IN THE CASE OF:	  

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150001256 


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, that his disability percentage be increased and that he be medically retired. 

2.  The applicant states the Medical Evaluation Board (MEB) should have evaluated his conditions of right shoulder pain, left knee pain, and speech and thought impairment due to a head injury.  Those conditions were not evaluated and the Department of Defense Physical Disability Board of Review (DODPDBR) made their decision based on his medical records and Department of Veterans Affairs (VA) information that was available in April 2013.  However, new findings from the VA in February 2014 warrant an increase in his disability ratings.  

3.  The applicant provides a one-page letter explaining his application and a copy of his VA Rating Decision. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the rank of captain in Germany when he was involved in a motorcycle accident in August 2000.  He was treated with rehabilitation for right shoulder separation and pain, and in March 2001 he underwent a right distal clavicle resection and reconstruction of the coracoclavicular ligaments as treatment for his chronic Type II distal clavicle fracture and chronic Type V AC separation.

2.  Although not present in the available records, the applicant underwent a Physical Evaluation Board (PEB) and the PEB determined that his right shoulder pain and left knee pain were unfitting and recommended that he be separated with a 10 percent (%) disability rating with severance pay.  The applicant initially disagreed with the PEB findings and recommendations; but subsequently withdrew his appeal.

3.  On 16 September 2003, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B (3), due to disability with severance pay.  He had served 10 years, 6 months, and 22 days of active service and was paid $101,712.60 in severance pay.

4.  On 5 June 2012, the applicant applied to the DODPDBR for a review of his disability rating contending that he should have been granted a disability rating for speech and thought impairments due to a head injury. 

5.  On 28 February 2013, the DODPDBR reviewed the applicant’s case and determined that his unfitting conditions of right shoulder pain and left knee pain should be assigned separate ratings of 10% each and that his combined disability rating should be changed to 20%.  The DODPDBR further explained that his condition of speech and thought impairments due to a head injury were not within the purview of that Board and he could apply to this Board for consideration.

6.  On 25 April 2013, the Deputy Assistant Secretary (Army Review Boards) accepted the recommendations of the DODPDBR and directed that his disability rating be changed to 20% and advised the applicant that his recourse within the Department of Defense was exhausted.  He had the option to seek relief in a court of appropriate jurisdiction.

7.  On 4 February 2014, the VA raised the applicant’s rating for traumatic brain injury from 10% to 70%, effective 30 April 2012.

8.  A review of the applicant’s official records failed to show any indication that the applicant had an unfitting condition that related to speech and thought impairments due to a head injury or traumatic brain injury prior to separation from the service.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a Soldier is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.  The medical treatment facility commander with the primary care responsibility evaluates those referred to him or her and, if it appears as though the Soldier is not medically qualified to perform duty or fails to meet retention criteria, refers the Soldier to an MEB.  Those Soldiers who do not meet medical retention standards are referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

10.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

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 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

13.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating (emphasis added).  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered and appear to lack merit.  

2.  The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was not afforded proper disability processing, that the evaluation and the rating rendered by the PEB were incorrect, or that he had an unfitting condition at the time the PEB was convened that was not considered.

3.  A PEB determined that the applicant’s right shoulder pain and left knee pain were unfitting and he was granted a 10% disability rating with severance pay.  Accordingly, on 16 September 2003 he was honorably discharged due to disability, severance pay.  

4.  On 5 June 2012, the applicant appealed to the DODPDBR for a review of his disability rating contending in addition to his current rating he should have been granted a disability rating for speech and thought impairments due to a head injury. 

5.  On 28 February 2013, the DODPDBR amended the applicant’s unfitting conditions of right shoulder pain and left knee pain and assigned separate ratings of 10% each for a combined disability rating of 20%.  

6.  On 25 April 2013, the Deputy Assistant Secretary (Army Review Boards) accepted the recommendations of the DODPDBR and directed that his disability rating be changed to 20%.  

7.  On 4 February 2014, the VA raised the applicant’s rating for traumatic brain injury from 10% to 70%, effective 30 April 2012.

8.  A review of the available evidence failed to show the applicant had an unfitting condition that related to speech and thought impairments due to a head injury or traumatic brain injury prior to his discharge from active duty.

9.  The fact that the VA, in its discretion, may have awarded the applicant a service-connected disability for a medical condition not evaluated by the PEB or a higher disability rating for an evaluated condition is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.  

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20150001256



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ABCMR Record of Proceedings (cont)                                         AR20150001256



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