IN THE CASE OF:  	  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20150000368 


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 does not make a clear request to correct a specific military record.  It appears he is, in effect, requesting a review of his disability processing and Department of Veterans Affairs (VA) service-connection.

2.  He also states that he was forced to miss the medal he was due when he saved a private’s life during advanced individual training (AIT).

3.  The applicant states:

* the Department of Veterans Affairs (VA) misplaced his file and he was forced to submit more documents
* he encountered discrimination, racism, and challenges during his military service and the VA also discriminates against him
* he previously complained to the VA but they maliciously delayed or reduced his claims and prevented him from receiving medical care
* he is a foreign-born U.S. citizen who served on active duty from June 2002 to April 2003; he was discriminated against by the Army
* he was ultimately discharged from the Army in April 2003 by reason of disability with entitlement to severance pay
* he feels the Army did not take good care of him and, as a result, he now suffers from financial and personal problems 
* he had seen several mental health doctors while in the Army but the Army ignored those issues
* after his discharge, he applied to the VA for service-connection every year but the VA discriminated against him and delayed processing his claims
* he also applied to the DOD Physical Disability Review Board (PDBR) which reviewed his disability processing but did not consider all issues
* he is divorced and is behind on his mortgage; he owes a huge debt and feels he was not treated properly
* the VA did not backdate the date of service-connection for post-traumatic stress disorder (PTSD) despite being claimed each year 
* the tinnitus was also claimed each year but was not given retroactive to the date of the first claim (2003)
* other conditions were blatantly ignored by the VA and/or the PDBR; he wants all issues addressed by the Army 
* the VA is lying about payment to his former spouse and is not paying him for travel or giving him a waiver for his new home (property tax)
* the VA is not allowing him to get his teeth fixed
* the PDBR discriminated against him; the lies go on and on at the highest level; the illegal racism and discrimination need to stop 

4.  The applicant provides:

* PDBR Decision, dated 5 December 2014
* Multiple VA rating decisions and related service medical records
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Various email communications

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 26 June 2002.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). 

2.  On or about 14 August 2002, he complained of bilateral knee pain.  He reported pain in his knees after doing low crawl training.  His injury was presumed to be in the line of duty. 

3.  He underwent a medical examination that resulted in a finding of persistent thigh and leg pain which restricted his ability to function in his MOS.  He was issued a physical profile on 14 January 2003 listing the medical condition of stress reaction, left femur.  His profile listed the functional limitations of no running, no jumping, no lifting over 5 pounds, and no standing/walking over 15 minutes without a break. 

4.  His narrative summary (NARSUM), dictated on 15 January 2003, states he was not fit for military service and was medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  His physical examination showed full range of joint motion with pain.  X-rays did not show any fractures.  He had a stress response but not a true stress fracture. 

5.  On 15 January 2003, a medical evaluation board (MEB) convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of bilateral thigh and leg pain.  The MEB recommended his referral to an informal physical evaluation board (PEB).  The applicant was counseled and agreed with the MEB's findings and recommendation.

6.  On 27 January 2003, his commander rendered a performance statement wherein he stated that the applicant's job required upper body and back movements to conduct mission requirements.  The applicant had been diagnosed with a stress reaction of the left femur and leg pain.  His profile limited his ability to work in areas of his MOS as well as non-MOS related tasks performed by Soldiers.  

7.  On 3 March 2006, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to bilateral thigh and leg pain with onset apparently after physical training.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) codes 5099/5003 and granted him a 0-percent disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

8.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 12 March 2003 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

9.  He was honorably discharged on 22 April 2003 in accordance with paragraph 4-24b(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, with entitlement to severance pay.  He completed 9 months and 27 days of active service.  His DD Form 214 shows he was awarded or authorized the Army Service Ribbon.

10.  Between October 2004 and 2011, the VA considered and/or adjudicated his service-connected disability claims. 

* In October 2004, the VA denied claims for right ankle condition, left ankle condition, and non-service connected pension
* In January 2006, the VA awarded service-connection for cracked femur, right hip, right knee, left knee and denied multiple other conditions 
* In April 2008, the VA denied service-connection for sinus condition, left ankle, right ankle, and PTSD

11.  On 31 July 2009, his VA claim was reopened and some associated claims were increased.  The VA awarded service-connection for PTSD at 50 percent as of 24 September 2007, cracked femur (left hip) at 10 percent as of 23 April 2003, cracked femur (right hip) at 10 percent as of 23 April 2003, overuse syndrome (right knee) at 10 percent as of 23 April 2003, and overuse syndrome (left knee) at 10 percent as of 23 April 2003.  His combined evaluation was 20 percent from 23 April 2003 and 70 percent from 23 September 2007.  The VA denied over 25 other conditions as not service-connected.  It also deferred a decision on his bilateral hearing loss and tinnitus. 

12.  On 3 June 2011, the VA denied service-connection for hypertension, dental condition, panic disorder, bilateral hearing loss, and deferred tinnitus.

13.  In October 2011, the VA awarded service-connection for tinnitus at 10 percent, effective 31 July 2009; PTSD at 50 percent was continued; individual unemployability was continued; service-connection for hypertension and dental condition were confirmed and denied; and service-connection for bilateral hearing loss was denied

14.  On 8 October 2013, the applicant submitted an application to the PDBR 
(DD Form 294) to review his disability.  The PDBR recommended a combined rating of 20 percent consisting of 10 percent for his right thigh and leg pain and 10 percent for his left thigh and leg pain.  

15.  On 18 December 2014, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) reviewed the PDBR recommended action and accepted that board's recommendation to modify his rating to 20 percent.  He was also advised that this decision was final and that his recourse within DOD and/or the Department of the Army was exhausted. 

16.  Army Regulation 635-40 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.  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.  

17.  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. Paragraph 3-33 (anxiety, somatoform, or dissociative disorders) states the causes for referral to an MEB under this paragraph require persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistence or recurrence of symptoms resulting in interference with effective military performance.

18.  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.

19.  Army Regulation 600-8-22 (Military Awards) governs awards, decorations, badges, citations, and campaign participation.  Individual decorations include the Army Achievement Medal, Army Commendation Medal, Air Medal, Meritorious Service Medal, Bronze Star Medal, Soldier's Medal, Distinguished Flying Cross, Legion of Merit, Silver Star, Distinguished Service Cross, and Medal of Honor.  Each decoration must meet a specific criteria but all require formal recommendations, approval through the chain of command, and announcement in orders.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant complained of thigh and leg pain that led to a finding of a medically unacceptable condition related to this pain.  When he underwent a medical examination in 2002, he complained only of thigh pain that developed during training.  He did not complain of nor did medical providers observe any behavioral health conditions at that time.  

2.  He was considered by an MEB in January 2003 that referred him to a PEB. His MEB indicated that he had only one condition that did not meet medical retention standards: bilateral thigh and leg pain.  On 20 February 2003, he concurred with the MEB findings and did not file an appeal.  The MEB referred him to a PEB.

3.  In March 2003, an informal PEB found his back condition was unfitting and rated it at zero percent.  The PEB recommended his separation with entitlement to severance pay.  On 12 March 2003, after being counseled on his rights, the applicant concurred with the PEB findings and waived his right to a formal hearing.  He was ultimately discharged on 22 April 2003. 

4.  There are no other physical or behavioral health conditions that were found to have failed retention standards at the time.  But even if there had been other conditions, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are compensable in the military disability system.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  

5.  Some of the conditions he claimed with the VA are service-connected.  The term "service-connected" means that the veteran is disabled due to injury or illness that was incurred in or aggravated by military service.  Non-service connected means that the veteran is disabled due to injury or illness not related to military service.  

6.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his condition initially at zero percent disabling.  Subsequent to this rating, the PDBR modified it to 20 percent.  He did not provide medical evidence then, nor does he now provide any, to support a higher rating.  Since this rating was less than 30 percent, by law, he was only entitled to severance pay.  

7.  He petitioned the PDBR and upon adjudication of his case, the PDBR recommended the prior determination be modified to a combined rating of 20 percent.  The DASA(RB) reviewed the PDBR recommended action and accepted that board's recommendation to modify the applicant’s rating to 20 percent.  He was also advised that this decision was final and that his recourse within DOD and/or the Department of the Army was exhausted. 

8.  He was 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 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.  The fact that the VA awarded him service-connected disability compensation for any physical or mental health condition over the years is not evidence of any error in the military disability system in 2003.

9.  Issues related to service-connection, eligibility for service-connected compensation, effective date of service-connection, and VA rating should be addressed with the VA.  Likewise, the issues related to VA dental examination and waiver for a house (property taxes) are VA-related issues.  They are not within the purview of this Board. 

10.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant 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 foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.

11.  There is no evidence the applicant was recommended for or awarded any personal decorations for saving a Soldier's life or for any other act, achievement, or service.  Personal decorations such as the Army Achievement Medal, Army Commendation Medal, Soldier's Medal, and so forth, require formal recommendations, approval through the chain of command, and announcement in orders.  If he has such documentation, he may submit it with a request for reconsideration.

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)                                         AR20150000368



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ABCMR Record of Proceedings (cont)                                         AR20150000368



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