IN THE CASE OF:	  

		BOARD DATE:	       12 MAY 2009

		DOCKET NUMBER:  AR20080019996 


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, a higher Army disability rating than the
10 percent rating he received.

2.  The applicant states that several disabilities occurred and were diagnosed during his active service and should be reflected on his Physical Evaluation Board (PEB) proceedings such as:  Right knee tibial osteotomy, lumbar spine
L4-L5 S1 degenerative disk disease; bilateral eye condition corneal defect;  keratoconus bone contusion femoreal; bilateral hip condition; post right arm thrombophlebitis; eczema skin condition for onchomycosis; systemic lupus erythematosis; left and right knee surgery; left tibia osteomy; sleep apnea; mild cardiomegaly, pes planus bilateral, and migraines.  

3.  The applicant provides copies of medical documents and a statement from his doctor in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army and entered active duty on 29 June 2000.  He served for 7 years, 5 months, and 27 days and was honorably discharged on 25 December 2007 by reason of disability with severance pay. 

2.  On 14 June 2006, the applicant underwent a left knee arthroscopic medial plica excision.

3.  On 17 July 2006, the applicant underwent a study for sleep apnea.  The study revealed that the applicant had very mild obstructive sleep apnea with most sleep recorded in the supine position.  Occasionally, periodic leg movement rarely associated with arousals from sleep was noted.  The doctor recommended the following:  the applicant avoid sleeping in the supine position, appropriate clinical setting, weight loss, avoidance of alcohol and sedating agents, oral appliance therapy and ears/nose/throat surgical management; and defer medical management of periodic limb movement disorder, pending response to treatment of obstructive sleep apnea.

4.  On 1 November 2006, the applicant underwent a right knee arthroscopic medial plica excision.

5.  On 5 June 2007, a magnetic resonance imaging (MRI) was taken of the applicant's lumbar spine.  The MRI revealed a mild early degenerative disc change at L4-L5 and L5-S1. 

6.  The applicant's MEB paperwork is not available.  He apparently underwent an informal PEB on 9 August 2007.

7.  Documentation provided by the applicant concerning his eye sight shows that he was seen at Eyesight Associates on 30 August 2007.  The doctor said that the applicant had an unusual line of pigmentation on the left cornea.  His visual acuity was 20/15 without correction on the right and 20/20 without correction on the left.  He said the cornea topography showed evidence of abnormal steeping which was possibly early keratoconus.  The doctor recommended that the applicant receive yearly follow-up visits with an ophthalmologist.  

8.  On 4 September 2007, an MRI study of the applicant's left knee was performed.  The doctor's impression was as follows:  Evidence of bone contusion in the subarticular portion of the lateral femoral condyle; small suprapatellar joint effusion;  numerous screws noted in the proximal tibia with paramagnetic artifact; and cruciate ligaments appear in intact.  

9.  The applicant's PEB was reconsidered on 14 September 2007.  His disability description was listed as bilateral knee pain following bilateral high tibial osteotomies (performed for chronic knee pain).  The PEB recommended a disability rating of 10 percent for the applicant's bilateral knee pain.  The PEB found that based on a review of the objective medical evidence of record that the applicant’s medical and physical impairment prevented reasonable performance of his duties as required by his grade and military specialty.  

10.  The PEB stated that the Medical Evaluation Board's (MEBD) diagnosis of the applicant's medical condition of sleep apnea was not separately unfitting.  The board stated that there was no evidence that sleep apnea had an adverse impact on the applicant's performance of duties.  Additionally, the PEB found that the applicant's other medical conditions of migraines, bilateral foot pain, mild early 
degenerative disc disease L4–L5 and L5–S1, and diffuse myalgias possibly secondary to an undifferentiated connective tissue disorder were not unfitting and therefore, not rated.  

11.  The PEB reviewed the doctor's notes, dated 31 August 2007; MRI's, dated 
5 June 2007 and 4 September 2007; Physician Assistant's (PA) Rheumatology Evaluation; the applicant's rebuttal; and the Fort Sam Houston PEB with all allied papers, dated 9 August 2007.  

12.  On 14 September 2007, the applicant signed the recommendations of the PEB and initialed the block indicating that he was advised of the findings and recommendations of the PEB, and received a full explanation of the results of the findings and recommendations and his legal rights pertaining to the PEB.  He  concurred with the findings and recommendations of the board and waived a formal hearing.

13.  On 18 September 2007, the doctor stated that the applicant's chief complaint was bilateral knee pain, the right knee was worse than the left knee.  He added that the physical exam of the right knee revealed that the applicant was stable to anterior and posterior drawer.  He had a stable Lachman's with a little bit of laxity on varus testing.  The exam of the left knee revealed that the applicant was stable to anterior and posterior drawer.  He had a stable Lachman's with a little bit of opening with varus stressing.

14.  In a statement from a doctor, dated 19 September 2007, he said the applicant had been a patient of his since 15 February 2007.  He added that his current diagnoses included degenerative disc disease of the lumbar spine at
L4–L5, undifferentiated connective tissue disease, keratoconus – followed by ophthalmology, history of bilateral tibial osteotomies with nonunion on the right, history of elevated CPK and myalgias, which were due to undifferentiated connective tissue disease.  He offered that although the applicant's symptoms improved somewhat with medication, he still had pain on a daily basis, particularly in the morning.  He said the applicant was unable to sit or stand for periods greater than 10 to 15 minutes; unable to lift objects greater than 10 to
15 pounds; and must avoid stooping, bending, pushing, pulling, crawling, climbing, or working under any damp conditions.  The doctor concluded that it was recommended that the applicant perform only sedentary work, but he must be able to get up every 10 to 15 minutes to move.
15.  On 4 December 2007, the applicant was evaluated by a physical therapist and a treatment plan was developed to strengthen his right and left knee and lumbar spine.

16.  On 7 December 2007, a second opinion for nerve damage was conducted.  The doctor stated that on sensory testing, the applicant was absent appreciation of pin and light touch over the lateral legs bilaterally in the upper half.  The doctor noted that the applicant had nerve conduction testing performed; however, the test only included sural sensory studies and would not be expected to show any abnormalities as the sural sensory distribution was not affected.  He said that clinical examination was compelling for a lesion of the deep peroneal sensory branch bilaterally.

17.  On 25 December 2007, the applicant's was discharged with severance pay, in the pay grade of E5, based on 7 years, 5 months, and 27 days of service.  The percentage of disability is listed as 10 percent.

18.  On 6 February 2008, the applicant was seen at the neurology clinic and a nerve conduction study was performed.  The doctor found that the distal peroneal sensory latencies were prolonged bilaterally and the peroneal sensory amplitudes were reduced bilaterally.  He said the right was greater than the left.  

19.  On 7 February 2008, the applicant underwent an eye examination.  The doctor stated that the applicant had a visual disturbance of the right eye, visual field defect of the right eye and ocular migraine.  He ordered long visual field testing of both eyes and recommended that the applicant return for a follow-up.

20.  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.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

21.  Army Regulation 635-40 states 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.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant's right knee tibial osteotomy, lumbar spine L4-L5 S1 degenerative disk disease, sleep apnea, and bilateral migraines were all considered by the PEB.  However, with the exception of the right knee, the PEB determined that his medical conditions were not unfitting, and therefore, not rated.

2.  The record further shows that there was an MEBD conducted as well as a PEB.  The applicant was given the opportunity to either appear before the board or provide additional evidence that would aid the board in making their final determination.  It appears that he submitted a rebuttal to the August 2007 PEB conducted at Fort Sam Houston, Texas, but there is no evidence that he appeared or either submitted additional documentation to the PEB that was conducted on 14 September 2007.  In addition to reviewing the applicant's medical records and his rebuttal, the PEB also reviewed notes provided by the doctor and the PA's rheumatology evaluation.  There is no indication that the PEB was not aware of the applicant's "additional medical problems" prior to making their final decision.  

3.  Additionally, the applicant received the findings and the recommendations of the PEB, concurred with the results, and waived a formal hearing of his 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 has failed to submit evidence that would satisfy that requirement.  Consequently, there is no basis for granting the applicant's request.

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)                                         AR20080019996



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ABCMR Record of Proceedings (cont)                                         AR20080019996



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