IN THE CASE OF:	

		BOARD DATE:	        25 September 2008

		DOCKET NUMBER:  AR20080011099 


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 reconsideration of an earlier request for a medical retirement.

2.  The applicant states, in effect, that his previous case was denied based on an erroneous interpretation of his contention.  He contends that he was found unfit for his cervical spine and both knees, rated by the Physical Evaluation Board (PEB) as arthritis, degenerative.  He points out that the salient point is that the VA [Department of Veterans Affairs] Schedule for Rating Disabilities (VASRD) diagnostic code 5003 in use at the time of the PEB specifies that “With X-ray evident of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, the rating is to be 20%.”  He states that despite clear medical evidence that this was the case, the PEB provided a rating for both knees of 10 percent.  He contends that this was an error and that the rating should have been 20 percent for the involvement of both knees.  

3.  The applicant provides two DA Forms 3349 (Physical Profile), dated 
9 November 1989 and 31 December 1987; two Physical Profile Board Proceedings, dated 1 July 1985 and 15 December 1986; and a medical record, dated 18 February 1986.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010123 on 11 June 2008.

2.  The applicant’s argument and submissions will be considered the Board.

3.  The applicant enlisted in the Regular Army on 27 September 1979 and trained as an administrative specialist.

4.  On 22 February 1990, an informal PEB found the applicant physically unfit due to degenerative joint disease of the cervical spine with limitation of motion and x-ray changes (VASRD code 5003) 10 percent; bilateral retropatellar pain syndrome with arthroscoptic findings of chondromalacia (VASRD code 5003) 
10 percent; and subjective low back pain (VASRD code 5295) zero percent.  The informal PEB recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  On 26 February 1990, the applicant did not concur with the findings and demanded a formal hearing.  The formal PEB proceedings are not available. 

5.  The applicant was honorably discharged on 9 May 1990 under the provisions of Army Regulation 635-40, paragraph 4-24e(3), physical disability with severance pay, in pay grade E-5.  His DD Form 214 shows he completed 10 years, 7 months, and 12 days of creditable active service.

6.  With his original application, the applicant provided MRI (magnetic resonance imaging) results, dated 30 May 2006, of his right and left knee.  

7.  The MRI of the applicant’s right knee revealed no significant narrowing of the femorotibial joint space; no focal cartilaginous erosion or osteochondral fracture was noted;  no subchondral microtrabecular edema was seen.  The patellofemoral joint revealed no chondromalacia or patellofemoral joint instability. A thickened medial synovial plica was seen.

8.  The MRI of the applicant’s left knee revealed no focal cartilaginous erosion of the femorotibial joint space; no osteochondral fracture or subchondral microtrabecular edama; and no chondromalacia of patellofemoral joint instability of the patellofemoral joint.

9.  The 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.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  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.

10.  The VASRD gives a code of 5003 (degenerative arthritis) with a 20 percent rating when there is x-ray evidence of involvement of 2 or more major joints or 
2 or more minor joint groups with occasional incapacitating exacerbations and a  10 percent rating when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.

11.  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.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

12.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention was noted.  However, there was no “clear medical evidence” that he met the criteria to be awarded a 20 percent disability rating for his bilateral knee condition (rated under VASRD code 5003).  

2.  The VASRD gives a code of 5003 with a 20 percent rating when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations and a 10 percent rating when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.

3.  It is acknowledged that his bilateral knee condition constituted involvement of 2 or more major joints.  However, the 10 percent rating is also a valid rating based on the involvement of 2 or more major joints.  The only difference between the 10 percent rating and the 20 percent rating is that the 20 percent rating requires “occasional incapacitating exacerbations.”  There is no evidence of record and the applicant provided no evidence to show that his bilateral knee condition at the time of his separation in 1990 included occasional incapacitating exacerbations.  Therefore, there is no basis for granting his request for a medical retirement.     


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  __xx____  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 to amend the decision of the ABCMR set forth in Docket Number AR20070010123, dated 11 June 2008.




      _______ xxxx_______   ___
               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)                                         AR20080011099



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ABCMR Record of Proceedings (cont)                                         AR20080011099



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