IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080010222 


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, medical retirement. 

2.  The applicant did not provide a written statement, or cite an error that he wanted corrected; he simply stated "Medically Retired (documents enclosed)."  The documents include a copy of his Medical Evaluation Board (MEB) Narrative Summary (NARSUM), MEB NARSUM Addendum, and a magnetic resonance imaging (MRI) on both knees, dated 5 September 2006.  

3.  The applicant provides a copy of his MEB NARSUM and Addendum and a copy of an MRI on both knees, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 17 April 2001 through
26 October 2007.  He was honorably discharged under the provisions of Army Regulation 635-40, chapter 4-24b(3), by reason of disability, severance pay.  He received $50,965.20 in severance pay.  He was credited with 10 years,
4 months, and 29 days of total military service.

2.  The only medical records available for review are the MEB NARSUM and MEB Addendum submitted by the applicant.  The MEB findings are described in the summarized findings of the MEB provided in an advisory opinion from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C.


3.  In the processing this case an advisory opinion was obtained from the USAPDA.  The applicant underwent an MEB on 18 July 2007.  The MEB contained 3 diagnoses:  Osteochrondritis dissicans, left knee; chondromalacia, right patella; and obstructive sleep apnea.  The MEB listed the applicant's knee pain as his chief complaint.  His right knee was tender to palpation over the patella, with mild tenderness over pes anserinos bursa and medial/lateral collateral ligaments.  His left knee had some tenderness to palpation over the proximal head of the tibia.  Both knees were negative for McMurray or any Lachman's.  There was no atrophy or never deficits noted.  Both knees had some range of motion (ROM) limitations due to pain.  The applicant also complained of excessive daytime sleepiness and was placed on a constant positive airway pressure (CPAP) machine.  The use of his CPAP did not limit him in his duties as a truck driver.  His physical profile listed bilateral knee pain and sleep apnea as limiting conditions.  The applicant's commander's memorandum noted that he worked a full duty day, but that his physical limitations precluded him from performing all duties assigned to a noncommissioned 88M.  MRI findings for both knees showed what could be considered evidence of arthritis in both knees.  On 27 July 2007, the applicant concurred with the MEB findings.

4.  The advisory opinion notes that on 1 August 2007, an informal Physical Evaluation Board (PEB) found the applicant unfit for his bilateral knee pain and rated both at zero percent in accordance with the Veterans Administration (VA) Schedule for Rating Disabilities (VASRD) code 5099-5033.  The ROM limitations were not considered separately ratable as the limitations were due to pain only and there was no evidence objective mechanical basis for said ROM limitations.  The PEB found the applicant's condition of sleep apnea not unfitting as there was no evidence that the condition significantly interfered with the applicant's duty to perform.  On 15 August 2007 the applicant concurred with the PEB findings and waived his right an informal hearing.  The PEB properly found no ratable ROM limitations.  However, it could have been possible to rate the applicant's knees for x-ray evidence of involvement of 2 or more major joints, without evidence of ROM, at a total of 10 percent.  Even if rated for loss at some ROM of each knee, it would have been limited to 10 percent for each knee based on limits to extension for a total of 20 percent.  There was no ratable limit regarding the flexion of his knees.  Whether the final findings were 0, 10 or 20 percent the final disposition and benefits provided to the applicant would have remained the same under Title 10, U.S. Code, section 1212.  Although the applicant's bilateral knee pain could have been rated at 10 percent there is no error as to the disposition and final benefits provided to the applicant.  Accordingly, he cannot be medically retired as he could not be rated for unfitting conditions at 30 percent or more.  USAPDA recommended separation with severance pay.


5.  On 16 July 2008, the applicant was provided with a copy of the advisory opinion for comment and/or rebuttal.  To date, he has not responded.

6.  The applicant's unfitting knee conditions were rated under VASRD Diagnostic Code 5099-5003.  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.

7.  USAPDA 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.  

8.  Department of Defense Instruction (DoDI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) implements policy, assigns responsibilities, and prescribes procedures for rating disabilities of Soldiers determined to be physically unfit and who are eligible for disability separation or retirement.  Paragraph E2.A1.1.3,1 stipulates, in pertinent part, that arthritis, rated by analogy to degenerative arthritis, will be rated as 10 percent disabling for each major joint (or grouping of minor joints) with objective limitation of motion plus radiographic evidence.  Radiographic evidence of 2 or more major joints or groups of minor joints, when accompanied by occasional exacerbations of incapacitating symptoms, is given a total rating of 20 percent.  Radiographic evidence alone without symptoms is rated at 10 percent.  Limitation of motion not of a sufficient degree to rate under the 5200 series (rating involving joint motion), 
will de rated under VASRD code 5003.  This regulation also stipulates that VASRD Code 5003, arthritis, degenerative, hypertrophic, and pain conditions rated by analogy to generative arthritis.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 MEB 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.  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.  These 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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  Neither the applicant's service medical records nor his PEB proceedings were available for review.  The MEB NARSUM and advisory opinion provided the bulk of medical information for processing this case.  

2.  The applicant did not cite any error to his record or explain why he believes he is entitled to medical retirement.  He did not provide any additional medical evidence in support of his request other than the medical evidence reviewed during his MEB and PEB.  He concurred with both the MEB and PEB and did not request a formal hearing of his case, and he has not indicated what errors he believe exists in his disability ratings. 

3.  The advisory opinion provided an explanation of how the applicant was rated. In the absence of any evidence to the contrary, administrative regularity is presumed in the applicant's case.

4.  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

__XXX __  __XXX__  __XXX__   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)                                         AR20080010222



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ABCMR Record of Proceedings (cont)                                         AR20080010222



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