IN THE CASE OF:	  

		BOARD DATE:	        30 OCTOBER 2008

		DOCKET NUMBER:  AR20080009048 


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, reinstatement in the Regular Army to undergo a Medical Evaluation Board (MEB). 

2.  The applicant states, in effect, that the results of his magnetic resonance imaging (MRI) on his torn ACL (anterior cruciate ligament) were never disclosed to him prior to his discharge.  While in Iraq in 2003, he twisted his left knee.  When he returned to the U.S., he underwent an MRI and he was never advised of the results, therefore, he assumed his knee was fine.  He went to the Department of Veterans Affairs (DVA) and was rated 10 percent disabled for his left knee.  Four years later his knee condition worsened and while at the DVA for treatment, he was informed that the MRI prior to his discharge showed a torn ACL.  He should have been compensated by the Army.  He would like his records reexamined and he would like a MEB due to the extraordinary circumstances of his case.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of his discharge orders; a copy of DVA MRI report; and excerpts from his service medical records (SMRs).

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 served in the Regular Army from 15 July 1992 through
21 February 2004.  He was trained in, awarded, and served in military occupational specialty (MOS) 62B (Construction Equipment Repairman).  He attained the grade of sergeant/E-5.  He was discharged under the provisions of Army Regulation 635-200, chapter 4, upon completion of his required active service.  He received half involuntary separation pay in the amount of $16,260.92.

3.  The applicant served in Iraq from 8 March – 10 November 2003.

4.  The medical evidence available shows the applicant had a long history of a left knee condition to include 4 surgeries for ACL tears and meniscal tear.  He had ACL reconstructive surgery when he was 19 years old prior to entry onto active duty.  He did well for 5 years, was participating in all normal activities without difficulty, and while in Korea, had a recurrent twisting injury resulting in a traumatic rupture of his ACL graft.  He had an arthroscopy done confirming the rupture of his old graft and had his tibial screw removed.  In August 1998, he underwent revision ACL reconstruction, hamstrings, appeared to recover without difficulty, and underwent physical therapy throughout the Spring of 1999.  In 2000 (date unknown) he underwent an arthroscopy; however, the results were not in the official record, but he apparently attended and completed the Primary Leadership Development Course in March 2000.  

5.  A 6 June 2001 medical treatment note showed the applicant complained of left knee swelling.  X-rays showed degenerative joint disease.  

6.  There is no medical evidence in the record showing the applicant injured his left knee in Iraq or that he received treatment for his left knee.  There is no medical evidence showing additional treatment for his left knee condition after
6 June 2001 until he underwent an MRI on 12 December 2003.  The MRI appears incomplete and does not provide the radiologist's impressions, diagnosis, and/or conclusions.  However, it does note that the posterior cruciate ligament was normal in appearance without evidence or disruption or edema.  There was complete disruption, with lack of visualized bridging ligamentous fibers in the region of the ACL graft, no evidence of tibiofemoral subluxation.  The posterior horn of the medial miscues demonstrated marked irregularity and diminished size with a thick moderate signal band traversing the expected location of the posterior medial meniscus horn with superficial extension.  

7.  The applicant had a left knee x-ray at the DVA on 3 August 2004 which showed his post ACL reconstructive surgery.  The absence of ACO graft was consistent with complete tear or deficiency.  Severe osteoarthritic changes in the medial joint space compartment and probable tear versus post surgical change of meniscectomy involving the posterior horn of the medial meniscus was noted.  Mid degenerative changes to the lateral joint space compartment and moderate changes in the patellofemoral joint space compartment were also noted.

8.  The applicant had a left knee x-ray at the DVA on 20 January 2004 which showed postoperative changes with internal fixation devices in place.  The radiologist noted that he did not recognize the circular metallic density anterior to the proximal tibia.  

9.  On 11 April 2008, the applicant underwent an MRI.  The radiologist indicated that the ACL graft was not clearly identified on the MRI.  No discreet fibers of graft were identified within the tibial tunnel or in the intercondylar region. The posterior cruciate ligament, although slightly redundant, was intact.  There were marked osteoarthritic changes involving the medial compartment most extensively with large perioarticular osteophytes involving the medial femoral condyle and tibial plateau.  The posterior horn of the medial meniscus was extremely small and irregular in shape consistent with a tear or possible previous meniscectomy.  There was also marked focal loss of cartilage involving the femoral and tibial components of the medial joint space.  The lateral meniscus appeared intact with no evidence of tear.

10.  In processing this case, an advisory opinion was obtained from The Office of the Surgeon General, Falls Church, Virginia, who opined that the applicant should have the opportunity to meet the MEB and Physical Evaluation Board (PEB) process.

11.  On 27 August 2008, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  To date, the applicant has not responded.

12.  Army Regulation 635-40 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 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 Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

13.  The objectives of the Army PDES are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-
connected disability, and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501 as evidenced in a MEB; receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the PEB.  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active Federal service.  For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active Federal service; and (2) Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, that is what might happen in the future.  If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEBLO for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the US Army Physical Disability Agency (USAPDA) to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

14.  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.

15.  Paragraph 3-2b(2) of Army Regulation 635-40 further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

16.  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.

17.  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.

18.  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 served in the Regular Army from 15 July 1992 through
21 February 2004.  He was discharged under the provisions of Army Regulation 635-200, chapter 4, upon completion of required active service.  He received half involuntary separation pay in the amount of $16,260.92, which indicates that for reasons not explained in his official record, he was unable to reenlist.  He now contends that his MRI results from December 2003 were never disclosed to him and he should have been processed for discharge under the Army PDES.

2.  The applicant had a long medical history of a left knee condition beginning prior to his enlistment in the Army.  He had his first surgery prior to his enlistment, he underwent surgery again in 1998, physical therapy in the Spring of 1999, and except for a medical treatment note in June 2001 which reported swelling in his knee, there are no other treatment records prior to his discharge in February 2004 other than an incomplete MRI report.  Given his lengthy medical history of a left knee condition, it seems unreasonable that after undergoing an MRI, the applicant failed to follow-up on the results.  Further, if the applicant had been experiencing any debilitating symptoms associated with his knee which affected his ability to perform the duties and functions of his job, he would have provided sufficient medical evidence to rebut the presumption of fitness at the time of his discharge.

3.  There is no medical evidence to show the applicant was referred to the physical disability system or found unfit for duty.  There is no evidence that the applicant's commander referred him to the PDES or reported that he could not perform the functions of his grade and rank.  There is a presumption of fitness.  When a Soldier continues to perform military duties up to his discharge, that Soldier is presumed to have been physically fit.  The presumption is rebuttable by evidence that shows:  An acute, grave illness or injury occurred which prevented the Soldier from performing further duty; a serious deterioration of a previously diagnosed condition, to include a chronic condition, which would preclude further service (if the Soldier were not separating/retiring); and/or a chronic condition for which the Soldier was referred, and a preponderance of evidence establishes that the Soldier was not performing duties befitting his or her experience, grade, rank, or rating.  The applicant has not provided evidence sufficient to overcome the presumption of fitness.

4.  The applicant contends that the DVA rated his left knee condition as 
10 percent disabling; however, he did not provide a copy of his DVA rating decision.  The fact that the DVA, in its discretion, has awarded service connection for the applicant’s left knee condition is a prerogative exercised within the policies of that agency.  It does not, in itself, establish that he was physically unfit due to his left knee condition at the time of his discharge.  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; i.e., service-connected. Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 

5.  The January 2004 radiology report from the DVA only noted postoperative changes of the left knee and made no comments about an ACL tear.  An August 2004 radiology report noted a probable ACL tear seven (7) months after his discharge.  The December 2003 MRI noted some irregularities, but the report is incomplete and there is no evidence that the irregularities resulted in the applicant being identified by the command or his physicians as being unfit for duty.

6.  Notwithstanding the advisory opinion indicating the applicant should have the opportunity to meet the MEB/PEB process, there is insufficient medical evidence to support the conclusion that the applicant's condition warranted referral to an MEB.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  As stipulated in regulatory guidance, 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.  In the applicant's case, there is no evidence that his left knee condition prevented him from performing any of his duties prior to his discharge.

7.  Given the above, there is no evidence to support the applicant's request.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any 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.




      _______ _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)                                         AR20080009048



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ABCMR Record of Proceedings (cont)                                         AR20080009048



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