MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 August 2003
         DOCKET NUMBER: AR2003085620

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		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)

---

APPLICANT REQUESTS: That his physical disability rating be increased to 20 percent or better.

APPLICANT STATES: That, at his last assignment, he started having problems with pain and swelling in his knees. That was diagnosed as bilateral patellar femoral syndrome and led to his having to wear prosthetic devices on both knees to provide support and stabilization. In September 1991, he dislocated his left knee. After several months in a leg immobilizer, it was recommended he enter the physical disability evaluation system. A physical evaluation board (PEB) determined he should be discharged with severance pay with a 10 percent disability rating. When he went to the Department of Veterans Affairs (VA), they raised his evaluation to 20 percent for bilateral patellar syndrome. He has since reached the 40 percent level. After he became a service officer for his Disabled American Veterans chapter, he realized he should have been rated using the bilateral factor and given a 20 percent or better rating.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 22 August 1979. He was promoted to Staff Sergeant, E-6 on 1 June 1989 in military occupational specialty 71L (Administrative Specialist). He was assigned to Germany in November 1990.

Prior to September 1991, the applicant was treated on a number of occasions for bilateral knee pain. On 11 September 1991, he was referred to a civilian doctor for a complaint of bilateral patellar femoral pain and effusion. A camera scan was performed of both knee joints. A moderately increased accumulation was revealed over the left knee joint. Increased osseous transformation processes on the juxta-articular bone sections of the left knee were revealed. On 25 September 1991, he received a physical profile for patella dislocation. On 6 November 1991, he received a physical profile for patellar femoral syndrome.

A medical evaluation board (MEB) Narrative Summary dated 24 April 1992 noted that the applicant had a significant degree of bilateral retropatellar pain syndrome since being stationed in Germany. He then sustained a traumatic left knee patellar dislocation on 24 September 1991. He had undergone extensive rehabilitation and progressed in his quadriceps extending ability yet his bilateral knee pain remained. His left knee pain was slightly greater than his right knee pain. On tracking, his patellas stayed in the trochear groove with flexion and seemed to eminate medially with forced extension. The patella was very loose medially bilaterally and seemed to have no real lateral vastus lateralis tethering. He seemed to have no real leg weakness aside from his quadriceps mechanism bilaterally. He was diagnosed with bilateral patellar femoral mechanism dysfunction, symptomatic, moderate to severe; a history of left medial patella dislocation; and mild degenerative arthritis, both knees. He was referred to a PEB.
On 6 August 1992, a PEB found the applicant to be unfit for left patella dislocation bilateral patella femoral dysfunction and degenerative arthritis, under Veterans Administration Schedule of Rating Disabilities (VASRD) code 5257, with a 10 percent disability rating. It was recommended he be separated with severance pay. On 2 September 1992, the applicant was separated for physical disability with severance pay.

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 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.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. 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. 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.

The VASRD gives code 5257 (other impairment of the knee) a 10 percent rating when recurrent subluxation or lateral instability is slight and a 20 percent rating when moderate.

The VASRD states that the bilateral factor will be applied when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles. The ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added. The bilateral factor is not applicable unless there is partial disability of a compensable degree in each of two paired extremities or paired skeletal muscles.

Department of Defense Instruction Number 1332.29 (Application of the Veterans Administration Schedule for Rating Disabilities) implements policy for rating disabilities of service members determined to be physically unfit and who are eligible for disability separation. It states that recurrent subluxation or external instability of the knee should be given a rating of 10 percent for slight knee instability in cases where the Lachman's test measures an instability reading between 1+ and 2+ and physical therapy does not improve the knee's lateral instability. A 20 percent rating should be given where the Lachman's test measures an instability reading of 2+ and physical therapy results in no improvement of the knee's lateral instability.

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. The VA, however, is not required by law to determine medical unfitness for further military service.

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 Board notes that the applicant had been treated for bilateral patellar femoral syndrome since at least November 1990. However, it appears that he was never considered unfit for duty until after he dislocated his left knee in September 1991. Only the unfitting condition(s) is considered in arriving at the rated degree of incapacity warranting separation for disability.

3. Since the applicant was considered unfit for left patella dislocation bilateral patella femoral dysfunction and degenerative arthritis, under VASRD code 5257, and since there appears to have been no partial disability of a compensable degree in his right knee, the bilateral factor did not apply.

4. 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 and may apply the bilateral factor where the Army might be prohibited from doing so. 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.

---

5. 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

__lls___ __clg___ __rjw ___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003085620
SUFFIX
RECON
DATE BOARDED	20030805
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.02
2.
3.
4.
5.
6.