an MEB medical examination on 4 June 1999.  He indicated he was in a fair health and taking no medications.  The examining physician found him not qualified for retention and listed his conditions of "pl … (illegible word) and small muscle hernia posterior tibialis."  He fails to meet retention criteria in accordance with Army Regulation 40-501 (Standard of Medical Fitness).  

4.  On an unknown date, an MEB convened at U.S. Army Medical Activity, Wuerzburg, Germany, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with bilateral shin splints and small muscle hernia, both legs, that did not meet retention standards.  The MEB recommended his referral to a PEB.  The back page of the MEB Proceedings is not available.  It is unclear if the applicant agreed or did not agree with contents of the MEB and its findings.  

5.  On 6 March 1999, an informal PEB convened and found his conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit.  

	a.  The PEB rated the applicant's conditions under the VA Schedule for Rating Disabilities (VASRD) Codes 5099/5003, bilateral shin splints with fascial defects in both legs allowing muscle to protrude through.  The PEB noted that plain radiographs show stress reaction medial tibiae.  Range of motion of ankles was normal and there was no neurological defect.  
	b.  The PEB recommended a 10 percent combined disability rating and separation with entitlement to severance pay if otherwise qualified.  It is unclear if the applicant concurred with the PEB's findings and recommendations or if he elected not to concur and demanded a formal hearing of his case.  The signature page of his PEB Proceedings is not signed or dated.  

6.  On 12 November 1999, he was honorably discharged from active duty, under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 3 years, 11 months, and 15 days of active service. 

7.  He provides a VA rating decision, dated 3 March 2009, that shows his entitlement to individual uneployability, effective 1 October 2008, and eligibility for dependents' educational assistance, effective 1 October 2008. 

8.  Army Regulation 635-40 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.  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.

9.  Army Regulation 635-40 states 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.  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.

10.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

11.  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 at less than 30 percent.

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 a higher VA rating does not establish an error or injustice in the Army rating.  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 available evidence shows the applicant underwent a medical examination that led to a finding of failing retention standards and that warranted his entry in the disability system.  He underwent an MEB which recommended his referral to a PEB.  The PEB determined he was physically unfit for further military service.

2.  The PEB rated his bilateral shin splints with fascial defects in both legs allowing muscle to protrude through.  The PEB also noted that plain radiographs show stress reaction medial tibiae, his range of motion of ankles was normal, and there was no neurological defect.  The PEB recommended a 10 percent combined disability rating and separation with entitlement to severance pay. 

3.  The applicant's rating was assigned based on a finding that at the time of separation examinations noted there was pain without neurological abnormality.  According to the VASRD in effect at the time of his separation in 1999, such condition is rated at 10 percent.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated at 10 percent and there is no evidence to support a higher rating for her condition.
4.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his condition 10 percent disabling.  There is insufficient 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.  He appears to have been awarded service-connected disability compensation by the VA.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability system.  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.

6.  The applicant's physical disability evaluation appears to have been conducted in accordance with law and regulations and it is presumed he concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.

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)                                         AR20140011256





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ABCMR Record of Proceedings (cont)                                         AR20140011256



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