IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080006779 


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 that his medical disability rating of 20 percent be changed to 100 percent.  He further requests placement on the Retired List with 100 percent disability with all back pay and allowances.

2.  The applicant states, in effect, that the Army did him an injustice by not giving him a medical retirement when his medical records clearly showed that he was more than 30 percent disabled.  At that time he had no choice but to take the 
20 percent disability and go home with some money.  The applicant states that he was to have a second medical board and that all his medical records were not reviewed before his discharge.  

3.  The applicant continues that he has been unable to work since his separation from the military and he is in the process of requesting the Department of Veterans Affairs (DVA) to increase his rating from 80 percent to 100 percent.  In order for this to happen, his discharge from the military should show that he was discharged with disability and placed on the retired list. 

4.  The applicant provides his entire military treatment records and DVA medical progress notes with various dates from 1992 to the present; and his DVA rating decision, dated 6 March 2007.

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 enlisted in the Regular Army on 1 May 1984 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  A Medical Evaluation Board (MEB) Narrative Summary (NARSUM) indicates the applicant was evaluated on 18 September 1990, at which time he was diagnosed with:
	
		a. Degenerative arthritis, right foot, involving the talotibial, cuneotalar, and tibiofibular joints; and 

		b. Left shoulder impingement syndrome, moderate with partial rotator cuff tear, and synovitis.

4.  A Commander's Statement, dated 20 September 1990, shows the applicant's commander stated that the applicant was an 11B20 Infantryman.  Because of the applicant's restrictions on his physical profile and his medical conditions of arthritis in his feet and injury to his shoulder, he was not able to perform the duties of his MOS. 

5.  On 7 December 1990, the approving authority approved the findings and recommendation of the MEB.  The MEB referred the applicant's case to a Physical Evaluation Board (PEB) for evaluation.  

6.  On 26 December 1990, the applicant concurred with the MEB findings and recommendations. 

7.  On 12 February 1991, an informal PEB found the applicant unfit based on traumatic arthritis of the right foot and ankle and based on left shoulder pain with 90 degree flexion and 90 degree abduction.  The PEB rated each of these conditions at 10 percent, for a total of 20 percent, and recommended separation with severance pay.  

8.  On 7 March 1991, the applicant non-concurred with the findings and recommendation of the PEB and requested a formal hearing.  

9.  By memorandum, dated 15 March 1991, the applicant was notified that since he elected a formal hearing, his hearing would be held on 4 April 1991.  These PEB proceedings are not available.

10.  On 22 April 1991, the PEB reconsidered his formal hearing of 4 April 1991 and found the applicant unfit based on traumatic arthritis of the right foot and ankle and based on left shoulder pain with 90 degree flexion and 90 degree abduction.  The PEB rated each of these conditions at 10 percent, for a total of 20 percent, and recommended separation with severance pay.

11.  The PEB stated that it had reconsidered the applicant's formal hearing on 
4 April 1991 based on additional evidence submitted (evidence not available).  The PEB further stated it did not find the applicant's back condition unfitting and confirmed its formal finding that the applicant's psychiatric condition was a personality or situational adjustment disorder which could have been administratively unfitting, but was not a physical disability.  The PEB continued that it had further reconsidered the applicant's formal hearing based on the applicant's permanent profile and chain of command letters dated 10 April 1991 and 12 April 1991 (letters not available).  

12.  A DA Form 3349 (Physical Profile), dated 21 June 1991, shows the applicant was issued a temporary profile for "CHRONIC BACK PAIN AND SHOULDER PAIN" which expired on 23 July 1991.  

13.  By memorandum, dated 15 August 1991, the applicant was notified that the PEB had considered the addenda dated 9 May 1991 and 19 June 1991 and his rebuttal dated 22 July 1991 (all documents are not available).  The PEB felt that the additional diagnoses listed on the addenda were not unfitting nor were they ratable.  The PEB indicated that the applicant was unfit to perform the duties of his MOS and grade due to the conditions listed in the 22 April 1991 reconsideration of his 4 April 1991 formal board.  The PEB continued to feel that his back and leg conditions were not unfitting.  The PEB affirmed its finding of unfit, separation with severance pay at 20 percent.  

14.  By memorandum, dated 19 September 1991, the applicant non-concurred with the PEB's finding and recommendation dated 22 April 1991.  The applicant stated that he concurred with the board's decision to find him unfit based upon the condition of his right foot and ankle by granting him 10 percent disability.  He stated that he non-concurred with the board's decision of granting him the rating 10 percent for his shoulder condition.  He felt that he should have received a higher rating based on the physical limitations of his shoulder. 

15.  The applicant non-concurred the board's decision of not finding his back condition unfitting and that the board should have at least granted him 
20 percent disability for his back condition.  He further stated that the board did not address his knee problem properly and the lack of any reference to his knee led him to believe that no information concerning his knee reached the board for its consideration.  The applicant concluded by requesting that the board grant him sufficient time to gather medical documentation for his back and knee.

16.  On 3 October 1991, the applicant's case was reviewed by the PEB, which acknowledged receiving the applicant's non-concurrence letter to the PEB's 
22 April 1991 finding and recommendation.  The PEB further indicated receiving a Letter of Evaluation, dated 23 September 1991, from the applicant's chain of command (letter is unavailable).  Based on the above documentation the PEB determined there should be no change to the recommendation of 20 percent disability and severance pay.  

17.  The applicant was informed that if he was able to obtain additional medical evidence which would cause the board to reconsider his case and change his rating, he could submit the additional information to the board for reconsideration at any time up until final disposition was made of his case at the U.S. Army Personnel Command (PERSCOM).

18.  By memorandum, dated 21 October 1991, the U.S. Army Physical Disability Agency (USAPDA) forwarded the applicant's case to PERSCOM for final disposition.  The memorandum indicated that a PEB memorandum, dated 
4 October 1991, Subject: Delay of Formal Board Proceedings (memorandum unavailable) suspense date of 15 October 1991 had not been met.  

19.  A NARSUM addendum, dated 24 October 1991, shows that the applicant was reexamined pertaining to his low back pain and left leg complaints.  A Magnetic Resonance Imaging (MRI) scan was done to the applicant's lumbar spine.  The MRI disclosed a herniated disc at L3/L4 occluding the foraminal opening of the left L3/L4.  The addendum further stated that the physical examination, however, was essentially unchanged, but the L3/L4 disc often presents in very different manners with a minimal neurological deficit often seen and a substantial amount of pain and discomfort.  The diagnosis of mechanical low back pain was not applicable.



20.  By letter to the President, PEB, dated 6 November 1991, the applicant stated in a rebuttal, in effect, that he was led to believe that his case would be on hold at the PEB until doctors at the 97th General Hospital finished his treatment and forwarded the conclusions to the board.  The applicant stated that he felt that he had been lied to by the hospital staff.  He was being told to wait on one hand, while the board was moving on.  He stated he was sending doctors notes that speak for themselves.  The applicant stated the medical treatment he received in the hospital was substandard.  He was viewed as a problem that needed to be done away with.  All that was written in his medical records was not true and part of his records was missing.  

21.  The applicant further stated that his formal hearing was undermined and that he was deceived and lied to by their legal representative.  He stated that he would respond directly to the board and the board should respond directly to him.   
22.  On 20 November 1991, the PEB responded to the applicant's rebuttal letter, dated 6 November 1991.  The board stated, "Based on your letter, the PEB once again reviewed your file and the board proceedings.  The board affirms its original findings and recommendations."  The board continued that the letter contained no new medical evidence that would change the rating recommended by his board.  The board stated in the applicant's 19 September 1991 letter that he requested an extension and was provided an extension until 15 October 1991 to provided additional medical evidence.  On 21 October 1991, the applicant's case was forwarded to the USAPDA because he failed to submit any additional information.

23.  A Standard Form (SF) 519-B (Radiologic Consultation Request/Report), dated 14 January 1992, shows that the applicant received a bone scan x-ray.  The x-ray results showed that the applicant had mild stress changes in the medial compartment of both knees and post traumatic changes in the distal 5th metatarsal of the left foot.

24.  A SF 519-B, dated 13 February 1992, shows that the applicant received an x-ray for chronic knee pain.  The results of the x-ray showed mild to moderate degenerative changes, right knee.







25.  A SF 519-B, dated 2 March 1992, shows that the applicant received an x-ray for lower back pain.  The comments on the form stated, "Alignment and bone density are normal.  There is lumbarization of the S1 segment with bilateral accessory S1 joints.  There is apparent sclerosis associated with the left accessory joint.  Disc spaces and vertebral body heights through the lumbar spine were normal.  No particular sclerosis is appreciated in the posterior elements and there is no radiographic evidence of a parts defect."
 
26.  On 15 May 1992, the applicant was discharged with severance pay.  

27.  The applicant provided a 3-page DVA Rating Decision, dated 6 March 2007, that shows he was rated as 40 percent for traumatic arthritis, lumbosacral spine with degenerative disc disease (a decrease from 100 percent); 30 percent for degenerative arthritis, right shoulder and both wrists; coronary artery disease, status post CABG coronary artery bypass graft (a decrease from 100 percent); 20 percent for synovitis and adhesive capsulitis left shoulder; 20 percent for left sided chest muscle paralysis, residual of coronary artery bypass graft surgery;
20 percent for degenerative arthritis of the right shoulder, rotator cuff tear; 
10 percent for traumatic arthritis, left knee; 10 percent for traumatic arthritis, right knee; 10 percent traumatic arthritis, right ankle and 1st MTP metatarsophalangea joint; 10 percent for adjustment disorder with mixed emotional features; 
10 percent for degenerative arthritis, right wrist; 10 percent for degenerative arthritis, left wrist; zero percent for hemorrhoids; zero percent for status post anenomatoid tumor excision, left testes; zero percent for dyshidroitic eczema, both feet; zero percent for sternum scar, chest status post coronary artery bypass; zero percent for scar, donor, right femoral saphenous vein graft, status post CABG, for service connected injuries with a combined evaluation of 
90 percent.

28.  Army Regulation 635-40 (Physical Evaluation), chapter 3 provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

29.  Army Regulation 635-40 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.

30.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention and separation.  Paragraph 3-36 states that adjustment disorders are situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

31.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his medical disability rating of 20 percent should be changed to 100 percent.  He further requests placement on the Retired List with 100 percent disability with all back pay and allowances.

2.  Although the applicant contends that his medical conditions were not properly considered by the medical board and that he was not given adequate time to provide medical information to the board from his doctors but was discharged, he has not provided any evidence to show his medical conditions were not properly considered.  Evidence shows that the PEB and USAPDA properly considered the applicant's medical conditions on a number of occasions.  He was found unfit due to traumatic arthritis of the right foot and ankle and for left shoulder pain with 
90 degree flexion and 90 degree abduction.  His lower back pain and psychiatric condition were found to be not unfitting.  There is no evidence of record and the applicant has not provided evidence to show his back condition had prevented him from performing his duties.

3.  There was no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which was not in itself considered disqualifying for military service when the applicant was found unfit because of his traumatic arthritis of the right foot and ankle and for left shoulder.  Only the unfitting
conditions or defects and those which contributed to his unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Since there is no evidence to show that the applicant’s lower back pain and psychiatric condition rendered him unfit, it was properly not considered by the MEB/PEB.

4.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to change his disability rating. 

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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080006779





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006779



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1