AR20160002458

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20160002458

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X____ ___X_____ ___X_____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20160002458

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20160002458

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 appeal to have his disability discharge with severance pay changed to physical disability retirement.

2. The applicant states, in effect, there are erroneous facts and dates stated in the original Army Board for Correction of Military Records (ABCMR) Proceedings. The proceedings state on page 7, paragraph 8c that he was given a Department of Veterans Affairs (VA) rating decision on 15 May 2015, this is false The proceedings also state that he was awarded an additional percentage on 30 October 2014, which is false also. He was only awarded an additional 10 percent at that time for 8520 Radiculopathy left leg and foot. The original 10 percent for that was awarded on April 2001. He believes the correct ratings are those he highlighted in a 2 May 2015 VA rating decision.

3. The applicant provides copies of the above mentioned VA document and the original ABCMR Record of Proceedings.

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 ABCMR in Docket Number AR20140019495 on 15 December 2015.

2. The applicant was approximately age 27 and a sergeant serving in military occupational specialty (MOS) 62B (construction equipment repairer) when he reportedly hurt his back during physical training in January 1995. He had been on active duty for approximately 6 years.

3. He was initially treated with non-prescription medication; as his back condition worsened he used prescription medication. In early 1997, he was referred to physical therapy for hypermobile lower middle back. He was first placed on profile for back pain in April 1997.

4. A January 1999 Medical Evaluation Board (MEB) was placed on hold to evaluate the efficacy of surgery.

5. An August 2000 MEB determined the applicant was suffering from chronic low back pain; S1 radiculopathy; status post herniated pulposus (ruptured disc) surgery without resolution; bilateral degenerative joint disease of the hips, left greater than right; and high frequency hearing loss. The case was referred to a Physical Evaluation Board (PEB). He concurred with the findings and recommendations of the MEB on 19 September 2000.

a. A 15 November 2000 memorandum shows his PEB was discontinued because he had a condition which was rated by analogy to degenerative arthritis and a pain rating is required. A pharmacy medication profile was required to support the rating.

b. A 15February 2001 informal PEB determined the applicant was physically unfit due to chronic low back pain with bilateral radiculopathy, rated at
20 percent, and chronic bilateral hip pain due to degenerative joint disease, rated at 0 percent. The PEB determined the diagnosed hearing loss was not unfitting and not rated. The PEB recommended the applicants separation with severance pay. He concurred with the findings and recommendations and waived his right to a formal hearing. The PEB was approved on 22 February 2001.

6. On 22 April 2001, the applicant was honorably discharged under the provisions of Army Regulation635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph4-24B(3), for physical disability. He received $48,189.50 in severance pay.

7. A 27 January 2014 letter from the VA advised the applicant that he was awarded a combined service-connected disability rating of 50 percent, effective 1January 2014. The basis for the rating was not revealed.

8. During the processing of the original ABCMR case an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). The USAPDA Legal Advisor reiterated the applicant’s request and recommended denial. He also pointed out that:

a. Subsequent to the applicant’s back surgery, his physical findings were: right lower extremity sciatic pain aggravated by activity; motor strength of 5/5, intact sensation; absent left Achilles reflex, otherwise 2+ and symmetric; straight leg raise was mildly positive bilaterally; and minimal myofascial tenderness. The applicant complained of slight and frequent bilateral hip pain, but there was no
x-ray evidence of arthritis.

b. The PEB rated the applicant’s back pain in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) provisions in effect in 2001 with a rating analogous to lumbosacral strain being selected because the applicant already had repair of his ruptured disc in 1997 and had residual pain afterward. To receive a rating higher than 20% for his condition, the symptoms had to be severe with specific physical findings. The MEB’s findings did not support a higher rating.

c. Ratings of 10 to 20% for the hips required radiographic evidence of degenerative arthritis, and there was none. The PEB properly rated the applicant in accordance with the applicable rating guidance and policies in existence in 2001.

d. The applicant had not provided any evidence of error that would mandate a correction of his military records. The PEB’s findings were supported by a preponderance of the evidence, they were not arbitrary or capricious, and were not in violation of any statute, directive, regulation, or policy in effect in 2001.

9. Concerning the applicants medical conditions, the original ABCMR proceedings noted:

a. The evidence clearly showed his 2001 MEB and PEB considered all available clinical records, laboratory findings, x-rays, and physical examinations, and that he participated in his disability processing. He was determined unfit and was rated 20% for chronic low back pain and 0% for chronic bilateral hip pain due to degenerative joint disease. He waived his right to a formal hearing and concurred with the PEB’s findings and recommendations. He was discharged based on the PEB’s recommendation.

b. In 2015, the VA awarded him a 10% rating for each degenerative joint disease of both hips, plus 10% for radiculopathy of the left leg and foot.

c. A PEB does not compensate service members for anticipated future severity or potential complications of conditions. It is a role that the VA assumes. The PEB determines fitness and disability based on the information at hand. The fact that there are differences in the ratings he received from the Army and the VA is not evidence of any error in his military disability processing.

d. The Army and the VA do not operate under the same policies and regulations. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. The VA is not required by law to consider medical unfitness for further military service in awarding a disability rating. The VA may rate any medical condition that reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individuals medical condition may be rated by the Army at one level and by the VA at another level.

e. There was no evidence the applicants medical conditions were unjustly or erroneously rated by the PEB.

10. In support of this current request for reconsideration the applicant provides a copy of a 2 May 2015 VA rating summary that shows:

a. VA codes 5010-5227 Status post herniated nucleus pulposus surgery without resolution with S1 radiculopathy and degenerative joint disease 20 percent from 23April 2001

b. VA code 8520 Radiculopathy Left leg and foot 10 percent from 23April 2001, 20 percent from 7 February 2014

c. VA codes 5299-5255 Degenerative joint disease right hip 10 percent from 23 April 2001

d. VA codes 5299-5255 Degenerative joint disease left hip 10 percent from 23 April 2001

REFERENCES:

1. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating. The regulation stated:

a. The Narrative Summary of the MEB is the heart of the disability evaluation system. In describing a Soldiers conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings. If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.

b. The USAPDA will review cases in a number of instances, including formal proceedings when the Soldier non-concurs with the PEB findings and recommendations, submits a statement of rebuttal within the required time frame, or consideration of the rebuttal by the PEB does not result in a change to its findings and recommendation. Based upon the review of the PEB proceedings, the USAPDA may take one of several actions, including concurring with the findings and recommendations of the PEB, revising the findings of the PEB (in which case, if the Soldier rebuts the revised findings and recommendations but the USAPDA adheres to its revised findings and recommendations, it will forward the case to the Army Physical Disability Appeal Board (APDAB)), or refer the case to the APDAB.

2. Army Regulation 635-40, appendixB, states the VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. Only those conditions that contribute to the inability to perform duty are considered unfitting and rated.

3. Title38, USC, sections1110 and 1131, permits 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. 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 or social adaptability. 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:

1. A 15February 2001 informal PEB determined the applicant was physically unfit due to chronic low back pain with bilateral radiculopathy, rated at
20 percent, and chronic bilateral hip pain due to degenerative joint disease, rated at 0 percent.

2. In May 2015 the VA rated the applicant at 20 percent for his back condition with radiculopathy, then added another 10 percent for radiculopathy of the left foot and leg, dating back to the applicants discharge, even though there was no evidence in his MEB report that this existed at that time. Furthermore the VA added 10 percent for each hip, dating back to the discharge, even though this had been rated at 0 percent by the PEB because there was no radiological evidence of degenerative joint disease.

3. The Army and the VA do not operate under the same policies and regulations. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a Soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individuals medical condition may be rated by the Army at one level and by the VA at another level.

4. The differences in this case simply illustrate the fact that although both the Army and the VA used the VASRD for rating health conditions they do so using different standards that are not interchangeable.

5. The applicant’s disability was properly rated and his separation with severance pay was in compliance with the law and regulation.

6. He waived his right to a formal hearing and concurred with the PEB’s findings and recommendations.

7. Any inaccuracies in the original ABCMR Record of Proceedings concerning the applicants VA ratings or the dates of his ratings do not invalidate the Boards decision.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160002458

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160002458

7

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2