IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080006853


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 the 20 percent disability rating assigned by the Physical Evaluation Board (PEB) be increased.

2.  The applicant states that the PEB grouped all of her ratable conditions and assigned a 20 percent disability rating.  She was basically told to "take it and go home."  When she filed a VA (Department of Veterans Affairs) claim, the VA rated each condition separately and gave her 40 percent.

3.  The applicant provides:

	a.  A 4 April 2008 statement.

	b.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty).

	c.  DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 27 November 1996, with Narrative Summary (NARSUM).

	d.  DA Form 199 (Physical Evaluation Board Proceedings), dated 13 December 1996.

	e.  VA Rating Decision, dated 7 January 1998.


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 was a private (PV2)/E-2 in the Regular Army.  She began her service on 20 February 1996.  Following basic combat training, she underwent military occupational specialty (MOS) training at Fort Sam Houston, TX in MOS 91B (Medical Specialist).  

3.  While still at Fort Sam Houston, the applicant developed medical problems and underwent an MEBD which determined she suffered from bilateral femoral and bilateral tibial diaphyseal stress fractures, bilateral stress changes about her knees, and bilateral sacroiliitis.  The MEBD recommended that her medical conditions be referred to a PEB.

4.  On 11 December 1996, the applicant concurred with the MEBD's findings and recommendation and indicated that she did not desire to continue on active duty.

5.  On 13 December 1996, the applicant underwent an informal PEB which found her unfit because of chronic pain (VA code 5003) due to bilateral femoral stress fractures, bilateral tibial stress fractures, bilateral stress change of knees and sacroiliitis.  She was given a combined rating of 20 percent.  Based on a review of the medical evidence of record, the PEB concluded that her medical condition prevented reasonable performance of her duty in her grade and specialty.  Because she was rated less than 30 percent disabled and had less than 20 years of active service, her condition required separation with severance pay in lieu of retirement.

6.  The available copy of the DA Form 199 does not reflects the applicant's response to the decision and recommendation of the PEB; however, on 5 March 1997, the applicant was discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40, paragraph 4-24b(3).  She was credited with 1 year and 16 days of active military service and received $2,020.20 in severance pay.

7.  On 7 January 1998, the DVA Waco, TX Regional Office, granted the applicant service-connection for:

	a.   left femoral diaphyseal stress fracture, rated as 10 percent;

	b.  right femoral diaphyseal stress fracture, rated as 10 percent;

	c.  left tibial diaphyseal stress fracture, rated as 10 percent;

	d.  right tibial diaphyseal stress fracture, rated as 10 percent;

	e.  left knee patellofemoral pain syndrome, rated as 0 percent

	f.  right knee patellofemoral pain syndrome, rated as 0 percent;

	g.  bilateral sacroiliitis, rated as 0 percent; and 

	h.  lumbosacral strain as secondary to bilateral femoral and tibial stress fractures, rated as 10 percent.

8.  Although not confirmed by a reviewable DVA record, the applicant states her combined DVA rating is 40 percent.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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/her 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 Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

11.  Appendix B to AR 635-40 provides guidance on the Army's implementation of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  As pertains to stress fractures, it provides:


B–43. 5003–5279—Analogous ratings for stress fractures

a.  Since the VASRD has no rating schedule for these conditions, rating by analogy will be done as follows:

	(1)  If there is X-ray evidence of fracture of the femur or tibia, it should be rated as any other fracture.  The bilateral factor would apply if appropriate.

	(2)  Fracture of the pubic rami confirmed by X-ray should be rated under 5003.  This is a membraneous bone which can be expected to heal quickly. Muscle pull of the large thigh adductors is the main aggravating force, not weight bearing.

	(3)  Fracture of the tibial and fibular malleoli are seldom displaced, do not require surgery, and except for offering some comfort, casts are not required.  The most appropriate rating would be analogous to 5262, slight [which requires a 10 percent rating].

	(4)  Stress fracture of the tarsals or metatarsals should be rated under 5279, metatarsalgia.

	(5)  Tibial plateau and femoral condyle stress fractures are stable unicortical defects which should be rated as analogous to 5259 because of some impairment of knee function.  The use of the 5257 would be inappropriate because the lesion is extra-articular and produces pain, not knee instability.

	(6)  Stress reaction without X-ray evidence of fracture should be rated as Periostitis under 5022–5003.

b.  X-ray evidence. At the time of the original MEBD, many Soldiers have pain not explained by routine X-ray examination.  A bone scan may confirm increased vascularity in isolated areas of the bone.  In these cases, a bone scan was necessary to establish the diagnosis.
However, a year later only the X-ray is necessary to confirm that now there is or is not evidence of a healed fracture.  There is no need for a bone scan. If the Soldier did in fact originally have a fracture, it will be evident on the X-ray.  If the current X-ray is normal then a fracture did not exist at the time of the MEBD.  The most likely diagnosis was stress reaction.

12.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  

13.  The Army rated the applicant's unfitting conditions under VASRD Diagnostic Code 5003.  Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from 5000 to a possible 9999.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built up."  The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions.

14.  US Army Physical Disability Agency Policy/Guidance Memorandum Number 13, dated 28 February 2005, provides guidance for rating unfitting conditions that are manifested with pain with and without supportable medical findings for rating an underlying condition.  It stipulates, in relevant part, that pain is rated by intensity and frequency of pain.  Intensity (severity) of pain is rated as minimal, slight, moderate or marked.  Frequency of pain is rated as intermittent, occasional, frequent or constant.  When there is evidence of an underlying medical condition that is manifested by more than just pain, the underlying impairment should be rated.  Examples are fibromyalgia, osteoarthritis, bursitis, ligament tear, muscle tear, or previous muscle or bone injury.  A Soldier's total rating may exceed 20 percent and may include a separate rating for pain up to the maximum of 20 percent under 5099-5003.  When pain is rated as minimally intense, and frequency occurs intermittently, occasionally, frequently, or even constantly, a Soldier will be rated as 0 percent disabled.  A 10 percent rating is allowed when intensity of pain increases to slight, moderate, or marked, and the frequency is frequent, constant, intermittent, or occasional.  

15.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage 
ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

16.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  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 DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

17.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's basic medical issue was pain.  She was diagnosed as having bilateral stress fractures of the femur and tibia, stress change of her knees and sacroiliitis.  She was given a combined disability rating of 20 percent.

2.  The VASRD does not have a rating schedule for stress fractures, thus the Army employed a rating by analogy approach.  The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of her discharge.  Her discharge with severance pay was in compliance with law and regulations.
3.  The fact that the DVA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency; it does not, in itself, invalidate the rating assigned by the Army's PDES.  

4.  An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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)                                         AR20080006853



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ABCMR Record of Proceedings (cont)                                         AR20080006853



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