IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140015022 


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, correction of his record to show he was medically retired instead of honorably discharged due to disability with entitlement to severance pay.

2.  The applicant states:

* his primary disabilities are vertigo and diabetes type II
* his condition of vertigo was found to be unfitting and he was awarded a 10% disability rating 
* he was awarded a 20% disability rating by the Department of Veterans Affairs (VA) for his diabetes type II condition
* a medical evaluation board (MEB) found his diabetes type II to be medically unacceptable; however, the MEB narrative summary found that it did not interfere with his military duties and continued to meet retention standards
* on 8 August 2011 he was treated for diabetes and a head injury and was diagnosed with vertigo
* he was referred to a health care provider for short-term memory loss
* he wonders if the head injury should have been service-connected and classified as a traumatic brain injury
* he questions if his diabetes type II should have been deemed medically unfitting which potentially could have increased his rating from the army 

3.  The applicant provides the following documents:

* Standard Forms 600 (Health Record – Chronological Record of Medical Care) 
* two pages of a VA Form 21-4138 (Statement in Support of Claim), dated 15 November 2010
* numerous pages related to his compensation and pension examination, which was conducted by the VA on several dates in December 2010
* DA Forms 2166-8 (Noncommissioned Officer Evaluation Report), for the periods 15 December 2008 through 1 April 2011
* a copy of his Enlisted Record Brief
* his VA Rating Decision, dated 4 September 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement)
* DD Form 2648 (Pre-Separation Counseling Checklist for Active Component, Active Guard....)
* Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earning Statement)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* medical reports

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 March 1995.  He completed initial entry training and was awarded military occupational specialty (MOS) 19D (Cavalry Scout).  The highest rank/grade he attained during his period of military service was staff sergeant/E-6.

2.  On 7 July 2009, a physical evaluation board (PEB) found him fit for duty despite his medical condition of diabetes mellitus, type II.  On 13 January 2009, he concurred with the finding.

3.   Progress notes dated 8 August 2011 show he was seen by a physician for dizziness and light headedness.  He reported a medical history consisting of diabetes mellitus and head injury.  He was diagnosed with benign paroxysmal positional vertigo.  There was no further mention of a head injury.

4.  An MEB-Narrative Summary (NARSUM) dated 29 October 2012 shows he was unable to operate in a deployed environment due to his diabetes mellitus, type II; however, the MEB found that his diabetes mellitus, type II had remained stable and was under control.  It further stated that it did not interfere with his military duties.


5.  On 15 December 2012, an informal PEB convened, considered his case, and found his condition prevented him from performing the duties required by his MOS.

   a. The PEB determined he was physically unfit due to benign paroxysmal positional vertigo. 

   b. He was rated under the VA Schedule for Rating Disabilities (VASRD), code 6204 (Peripheral vestibular disorders) and granted a 10 percent disability rating.

     c.  The PEB noted he had been previously been found fit for duty despite his diabetes mellitus, type II.  It also noted that his diabetes mellitus, type II had remained stable and under control through diet and oral hypoglycemic medications.  It further found that his diabetes mellitus, type II did not interfere with his military duties and he continued to meet retention standards.

     d.  The PEB noted the diagnoses of bilateral hearing loss, extropia left eye, amblyopia left eye, and bilateral tinnitus were not associated with profile limitations and did not impact his ability to perform any one of the ten functional activities.  It noted that the MEB indicated that those conditions met medical retention standards.  They were not found to be unfitting.

     e.  The PEB cited his VA compensation and pension exam and the PEB noted that the disability percentage was determined by the VA.

     f.  The PEB recommended that he be separated from the service with entitlement to severance pay if otherwise qualified.

     g.  On 3 January 2013, he concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.  He indicated that he did not request a reconsideration of his VA rating.

6.  He was honorably discharged from active duty on 28 February 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  The DD Form 214 he was issued shows he completed 17 years, 11 months, and 16 days of active military service.  He received disability severance pay in the amount of $129,589.20.  He was assigned an RE code of 3 and a Separation Program Designator (SPD) code of "JEB" due to physical disability with severance pay, non-combat related (enhanced).

7.  The applicant provides a VA Rating Decision rendered by the VA Regional Office located in Seatac, WA, dated 4 September 2013, which shows he had the following conditions that were subject to compensation at the time at a combined disability rating of 40%:

	a.  service-connection for diabetes mellitus, type II, 10% effective date            1 March 2013; 

	b.  service-connection for benign paroxysmal positional vertigo, 10% effective date 1 March 2013;

     c.  service-connection for bilateral tinnitus, 10% effective date 1 March 2013;

     d.  service-connection for bilateral hearing loss, 0% effective 1 March 2013; and

     e.  service-connection for hypertension, 0%, effective date 1 March 2013.

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.

     a.  The PDES assessment process involves two distinct evaluations, 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 or 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 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 individuals who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	b.  Paragraph 3-2b (Processing for Separation or Retirement from Active Duty) states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

     c.  Paragraph 3-5 contains guidance on rating disabilities.  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.  Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.

9.  Directive-type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES).  It states: 

	a.  The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda.  All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards.  Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process.  If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  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.

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 rated at least 30%.

12.  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 rated at less than 30%.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to physical disability because he has received a higher disability rating from the VA.

2.  His case was processed under the IDES.  This means he underwent an examination by the VA and upon completion the VA proposed a disability rating for the unfitting conditions to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable.  

3.  The VA proposed a rating of 10 percent for his unfitting conditions.  The informal PEB accepted and adopted this rating for VASRD Code 1604.  He was counseled and not only did he concur and waive his right to a formal hearing, he also elected not to request reconsideration of his VA rating.

4.  He has not provided any documentary evidence showing the VA provided him a higher rating for the condition found unfitting by the PEB.  It is noted that he suffered from other medical conditions that were not determined to be unfitting.  It is highly probable that the VA rating to which he refers also includes those additional conditions which did not qualify to receive a rating by the Army.

5.  There is no evidence showing that what the Army did at the time of his discharge was in error or unjust.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty, it awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

7.  After separation from service and attaining veteran status, if the former service member desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.  Since VA issues are not within the purview of this Board, the applicant is advised to address his issues with the VA and follow the VA's statutory or regulatory rules regarding appeals.

8.  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)                                         AR20140015022



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ABCMR Record of Proceedings (cont)                                         AR20140015022



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