MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002075116

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
advisory opinion, if any)

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APPLICANT REQUESTS: That his physical disability separation with severance pay be changed to a medical retirement.

APPLICANT STATES: That the Department of Veterans Affairs (VA) has rated his disabilities at 30 percent. He provides his service medical records, Certificate of Release or Discharge from Active Duty (DD Form 214) for the period ending 26 February 2000, and a VA Rating Decision dated 28 March 2002 as supporting evidence.

COUNSEL CONTENDS: That the applicant has submitted VA records showing he was assigned a 20 percent rating for a left knee condition and a 10 percent rating for a left thumb condition. The combined rating of 30 percent meets the basic requirement for disability retirement.

EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from alternate sources.

After having had prior active service, the applicant enlisted in the Regular Army on 8 February 1993.

On 10 February 1994, the applicant received a temporary L3 profile for an anterior cruciate ligament tear in his left knee. The temporary L3 profile was extended on 6 July 1994 and 22 March 1995. On 12 July 1995, he was given a permanent L3 profile for status post left knee surgery. His profile was downgraded to a permanent L2 profile on 2 August 1995. It was upgraded to a permanent L3 profile on 15 January 1996 due to chronic left knee pain and chondromalacia.

On 13 December 1996, the applicant was given a temporary L3 profile for a left knee sprain.

On 6 August 1997, the applicant’s permanent L3 profile for chronic left knee pain after anterior cruciate ligament reconstruction was downgraded to a permanent L2 profile.

On 19 January 1998, the applicant was given a temporary U2 profile for left thumb instability, the profile to expire on 19 February 1998.

On 4 August 1999, the applicant was given a permanent L3 profile for failed left knee anterior cruciate ligament surgery.

A Medical Evaluation Board (MEB) Narrative Summary shows the applicant was referred to the MEB for a chief complaint of left knee pain. In addition, he complained of pain in the interphalangeal joint of the left thumb secondary to an injury in June 1999. A physical examination revealed the range of motion of his left knee was from 0 degrees to 130 degrees. Examination of the left thumb revealed his thumb had good alignment, intact skin, and intact neurovascular status. Range of motion revealed extension to 30 degrees as compared to right thumb extension of 10 degrees and flexion to 110 degrees as compared to right thumb extension to 110 degrees. He demonstrated no instability about the interphalangeal joint of the left thumb. His left knee pain status post left anterior cruciate ligament reconstruction, stable, was found to be medically unacceptable and he was referred to a physical evaluation board (PEB).

On 16 December 1999, a PEB found the applicant to be medically unfit due to chronic left knee pain, status post anterior cruciate ligament reconstruction, rated as slight/frequent. The PEB recommended the applicant be separated with severance pay with a 10 percent disability rating. On 15 December 1999, the applicant agreed with the board’s findings and recommendation.

On 26 February 2000, the applicant was discharged for disability with severance pay. He had completed a total of 7 years, 5 months, and 26 days of creditable active service.

The VA apparently initially awarded the applicant a 10 percent disability rating for anterior cruciate ligament reconstruction of his left knee and a zero percent disability rating for residuals of his left thumb injury.

The applicant apparently underwent a fusion of the left thumb interphalangeal joint around 7 May 2000.

On 28 March 2002, the VA increased the applicant’s rating for his left knee injury from 10 percent to 20 percent effective 18 December 2000 and his left thumb injury from zero percent to 10 percent effective 1 July 2001.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states 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.

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Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. 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 individual’s medical condition may be rated by the Army at one level and by the VA at another level.

3. In addition, it appears that the applicant’s left thumb injury did not make him unfit for duty. He agreed with the PEB’s findings (that he was unfit due to chronic left knee pain, status post anterior cruciate ligament reconstruction, rated as slight/frequent). It is noted that it appears the VA initially rated his left knee condition at 10 percent and his left thumb injury at zero percent and only later increased his combined service-connected disabilities to 30 percent. It is acknowledged that medical conditions may worsen over time; however, the Army’s rating is dependent on the severity of the unfitting condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE __ __ BJE _ __WDB __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002075116
SUFFIX
RECON
DATE BOARDED	2002/09/10
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.01
2.
3.
4.
5.
6.