RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 June 2005
      DOCKET NUMBER:  AR20040008441


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |
|     |Ms. Marla J. Troup                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Medical Evaluation Board (MEB) findings
be recalled for a correction of medical issues.  He also requests that the
Army perform the operation on his left knee and again on his right knee. In
a letter dated 1 March 2005, he requests that the MEB findings be
reevaluated and he be given a medical retirement.

2.  The applicant states that an MRI (magnetic resonance imaging) of his
left knee showed he had a "bursed patella" and torn meniscus.  He was given
temporary profiles by various doctors on the staff.  As it stands now, he
not only has to pay to get surgery on his left knee, but also the surgery
that was done in February 2004 on his right knee has to be corrected.  His
doctor requested a recall, pre-surgery screening was performed on 2 August
2004 and a surgery date of 14 September 2004 was set.  Then Patient Affairs
overturned the doctor's decision to recall.  His medical hold detachment
first sergeant told him he had an hour and a half to clear Fort Stewart, GA
and that surgery would not be performed.

3.  The applicant also stated, in a letter dated 16 September 2004 to the
U. S. Army Human Resources Command (USAHRC), that he had been helping to
load a truck with rations.  They were standing on the roof of the truck's
cabin and boxes of rations were being tossed up to them.  He caught a box,
lost his balance, and fell on his knees on the steel catwalk between the
truck cabin and the attached trailer.  Even though both knees were
affected, the right knee was more painful at the time than the left.  The
medical officer asked him in which knee he was feeling the most pain and he
told the officer he was feeling pain in both knees but the right was more
painful.  He was told to pack ice on both knees and would not be going to
Iraq with his unit.  He wanted to go to Iraq.  The swelling went down
enough by morning that the medical officer gave him the okay to travel with
his unit.  A line of duty determination was done almost            6 weeks
later, and it was only for the right knee.

4.  The applicant further stated, in his 16 September 2004 letter, that
while in Iraq he took a blast from an incoming enemy mortar round.  He was
medically evacuated and eventually assigned to the medical hold battalion
at Fort Stewart, GA.  In February 2004, his right knee was operated on, but
even before the operation he was complaining about left knee pain.

5.  The applicant provides a 14 September 2004 letter to the "Medical
Inspector General's Office" outlining the same contentions as in the 16
September 2004 letter; DA Forms 3349 (Physical Profile) dated 9 September
2003, 4 December
2003, 30 March 2004, 24 May 2004, 26 July 2004, and 24 August 2004; DD
Forms 689 (Individual Sick Slip) dated 18 June 2004, 12 July 2004, 26 July
2004 and 24 August 2004; active duty orders dated 5 February 2003 with an
amendment dated 30 January 2004; attachment orders dated 9 October 2003;
retention on active duty orders dated 13 May 2004; and separation orders
dated 1 September 2004.

6.  The applicant also provides DA Forms 2173 (Statement of Medical
Examination and Duty Status) dated 4 June 2003 and 19 September 2003;
   a 2-page Radiologic Examination Report examination date 19 August 2004;
      a 2-page memorandum, Subject:  Physical Disability Records Ready for
Processing, dated 30 August 2004; an undated memorandum (but possibly
prepared 30 August 2004), Subject:  Release from Medical Hold; a 2-page
Chronological Record of Medical Care dated 24 August 2004; and DD Forms
214 (Certificate of Release or Discharge from Active Duty) for the periods
ending 6 July 1983 and 26 August 2004.

7.  The applicant also provides three Consultation Sheets, one dated 24
August 2004 and two dated 31 August 2004; a memorandum, Subject:  Request
for Recall for Surgery, dated 2 August 2004; a mental health evaluation
dated        29 September 2003; copies of his service medical records;
redeployment orders dated 25 September 2003; movement orders dated 25 March
2003; a copy of his DA Form 2A (Personnel Qualification Record), Parts I
and II; a retirement points statement; a leave and earnings statement for
the period covered 30 April 2004; a DA Form 705 (Army Physical Fitness Test
Scorecard) date of test 4 May 2002; his MEB packet and his Physical
Evaluation Board (PEB) packet; an MRI dated 30 December 2004; a record of
medical procedure dated 11 February 2005; and active duty orders dated 1
February 2005.

8.  The applicant also provides a letter dated 22 July 2004, Subject:  PEB
Recommendation; a letter dated 30 July 2004, Subject:  Medical board/PEB
recommendations; a DD Form 2807-1 (Report of Medical History); a Standard
Form (SF) 527 (Group Muscle Strength, Joint R. O. M. Girth and Length
Measurements) dated 24 March 2004; a Patient Lab Inquiry dated 26 March
2004; a medication profile; a letter dated 11 March 2005; a DD Form 2807
(Report of Medical Examination);

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Regular Army and the U. S. Army
Reserve (USAR) from November 1978 through September 1985, the applicant
enlisted in the USAR again on 25 February 2000.

2.  On orders dated 5 February 2003, the applicant's unit, the 196th
Transportation Company in Kissimee, FL, was ordered to active duty with a
report date to Fort Stewart, GA of 10 February 2003.

3.  On orders dated 26 March 2003, the applicant's unit was ordered to
Kuwait effective on or about 4 April 2003.

4.  A DA Form 2173 dated 4 June 2003 shows the applicant sustained an
injury to his right knee on 30 April 2003 when he hit his right knee on a
truck catwalk.  The injury was determined to have been incurred in line of
duty.

5.  On 9 September 2003, the applicant was treated for loss of hearing in
the right ear due to a mortar attack on 7 September 2003.

6.  A DA Form 2173 dated 19 September 2003 shows the applicant sustained an
injury to his right ear as the result of a mortar explosion on September
2003.  He complained of bleeding from the inner ear, loss of hearing, loss
of balance and headaches.  The injury was determined to have been incurred
in line of duty.

7.  The applicant was medically evacuated to Germany on an unknown date.
Orders dated 25 September 2003 assigned the applicant to Fort Stewart, GA
for further medical care.

8.  On 29 September 2003, the applicant was seen at Dwight D. Eisenhower
Army Medical Center, Fort Gordon for a mental health evaluation.  He was
diagnosed with post-traumatic distress (sic) disorder and damage to his
right ear.

9.  Effective 6 October 2003, the applicant was attached to Headquarters
and Headquarters Company, U. S. Army Garrison Holding Battalion, Fort
Stewart, GA.

10.  On 4 December 2003, the applicant was given a permanent S3 physical
profile for post-traumatic stress disorder (PTSD).

11.  On 30 March 2004, the applicant was given a permanent L3 physical
profile for status post right medial meniscectomy.

12.  The applicant's MEB was initiated around April 2004.  On 6 April 2004,
he was scheduled for a Disability Evaluation System briefing.  He was
listed as a no-show.  He was rescheduled for, and showed up, at a 27 April
2004 briefing.

13.  The MEB referred the applicant to a PEB for diagnoses of PTSD, major
depressive disorder, and right knee pain status-post partial medial
meniscectomy.

14.  An MEB Addendum dated 13 May 2004 indicated the MEB was initiated by
the doctor who was treating the applicant for PTSD and depression.
Orthopedic service prepared the Addendum to be added to his MEB.  The
Addendum addressed the applicant's right knee problem.  It noted the
applicant healed uneventfully from his 4 February 2004 right knee
arthroscopy where a partial medial meniscectomy was performed and had been
in physical therapy since
that time.  He complained of right knee pain that was somewhat improved
although it still bothered him primarily over the anterior medial joint
line.

15.  The 13 May 2004 Addendum noted that, on examination, the applicant had
  0 degrees of extension and 140 degrees of flexion.  He was stable to
anterior
and posterior drawer testing and to varus valgus testing.  He had minimal
tenderness over the anteromedial joint line, no tenderness over the
posteromedial joint line, and a negative patellofemoral joint examination.
He was diagnosed with right knee pain, status-post partial medial
meniscectomy and found to not meet retention standards in accordance with
Army Regulation       40-501, chapter 3, paragraph 41e(1) and (2).

16.  Orders dated 13 May 2004 retained the applicant on active duty until
          1 November 2004 to voluntarily participate in the Reserve
Component medical holdover medical retention processing program for
completion of medical care and treatment.

17.  On 18 June 2004, the applicant was seen for pain in the left knee.  He
was to have a follow-up in three weeks.  On 12 July 2004, he was seen for
his follow-up.  The DD Form 689 noted an MEB was in progress; that he was
to avoid prolonged standing, jumping, running, deep knee bending, and
marching for three months, and he was to have a follow-up in four weeks.

18.  An MEB Addendum dated 1 July 2004 addressed the applicant's PTSD.

19.  On 9 July 2004, the applicant signed the MEB Proceedings agreeing with
the board's findings and recommendation.

20.  On 19 July 2004, an informal PEB found the applicant unfit for
retention    due to PTSD (Department of Veterans Affairs (VA) Rating Code
9411) with associated depression, requiring psychotropic medication and
psychotherapy   (10 percent) and chronic right knee pain (VA Rating Code
5003), status post partial medial meniscectomy, rated as slight/not
requiring daily narcotic therapy/constant (10 percent).

21.  On 21 July 2004, the applicant had signed the DA Form 199 concurring
with the findings and recommendation of the informal PEB; however, he
submitted a statement dated 22 July 2004 arguing that his other medical
conditions (hearing in his right ear and left knee pain) were not added to
his issues.  He also indicated that his left knee was currently being
treated with medication and that he elected to have the operation at a
future date.

22.  A Chronological Record of Medical Care dated 22 July 2004 indicated
that Doctor A___ discussed the applicant's left knee problem with the
applicant and discussed that the applicant did not want surgery on his left
knee.

23.  On 26 July 2004, the applicant was given a temporary physical profile
for left knee swelling and pain.

24.  On 29 July 2004, the applicant signed another DA Form 199 not
concurring in the findings and recommendation of the informal PEB but
waiving a formal hearing.

25.  By email dated 3 August 2004, Doctor B___ indicated that he had spoken
to the applicant and would do an addendum based on the objective evaluation
and the X-ray finding but that it would not change his board.  Doctor B___
stated the applicant had not had the pain long enough to qualify for a P3
profile and the disability level was not unfitting.  Apparently, Doctor
B___ later changed his mind and decided not to prepare an addendum.

26.  On 10 August 2004, the U. S. Army Physical Evaluation Board reviewed
the applicant's 29 July 2004 rebuttal to the informal PEB and found that no
change to the original findings was warranted.  It noted that his physical
profile and DA Form 3947 listed only his psychiatric disorder and right
knee pain as medically unacceptable and that an audiologist evaluation
dated 28 July 2004 indicated his hearing was within normal limits.

27.  On 13 August 2004, the applicant indicated he was not happy that his
PEB appeal had been forwarded without Doctor B___'s addendum.  He stated he
would be in Monday to discuss his case.  He did not show.

28.  On 19 August 2004, the U. S. Army Physical Disability Agency (USAPDA)
noted the applicant's disagreement with the findings of the PEB and
reviewed his entire case.  That agency affirmed the findings and
recommendation of the PEB.

29.  On 19 August 2004, an MRI performed on the applicant's left knee
revealed a tear at the posterior horn of the medial meniscus and a bone
bruise at the patella.  Otherwise, the examination was unremarkable.

30.  A memorandum dated 23 August 2004 noted the applicant had an approved
physical disability separation and would be separated effective 26 August
2004.

31.  On 24 August 2004, the applicant was seen for his follow-up on his
MRI.  The DD Form 689 noted that he was to remain on medical hold for
evaluation and repair of his left knee.

32.  A Chronological Record of Medial Care dated 24 August 2004 noted that
further evaluation of the internal arrangement of the applicant's
symptomatic left knee was recommended.  It also noted he was indicated for
left knee arthroscopy and mensical surgery and that he was awaiting medical
hold approval.

33.  On 24 August 2004, the applicant was given a temporary profile.  The
DA Form 3349 did not give the reason for the profile but it was apparently
for his left knee condition.

34.  By memorandum dated 25 August 2004, the Deputy Commander for Clinical
Services requested recall of the MEB on the applicant and noted the
applicant agreed to have surgery for a meniscru tear of the left knee.

35.  By memorandum dated 26 August 2004, the Chief, Operations Division,
USAPDA denied the request to recall the applicant for surgery on his left
knee.  The memorandum noted that his left knee met medical retention
standards in accordance with the MEB (concurred with by the applicant) and
that surgery would not return him to duty nor was it required to be
accomplished at that immediate time.

36.  On 26 August 2004, the applicant was discharged by reason of physical
disability with severance pay.

37.  A memorandum dated 30 August 2004 noted the applicant had an approved
physical disability separation and would be separated effective 26 August
2004.

38.  On 31 August 2004, the applicant was given a consultation sheet for
civilian/supplemental care for bilateral knee pain, left greater than the
right.

39.  The applicant's separation orders are dated 1 September 2004.

40.  On 30 December 2004, an MRI of the applicant's right knee revealed a
suspected small tear of the inferior articulating surface of the posterior
horn medial meniscus.

41.  On 1 February 2005, USAHRC issued orders ordering the applicant to
active duty to voluntarily participate in the Reserve Component medical
holdover medical retention processing program for completion of medical
care and treatment.  On 7 February 2005, USAHRC rescinded the unexecuted
portion of these orders effective 10 February 2005.  (On 10 March 2005,
USAHRC informed the Board analyst that those orders had been issued in
error in that they did not know at the time that the applicant's MEB/PEB
had been completed.)

42.  On 13 February 2005, an MRI of the applicant's lumbar spine revealed
the    L5 – S1 disc was desiccated demonstrating a mild degree of disc
space narrowing.

43.  Department of Defense Instruction 1332.38 (Physical Disability
Evaluation) paragraph E3.P1.2.3 states that MEBs shall document the full
clinical information of all medical conditions the Service member has and
state whether each condition is a cause for referral into the disability
evaluation system.

44.  Department of Defense Instruction 1332.38, paragraph E4.2.2.5 states
that internal derangement of the knee when there is residual instability
following
remedial measures such as surgery or physical therapy is a cause for
referral into the disability evaluation system.

45.  Army Regulation 40-501 governs medical fitness standards for
enlistment, retention, and separation.  Paragraph 3-1 states that trained
and experienced personnel will not be categorically disqualified if they
are capable of effective performance of duty with a hearing aid.  Most
Soldiers having a hearing defect can be returned to duty with appropriate
assignment limitations.

46.  Army Regulation 40-501, paragraph 3-13c states that internal
derangement of the knee with residual instability following remedial
measures, if more than moderate in degree, or if complicated by arthritis,
is a cause for referral to an MEB.

47.  Army Regulation 40-501, paragraph 3-41e states that conditions and
defects not mentioned elsewhere in this regulation are causes for referral
to an MEB if (1) the conditions result in interference with satisfactory
performance of duty as substantiated by the individual's commander or
supervisor or (2) the individual's health or well-being would be
compromised if he or she were to remain in the military service.
48.  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.

49.  Army Regulation 635-40, appendix B, paragraph B-24, states that often
a Soldier will be found unfit for any variety of diagnosed conditions which
are rated essentially for pain.  Inasmuch as there are no objective medical
laboratory testing procedures to detect the existence of or measure the
intensity of subjective complaints of pain, a disability retirement cannot
be awarded only on the basis of pain.  Rating by analogy to degenerative
arthritis (VA code 5003) as an exception to analogous rating policies may
be assigned in unusual cases with a 20 percent ceiling, either for a single
diagnosed condition or for a combination of diagnosed conditions each rated
essentially for a pain value.

50.  USAPDA Policy/Guidance Memorandum Number 13:  Rating Pain, states that
the numbers of sites of pain does not determine the rating.  For example,
pain in both knees and a shoulder of moderate intensity and occasional
frequency would be rated the same as pain in one knee of moderate intensity
and occasional frequency.

51.  Army Regulation 635-40, paragraph 3-6 states that providing definitive
medical care to active duty Soldiers requiring prolonged hospitalization
who are unlikely to return to active duty is not within the Department of
the Army mission.

52.  The mission of the Veterans Benefits Administration is to provide
benefits and services to veterans and their families in a responsive,
timely and compassionate manner in recognition of their service to the
nation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's MEB should have documented all of his medical
conditions.  It appears his hearing condition and his left knee condition
(although it is not clear when he brought his left knee condition to the
attention of medical officials)
should have been documented by the MEB.  (Although an MRI on 13 February
2005 revealed the applicant's L5 – S1 disc was desiccated, demonstrating a
mild degree of disc space narrowing, there is no evidence to show this
condition existed or was known about at the time of his MEB and PEB.)
Saying this, it is still noted that the applicant agreed with the findings
of the MEB even though it did not document these conditions.

2.  However, it does not appear that the MEB's failure to document the
applicant's hearing condition and left knee condition worked to his
detriment.

3.  There is no legal requirement for a PEB to rate a physical condition
that is not in itself considered disqualifying for military service.  The
evidence of record shows that an audiologist evaluation dated 28 July 2004
indicated the applicant's hearing was within normal limits and so was not a
disqualifying condition.

4.  The applicant's right knee condition was rated for pain.  Even if his
left knee condition had been considered by the PEB, presumably the pain in
that knee would have been no greater than that in his right (since most of
his previous documented complaints had been with his right knee).  It is
the intensity and frequency of pain, not the numbers of sites of pain,
which determines the rating.

5.  Therefore, there is insufficient reason to believe the applicant's
combined disability rating would have been increased even had his hearing
and left knee conditions be documented by the MEB and so there is
insufficient evidence on which to grant him a medical retirement.

6.  In addition, it appears the applicant was given an opportunity to have
his left knee operated on well before the request to recall him for surgery
on his left knee was denied on 26 August 2004.  However, he had indicated
on 22 July 2004 (after his PEB was completed) that he elected to have the
operation at a future date.

7.  The Board acknowledges that the applicant later tried to get extended
on active duty to have the operation performed and, in an ideal world, the
Army would retain all unfit Soldiers on active duty until all their
surgical or medical problems were resolved to the maximum extent possible.
Unfortunately, the real world dictates that Soldiers requiring prolonged
hospitalization who are unlikely to return to active duty be processed for
disability, after which the VA becomes the agency designated to care for
them, so the Army can better serve injured Soldiers who may be returned to
active duty.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __teo___  __mjt___  DENY APPLICATION

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.




            __Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008441                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050602                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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