BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150011996 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150011996 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 BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150011996 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 military records by showing he was retired due to physical disability. 2. The applicant states the disability rating assigned to him by the physical evaluation board (PEB) was not properly calculated. He was discharged with severance pay as opposed to being retired due to a physical disability. 3. The applicant provides copies of: * TAB A: A Standard Form (SF) 519-A (Radiographic Report), dated 22 August 1985 * TAB B: A DA Form 2173 (Statement of Medical Examination and Duty Status) (LOD), dated 19 February 1988 * TAB C: Optional Form 275 (Medical Board Report), dated 23 January 1990 (7 pages) * TAB D: A DA Form 3947 (Medical Evaluation Board Proceedings), dated 31 January 1990 * TAB E: A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 13 February 1990 (First page only) * TAB F: A DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 21 March 1990 * TAB G: A Department of Veterans Affairs (VA) Form 21-2545 (Report of Medical Examination for Disability Evaluation), dated 18 May 1990, with enclosures (8 pages) * TAB H: A VA Form 21-6796-1 (Rating Decision), dated 16 July 1990 (3 pages) * TAB I: A VA Rating Decision, dated 11 August 2004 (5 pages) * TAB J: A VA Rating Decision, dated 11 August 2004 (5 pages) * TAB K: A VA Board of Veterans’ Appeals (BVA) Decision, dated 19 April 2010 (15 pages) * TAB L: A VA Letter announcing the BVA decision and subsequent benefits, dated 3 September 2010 (14 pages) COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests in a letter dated 10 July 2015, copies of all advisory opinions, staff briefs or memoranda, and any investigative reports obtained or prepared for use by the Board regarding this case. 2. Counsel states upon receipt of any such materials as requested, he would determine whether or not to submit a rebuttal. He also offers an 8-page memorandum, summarized below: a. Introduction: Counsel states the applicant was honorably discharged based on a Physical Evaluation Board ("PEB") decision to treat his service-connected back injury as a non-ratable condition. The applicant was assigned a disability rating of 20 percent for his separate knee condition, for purposes of determining his fitness to serve in the military. The PEB did not include consideration for his back injury. The determination resulted in his separation with severance pay as opposed to retirement pay and benefits. The applicant wants his assigned disability rating from the PEB reassessed, to include evaluation of all his disabilities so as to receive a disability rating of at least 30 percent and to be retired by reason of physical disability. The benefits of a disability retirement are of substantial worth to the applicant. Counsel argues that the PEB decision did not properly account for the full extent of his physical disabilities, especially in light of his subsequent disability rating received from the Department of Veterans Affairs ("VA"). The PEB's failure to grant him a disability retirement is erroneous and unjust. b. Factual background: The applicant served in the U.S. Army for almost fifteen years, from 27 May 1975 through 21 March 1990. He was honorably discharged in the rank of staff sergeant due to physical disability rated at 20 percent disabling for his right knee condition. This was the only disability that was determined by the PEB to be ratable. Because he served in the military for less than 20 years, he needed a disability rating of at least 30% to be eligible for a disability retirement. c. Service Medical Records and Disability Evaluation Proceedings: At the time of his discharge, the applicant’s service medical records and disability evaluation proceedings contained evidence of his service-incurred back problems. His service medical records demonstrate that he suffered a "lumbar strain" in a line-of-duty motor vehicle accident in the Republic of Korea in February 1988. During the Medical Evaluation Board (MEB) proceedings that led to his medical discharge, the Army's examining physician, recognized and remarked upon the applicant’s back condition. The MEB narrative summary indicated that as a result of the February 1988 motor vehicle accident, he suffered from intermittent bouts with mechanical low back pain that required bed rest and appropriate profiling. The MEB recommended that he be referred to the PEB. Subsequently, the PEB granted him a 20 percent disability rating for his knee condition. The other diagnoses presented by the MEB were referenced; however, his lower back disability was deemed to be not unfitting, not ratable. On 21 March 1990, he was honorably discharged by reason of disability with severance pay based on a 20 percent disability rating. d. Post-Discharge History: Four months after discharge, the VA granted the applicant a 20 percent disability rating for his service-connected right knee injury. On 30 January 2004, after suffering a fall that aggravated his service-incurred back problems, he re-applied for service connection. In an 11 August 2004 decision, the VA, granted him service connection for chronic lower back herniated disc sprain/strain, rated at 20 percent disabling, effective 30 January 2004. A VA rating decision, dated 10 October 2008 subsequently increased his back disability rating to 40 percent, effective 27 February 2008. On 18 January 2005, he sought to reopen his original 1990 VA claim based on clear and unmistakable error and argued that he was entitled to an earlier effective date for disability compensation for his service-connected back disability. The VA denied that claim. He then filed an appeal to the Board of Veterans' Appeals (BVA). While his appeal was still pending, the VA determined that he was eligible for total disability/individual unemployability effective 27 February 2008. The BVA later determined that the VA had erred in its 1990 decision concerning the effective date for his lower back herniated disc sprain/strain. In implementing the BVA's decision, the VA subsequently granted him an evaluation of 20 percent for his back condition as of 22 March 22, 1990. The VA also granted him a combined disability rating (accounting for his service-connected back and knee injuries) of 40% as of the same date. e. The Current Record Reflects Error and Injustice: To justify correction of a military record, an applicant must demonstrate to the Board that the record is in error or unjust. The Board may grant the applicant’s request for disability retirement based on error in the record, or, alternatively, as a matter of fairness even if an error is found not to exist. f. Error not to characterize lower back pain as unfitting and ratable: The PEB erred in not granting a disability rating for the applicant’s lower back condition. The service medical records generated during the medical evaluation proceedings that led to his discharge clearly demonstrate that he was suffering from a back disability that warranted consideration as an unfitting condition. The Army had full knowledge of his back problem and was obligated to evaluate all of his potentially unfitting conditions. The PEB is responsible for making a determination of a service member's fitness for duty; this determination is made based upon the service member's ability to perform the duties of his or her office, grade, rank, or rating. Army Regulation 40-501 addresses the medical fitness standards used for making retirement and separation decisions. Conditions of the back/spine are among the conditions listed that may make a service member unfit for further military service. One of those enumerated conditions is a herniated disc. When he was being processed for possible discharge in the first quarter of 1990, conditions of the spine were rated under diagnostic codes 5285-5295, and lumbosacral strain was rated under diagnostic code 5295. A finding of "characteristic pain on motion" was sufficient for a 10% rating. As referenced above, his MEB report diagnosed him as having intermittent bouts with mechanical low back pain, that require bed rest and appropriate profiling. If the Army Regulations and the VASRD in effect at the time of his medical evaluation proceedings had been properly applied, the PEB would have been required to grant him a disability retirement, based on the appropriate combined disability rating he should have received based on his knee and back disabilities, The PEB's 1990 Decision failed to evaluate the significant body of evidence in his service medical records, including his MEB proceedings, that indicated a recurring, debilitating back condition. g. Correcting the record would reverse an injustice: In the alternative, the Board may, and should, grant a request for a change in a disability rating as a matter of fairness even if an error does not exist. First, current Army Regulation 40-501 contains language that expands the spinal conditions possibly rendering a Soldier as unfit for duty. Chapter 3-39.h. now specifies that "nonradicular pain involving the lumbosacral spine whether idiopathic or secondary to degenerative disc or joint disease that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity" is a cause for referral to an MEB. If this language had been in effect at the time of his discharge, it would have provided the Army medical evaluators with an additional reason to find his back disability unfitting. Second, the Army Regulations in effect at the time of his evaluation proceedings clearly specified that the back disability suffered by him would have prevented him from being eligible for enlistment. Chapter 2-37 reads that the causes for rejection for appointment, enlistment, and induction are diseases of the lumbosacral or sacroiliac joints of a chronic type associated with pain referred to the lower extremities, muscular spasm, postural deformities, and limitation of motion in the lumbar region of the spine. Although enlistment and retention standards are intended for different uses, it seems unfair that his back condition was not given greater consideration in light of this regulation. Third, even though VA rating decisions are not binding on the PEB, the specific circumstances here warrant that the Board gives them significant weight. See Ferrell v. United States, 23 Cl. Ct. at 571-572, stating that a service member's "VA ratings, while not determinative on the issue of his fitness for duty at the time of discharge or of his eligibility for disability pay are nevertheless entitled to great weight in these regards when based on a medical examination" close in time to the time of discharge, and finding that a VA disability rating effective seven days after discharge was "strong evidence of unfitness. In light of the fact that Mr. Lewis's back and knee disabilities were rated at a combined 40% by the VA to be retroactively effective the day after his discharge, the PEB's decision not to recognize his back condition at all is unjust. He suffered from multiple, service-connected medical conditions that resulted in his receiving a 40% disability rating from the VA - but these same conditions only resulted in his receiving a 20% disability rating from the Army. As a matter of fairness, his Army disability rating should be increased. In May 1990, only two months after his discharge, he received a Compensation & Pension ("C&P") medical exam from the VA. An x-ray taken in conjunction with this exam, showed spinal abnormalities that had not been present in a 1985 x-ray taken by the Army. In contrast to the 1985 x-ray, the May 1990 x-ray report indicated that he had a slight straightening in the normal curve of his lumbosacral spine. His 1990 x-ray was not a pre-enlistment condition and was identified only 2 months after his discharge. Significantly, these abnormalities only appeared after his February 1988 motor vehicle accident, creating a strong presumption that they were caused by his service-connected incident. If the PEB had the benefit of a similar, contemporaneous x-ray report there is a strong likelihood that their ultimate rating determination would have been different. 3. Counsel provides no additional documentation. 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. On 27 May 1975, the applicant enlisted in the Regular Army. He was trained and performed duty as a practical nurse and medical noncommissioned officer. 3. A DA Form 3349 (Medical Condition – Physical Profile Record) dated 14 February 1979, indicates the applicant received a permanent P3 profile for Osgood-Schlatter’s disease in his right knee. He was medically qualified for limited duty. 4. On 20 December 1984, a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) evaluated the applicant’s ability to perform the physical requirements of his primary MOS 91C3O (Practical Nurse). The MMRB determined that his permanent physical profile did not prevent his performing the full range of physical tasks required of his MOS in a worldwide field environment. 5. An SF 519-A, dated 22 August 1985, indicates the applicant’s lumbosacral spine was x-rayed. The examination revealed the vertebral bodies to be of normal height with adequate maintenance of the intervertebral disc spaces. There was no evidence of traumatic, neoplastic or significant arthritic change. There was no evidence of spondylolysis or spondylolisthesis. 6. A DA Form 2173, dated 19 February 1988, reports that the applicant was involved in a motor vehicle accident resulting in his being medically examined as an outpatient. His injuries were determined to be cervical and trapezius strain, lumbar strain and a contusion to his left knee. His injuries were not likely to result in any future claims against the government for future medical care. His injury was determined to be in the line of duty. 7. A Medical Board Narrative Summary, Walson Army Community Hospital, Fort Dix, New Jersey, dated 23 January 1990, states the applicant’s chief complaint was severe pain of his right lower extremity, specifically the right knee. a. The summary discusses his medical history concerning pain in his right knee and a preexisting to service (EPTS) history of Osgood-Schlatter’s disease. b. The applicant stated that he preferred to go to Walter Reed Army Medical Center for treatment because of his concern about the local physician’s ability to perform the procedure. He also had concerns because he was told earlier that the hospital wanted him out of the Army fast, via the qualitative management program (QMP) versus a MEB. He was afraid of any manipulation by his command. The QMP action had been initiated in February 1989 and was ongoing. c. The applicant stated he was involved in a motor vehicle accident in 1988 resulting in a contusion to his right knee [The LOD report states left knee], a cervical sprain and strain, and a lumbosacral sprain and strain. He still had intermittent bouts with mechanical low back pain that required bed rest and appropriate profiling. d. The summary states that the applicant’s status at the time remained very symptomatic with his right knee. He had difficulty doing all activities. He ambulated through the hall with a cane in a very antalgic gait. He complained of diffuse tenderness. All of his activities were limited. He had difficulty sitting for long periods of time. He states he had throbbing pain in and around the knee. He had difficulty with all movement in the knee, secondary to pain. He complained of sharp pain in the joint space. He stated that rain and the cold weather affected his knee pain and made it worse. e. The summary lists the following diagnoses: * Diagnosis 1: Chronic, intermittent bouts of mechanical low back pain, secondary to lumbosacral sprain strain in motor vehicle accident on 4 February 1988. Also suffered cervical/trapezial strain – resolved. * Diagnosis 2: Pseudofolliculitis, requiring a shaving profile * Diagnosis 3: Osgood-Schlatter disease, right knee, EPTS, with LOD aggravation * Diagnosis 4: Chondral fracture, medial femoral condyle, right knee * Diagnosis 5: Reflex sympathetic dystrophy, resulting in decreased range of motion, severe pain and limitation of activity, right knee * Diagnosis 6: Right knee strain, secondary to moped accident on 3 July 1985, - resolved * Diagnosis 7: Contusion, right proximal medial tibia, secondary to motor vehicle accident on 4 February 1988. No knee pathology noted on emergency room chart. LOD yes. Resolved * Diagnosis 8: Adjustment disorder with mixed disturbances of emotions and conduct. LOD yes. * Diagnosis 9: Overdose with Tylendol #3 and marijuana in ineffectual suicide gesture * Diagnosis 10: Mixed personality disorder, with histrionic narcissistic and passive aggressive features * Diagnosis 11: Psychological factors affecting physical condition f. The applicant had a LP4 Profile, Code C,D, and G, since 16 October 1989. Code C was no crawling, stopping, running, marching in excess of a quarter mile; no standing in excess of 30 minutes. Code D was no strenuous physical activity. Code G was no assignment requiring handling of heavy materials, no overhead work, no pull-ups, no push-ups. g. The applicant was found unfit for retention according to Army Regulation 40-501 and should be referred to a PEB for disposition. 8. A DA Form 3947, initiated 31 January 1990, shows that a MEB was convened to evaluate the applicant’s ability to perform his military duties as a practical nurse. The first page of the form lists the first seven diagnosis as shown in the medical summary discussed above. It also refers the reader to Box 30 on the second page for additional diagnoses. However, Box 30 is blank. The MEB showed that the applicant’s conditions of mechanical low back pain, right knee strain and a contusion, right proximal media tibia were all resolved. The MEB referred the applicant to a PEB. The findings and recommendations were approved by the proper authority. On 5 February 1990, the applicant signed and dated the form indicating his concurrence with the MEB findings and recommendations. 9. A DA Form 199 (first page only) dated 13 February 1990, indicates that a PEB convened to consider the applicant’s physical conditions, as listed on the MEB. The diagnoses 1 through 4, 6 through 9 and 11, on the MEB were determined to be not unfitting; hence, not ratable. Diagnosis 5 for reflex sympathetic dystrophy, right knee, was found as unfitting and rated at 20 percent disabling. Diagnosis 10 for mixed personality disorder, with histrionic narcissistic and passive aggressive features was determined to have EPTS, not unfitting and not aggravated. The PEB found the applicant to be unfit and recommended a combined rating of 20 percent and that he be separated with severance pay if otherwise qualified. The applicant’s response and the PEB liaison officer’s counseling statement normally on the second page of this form is not available for review. 10 On 21 March 1990, the applicant was honorably discharged due to physical disability with severance pay. His DD Form 214 shows he completed 14 years 9 months and 25 days of creditable active duty service and he attained the rank of staff sergeant, pay grade E-6. 11. A VA Form 21-2545, dated 18 May 1990, indicates the applicant suffered from chronic sinusitis headaches, knee and lower back pain. A radiology report for his right knee showed a mild virus deformity but no destructive process. Hypertrophic spurring was seen at the area of the tibia tubecal possibly on the basis of a prior Osgood-Schlatter’s disease. A radiology report for his spine lumbosacral showed a slight straightening in normal curve. Bersal indentation were noted at the inferior vertebral plates or slight widening especially noted between L2 and L3 affecting the interspace. Ferguson’s angle was increased. Several vertebral indentations were present. 12. A VA Form 6796-1, dated 16 July 1990, shows the applicant was granted service-connection for chronic sinusitis with a history of headaches, rated at zero percent disabling; and for internal derangement of his right knee, rated at 20 percent disabling. The VA disallowed service connection for a back condition because there was no evidence to show he had acquired any chronic back disability while in the military service. 13. A VA Rating Decision, dated 11 August 2004, states that the applicant filed a claim for increased evaluation, dated 30 January 2004. The VA made the following decisions: a. Service connection for chronic lower back herniated disc, sprain/strain granted with a 20 percent disability rating effective 30 January 2004; b. Evaluation of internal derangement, right knee, increased from 20 percent to 30 percent disabling effective 30 January 2004; c. Evaluation of chronic sinusitis with history of headaches, currently rated at zero percent disabling, was continued; d. Service connection for hypertension(claimed as high blood pressure) was denied; e. Service connection for frostbite, bilateral fingers was denied; and f. Service connection for frostbite, bilateral toes, was denied. 14. A VA Rating Decision, dated 10 October 2008, states that the applicant filed a claim for increased evaluation, dated 27 February 2008. The VA made the following decisions: a. Evaluation of chronic lower back herniated disc, sprain/strain currently rated at 20 percent disability was increased to 40 percent disabling effective 27 February 2008; b. Entitlement to individual unemployability was granted effective 27 February 2008; c. Basic eligibility to Dependent’s Educational Assistance was established as of 27 February 2008; and d. Evaluation of internal derangement, right knee, was deferred. 15. In November 2009, the applicant testified before the Board of Veterans’ Appeals (BVA). The issues considered by the BVA were: a. entitlement to an effective date earlier than 20 January 2004, for the grant of service connection for chronic lower back herniated disc and sprain/strain, to include on the basis of clear and unmistakable error in a July 1990 VA rating decision; and b. entitlement to an initial compensable rating for hypertension. 16. On 19 April 2010, the BVA found that the applicant had separated from military service on 21 March 1990 and filed his original claim for service connection for a low back disorder on 2 April 1990. His service treatment records revealed he was treated and diagnosed with low back strain and sprain on many occasions during his service, to include contemporaneous to a 1988 motor vehicle accident. A May 1990 VA examination report contained a diagnosis of chronic back pain, x-rays revealed a slight straightening in normal curve, bersal indentation at the inferior vertebral plates or slight widening especially noted between L2 and L3 affecting the interspace, and Fergunson’s angle is increased, several vertebral indentations are present. Service connection was denied for a back condition in a July 1990 VA rating decision because there was no evidence that the applicant acquired any chronic back disability in service. The applicant successfully alleged that the correct and complete facts as they were known at the time of the July 1990 rating decision that denied service connection, were not considered. Therefore, the law and regulations were not correctly applied. The applicant’s blood pressure readings with diastolic readings of 100 or more and takes medication for control of his hypertension. The BVA ordered an effective date earlier than 20 January 2004 for the grant of service connection for a low back disorder on the basis of a clear and unmistakable error, assigning an effective date of 22 March 1990. The BVA also ordered entitlement to an initial 10percent rating, but no more, for hypertension, granted subject to the law and regulation governing the award of monetary benefits. 17. In a letter dated 3 September 2010, the VA notified the applicant of the BVA decision on his appeal. Accordingly, the VA made the following determinations: a. Due to a clear and unmistakable error found in the evaluation of chronic lower back herniated disc, sprain/strain and a decreased evaluation of 20 percent was established from 22 March 1990. A 40 percent evaluation was assigned effective 27 February 2008. b. The evaluation of hypertension, which was at zero percent, was increased to 10 percent effective 31 March 2004. c. His overall or combined rating was 40 percent effective 22 March 1990; 50 percent effective 30 January 2004; 60 percent effective 31 March 2004; and 70 percent effective 27 February 2008. d. Effective 27 February 2008, based on his entitlement to individual unemployability, he was paid at the rate of 100 percent. 18. In the processing of this case, a medical staff advisory opinion was obtained. The physician stated: a. The applicant contends that the disability rating assigned to him by the PEB was not properly calculated, such that he would have been eligible tor medical retirement. The applicant's legal counsel noted in a memorandum that the applicant had service-incurred back problems and the PEB errored in not granting a rating for his lower back condition. b. The Medical Board Narrative Summary, dated 23 January 1990 did include a diagnosis of chronic, intermittent bouts of mechanical low back pain, secondary to LS strain in MVA on 4 February 1988. The applicant also had associated cervical /trapezial strain. These conditions were listed as "resolved." c. The physical exam of the Medical Board Narrative Summary did not include a back or lower lumbar spine exam. The available documentation included no medical notes, back exams, imaging studies or other objective information with respect to the applicant's lower back condition while still on active duty. d. Based on the MEB determination that the lower back condition had resolved, and the lack of objective clinical information on the applicant's back while still in service, the PEB determination was appropriate. There is no evidence to support a change in the disability rating. 19. On 14 July 2016, a copy of the advisory opinion, as discussed above, was sent to the applicant for his information and opportunity to respond. 20. Counsel for the applicant responded to the advisory opinion in a 3-page letter dated 11 August 2016, wherein, he respectfully disagreed. Counsel’s reply, as summarized, states: a. The opinion makes reference to the Medical Board Narrative Summary dated 23 January 1990 that included a number of diagnoses, including one for the applicant’s back condition. The opinion states that his back condition was resolved. Respectfully, that is not an accurate reading. Rather, the diagnosis notes that in addition to his lumbosacral strain, he also suffered from a cervical/trapezial strain. This later condition, the cervical/trapezial strain, is the condition that was specifically designated as resolved, not his lumbosacral strain. The summary lists these as two separate conditions in the narrative. b. The summary further detailed that the applicant was suffering from intermittent bouts with mechanical low back pain that require bed rest and appropriate profiling. The fact that he was still requiring bed rest and a profile at the time of his MEB evaluation strongly indicates that this back condition had in fact not been resolved. The opinion appears to be incorrectly conflating two separate conditions in stating that the MEB determined that his back condition had been resolved. c. The opinion makes reference to the fact that the summary did not include a back or lower lumbar spine exam. The Opinion goes on to state that "the available documentation included no medical notes, back exams, imaging studies or other objective information with respect to the applicant's lower back condition while still on active duty. This, too, is not the case. He had a service-connected back injury that was well documented in his service medical records at the time of his evaluation proceedings. As set out in his 2015 application, his service medical records contained evidence of his service incurred back problems. This included a 19 February 1988 Statement of Medical Examination and Duty Status that recorded he suffered a lumbar strain in a line-of-duty motor vehicle accident. As mentioned above, this specific incident and condition were noted in his MEB proceedings, including the observation that his lower back pain required bed rest and profiling. The Army had knowledge of his back problem and was obligated to evaluate all of his potentially unfitting conditions. d. The Board should consider fully the additional arguments laid out in the 10 July 2015 memorandum submitted in support of the applicant’s 2015 application. Specifically that the PEB erred in not characterizing his back condition as ratable. The PEB decision assigning his disability percentage did not properly account for the full extent of his physical disabilities. As noted in the 2015 Memorandum and above, the summary clearly demonstrates that he was suffering from a back condition that was ongoing and not resolved. e. The Board ought to correct an injustice in the record by granting the applicant’s request for a change in his discharge rating. As detailed in his 2015 application, the Board should give significant weight to the VA rating decisions he has received since his discharge. While acknowledging that VA ratings decisions are not binding on the PEB, in this matter they should be considered significant and persuasive. The VA has determined that his back and knee disabilities should be rated at a combined 40 percent effective the day after his discharge. In making that determination, the VA noted that in May 1990, only 2 months after his discharge, he complained of chronic lower back pain; and that there was an X-ray taken in May 1990 that revealed spinal abnormalities that were not present in a 1985 X-ray taken while in service. Furthermore, in their decision, the VA also relied upon the January 1990 summary, citing specifically to his lumbosacral sprain and strain as a result of his 1988 motor vehicle accident, and to the fact that he still had intermittent bouts with low back pain that required bed rest and appropriate profiling. f. The applicant respectfully requests that the disability rating assigned by the PEB be reassessed and corrected such that all of his disabilities at the time of his discharge are counted toward an assigned disability rating of at least 30 percent and that he be retired by reason of physical disability. REFERENCES: 1. Title 10, U.S. Code chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; receive a permanent medical profile rating of "3" or "4" and are referred by an MOS/Medical Retention Board; are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC. c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. AR 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 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. 3. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 4. 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. 5. 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. 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. The applicant contends that his military records should be corrected by showing he was retired due to physical disability because the PEB did not include his lower back condition in the rating calculation of his physical disability. 2. The available evidence shows that the applicant concurred with the findings and recommendations of the MEB. He was subsequently found to be physically unfit due to his right knee condition. The MEB narrative summary and DA Form 3947 clearly state that the applicant’s chronic, intermittent bouts of low back pain was resolved at the time of his separation. 3. In response to counsel’s argument that the comments in the narrative summary and on the DA Form 3947 refer only to the applicant’s cervical/trapezial strain is not accepted because there is no apparent intent by the MEB/PEB to separate the lumbar spine condition and label it as unfitting. 4. Further, the available medical documentation revealed no encounter notes to indicate that the lumbar spine condition was a permanent impairment to the applicant’s ability to perform the basic duties of his MOS. 5. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 6. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 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 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. 7. The Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army. 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 VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 8. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation. Only those conditions that render a member unfit for continued military duty at the time of separation will be rated. However, the VA can potentially rate all service-connected conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011996 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011996 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2