IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20140019008 


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 records to show an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The applicant states not all of his medical conditions were considered or rated.  He contends he should have received at least a combined 30 percent (%) disability rating for the following conditions:

* right ankle talonavicular degenerative joint disease
* back
* headaches due to traumatic brain injury (TBI)
* hypertension
* memory loss
* tinnitus
* hearing loss
* neck strain and chest pain

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-0819 (VA/Department of Defense (DoD) Joint Disability Evaluation Board Claim) 
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* VA Rating Decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* approximately 170 pages of military and civilian medical records
CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard and in the Regular Army, the applicant reenlisted in the Regular Army on 28 September 2005.

2.  On 26 August 2010, he was referred to the VA/DoD Joint Disability Evaluation Pilot Program.  He completed a VA Form 21-0819 and listed right talonavicular degenerative joint disease and right ankle ankylosis as the medical conditions to be considered as the basis for his fitness for duty determination.  He also indicated the following additional conditions were incurred or aggravated by his military service:

* back
* right knee
* tinnitus
* memory loss
* headaches
* hearing loss
* latent tuberculosis (TB)
* hypertension
* neck strain 
* chest pain

3.  On 8 March 2011, a Narrative Summary (NARSUM) was provided as part of the Integrated Disability Evaluation System (IDES) DoD/VA Pilot Program.  The NARSUM shows he was diagnosed with the following two conditions that did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness):

* right ankle talonavicular degenerative joint disease 
* right ankle ankylosis post-syndesmotic fusion

4.  The NARSUM also shows he was diagnosed with the following 11 conditions which met retention standards in accordance with Army Regulation 40-501:

* right carpal tunnel syndrome
* chronic left mastoiditis 
* atypical chest pain
* neck strain
* post-concussion syndrome secondary to motor vehicle accident with sequelae of headaches and cognitive disorder not otherwise specified
* chondromalacia right knee
* hypertension 
* subjective bilateral tinnitus  
* high frequency hearing loss left ear
* back condition 
* latent TB

5.  On 8 March 2011, an MEB diagnosed him with right ankle talonavicular degenerative joint disease and right ankle ankylosis post-syndesmotic fusion, which were deemed medically unacceptable for retention in accordance with Army Regulation 40-501.  He was also diagnosed with 11 additional ailments which were determined to meet retention standards.  He agreed with the MEB findings and recommendations and he was subsequently referred to a PEB.

6.  On 11 July 2011, an informal PEB found the applicant physically unfit for right ankle talonavicular degenerative joint disease and ankylosis post-syndesmotic fusion.  The PEB evaluated him for 11 additional medical conditions but found the conditions were not unfitting and met retention standards.  The PEB further stated the conditions were not listed on his physical profile as limiting any of his functional activities, were not commented upon by the commander as hindering his performance, and his case file contained no evidence that the diagnoses independently, or combined, rendered him unfit for his assigned duties.  

7.  The PEB recommended a rating of 20% and the applicant's separation with entitlement to severance pay.

8.  On 18 July 2011, he acknowledged he had been advised of the findings and recommendation of the PEB and that he had received a full explanation of the results of the findings and recommendation and his legal rights pertaining thereto.  He concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  He did not request reconsideration of his VA disability ratings.

9.  Orders Number 210-1035, dated 29 July 2011, issued by Fort Drum, NY, directed his discharge from the Regular Army effective 25 October 2011.  His percentage of disability was 20%.

10.  A VA Rating Decision, dated 6 December 2011, shows he was granted service-connected disability ratings for the following conditions:

* right ankle talonavicular degenerative joint disease, 20%
* cervical strain, 10%
* chondromalacia, right knee, 10%
* mild traumatic brain injury with residual headache (claimed as headaches and memory loss), 10%
* tinnitus, 10%
* low back strain, 0%
* hypertension, 0%
* scar right knee and ankle, 0%

11.  He was denied service connection for chest pain, bilateral hearing loss, and TB.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  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.

	a.  Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  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.
 
   b.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.  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.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation.  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

14.  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.

15.  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 VA rating does not establish an error or injustice on the part of 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, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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 his records should be corrected to show an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The evidence shows a PEB found him unfit due to right ankle talonavicular degenerative joint disease and ankylosis post-syndesmotic fusion.  The PEB found no evidence indicating the other MEB diagnoses were unfitting.   He concurred with the PEB findings and recommendations.  Accordingly, he was discharged with severance pay.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

4.  The VA determined that he suffered from several other medical conditions that were not identified as unfitting at the time of his discharge from active duty. The fact that the VA gave these conditions a rating does not mean any of the conditions were unfitting.  There is no evidence to show he was ever unfit to perform his duties due to those other conditions.

5.  The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations.  There is no evidence of error or injustice in this 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)                                         AR20140019008



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ABCMR Record of Proceedings (cont)                                         AR20140019008



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