IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080005518 


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 her honorable discharge from the U.S. Army Reserve (USAR) for being medically unfit for retention be changed to a medical discharge due to a service-connected disability. 

2.  The applicant states, in effect, that she was injured in the line of duty.  She contends that she received a Line of Duty (LOD) determination and went in front of a Military Occupational Specialty Medical Retention Board (MMRB) and received 10 percent disability.  She contends that she was discharged based on her injury. 

3.  The applicant provides a Rating Decision from the Department of Veterans Affairs (DVA), dated 16 February 2007; documentation pertaining to her LOD investigation; a DA Form 2173 (Statement of Medical Examination and Duty Status); service medical records; and a DVA letter, dated 22 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 17 October 2000 for a period of 8 years.    

2.  A DA Form 2173, date of accident 16 March 2001, states that during the morning run the applicant’s left knee gave out and she fell to the pavement.  

3.  On 2 March 2006, a MMRB determined that the applicant had a physical profile of 114112; that the medical documentation in the applicant’s record showed a significant amount of limitations for the applicant; and that the applicant’s condition (chronic left knee pain) prevented her from performing Soldier activities and her military duties.  The MMRB recommended that the applicant be referred to a Medical Evaluation Board (MEB).  On 2 March 2006, the approving authority approved the findings and recommendation of the MMRB.

4.  On 19 April 2006, the applicant was notified that she was medically disqualified (non-duty related) for continued service in the USAR and she was offered options relating to a non-duty related condition.

5.  On 14 June 2006, a LOD investigation determined that the applicant’s injury on 16 March 2001 was in the LOD. 

6.  On an unknown date, the applicant’s medical disqualification notification was annotated to show her disqualification was now duty-related.

7.  On 20 June 2006, the applicant requested an honorable discharge from the USAR based upon the non-duty related medical disqualification.

8.  On 22 June 2006, the applicant was honorably discharged from the USAR under the provisions of Army Regulation 135-178.

9.  The applicant provided a DVA Rating Decision, dated 16 February 2007, which shows that service connection for residuals left knee injury was granted (10 percent).  This decision also states, in pertinent part, that the applicant’s service medical records show that she was treated for left knee pain on 16 March 2001, that she was seen for knee pain in May 2001 and June 2001, that her Army Reserve records show continued complaints of left knee pain up through June 2006, and that the applicant was issued a physical profile on 1 December 2005 for chronic left knee pain (chondromalcia femora/patella syndrome). 

10.  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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was while performing active duty or inactive duty training.



11.  Army Regulation 600-8-1 (Army Casualty Program), in pertinent part, provides that a line of duty investigation must be conducted in all cases of injury not a result of enemy action.  It states it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  It states any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty.  

12.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

13.  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.  

14.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process was designed to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.

15.  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.

16.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement.  

17.  Title 10, U. S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

18.  Title 38, U. S. Code, sections 1110 and 1131, 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.  

19.  The VA Schedule for Rating Disabilities (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.  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.

20.   Department of Defense Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

DISCUSSION AND CONCLUSIONS:

1.  It appears that an error and/or an injustice occurred in this case.

2.  In March 2001, the applicant injured her left knee during a morning run.    

3.  In March 2006, a MMRB recommended that the applicant be referred to an MEB. 

4.  In June 2006, a LOD investigation determined the applicant’s injury was in the LOD. 

5.  The applicant’s case was not referred to an MEB, and she was offered options relating to a non-duty related condition.  The LOD findings rendered her injury a duty-related condition. 

6.  The applicant should be afforded the opportunity to have her medical fitness determined by an MEB/Physical Evaluation Board.  She should be aware of several facts.  

7.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Also, depending on the provisions in DODI 1332.39, the medical condition might be rated by the Army at one level and rated by the VA at another.

8.  The VA awarded the applicant a 10 percent disability rating for left knee injury. There is no legal requirement for the Army, 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.  There is no evidence available to show that the applicant was unfit for military service because of her left knee injury.  An MEB/PEB might find that this condition was not unfitting and therefore would not rate it.  In addition, if she is found to be unfit by an MEB/PEB, her disability rating for her condition might be rated less than what the VA has granted her.

9.  An MEB/PEB could find the applicant to be unfit for duty but with a rating of less than 20 percent, which would entitle her to severance pay.  However, if she accepted severance pay her VA compensation would be offset by the amount of severance pay she received. 

10.  An MEB/PEB could find the applicant to be unfit for duty with a rating of       30 percent or greater, which would entitle her to retired pay.  However, since she has less than 20 years of service she could not receive both a military retirement for physical unfitness and a VA disability pension.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ____xx__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by offering her the opportunity to undergo a physical evaluation to determine her fitness for retention in the Army:

          (a)  by directing the Office of The Surgeon General to contact her and arrange, via appropriate medical facilities, a physical evaluation; and

          (b)  if appropriate, by referral to an MEB and an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  Subsequent to a final determination by the Office of The Surgeon General concerning her fitness for retention in the Army (as relates to a condition or conditions incurred while on active duty), the individual concerned may reapply to this Board concerning any other issues, as appropriate.

5.  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 the individual 


concerned was medically discharged without going through the MEB/PEB process. 



       _    xxxxxxx   ___
       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)                                         AR20080005518





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ABCMR Record of Proceedings (cont)                                         AR20080005518



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