BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150001541 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: 9 June 2016 DOCKET NUMBER: AR20150001541 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. BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150001541 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: a. correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), convened on 30 August 2012, to add the following conditions as unfitting and to adjust his final percentage of disability to reflect these added conditions: * hypertension * chronic pancreatitis/irritable bowel syndrome/gastroesophageal reflux disease (GERD) * sleep apnea * chronic bronchitis * tuberculosis (TB) * sinusitis b. correction of his DA Form 199, convened on 30 August 2012, to show his injuries/diagnoses were classified as service-connected and combat-related. 2. The applicant states: a. He requests a service-connected rating of 20 percent (%) or greater for hypertension, based on the Department of Veterans Affairs (VA) Rating Schedule used by the PEB. The PEB failed to adhere to VA Rating Schedule guidance and rated him at 0% based on 4 months while the VA rated him 40% based on historical evidence. b. He requests a service-connected rating for chronic pancreatitis/irritable bowel syndrome/GERD, sleep apnea, chronic bronchitis, TB, and sinusitis, based on the VA Rating Schedule used by the PEB. The PEB failed to adhere to the VA Rating Schedule guidance regarding his ratings for these medical conditions. c. The PEB rated him 0% for chronic pancreatitis/irritable bowel syndrome/GERD, chronic bronchitis, TB, and sinusitis, without consideration for his extensive prior history of these diseases dating back to 2003. d. The rating of 0% for sleep apnea is inappropriate, based on information contained in his medical history. The medical evaluation board (MEB) diagnosis of obstructive sleep apnea (OSA) was pending his possession and use of a continuous positive airway pressure (CPAP) machine. The PEB rated him 0% without consideration of him being in possession of a CPAP machine prior to the MEB rating decision. e. The PEB failed to provide complete/accurate records, which would have facilitated and confirmed that his ratings should have been higher and provided a direct connection to support a service-connected and combat-related classification. The MEB used deceptive language to lower his rating for hypertension. His health was in decline at the time the DA Form 199 was issued. f. His goal is to correct numerous oversights regarding the disability decision rendered by the MEB in 2012. His records show his condition was not stable in September 2012 and it is not stable today. g. Since being discharged, he has learned that his conditions are connected. He believes the board failed to consider the problematics of his myriad of conditions. The board stated his high blood pressure was under control by observing a 3-month period of data. What they did not take into consideration, was that during those 3 months he was heavily medicated with pain medications. Those medications alone would render a Soldier unfit for duty due to the limitations associated with each one. A review of his records after that period shows an increase in his blood pressure due to an increase in pain. h. This information was not unknown to the doctors treating him. Rather than treat his problems, he was demeaned at every turn and forced to perform tasks that were contradictory to the profiles he had. Within 2 months of his discharge, he was hospitalized with uncontrolled blood pressure and pain. Stronger blood pressure and pain medications only lowered his blood pressure to the minimal amount necessary to be released from the hospital. Within 2 more months, he was once again a patient for severe headaches, pain, and uncontrolled blood pressure. Once again he was given stronger blood pressure and pain medications. During each episode he was told there were some serious mental health issues that needed resolution. He saw an oral surgeon in January 2015, who said he had significant stress factors that were negatively impacting his body. This is another common thread; the VA doctors are attempting to help him get his mental and physical issues under control. i. In 2011, he saw a civilian and Army neurosurgeon who gave him a similar prognosis. He would require a minimum of two back surgeries, with 9 months to 2 years of recovery time. Further, VA guidance is not to prescribe him narcotics for pain. The rationale is that the pain medication would kill him sooner than his back pain. This was the same guidance prescribed for him at Fort Bragg, NC. He also cannot take nonsteroidal anti-inflammatory drugs for pain management. The VA pain clinic gave him the same prognosis in January 2015. Further, he was told there was only a 30% chance the surgery would help him. If it did, it would be for a short duration. The next surgery would have a 0% success rate. After 2 years of treating him, his doctor identified one of the sources of his uncontrolled blood pressure – his severe back pain. He identified this as an issue while still in the Army. j. His quality of life is poor. Pain and stress limit his daily activities. He is providing additional documents that should help explain his post-traumatic stress disorder. It seems that if the records are not there, and the condition is not documented, it didn't happen. Included are several documents where the events are documented. The Army failed to provide him blood pressure medication. k. Doctors said they did not treat him, but he was being prescribed medication. He has injuries to organs within his body that did not previously exist. Where did they come from? His conditions have not improved. He would say they have worsened. While assigned to the Warrior Transition Battalion (WTB), VA doctors said they could only treat one ailment at a time. He suffers daily through this process. 3. The applicant provides five DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), each dated 4 January 2015, and a 2-page self-authored statement constituting his application to this Board. Additionally, he provides the following documents, arranged chronologically when possible: * four DA Forms 67-9 (Officer Evaluation Reports), for the time period from 17 February 2005 through 30 April 2009 * DA Form 3947 (MEB Proceedings), dated 9 March 2011 * VA Disability Evaluation System Proposed Rating, dated 7 October 2011 and 10 April 2012 * DA Forms 199, dated 17 November 2011 and 30 August 2012 * Orders 263-0276, issued by Headquarters, U.S. Army Installation Management Command, U.S. Army Garrison, Fort Bragg, Fort Bragg, NC, dated 19 September 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 December 2012 * approximately 50 pages of Army and VA medical documents * approximately 300 pages of service and civilian medical documents * a compact disc containing 155 photographs * his medical/dental records and disability decision documents from the Social Security Administration and the VA CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in the U.S. Army Reserve on 16 May 1980. He served in a variety of assignments during his period of military service. He was ordered to active duty on or around 14 October 2002 and was promoted to colonel on 11 April 2005. He served in Kuwait and Iraq from 16 July 2007 to 26 June 2008. He was temporarily assigned to the WTB at Fort Bragg, NC on or about 30 December 2008. 2. On 9 March 2011, an MEB was convened to consider the applicant's medical conditions and his ability to perform within the scope of his grade and specialty. a. After consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as having the following medically-unacceptable conditions: * osteoarthritis, left knee * multi-level degenerative disc disease of the cervical spine * degenerative disc disease of the lumbar spine with radiculopathy * spondylosis of the thoracic spine causing mid-back pain * left shoulder pain status post-surgery for impingement and rotator cuff * mixed headaches (migraine/tension) * lumbar neuritis with radicular symptoms * hypertension, uncontrolled b. The MEB also considered the following diagnoses to be medically acceptable: * low testosterone, treated * anxiety disorder due to general medical condition * GERD * chronic allergic rhinitis * left ulnar neuritis * erectile dysfunction * mild arthritis bilateral ankles * benign prostatic hypertrophy, on medications * right shoulder pain due to degenerative joint disease (DJD) * OSA pending CPAP * right ankle pain due to osteoarthritis (OA) * right knee pain due to mild tri-compartmental DJD * temporomandibular joint dysfunction (TMJ) c. The MEB recommended the applicant's referral to a PEB. Block 30 (Continuation) of his DA Form 3947 states, in pertinent parts: (1) "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947." (2) "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards." (3) "I agree that this MEB accurately covers all my current medical conditions." d. A memorandum, dated 30 August 2011, issued by the PEB Liaison Officer states, after counseling, the applicant did not want to sign the DA Form 3947 and therefore, his case was sent to the PEB without his signature. 3. On 17 November 2011, an informal PEB convened and found the applicant's medical conditions prevented him from performing the duties required of his grade and primary specialty. a. The PEB found him physically unfit, recommended he receive a 60% disability rating, with permanent disability retirement based on the following: * mixed headaches (migraine/tension) (30%) * left (non-dominant) shoulder pain status post-surgery for impingement and rotator cuff and strain (20%) * degenerative disc disease of the lumbar spine, spondylosis of the thoracic spine and lumbar neuritis with radiculopathy, claimed as lower back pain and bilateral pain in legs due to sciatic nerve (20%) * hypertension uncontrolled (20%) * osteoarthritis, left knee (10%) * multilevel cervical spine degenerative disc disease with radiculopathy right upper extremity (10%) b. On 1 December 2011, the applicant did not concur with the PEB findings and requested a formal hearing. 4. On 27 April 2012, an informal PEB was convened to reconsider the applicant's case. The PEB found him physically fit for duty and directed that he be returned to duty as fit. It determined that his left shoulder injury was not due to the result of combat or an instrumentality of war. On 30 May 2012, he did not concur with the PEB findings and requested a formal hearing. 5. On 28 June 2012, a formal PEB convened at the National Capital Region, Arlington, Virginia to consider the applicant's case. The applicant appeared in person and with counsel but did not testify. After the evidence was considered, the PEB found that his medical conditions prevented him from performing the duties of his grade and primary specialty. a. The PEB recommended he receive a 50% disability rating, and a permanent disability retirement based on the following: * left (non-dominant) should pain status post-surgery for impingement and rotator cuff and strain (20%) * degenerative disc disease of the lumbar spine, spondylosis of the thoracic spine and lumbar neuritis with radiculopathy, claimed as lower back pain and bilateral pain in legs due to sciatic nerve (20%) * osteoarthritis, left knee (10%) * multilevel cervical spine degenerative disc disease with radiculopathy right upper extremity (10%) b. The PEB determined the following conditions were not unfitting, as previously determined to be unfitting, and stated on the DA Form 199 the following: (1) Mixed headaches (migraine/tension) was reviewed at the time of the formal hearing. The commander's statement supported retention based on the administrative performance the Soldier exhibited over his time in the WTU. Clinical or performance reports revealing a loss of productivity or reliability as a consequence of repetitive prostrating headaches were not in evidence. (2) Hypertension, uncontrolled, was originally classified as unfitting, at the formal and the "AHLTA" vital sign review was available, which revealed the average blood pressure [systolic pressure/diastolic] between 29 April 2011 and 3 January 2012 was 140/90. The applicant showed a normotensive response during an uneventful Bruce protocol stress test to 9.3 minutes. Although hypertension is listed in block one of the profile, it does not limit duty performance. In the DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), the unit commander makes no mention of hypertension limiting the applicant's performance, as it does not impose unreasonable requirements on the military to maintain or protect the Soldier, it is not considered unfitting. c. The formal PEB found the following medical conditions met medical retention standards: * low testosterone * anxiety disorder due to general medical condition * GERD * chronic allergic rhinitis * left ulnar neuritis * erectile dysfunction * mild arthritis bilateral ankles * benign prostatic hypertrophy * right shoulder pain due to DJD * OSA pending CPAC * right ankle pain due to OA * right knee pain due to mild tri-compartmental DJD * TMJ 6. On 30 July 2012, the applicant, through counsel, non-concurred with the findings and requested an appeal of the formal hearing. The basis of the appeal was only applied to the condition of mixed headaches (migraine/tension), which was based on the MEB's determination, and that the condition be reconsidered as unfitting and to apply the rating of 30% as previously provided by the informal PEB on 17 November 2011. 7. On 30 August 2012, a formal PEB was convened for a reconsideration of his case. a. The PEB found him physically unfit, recommended he receive a 60% disability rating, and a permanent disability retirement based on the following: * mixed headaches (migraine/tension) (30%) * left (non-dominant) shoulder pain status post-surgery for impingement and rotator cuff and strain (20%) * degenerative disc disease of the lumbar spine, spondylosis of the thoracic spine and lumbar neuritis with radiculopathy, claimed as lower back pain and bilateral pain in legs due to sciatic nerve (20%) * osteoarthritis, left knee (10%) * multilevel cervical spine degenerative disc disease with radiculopathy right upper extremity (10%) b. The PEB determined the condition of hypertension – uncontrolled, to still be classified as fitting, as previously determined, and stated the exact reasoning as listed on the DA Form 199 from the formal PEB convened on 28 June 2012. c. In addition, the reconsideration formal PEB found the following medical conditions met medical retention standards: * low testosterone * anxiety disorder due to general medical condition * GERD * chronic allergic rhinitis * left ulnar neuritis * erectile dysfunction * mild arthritis bilateral ankles * benign prostatic hypertrophy * right shoulder pain due to DJD * OSA pending CPAC * right ankle pain due to OA * right knee pain due to mild tri-compartmental DJD * TMJ d. On 17 September 2012, he acknowledged 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 concurred with the PEB's findings and recommendation, waived his right to a formal hearing, and did not request reconsideration of his VA ratings. e. On 17 September 2012, the U.S. Army Physical Disability Agency (USAPDA) approved the formal PEB's findings. 8. Orders 263-0276, issued by Headquarters, U.S. Army Installation Management Command, U.S. Army Garrison, Fort Bragg, NC on 19 September 2012, released the applicant from duty because of physical disability incurred while entitled to basic pay. He was retired in the rank of colonel by reason of permanent disability, with 60% disability, effective 17 December 2012. 9. His DD Form 214 confirms he was retired on 17 December 2012 by reason of disability, permanent (enhanced). 10. In the processing of this case, an advisory opinion was obtained on 18 March 2016 from the Legal Advisor, USAPDA, Arlington, Virginia. This official recommended denial of the applicant's request, stating that: a. On 13 December 2010, the initial MEB was completed with the following conditions not meeting medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness): left knee; cervical spine; lumbar spine; thoracic spine; and left shoulder. All other listed conditions, to include hypertension, were found to meet medical retention standards and had no profile restrictions. The applicant did not concur and on 9 March 2011, a new MEB was completed with additions of headaches, lumbar neuritis with radicular symptoms, and hypertension now being found to also not meet medical retention standards. All other listed conditions were found to meet medial retention standards. The physical profile, dated 24 March 2011, did not list hypertension as requiring any physical or duty restrictions. The applicant refused to sign the MEB document and the case was forwarded to the PEB for processing. b. An informal PEB on 17 November 2011 found the applicant unfit for the following conditions: mixed headaches; left shoulder pain; DDD (degenerative disc disease) of the lumbar spine; hypertension (20%); left knee; and cervical spine. Total combined ratings of the unfitting conditions provided by the VA IDES (Integrated Disability Evaluation System) ratings was 70%, with a recommendation for permanent physical disability retirement. The applicant non-concurred on 1 December 2011 and requested a formal hearing. c. A formal PEB was held on 28 June 2012 with the PEB now only finding the applicant unfit for the following conditions: left shoulder; DDD of the lumbar spine; left knee; and cervical spine. The PEB recommended a 50% permanent disability retirement. All unfitting conditions were found not to be the direct result of armed combat or directly caused by an instrumentality of war. The condition of hypertension was found to be fit for duty because of the availability of new medical evidence that revealed that the average blood pressure [systolic pressure/diastolic] between 3 January 2012 and 29 April 2012 was 140/90. The applicant also showed a normotensive response during an uneventful Bruce protocol stress test. The PEB found that, at that time, the hypertension was under adequate control and that there was insufficient evidence in the case file to support that the hypertension restricted the applicant's ability to perform his assigned military duties, and it did not impose unreasonable requirements of the military to maintain or protect the applicant. d. The applicant non-concurred with the PEBs findings regarding the removal of his headaches as an unfitting condition; but offered no other appellate issues. On 30 August 2012, the formal PEB reconsidered their previous formal findings and included the applicant's headaches as an additional unfitting condition. The hypertension remained fit for duty. The applicant's total rating was 60%, with permanent disability retirement. After consulting with his assigned legal counsel, the applicant concurred with the reconsidered formal PEB findings and filed no further appeals. He was retired from the military on 18 December 2012. e. Military disability ratings are only authorized for conditions that are found unfitting by the PEB (Title 10, U.S. Code, section 1201, Department of Defense Instruction 1332.38, and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB found the applicant's hypertension fit for duty based on the latest medical evidence at the time of the formal PEB, and the fact that there was no evidence that said hypertension affected the Soldier's ability to perform his assigned military duties. The applicant has provided no new evidence to indicate that his hypertension was affecting his ability to perform his military duties in 2012. Subsequent VA award ratings, or any increase in any prior IDES VA ratings, are not evidence of any PEB errors or injustice regarding PEB findings of fitness. f. The PEB findings were based upon a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation. Recommend no changes to the applicant's military records. 11. The applicant was provided a copy of the advisory opinion on 29 March 2016. He responded to the advisory opinion on 9 April 2016, by stating he disagrees with the USAPDA and provided additional documents. These documents included six pages of VA documents, a DD Form 689 (Individual Sick Slip), a photocopy of a prescription for blood pressure medication, and five medical documents verifying his hypertension. He stated his reason for disagreement, in effect, as: a. His vitals were taken by the WTB medical clinic at Fort Bragg, which validated his hypertension being consistently high until the day he was discharged. Additionally, this condition lead to him being hospitalized on two occasions (February 2013 and April 2013). He further states that being assigned to the WTB indicates one cannot perform their duties. b. The VA IDES rating was initially 90% and not the 70% as in the advisory opinion. The official rating he received from VA upon his discharge was for 100%, with a rating of 40% for hypertension. He was unable to receive his blood pressure medication for 6 months while deployed to Iraq. c. His medical issues of sleep apnea and irritable bowel syndrome (IBS) was not provided to the VA for proper evaluation. He was told that sleep apnea affects blood pressure readings and treatment records after his PEB will verify his blood pressure was never under control. d. He was prescribed medication for his uncontrolled blood pressure and once away from Fort Bragg was admitted to the North Dallas VA Medical Center for uncontrolled hypertension and migraines. Also, due to a myriad of gastrointestinal issues, he had gall bladder surgery and was placed on several medications to address his IBS, which was not considered by the PEB in 2012. This indicates the PEB was prejudicial in their evaluation of his medical condition. e. He disagrees with the PEB that no new information was provided as he provided this Board copies of medical prescriptions for treatment while he was deployed. Thus indicating that some type of physical distress was going on. Also, the PEB made no mention of his ankle sprain during pre-deployment training at Fort Bragg. He states this injury meets the requirement for a combat-related condition. f. After the PEB hearing, he says he was harassed and threatened by the WTB. On 12 September 2012, he was ordered off Fort Bragg by the WTB Commander. He had not received his PEB rating as of yet and they assigned personnel to help him load his vehicle. He filed an Inspector General (IG) complaint regarding the incident. g. He was told that if anything happens within 180 days of his discharge, it would be included in his military records. Both of his hospitalizations occurred within this timeframe. He believes the PEB was not impartial in their ratings and ignored critical evidence that supported an unfair rating. 12. He provides a VA Rating Decision, dated 28 January 2013, which shows he was granted service-connected disability, at 100%, for the following conditions: * hypertension (40%) * mixed headaches, migraine tension (30%) * left (non-dominant shoulder pain status post-surgery for impingement and rotator cuff and strain (20%) * degenerative disc disease of the lumbar spine, spondylosis of the thoracic spine and lumbar neuritis with radiculopathy (claimed as lower back pain and bilateral pain in legs due to sciatic nerve) (20%) * temporomandibular joint pain (20%) * multilevel cervical spine degenerative disc disease with radiculopathy right upper extremity (claimed as right carpel tunnel syndrome) (10%) * right shoulder degenerative joint disease (claimed as right shoulder pain) (10%) * osteoarthritis left knee (10%) * right knee arthritis (10%) * left ankle arthritis (claimed as bilateral ankle condition/sprain) (10%) * right ankle arthritis (claimed as bilateral ankle condition/sprain) (10%) * allergic rhinitis (also claimed as sinus condition) (10%) * irritable bowel syndrome and GERD (claimed as stomach condition, acid reflux, heartburn) (10%) * neck scar (10%) * tender scar neck (claimed as removal of parotid gland) (10%) * anxiety disorder (claimed as insomnia, nightmares, and anxiety condition) (10%) * hyper-calcification of left mid tibia and fibula status post fracture (claimed as crack left femur residuals) (0%) * left foot bunion (0%) * right foot bunion (0%) * OSA (0%) * first degree AV block (claimed as heart condition) (0%) * hemorrhoids (0%) * erectile dysfunction (claimed as low testosterone levels) (0%) * benign prostate hypertrophy (claimed as enlarged prostate( (0%) * left ulnar neuritis (claimed as nerve condition left elbow to left hand and left carpal tunnel) (0%) 13. He provides letters from the VA, dated 1 and 3 April 2015, which show changes in disability ratings for some of his conditions; however, his overall disability rating of 100% remained unchanged. a. The VA stated that the evaluation of his hypertension has changed for the following rationale: We granted service connection for hypertension on a direct basis as the condition developed in service. In order to avoid pyramiding, service connection cannot be granted twice for the same condition no matter what the etiology is. Therefore, the claim for service connection for hypertension due to chronic pain is not accepted. b. These letters also related disability changes for the following conditions: * OSA was increased from 0% to 50% * irritable bowel syndrome/GERD and chronic pancreatitis increased to 30% * anxiety disorder (claimed as insomnia, nightmares, and anxiety condition) increased to 30% * hypertension was decreased from 40% to 10% c. The following conditions were determined to be not related to military service and therefore was not granted a rating: * fibromyalgia * chronic pain * bilateral hip condition * spleen condition * kidney condition * liver condition * pre-glaucoma (also claimed as dry-eye) 14. He also provided a compact disc containing 155 photographs of him and others in Iraq, his medical/dental records and disability decision documents from the Social Security Administration and the VA. He provided four DA Forms 67-9, for the time period from 17 February 2005 through 30 April 2009; it is not known the relevance of these documents. 15. There is no evidence in the file nor did he provide a copy of the IG report he mentions. The Board has requested a copy of the IG report; however, to date it has not been received to determine its relevance. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). Ratings can range from 0% to 100%, rising in increments of 10%. 2. 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. 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 their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that 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 (emphasis added). 3. 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%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 4. 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 in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service (emphasis added). 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. 5. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. 6. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record. It is not an investigative body. DISCUSSION: 1. The applicant requests correction of his DA Form 199 to add the following conditions as unfitting: * hypertension * chronic pancreatitis/irritable bowel syndrome/GERD * OSA * chronic bronchitis * TB * sinusitis He further requests correction of his DA Form 199 to adjust his final percentage of disability to reflect these added conditions, and to classify his injuries/diagnoses as service-connected and combat-related. 2. Although the MEB determined his hypertension was a disqualifying condition, the formal PEB, convened on 30 August 2012, did not find this condition to be unfitting. The applicant concurred with the PEB findings and recommendation and did not request reconsideration of his VA ratings. 3. The MEB found his medical conditions of chronic pancreatitis/irritable bowel syndrome/GERD and OSA were not medically disqualifying and did not make him unfit for continued military service. This finding was confirmed by the PEB. 4. The MEB did not consider his chronic bronchitis, TB, or sinusitis as unfitting medical conditions/defects. The applicant provides no evidence to show these conditions rendered him unfit to perform his military duties. As such, there is insufficient evidence with which to add these medical conditions as unfitting conditions. 5. A PEB found him physically unfit for numerous unfitting conditions and recommended his retirement due to permanent disability with a 60% disability rating. These conditions were not classified as combat-related. There is insufficient evidence to show the PEB improperly rated or inappropriately classified these unfitting conditions as non-combat related injuries. 6. The PEB findings were supported by a preponderance of the evidence, the findings were not arbitrary or capricious, and the findings were not in violation of any statute, directive, or regulation. 7. The rating action by the VA does not demonstrate an 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 a different disability rating based on the same impairment. 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 may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001541 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001541 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2