IN THE CASE OF:  	  
 
		BOARD DATE:  13 October 2015	  

		DOCKET NUMBER:  AR20150003079 


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, correction of his records to show he was diagnosed with additional unfitting medical conditions and placed on the Permanent Disability Retired List (PDRL).

2.  The applicant states he is a three-tour combat veteran.  He was medically discharged due to one specific degenerative combat injury (crushed spine) for which he is 30 percent (%) disabled and he has a 10% disability rating due to radiating into his right leg (numb foot).  He states most of his current disabilities were known while he was on active duty, including Degenerative disc disease, Asthma (called Fluttering), Chondromalacia (both knees), Hearing loss, Tinnitus, Impingement (both shoulders), and Scalp condition. In addition, six (6) of his
13 service-connected injuries are directly related to the combat injury.

   a.  He states that at the time of his Medical Evaluation Board (MEB) he had a permanent profile that precluded him from doing virtually anything.  He could not do normal physical training.  He was unable to stand for any reasonable length of time, unable to pick up anything of significant weight, and he could not hold anything out in front of himself without significant and immediate severe pain.

   b.  He states he was ignorant as to the physical disability evaluation system (PDES), as well as to the difference between medical separation and retirement.  He was told that he would be unable to perform any duty for at least one year while waiting for the entire PDES process.  So, given his situation, the most expedient thing for him to do was to be medically separated and then apply to the Department of Veteran Affairs (VA) for disability compensation.  He states that explanation was significantly lacking in facts.  He adds he could have been medically retired and he would have received retirement pay and benefits.

   c.  He states he is dealing with additional combat-related injuries, including post-traumatic stress disorder (PTSD) and burned lungs (reactive airways) resulting from exposure during the Gulf War.  His other injuries are wear and tear (chondromalacia in both knees), impingement in both shoulders, and a scalp condition caused by exposure during the Gulf War.  He adds that his combat injuries have limited his ability to live life, raise a family, take care of his home, and make a proper living from the day he was discharged.

   d.  He believes the Army under-valued the severity of his disability at the time of his discharge and also did not take into account the severity of his various other combat-related injuries.  Had his medical conditions been appropriately reviewed, he would have been permanently retired.

   e.  He states that there was difficulty at the time getting the requisite officers for an MEB at a small post (Fort Drum) with no military hospital.  As a result, he believes he was short-changed and under-informed in the process.  He had more trust than he should have, but the U.S. Army also should have done a better job taking care of him (physically).  He recalls one specific statement that was disturbing to him; specifically, "it isn't cost effective to fix you."

   f.  He states he was a super athlete until his combat wounds and then he was broken.  Instead, what was done was in the best interest of the Army (i.e., get the problem out of the way), which was not fair to him.  Moreover, his medical conditions were not taken care of (e.g., he is in physical therapy again this year). 

   g.  He is currently rated at 90% disabled and under review by the VA for total unemployability.  An official at the VA told him that he should have been retired from military service and advised him to apply to the Army Board for Correction of Military Records (ABCMR).  He requests a review of his physical condition (back to the time when he returned from Somalia).

3.  The applicant provides copies of his –

* three self-authored statements (summarized above)
* four military medical records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* a letter in support of PTSD claim with civilian and VA medical records
* VA Rating Decision
* two Service Connected Disabilities and Ratings Spreadsheets
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 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.  The applicant had prior honorable active duty enlisted service in the U.S. Army Reserve and Regular Army from 19 August 1987 through 23 June 1988.

3.  He was appointed as a reserve commissioned officer, in the rank of second lieutenant, on 24 June 1988.

   a.  He was detailed to the Quartermaster Corps and promoted to captain on 
1 December 1992.

   b.  A review of his military service records shows he deployed, as follows –

* Operation Hawkeye, U.S. Virgin Islands:  September 1989
* Operation Just Cause, Panama:  December 1989 to January 1990
* Noncombatant Evacuation Operation, Liberia:  May 1990 to June 1990
* Operation Desert Shield, Saudi Arabia:  August 1990 to January 1991
* Operation Desert Storm, Saudi Arabia and Iraq:  January 1991 to March 1991
* Operation Fuertascaminos, Panama:  February 1992 to June 1992
* Operation Continue Hope, Somalia:  July 1993 to September 1993

4.  A DA Form 3947 (MEB Proceedings) shows an MEB convened on 5 July 1994 at Guthrie Ambulatory Health Care Clinic, Fort Drum, NY.

   a.  After consideration of clinical records, laboratory findings, and physical examination, the Board found that the applicant's chronic low back pain with degenerative disc disease and disc bulging of L4-5 and L5-S1 intervertebral discs with spinal canal stenosis at L5 was permanently aggravated by service.

   b.  A review of the MEB Summary shows, "[o]n 20 December 1989, during Operation Just Cause in Panama, [applicant] jumped out of the back of a C-130 aircraft, which was receiving small arms and mortar fire, onto a concrete runway (approximately 4 foot drop).  He was carrying a heavy crate weighing approximately 100 pounds and his ruck sack.  Immediately at that time, he experienced severe back pain and fell to the ground."

5.  A DA Form 5893-R (Physical Evaluation Board (PEB) Liaison Officer (PEBLO) Checklist/Statement) shows the applicant was counseled on his MEB proceedings, the PDES and PEB process, and benefits and programs.  The applicant and PEBLO placed their signatures on the form on 7 July 1994.

6.  A DA Form 199 (PEB Proceedings) shows an informal PEB convened on 
26 July 1994 at Walter Reed Army Medical Center.  

   a.  It shows the following condition was determined to be unfitting:  VA Codes 5299 and 5295 – Chronic low back pain with degenerative disc disease and disc bulging of L4-5 and L5-S1 with spinal canal stenosis at L5.  It also shows the applicant's condition was incurred in line of duty.  Recommended disability: 10%.

   b.  The PEB found the applicant physically unfit, recommended a combined rating of 10%, and separation with severance pay, if otherwise qualified.

   c.  The PEB President signed the PEB proceedings.

	d.  On 29 July 1994, the PEBLO confirmed that the applicant was fully briefed on the findings and recommendations of the PEB, and also on his legal rights pertaining thereto.

   e.  The applicant concurred with the PEB proceedings, waived a formal hearing of his case, and placed his signature on the document.

    f.  On 3 August 1994, the PEB proceedings were approved on behalf of the Secretary of the Army.

7.  A DD Form 214, as corrected by a DD Form 215 issued on 9 November 1999, shows the applicant entered active duty this period on 24 June 1988 and he was honorably discharged on 30 September 1994 under the provision of Army Regulation (AR) 635-40, (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on disability, severance pay.  He had completed 6 years, 3 months, and 7 days of net active service this period and
5 months  and 19 days of total prior active service.  Item 18 (Remarks) shows, in pertinent part, "Disability Severance Pay:  $40,866.00.


8.  In support of his application the applicant provides the following documents:

   a.  A Standard Form (SF) 93 (Report of Medical History) prepared by the applicant on 22 August 1994 that shows in –

* item 9 (Statement of Examinee's Present Health and Medications Currently Used) –

* Hearing Loss/Tinnitus
* Lower Back Pain – 2 Bulging Discs
* Pain in Knees – Long Runs, Road Marches, Parachute Jumps
* Pain in Shoulders
* Loss of Hair (Patches) Saudi

* item 25 (Physician's summary and elaboration of all pertinent data) –

* Swollen Painful Joints (Knees, Shoulders, and Lower Back) – MEB for Lower Back Pain (Bulging Discs L4-5 with radiculopathy)
* Hearing Loss – due to simulator explosion, 1988; Hearing loss with Tinnitus
* Sinusitis – history of treatment (December 1989)
* History of Hair Loss while in Saudi – hair never returned?  Etiology
* Chest Pain with palpitations intermittent while at rest
* Heart ["fluttering" feeling in chest occasionally]
* Pain in Shoulders
* History of Bulging Disc – with radiculopathy
* Motion sickness - aircraft

   b.  An SF 88 (Report of Medical Examination) and SF 600 (Chronological Record of Medical Care) prepared by the examining physician on 22 August 1994 to document the applicant's separation examination shows in –

* item 72 (Notes) –

* history of Bulging Disc L4, 5 with radiculopathy (MEB – 10%)
* history of hearing loss

* item 74 (Summary of Defects and Diagnoses) –

* Bulging Disc L4, 5
* Hearing loss
* L-5 tenderness
* decreased internal rotation Right shoulder – mild impingement symptom

* item 77 (Examinee), the applicant was qualified for disability separation

   c.  A VA Adjudication Officer, Regional Office Milwaukee, Milwaukee, WI, letter, dated 29 September 1995, in which the applicant provides a summary (by date) of life-threatening experiences (military events) and treatment for PTSD.

   d.  VA Cleveland Regional Office, Cleveland, OH, rating decision, dated 
18 July 2008, that shows the VA granted the applicant service-connected disability compensation –
   
* effective 12 February 2008 for –
   
* S1 radiculopathy, right leg – 10%
* Degenerative disc disease of the lumbar spine with spinal canal stenosis at L5 level with chronic low back pain – 20%

* effective 9 December 2008 for –

* Asthma, reactive airway disease (claimed as Gulf War Syndrome) – 30%
* Cognitive complaints (included in service connected PTSD) – 30%

   e.  Medical records that include VA Progress Notes with an examination date of 6 May 2009 and VA Psychology Notes, Milwaukee, WI, dated 17 April 2015, and that show his treatment for depression and cognitive issues related to his PTSD.

   f.  Service-connected Disabilities Spreadsheets prepared by the applicant with an effective date of 20 March 2015 that show his VA ratings as follows –

* Degenerative Disc Disease of the Lumbar Spine with spinal canal stenosis at L5 level with chronic low back pain – 20% (12 February 2008)
* Degenerative Arthritis of the Lumbar Spine – 20% (20 March 2015)
* S1 Radiculopathy, Right Leg (subordinate to spinal issue above) – 10% (12 February 2008)
* S1 Radiculopathy, Left Leg (subordinate to spinal issue above) – 10% (20 March 2015)
* Asthma, Reactive Airway Disease – 30% (9 December 2008)
* PTSD – 30% (8 June 1995)
* Chondromalacia Left Knee – 10% (1 October 1994)
* Chondromalacia Right Knee – 10% (1 October 1994)
* Tinnitus – 10% (1 October 1994)
* Hearing Loss – 0% (1 October 1994)
* Impingement Syndrome Right Shoulder – 20% (20 March 2015)
* Impingement Syndrome Left Shoulder – 20% (20 March 2015)
* Seborrheic Dermatitis of the Scalp – 0% (1 October 1994)

9.  AR 635-40 sets forth policies, responsibilities, and procedures 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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

   a.  Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that 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.

	b.  Chapter 4 (Procedures) provides:

		(1)  in paragraph 4-10 (The MEB) that MEB's 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 qualification for retention based on criteria in AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

		(2)  in paragraph 4-12 (Informal Board) that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEBLO of the medical treatment facility having control of the Soldier will be the counselor for the Soldier.  As such, the PEBLO is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability.
10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30%.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30%.

11.  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 error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show  he was separated from active duty based on his unfitting medical conditions and placed on the PDRL.

2.  On 26 July 1994, the applicant's PEB recommended a combined rating of 10% for chronic low back pain with degenerative disc disease and disc bulging L4-5 and L5-S1 with spinal canal stenosis L5.  
   
   a.  The evidence of record shows that the applicant's case was thoroughly reviewed and carefully considered throughout the PDES process.  
   
   b.  The applicant concurred with the PEB proceedings, waived a formal hearing of his case, and the PEB proceedings were approved on 3 August 1994.
   
   c.  On 22 August 1994, the applicant underwent a separation medical examination.  Both the applicant and the examining physician made note of all of the applicant's medical conditions, including his MEB/PEB determined, unfitting condition of chronic low back pain with degenerative disc disease and disc bulging L4-5 and L5-S1 with spinal canal stenosis L5.  The examining physician found no other unfitting conditions and determined the applicant was qualified for separation (disability).
   
3.  There is no evidence of record to show that the applicant's other medical conditions (individually or in combination) were found to be medically unfitting (emphasis added) by a MEB/PEB under the provisions of AR 40-501 or by the physician who examined the applicant less than three weeks after his approved PEB and prior to his discharge.  Thus, there is no evidence of record to show the applicant's other medical conditions were unfitting at the time of his separation from active duty.

4.  The evidence of record shows the VA has granted the applicant disability compensation for several service-connected medical conditions.  However, this does not offer evidence that the approved findings of the PEB are in error.

5.  Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty.  The VA on the other hand, provides compensation for disabilities which it determines 
were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

6.  In view of all 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)                                         AR20150003079



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ABCMR Record of Proceedings (cont)                                         AR20150003079



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