IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005454 


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 her medical discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) be revoked and that she be reinstated on active duty in order to continue her medical treatment.  

2.  The applicant states she was unwillingly discharged due to a severe disability. She states she was given zero percent disability rating and she was unable to complete her medical treatment.

3.  The applicant provides the following documents in support of her application:

   a.  DD Form 214 (Certificate of Release or Discharge from Active Duty);
Standard Form 504/505/506-E (Medical Record Report - History and 
Physical);

	b.  Standard Forms 504/505/506-C (Medical Record Report - History and 
Physical);

	c.  Standard Form 516-E (Medical Record Report - Operation Report);
Implant Information;

	d.  Standard Form 502-E (Medical Record Report - Narrative Summary);


   e.  Standard Form 502-C (Medical Record Report - Medical Evaluation 
Board);

   f.  Standard Form 513 (Consultation Sheet);

   g.  MEDCOM Form 688-R (Medical Record - Provider Orders);

   h.  DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings); and 

   i.  Two DA Forms 199 (Physical Evaluation Board (PEB) Proceedings).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 29 June 2006 at age 39.  She was assigned to Fort Leonard Wood, MO for basic training.  

2.  On 21 June 2007, the applicant was referred to an MEBD and she was diagnosed as having chronic left knee pain secondary to tibial plateau [upper surface of the tibia or shin bone] fracture.  The applicant elected to continue on active duty under Army Regulation 635-40 and she disagreed with board's findings and recommendation.  Her appeal is not available.  The MEBD recommended referral to a PEB.

3.  On 8 August 2007, an informal PEB found the applicant unfit for military service due to left knee pain, evaluated analogous to arthritis due to trauma, under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5099 and 5010 at a combined disability rating of zero percent.  The PEB proceedings indicated the applicant fell on the obstacle course in February 2007.  The examination showed a cane-assisted gait with full knee motion and good stability.  The applicant did not concur with the findings and recommendations of the board and demanded a formal hearing with a personal appearance.  Her appeal is not available.  

4.  On 7 September 2007, a formal PEB found the applicant unfit for military service due to arthritis as a result of trauma (substantiated by X-ray findings) under VASRD code 5010 at a combined disability rating of zero percent.  The PEB recommended that the applicant be separated with severance pay.  The applicant did not concur with the findings and recommendations of the board and submitted an appeal.  She argued that she did not have arthritis and she listed 14 additional medical conditions.  She stated that she would like to get better and remain in the military.  

5.  On 9 November 2007, the applicant was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.  At the time of her discharge, she had completed 1 year, 4 months, and 11 days of active military service.

6.  In the processing of this case, on 7 July 2009, a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C.  The advisory official recommended no change to the applicant's military records.  The advisory official gave a brief history of the applicant's medical condition regarding her tibial plateau fracture and information from the MEBD, informal PEB, and formal PEB proceedings.  The advisory official also indicated that the applicant's physical examination found that all of the conditions that may have been caused by the fall had been resolved.  

7.  On 16 July 2009, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a possible rebuttal.  In her 7 August 2009 rebuttal, she stated she was waiting for additional surgery to improve her mobility and stability while walking.  Her examination at the Department of Veterans Affairs (VA) found she had traumatic arthritis in both knees, not just one knee.  The applicant indicated she did not concur with the PEB findings and the PEB did not try to complete additional proper examination of all of her sustained injuries and conditions.  She alleged that she has continued to suffer from injuries incurred while on active duty and needs medical attention and treatment.  She listed several other medical conditions.  She stated she has been unemployable and has lost income because of necessary treatment required for her major injuries.  

8.  Army Regulation 635-40 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

9.  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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

10.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of the regulation 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.  The regulation also states that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

11.  Paragraph 3-6 of Army Regulation 635-40 states that providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army (DA) mission.  The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.  

12.  Army Regulation 635-40 also states, in pertinent part, that occasionally a medical condition which causes or contributes to unfitness for military service is of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD.  Apply a 0 percent rating even though the lowest rating listed is 10 percent or more, except when "minimum ratings" are specified or unless the minimum rating is for a "by analogy rating."  In all instances where a zero rating is applied to a principle cause of disability, include a rationale explaining the exact reasons for unfitness.

13.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was unwillingly discharged due to a severe disability.  However, there is no evidence to show the applicant's disability was improperly rated by the PEB or failed to properly consider any other conditions or that her separation with severance pay was not in compliance with law and regulation. 

2.  The applicant was evaluated by an MEBD on 21 June 2007.  At that time, she was diagnosed as having chronic left knee pain secondary to a tibial plateau fracture.  There were no other medical conditions listed.  

3.  An 8 August 2007 informal PEB found the applicant unfit for military service for left knee pain (evaluated analogous to arthritis due to trauma).  

4.  On 7 September 2007, a formal PEB reaffirmed the informal PEB findings and found the applicant unfit for military service for arthritis (due to trauma) at a zero percent combined disability rating.  As a result, the applicant was discharged from active duty under the provisions of Army Regulation 635-40, paragraph 
4-24b(3) due to disability with entitlement to severance pay.

5.  Although the applicant contends that she was given a zero percent disability rating and she was unable to complete her medical treatment, there is no evidence which shows that her disability processing was in error or unjust or that her condition was improperly evaluated by the PEB.  Therefore, the applicant's discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time, and retention of the applicant on active duty in order for her to receive medical treatment would not have been warranted.  

6.  The applicant states that the VA found she had traumatic arthritis in both knees, not just one knee.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army and does not institute a requirement to change the Army's ratings.  

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)                                         AR20090005454



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ABCMR Record of Proceedings (cont)                                         AR20090005454



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