RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070015851 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 reconsideration of his earlier two requests that his medical separation with severance pay be changed to a medical retirement with, in effect, a 60 percent disability rating.

2.  The applicant states that in his request for correction he cited specific sections of Army Regulation 635-40 and how the Army Physical Disability Evaluation System (APDES) violated this regulation when it reduced the rating of his knee instability.  The Board’s analysis did not consider his statement regarding the errors made by the APDES, such as the failure to refer his case to the Army Physical Disability Appeal Board (APDAB).  The review by the APDAB was bypassed to expedite his release from the military without retirement benefits.

3.  The applicant also states that the Board’s analysis stated that his asthma condition was not evaluated because he did not include it in his appeal.  However, in accordance with Army Regulation 635-40 a Soldier is not authorized to refer an injury or illness into the APDES.  The regulation requires the Physical Evaluation Board (PEB) “to consider the overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation.”  He took a physical examination prior to his discharge, and that examination revealed his asthma condition; however, the PEB did not evaluate its effect.  

4.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050013420    on 8 June 2006 and reconsidered by the ABCMR in Docket Number AR20060014631 on 1 May 2007.

2.  The applicant provides new arguments which will be considered by the Board.

3.  The applicant’s Narrative Summary indicated that he had an ACL (anterior cruciate ligament) and meniscal tear with surgical repair in 2001 after a motorcycle accident.

4.  The applicant completed an enlistment physical examination on 26 July 2002. The DD Form 2808 (Report of Medical Examination) states, in item 73 (NOTES and Significant or Interval History), “Letter from orthopedist (Dr. I___) dated 7/26/02: Ortho evaluation today confirmed that left knee is stable and that he may undergo rigorous activity.”  The applicant enlisted in the Regular Army on     9 October 2002.  He completed basic training and advanced individual training (AIT) and was awarded military occupational specialty 27D (Paralegal).

5.  With his original request, the applicant provided the results of a pulmonary function test, apparently taken on 29 March 2004.  The results revealed a forced expiratory volume (FEV) of 56 percent before taking medication and an FEV test result of 83 percent after taking medication.

6.  The applicant’s Narrative Summary noted that the applicant’s chief complaint was left knee pain.  He had ACL reconstruction and meniscal repair done on his left knee in 2001 but he subsequently became completely asymptomatic and entered active duty.  He developed pain and the sensation of instability during his final physical fitness test during AIT.  Since that time, he had persistent sensations of instability and pain which had been aggravated with running.  He underwent arthroscopy on 2 June 2004 and, at that time, was noted to have partial medial and lateral meniscal tears which were treated with debridement.  He also had removal of retained suture material and screws from his original surgery.  He was noted to have a partial tear of his ACL graft, but there was still a significant amount of intact fibers present.  Since his surgery, he had noted some improvement but had persistent pain and sensation of instability. 

7.  The Narrative Summary noted the applicant took Flonase and Allegra and no other medications.  His lungs were clear.  His knee demonstrated a full active range of motion.  There was minimal swelling with trace effusion.  There was a 2+ and 3+ Lachman’s.  Pivot shift was obscured by guarding.  The MCL (medial collateral ligament) and LCL (lateral collateral ligament) appeared to be stable.

8.  On 11 January 2005, a Medical Evaluation Board (MEB) referred the applicant to a PEB after diagnosing his condition as left knee pain, EPTS (existed prior to service).

9.  On 25 January 2005, the applicant did not concur with the findings of the MEB.  He appealed, stating that after he injured his knee in AIT an arthroscopy revealed new tears to the medial and lateral meniscuses, and the ACL was partially torn.  He had pain and constant instability as a result of the injury.  His doctor told him some arthritis was beginning to develop in the joint and future surgery to the ACL might be necessary.  The applicant did not address his asthma.

10.  On 31 January 2005, an informal PEB found the applicant to be unfit due to chronic left knee pain and instability and determined the condition to be EPTS.  The informal PEB recommended his separation without entitlement to disability benefits.  In one part of the PEB proceedings, an erroneous reference was made to the applicant’s right knee (instead of his left knee).

11.  On 11 February 2005, the applicant did not concur with the findings and recommendation of the informal PEB.  He submitted an appeal and requested a formal hearing.  In his appeal, he contended, in part, that the new tears to the meniscus and ACL were not natural progression but rather a new or aggravated injury, and there was no mention that standing aggravated his injury.

12.  On 15 February 2005, the U. S. Army Physical Disability Agency (USAPDA) affirmed the decision of the informal PEB that his condition was EPTS but scheduled the applicant for a formal hearing.

13.  On 10 April 2005, a formal PEB made the same findings and recommendation as the informal PEB.  On 2 May 2005, the applicant did not concur and submitted an appeal.  He contended that there was no medical principle that would support the finding that a stable knee would naturally progress to a +3 Lachman.  His knee was stable and documented to be stable by his treating physician prior to entering on active duty.  New tears to meniscus and ACL were not natural progression, but rather an aggravation to an old injury.  

14.  On 6 May 2005, the U. S. Army Physical Evaluation Board, Walter Reed Army Medical Center, informed the applicant that his rebuttal contained no new substantive medical information not previously considered and affirmed the decision of the formal PEB.  His case file, including his rebuttal, would be forwarded to the USAPDA for review.

14.  The USAPDA apparently returned the applicant’s case to the PEB under the provisions of Army Regulation 635-40 for reconsideration.  On 18 May 2005, the PEB found that the applicant’s knee problems were EPTS but were permanently service aggravated, rated for severe lateral instability at a 30 percent disability rating but decreased by an EPTS factor of 10 percent.  His knee condition was rated under the Department of Veterans Affairs’ Schedule for Rating Disabilities (VASRD) code 5257.  The PEB recommended that the applicant be separated with severance pay with a 20 percent disability rating.

15.  The applicant did not agree with the findings of the revised PEB.  He contended that Army Regulation 635-40, appendix B-10(b) states, “If the disability at the time of entrance into the service is not ascertainable, no deduction higher than zero percent will be assigned.  The EPTS condition will be listed as UND (undetermined) if there is any question.”  He noted that there was no indication that there was any disability prior to his coming on active duty.  

16.  The applicant also noted in his appeal that paragraph 3 (which still mentioned that his disability was not compensable) of the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) should be deleted.  On 27 May 2005, the DA Form 199 was so administratively corrected.

17.  On 1 June 2005, the USAPDA noted the applicant’s disagreement with the findings of the PEB but concluded that his case was properly adjudicated by the PEB and affirmed the findings of the PEB.

18.  On 19 August 2005, the applicant was discharged by reason of physical disability, after completing 2 years, 10 months, and 11 days of creditable active service, with severance pay.

19.  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.  In pertinent part, it states that the mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

20.  Army Regulation 635-40 states 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.  

21.  Army Regulation 635-40 states the Narrative summary to the MEB is the heart of the disability evaluation system.  In describing a Soldier’s conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.  

22.  Army Regulation 635-40 states the USAPDA will review cases in a number of instances, including formal proceedings when the Soldier nonconcurs with the PEB findings and recommendations, submits a statement of rebuttal within the required time frame, or consideration of the rebuttal by the PEB does not result in a change to its findings and recommendation.  Based upon the review of the PEB proceedings, the USAPDA may take one of several actions, including concurring with the findings and recommendations of the PEB, revising the findings of the PEB (in which case, if the Soldier rebuts the revised findings and recommendations but the USAPDA adheres to its revised findings and recommendations, it will forward the case to the APDAB), or referring the case to the APDAB.

23.  Army Regulation 635-40, appendix B-10(b) states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.  This will apply whether the particular conditions was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time.  Therefore, it is necessary to deduct from the present degree of disability, if ascertainable, the degree of disability existing at the time of entrance into active service and also the natural progression that has occurred during active service in terms of the rating schedule.  If the disability at the time of entrance into the service is not ascertainable, no deduction higher than zero percent will be assigned.  The EPTS condition will be listed as UND if there is any question.”

24.  Army Regulation 40-501 governs the medical fitness standards for enlistment and procurement, retention, and retirement.  Paragraph 3-27 states chronic asthma is cause for a permanent P3 or P4 profile and MEB/PEB referral if it results in repetitive hospitalizations, repetitive emergency room visits, or excessive time lost from duty; requires repetitive use of oral corticosteroids to enable the Soldier to perform all military training and duties; results in the inability to run outdoors at a pace that meets the standards of the timed 2-mile run despite medications (and the inability is due to asthma and not to an underlying orthopedic condition); or prevents the Soldier from wearing a protective mask.  

25.  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.

26.  The VASRD gives code 5257 (other impairment of the knee, recurrent subluxation or lateral instability) a 30 percent rating when severe; a 20 percent rating when moderate; and a 10 percent rating when slight.

27.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the APDES violated Army Regulation 635-40 when it reduced the rating of his knee instability, when it failed to refer his case to the APDAB, and when his asthma condition was not evaluated 

2.  There is no evidence to show that the APDES violated Army Regulation    635-40 when it failed to refer the applicant’s case to the APDAB.  Army Regulation 635-40 states the USAPDA will review cases in a number of instances, including instances that fell within the circumstances of the applicant’s case.  The regulation states that based upon that review the USAPDA may take one of several actions, including concurring with the findings and recommendations of the PEB or referring the case to the APDAB.  The regulation does not require the USAPDA to refer the case to the APDAB except when the USAPDA itself revises the findings and recommendations of the PEB.  The PEB revised its own findings, and the USAPDA then properly acted as the reviewing authority in this case.  It appears that the ABCMR, in Docket Number AR20060014631 on 1 May 2007, mistakenly believed that the USAPDA had revised the PEB findings and therefore erroneously concluded that the APDAB should have reviewed the applicant’s case.  

3.  There is no evidence to show that the APDES violated Army Regulation    635-40 by not evaluating the applicant’s asthma condition.  It may be true that in accordance with Army Regulation 635-40 he was not authorized to refer an injury or illness into the APDES.  However, the regulation states that Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the Narrative Summary, he or she will be advised of appeal procedures.

4.  In the absence of evidence to the contrary, it is presumed that the applicant was given that opportunity and advised of the appeal procedures.  He could have appealed the fact that the MEB did not list his asthma as a diagnosis.  In addition, as the applicant noted the regulation requires the PEB to consider the overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation.  However, there is no evidence to show that the applicant’s asthma was a disability or that his asthma prevented him from performing his duties.  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.

5.  Notwithstanding the above, the applicant’s contention that the APDES violated Army Regulation 635-40 when it reduced the rating of his knee instability appears to have some merit.

6.  Army Regulation 635-40 states that when considering EPTS cases involving aggravation by active service the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.  This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time.

7.  It was noted at the time of the applicant’s enlistment that he had previously had knee surgery.  However, an enlistment orthopedic evaluation confirmed that his left knee was stable.  The enlistment evaluation did not state that the applicant had a slight residual instability or that any residuals from his knee injury could get worse over time.  The evaluation “confirmed that [his] left knee is stable.”

8.  The evidence of record showed that no disability existed at the time of the applicant’s enlistment.  Neither the PEB nor the USAPDA cited any accepted medical principle that would have led to the conclusion that his previous knee injury would naturally progress to a disabling condition.  Since the disability at the time of the applicant’s entrance into the service was not ascertainable (and again the record actually shows it to have been nonexistent), then a deduction no higher than zero percent should have been assigned.  Therefore, it appears the applicant should have been awarded a 30 percent disability rating and been retired for disability.

9.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest 

Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_  __x_  __x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20050013420 dated 8 June 2006, as reconsidered by the ABCMR in Docket Number AR20060014631 dated 1 May 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  amending the findings and recommendation of the 18 May 2005 PEB to show his knee problems existed prior to service but were permanently service aggravated rated for severe lateral instability rated at 30 percent and decreased by an EPTS factor of zero percent;

     b.  voiding his 19 August 2005 discharge with severance pay; and

     c.  showing he was retired by reason of physical disability on 19 August    2005 with a 30 percent disability rating and placed on the retired list effective     20 August 2005.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was retired for disability with a 60 percent disability rating.




      __        x______
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070015851


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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