IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140019156 


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 reconsideration of his earlier request for a review of his September 1974 disability processing and award of a 100 percent instead of 70 percent disability rating.  

2.  The applicant states he feels he should have been granted a full medical disability at 100 percent.  There was an omission of critical medical document when the medical retirement was completed.  The evidence is now available through the Department of Veterans Affairs (VA). 

3.  The applicant provides:

* Retirement DD Form 214 (Report of Separation and Record of Service)
* Correspondence with the National Personnel Records Center
* Request for Extension of Overseas Tour
* Republic of Vietnam Gallantry Cross with bronze star
* Special Orders T-4 (patient)
* Patient Evacuation Document
* Clinical records, notes, referrals, cover sheets, and orders
* Narrative Summary (NARSUM)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Retirement orders 
* Post-retirement medical records (from the 1980s)
* VA rating decisions, dated July and August 2014


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070000629, on 18 September 2007.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was not received within one year of the Board's original decision.  However, he provides medical documents (VA ratings) which were not previously considered.  As a one-time exception to policy his case will be reconsidered by the Board.

3.  Having had prior service (August 1955 to June 1960), the applicant enlisted in the Regular Army on 4 October 1962.  He held military occupational specialty 11C (Infantry Indirect Fire Crewman). 

4.  He served through multiple extensions or reenlistments, in a variety of stateside or overseas assignments, including Vietnam from May 1968 to December 1969 and he attained the rank/grade of staff sergeant (SSG)/E-6.  

5.  He provides multiple medical records (Chronological Records of Medical Care), dated October to December 1968, that show he complained of low back pain in Vietnam.  He was treated at the 71st Evacuation Hospital with rest and medications.  It was noted on one of the medical records that he had Bell’s palsy (weakness of the muscles on one side of the face).  

6.  He also provides a DA Form 8-275-3 (Clinical Record-Cover Sheet/Physical Profile), dated 2 January 1969, that shows a diagnosis of herniation of the nucleus pulposus of the lumbar four.  His disposition was a transfer to the 249th General Hospital in Japan.  

7.  On 2 January 1969, the 26th Casualty Staging Flight published Special Orders T-4 transferring several Soldiers, including the applicant, in a patient status for approximately 90 days of temporary duty to the 249th General Hospital in Japan for a lumbar strain.  

8.  He underwent various examinations and/or evaluations at the 249th General Hospital.  His NARSUM, dated 24 January 1969, shows:

	a.  His chief complaint was severe low back pain caused by carrying ammunition packs.  He was hospitalized for pain in his leg and he was unable to maintain a descent upright position since this injury.  During his hospital course, he was started on physiotherapy without any major initial improvement.  An extensive myelographic examination ruled out high lumbar disc and revealed no evidence of any legion anywhere.  He was started on active physiotherapy and over a period of 2 weeks, he showed marked improvement to the point of walking around in a normal fashion.

	b.  It was felt his low back pain was not a result of any nerve root, compression, and that he may return to duty.  His diagnosis was psychophysiological musculoskeletal reaction, improved, and his disposition was return to duty.  

9.  He was transferred on a permanent duty station to Fort Meade, MD with duty at the Ohio State University as an instructor.  He then served in Germany from on or about 21 July 1971 to on or about 2 February 1974.  He was transferred to Fitzsimons Army Medical Center, Denver, CO, in early February 1974.  

10.  He provides a medical evaluation board (MEB) NARSUM, dictated on 14 May 1974.  It shows:

	a.  He was admitted to the hospital on 4 February 1974 for reevaluation of the right hemiparesis.  His problems were (1) thrombosis of left middle cerebral artery, manifested by right hemiparesis and speech difficulty; and (2) hypertension.  

	b.  [Thrombosis is the formation of a blood clot inside a blood vessel obstructing the flow of blood through the circulatory system; hemiparesis is the weakness of the left or right side of the body, paralysis of half of the body (hemiplegia) and can be caused by various cases such as congenital causes, trauma, tumors, or stroke].

	c.  His final diagnosis was thrombosis, left middle cerebral artery, undetermined etiology, with resulting right hemiparesis, in line of duty, unfitting; and hypertension, essential, mild, in line of duty, not unfitting.  He continues to have right-sided weakness, his dominant side, and some difficulty with speech and thought process.  It was opined that this will not completely resolve and the applicant was unfit for further military service.  It was recommended that his case be referred to a physical evaluation board (PEB).  





11.  On 31 July 1974, a PEB convened and considered his conditions.  He was rated under the VA Schedule of Rating Disabilities (VASRD) as follows: 

* VASRD Code 7101, hypertension, essential, mild, below VA minimum, rated at 0 percent 
* VASRD Code 8008, brain vessel, thrombosis of left middle cerebral artery, residuals, rated at 40 percent

* VASRD Code 8513, all radicular groups, paralysis of right, major, incomplete, moderate, rated at 30 percent
* VASRD Code 6516, expressive aphasia, equals laryngitis, chronic, severe, rated at 20 percent
* VASRD Code 8520, sciatic nerve, paralysis of the right, incomplete, moderate, rated at 20 percent
* VASRD Code 8526, femoral nerve paralysis of right, incomplete, moderate, rated at 20 percent

12.  The PEB found the applicant physically unfit and recommended his placement on the temporary disability retired list (TDRL) at a combine rating of 70 percent.  After a review, Headquarters, Department of the Army, U.S. Army Military Personnel Center, approved his PEB and authorized his retirement.  

13.  On 28 August 1974, U.S. Army Military Personnel Center, Alexandria, VA, published Orders D8-477 releasing him from active duty on 11 September 1974 and placing him on the TDRL in his retired rank/grade of SSG/E-6 effective 
12 September 1974 at a combined rating of 70 percent. 

14.  His DD Form 214 shows he retired on 11 September 1974 and he was placed on the TDRL on 12 September 1974 in accordance with Title 10, U.S. Code (USC), section 1202.  He was credited with 16 years, 4 months, and 26 days of active service.  

15.  His TDRL examination and resulting TDRL PEB are not available for review with this case.  His records contain Orders D45-18, issued by the U.S. Army Military Personnel Center, Alexandria, VA, on 2 September 1976, removing him from the TDRL on 30 September 1976, and permanently retiring him in the rank/grade of SSG/E-6 on 13 September 1976. 

16.  After his retirement, throughout the 1980s, he sought orthopedic consultations, evaluations, and/or treatment for his low back pain.  He was diagnosed with various medical doctors with chronic mild ligamentous strain to the lumbosacral spine. 

17.  Also after his retirement, he sought VA service-connection for various conditions.  He submitted appeals and requested informal or formal Board of Veterans Appeals hearings.  His last VA ratings decision is dated 22 July 2014, and shows service-connection for:

* right upper extremity weakness
* residuals of brain vessel thrombosis
* right lower extremity weakness
* incomplete paralysis of right lower extremity secondary to brain vessel thrombosis
* obstructive coronary artery disease
* post-traumatic stress disorder
* hypertension
* lumbar stenosis (low back condition)
* speech difficulty
* traumatic amputation, tip of right fourth finger
* neurodermatotis, lower extremities
* residual scar
* bilateral hearing loss
* history of seizures

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  

19.  Army Regulation 40-501 (Standards of Medical Fitness) 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.  Ratings can range from zero percent to one 100 percent, rising in increments of 10 percent. 



20.  Title 10, USC, 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%.  Title 10, USC, 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%.

21.  Title 38, USC, 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.  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 was diagnosed with two medical conditions (cerebral thrombosis and hypertension) that warranted his entrance into the PDES.  He underwent an MEB evaluation which recommended his referral to a PEB.  The PEB found his medical conditions prevented him from reasonably performing the duties required of his grade and military specialty and that he was physically unfit for further military service. 

2.  The PEB rated his primary medical conditions (and related sub-conditions) and recommended placing him on the TDRL at a combined rating of 70 percent.  It is presumed the applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.  He retired on 11 September 1974 and he was placed on the TDRL the next day. 

3.  His TDRL examination and resulting TDRL PEB are not available for review with this case.  His records contain official orders issued by the U.S. Army Military Personnel Center on 2 September 1976, removing him from the TDRL on 30 September 1976, and permanently retiring him in the rank/grade of SSG/E-6 on 13 September 1976. 

4.  The applicant does not specifically state if the rating for the disabling condition should be raised from 70 percent to 100 percent or if other conditions should have existed and would have raised the rating to 100 percent.  

	a.  The 1974 rating was assigned based on his MEB physical examination, degree or severity of his conditions, and in accordance with the VASRD in effect at the time.  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 PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his conditions 70 percent disabling.

	b.  He provides medical documents that show he sustained low back pain in late 1958/early 1969.  However, there is no evidence in the records that shows this particular condition failed retention standards or was unfitting.  The contemporaneous NARSUM he provides states it was felt his low back pain was not a result of any nerve root, compression, and that he may return to duty.  His diagnosis was psychophysiological musculoskeletal reaction, improved, and his disposition was return to duty.  It is clear that this condition was not disabling.  

	c.  Over the years following his retirement, the applicant was awarded service-connected disability compensation by the VA.  However, an award of a rating by another agency does not establish error in the rating assigned by the Army's PDES.  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.  

	d.  Some of his conditions may have worsened with time.  This is noted.  However, disabilities that worsen after a Soldier is separated are treated by and compensated for by the VA.  A key element of the Army's disability system is the Soldier's condition at the time of separation.  His disability rating was not intended to be a prediction of his future medical condition.  

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations in effect at the time and he appears to have 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.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.


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 to amend the decision of the ABCMR set forth in Docket Number AR20070000629, on 18 September 2007.



      _______ _  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)                                         AR20140019156





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ABCMR Record of Proceedings (cont)                                         AR20140019156



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