IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20070010123 


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, that his discharge for physical disability, with severance pay, be changed to a medical retirement.

2.  The applicant states, in effect, that the combined rating for both knees into a single 10 percent rating constitutes a clear and unmistakable error.  This error, he states was recognized by VA (Department to Veterans Affairs) in their decision of November 2000, which retroactively established a separate rating of 10 percent for each knee, effective the date of his release from active duty in 1990.  The medical evidence at the time of his PEB (Physical Evaluation Board) supports the 10 percent evaluation for each knee; furthermore, the 5003 diagnostic code that was used specifies a rating of 20 percent for involvement of two major joints (such as two knees), and 10 percent only if a single major joint is involved.  The PEB decision to rate the bilateral condition as a single major joint is also a clear and unmistakable error.

3.  In support of his request, the applicant submits a self-authored addendum to his DD Form 149, Application for Correction of Military Record; a copy of page four of a Rating Decision, made by the Department of Veterans Affairs, dated 28 November 2000; the front side of a DA Form 199, Physical Evaluating Board (PEB) Proceedings; an extract from the VASRD (Department of Veterans Affairs Schedule for Rating Disabilities), and five medical documents prepared by the Opensided MRI of San Antonio.

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.  The applicant's record shows he enlisted in the Regular Army on 27 September 1979.  The applicant successfully completed basic combat training at Fort Leonard Wood, Missouri, and his advanced individual training at Fort Sam Houston, Texas.  Upon completion of his training, he was awarded the military occupational specialty (MOS), 71L, Administrative Specialist.

3.  The applicant's service medical records are not available for the Board's review.  On 6 June 1991, these records were requested by the VA Regional Office (VARO), Houston, Texas, from the National Personnel Records Center, St. Louis, Missouri.  The National Personnel Records Center replied to the request and stated the records were not available because they had previously been sent to the VARO, Houston, on 30 August 1990.

4.  On 22 February 1990, the applicant appeared before a PEB.  The partial copy of the DA Form 199 the applicant submitted to the Board shows he was diagnosed with degenerative joint disease of the cervical spine with limitations of motion and  x-ray changes, bilateral retropatellar pain syndrome with arthroscopic findings of chondromalacia (emphasis added), and subjective low back pain.  A disability rating of 10 percent was recommended by the PEB for the degenerative joint disease of the cervical spine with limitations of motion and x-ray changes and 10 percent was recommended by the PEB for the bilateral retropatellar pain syndrome with arthroscopic findings of chondromalacia.  The applicant's bilateral retropatellar pain syndrome was rated using VASRD Code 5003 and was given a single 10 percent combined rating for both knees as opposed to rating each knee separately.  A zero percent physical disability rating was recommended for the applicant's subjective low back pain.

5.  The PEB found that the applicant's functional limitations in maintaining agility, caused by physical impairments, made him unfit to perform the duties of a sergeant in the MOS of an administrative specialist.  As indicated in the paragraph above, the Army used VASRD Code 5003.  The board found the applicant physically unfit and recommended he be separated with severance pay with a combined rating of 20 percent, if otherwise qualified.

6.  The impairments the applicant had/has were found to be in the line of duty, not due to his own misconduct.

7.  The applicant was honorably discharged on 9 May 1990, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), physical disability with severance pay, in pay grade E-5.  His DD Form 214 shows, by the date of his discharge, he had completed 10 years, 7 months, and 12 days net active service.

8.  Page 4 of the VA rating decision the applicant submitted to the Board shows he continued to experience bilateral knee pain, had surgery performed on the knee and the pain had not resolved.  The applicant returned to the VA for a reevaluation of his service-connected disability, as he had a right to under Federal law.

9.  Page 4 of the VA rating decision the applicant submitted to the Board shows the evaluation for bilateral chondromalacia which was 10 percent, effective 10 May 1990, was discontinued effective 10 May 1990, because it was more appropriately evaluated as separately.  Since service-connection for chondromalacia, right knee, with traumatic arthritis was established as directly related to military service, the condition which was evaluated as 10 percent disabling from 10 May 1990 was increased to 20 percent with an effective date of 5 June 1996.

10.  Page 4 of the VA rating decision the applicant submitted also shows that service-connected chondromalacia of his left knee, with traumatic arthritis, which was established as directly related to military service, which was evaluated as 10 percent disabling from 10 May 1990 was also increased to 20 percent with an effective date of 5 June 1996.

11.  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.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision 

is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, Chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

12.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

13.  Army Regulation 635-40, paragraph 3-5d, 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.  Any non-ratable defects or conditions will be listed in item 8 of the PEB Proceedings, but will be annotated as non-ratable.

14.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

15.  Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

16.  Department of Defense Directive 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent (emphasis added).

17.  The VA can evaluate a veteran throughout his or her lifetime and adjust the individual's 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.

18.  Title 38, United States Code, sections 310 and 331, permits 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 error or injustice in the Army rating (emphasis added).  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 employability.  

19.  Accordingly, it is not unusual for the Army and the VA, 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 (emphasis added). Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that the combined rating for both knees into a single 10 percent rating constitutes a clear and unmistakable error.  He contends that rather than being discharged for physical disability, with severance pay, he should have been medically retired.

2.  The available evidence shows the applicant appeared before a PEB.  He was diagnosed with degenerative joint disease of the cervical spine with limitations of motion and x-ray changes, bilateral retropatellar pain syndrome with arthroscopic 

findings of chondromalacia, and subjective low back pain.  A disability rating of 10 percent each was recommended by the PEB for the degenerative joint disease of the cervical spine with limitations of motion and x-ray changes, and for the bilateral retropatellar pain syndrome with arthroscopic findings of chondromalacia for a combined rating of 20 percent.

3.  The applicant contends that the disability rating for his bilateral retropatellar pain syndrome with arthroscopic findings of chondromalacia should have been greater than 10 percent and he should have qualified for a medical retirement.

4.  The evidence shows that when the applicant was initially evaluated by the PEB a disability rating of 10 percent was recommended by the PEB for the degenerative joint disease of the cervical spine and 10 percent was recommended by the PEB for the bilateral retropatellar pain syndrome with arthroscopic findings of chondromalacia.  The applicant's bilateral retropatellar pain syndrome was rated using VASRD Code 5003 and he was given a single 10 percent combined rating, for both knees, as opposed to a rating of 10 percent for each knee separately.

5.  The applicant now contends that the rating given at the time was a clear and unmistakable error; however, the applicant has failed to provide evidence that the decision arrived at by the PEB on 22 February 1990 was erroneous.  It appears the applicant is basing his contention on the fact that the VA made a decision based on evidence of the applicant having continued to complain of pain in his knees, his having subjected himself to surgery to correct the medical problem, and his having continued to receive medical treatment.

6.  The VA can evaluate a veteran throughout his or her lifetime and can adjust the individual's percentage of disability based upon that agency's examinations and findings.

7.  The evidence shows the applicant continued to experience bilateral knee pain, had surgery performed on the knee and the pain had not resolved.  The applicant returned to the VA for a reevaluation of his service-connected disability, as he had a right to under Federal law, and on 28 November 2000, the VA made a decision to rate his right knee and his left knee separately apparently based on the progression of deterioration of his medical condition.  Each knee was rated separately as a separate entity rather than rating them on a combined basis as they had been by the PEB.

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

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




       _   ___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.



ABCMR Record of Proceedings (cont)                                         AR20070010123





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ABCMR Record of Proceedings (cont)                                         AR20070010123



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