BOARD DATE:	  27 October 2015

		DOCKET NUMBER:  AR20150002829 


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:

	a.  He was medically discharged from the U.S. Army with a 20 percent (%) disability rating for chronic hip pain in both hips.  

	b.  During his time in the Army, he was diagnosed with hypoglycemia but the Army did not rate him for this condition.  Had the Army rated him for hypoglycemia, it would have given him at least a 30% disability rating, which in turn would have warranted a medical retirement.  

	c.  He served his country for 15 years and realizes he may be a little late with this request; however, he just found out about this corrections board.  

	d.  Having to work constantly has only made his disabilities worse.  He is not working now and the Department of Veterans Affairs (VA) has not yet rated him for employability.  

	e.  To be retired would really be a relief for him, as he has been struggling for a long time with no relief in sight.  He has been rated by the VA for depression, post-traumatic stress disorder (PTSD), hypoglycemia, and chronic hip pain with a 70% disability rating.

3.  The applicant provides:

* a two-page VA Rating Decision, dated 27 April 1998
* one page of a VA Rating Decision, dated 28 July 2006
* Nuclear Medicine Report, dated 10 May 2006
* a one-page VA Consult Request, dated 8 August 2007
* pages 91 through 101, 103 through 108, 116, 117, and 120 of a 207-page VA Compensation and Pension Examination Consult, dated 16 August 2013 
* a 5-page VA Rating Decision, dated 20 November 2014

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Following prior service in the U.S. Navy from 25 August 1978 to 24 August 1982, the applicant enlisted in the Regular Army on 27 December 1985, for training in military occupational specialty (MOS) 63N (Tank Systems Mechanic).  

3.  The applicant was issued a permanent physical profile on 21 August 1995 due to a diagnosis of bilateral hip pain that prohibited him from performing the Army Physical Fitness Test (pus-ups, sit-ups, two-mile run).  The physical profile allowed him to walk, bike, and swim at his own pace and distance and to walk or run in a pool at his own pace and distance.  

4.  An MOS/Medical Retention Board concluded on 19 October 1995 that his profile prevented him from performing the full range of the required duties for his primary MOS and recommended his referral to a medical evaluation board (MEB).

5.  An MEB diagnosed him on 21 October 1996 with:

* congenital dysplasia, bilateral hips, acetabular side of joint, moderate
* early degenerative joint disease moderate bilateral hips, left greater than right
* bone fusion defects left hip with labral tear, degenerative left hip
* bilateral iliopsoas, bursitis, left greater than right, moderate.

6.  The MEB Narrative Summary listed hypoglycemia under prior medical history; however, this condition was not identified as unfitting.  The MEB recommended the applicant's referral to a physical evaluation board (PEB).  The applicant agreed with the board's findings and recommendations.

7.  An informal PEB on 5 November 1996 found him physically unfit to perform the duties of his rank and MOS due to chronic pain, both hips, due to congenital dysplasia, with degenerative joint disease, bilateral iliopsoas bursitis and bone fusion deficits.

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

9.  He acknowledged on 25 November 1996 that 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 did not concur with the findings and recommendation of the PEB and demanded a formal hearing with personal appearance.

10.  By memorandum on 9 December 1996, he indicated that after further counseling and reconsideration, he was withdrawing his request for a formal hearing and he concurred with the informal recommendation that he be found unfit with a 20% disability rating.  

11.  Orders 354-0218, issued by Headquarters, III Corps and Fort Hood, TX on 19 December 1996, directed his discharge from the Army effective 1 February 1997. His percentage of disability was 20%.

12.  The applicant's record is void of medical documentation that indicates, aside from the conditions diagnosed by the MEB/PEB, he suffered from any other unfitting medical conditions during his period of active military service.

13.  The applicant provided:

	a.  A two-page VA Rating Decision, dated 27 April 1998, which shows he was granted a combined 30% disability rating by the VA for:

* chronic pain, right hip due to congenital dysplasia with degenerative joint disease, iliopsoas bursitis and bone fusion defects (10%)
* chronic pain, left hip due to congenital dysplasia with degenerative joint disease, iliopsoas bursitis and bone fusion defects (10%)
* hypoglycemia, recurrent

	b.  Pages 91 through 101, 103 through 108, 116, 117, and 120 of a 207-page VA Compensation and Pension Examination Consult, dated 16 August 2013, which shows he was diagnosed with PTSD and dysthymic disorder. 

	c.  One page of a VA Rating Decision, dated 28 July 2006, which shows he was granted service-connected disability compensation for dysthymic disorder, claimed as depression and for chronic pain, left hip due to congenital dysplasia with degenerative joint disease, iliopsoas bursitis and bone fusion defects.

	d.  A Nuclear Medicine Report, dated 10 May 2006, which indicates he underwent a "whole body bone scan."

	e.  A one-page VA Consult Request, dated 8 August 2007, which indicates a bone scan showed probable mild degenerative changes in his shoulder, possible shin splints, and early stress fracture.

	f.  A 5-page VA Rating Decision, dated 20 November 2014, which shows he was granted service-connected disability compensation as follows:

* 50% for PTSD (previously evaluated with dysthymia, also claimed as depression)
* 10% for chronic, pain, right hip due to congenital dysplasia with degenerative joint disease, iliopsoas bursitis and bone fusion defects
* 10% for chronic pain, left hip due to congenital dysplasia with degenerative joint disease, iliopsoas bursitis and bone fusion defects
* 10% hypoglycemia (now claimed as diabetes mellitus)

14.  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 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 (Standards of Medical Fitness).  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

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.)  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
16.  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.

17.  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 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 or her 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 chronic pain, both hips, due to congenital dysplasia, with degenerative joint disease, bilateral iliopsoas bursitis and bone fusion deficits.  He concurred with the PEB findings and recommendations.  Accordingly, he was discharged with severance pay.

3.  The VA determined that he suffered from other medical conditions, such as PTSD and hypoglycemia, which 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 misdiagnosed by the Army.  There is no evidence to show he was ever unfit to perform his duties due to those other conditions.

4.  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 or her 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.

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)                                         AR20150002829



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ABCMR Record of Proceedings (cont)                                         AR20150002829



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