IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090008169 


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 correction of his physical evaluation board (PEB) rating decision.

2.  The applicant states that he was brought back from Iraq for a medical condition and was subsequently medically discharged.  However, this was done before all medical issues were determined.  New medical information is now available regarding the severity of his condition.  He would like an upgrade in his status regarding additional disabilities. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 January 2008; a copy of the Department of Veterans Affairs (DVA) rating decision, dated 15 September 2008; and copies of his DVA medical records, dated subsequent to his discharge, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army for a period of 4 years on 13 January 2005.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained during his military service was specialist/E-4.

2.  The applicant's records also show he served in Iraq from 7 September 2006 to 29 June 2007.  He was assigned to the 263rd Maintenance Company, Fort Hood, TX.

3.  The applicant's medical evaluation board (MEBD) narrative summary, dated 17 August 2007, shows that he sustained a twisting injury to his right knee in February 2005 while running at Fort Jackson, SC.  Subsequent to his arrival at Fort Hood, TX, in September 2005 he underwent a right knee arthroscopic hamstring reconstruction with medial and lateral meniscal tear debridement.  He was also noted to have significant degenerative changes throughout the knee.  He was issued a physical profile for his known degenerative changes prior to deployment.  However, during deployment to Iraq, he experienced increasing knee pain and was medically evacuated for further treatment.  He underwent a thorough medical examination that diagnosed him with tricompartmental right knee degenerative joint disease (DJD) and gastroesophageal reflux disease (GRD).  The attending physician noted that the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his referral to the Physical Disability Evaluation System (PDES).

4.  On 21 September 2007, an MEBD convened at Fort Hood, TX, and after consideration of the clinical records, laboratory findings, and physical examination, the MEBD found the applicant had the medically unacceptable condition of tricompartmental right knee DJD and the medically acceptable conditions of tendonitis, right rotator cuff and GRD.  The MEBD recommended the applicant’s referral to a physical evaluation board (PEB).  The applicant indicated that he did not desire to continue on active duty and agreed with the MEBD’s findings and recommendations on 2 October 2007.

5.  The applicant further acknowledged that he reviewed the MEBD proceedings, the narrative summary, and his physical profile, and that he understood that for a condition to be considered by the PEB, it should be listed in or on all three documents, that the PEB may determine that some or all of the conditions listed in his MEBD are not unfitting, and that the MEBD accurately covered all his medical conditions.

6.  On 4 October 2007, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's conditions prevented him from performing his duties and determined that he was physically unfit due to chronic right knee pain post arthroscopic hamstring reconstruction with medial and lateral meniscal tear debridement.  The applicant was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5099 and 5003 (chronic right knee pain) and was granted a 10-percent disability rating.  The PEB also considered his medical conditions of tendonitis of the right rotator cuff and GRD; however, those conditions met medical retention standards and did not pose significant physical profile restrictions.  The PEB recommended the applicant be separated from the service with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing of his case on 15 October 2007.

7.  The applicant was honorably discharged on 20 January 2008.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability-severance pay.  This form also shows he completed 3 years and 8 days of active service during this period of enlistment.

8.  The applicant submitted a copy of the DVA rating decision, dated 15 September 2008, that shows he was awarded service-connected compensation for DJD, scar to the right knee, and hypertension.  He also submitted selected copies of his DVA medical records, dated 12 August 2008, that show he was diagnosed with a cyst to his right hand and right shoulder and knee pain.

9.  An advisory opinion was obtained on 9 September 2009 in the processing of this case.  An official at the U.S. Army Physical Disability Agency recommended no change to the applicant's records as stated:

	a.  The applicant's MEBD was conducted on 21 September 2007.  He was diagnosed with the medical conditions of tricompartmental right knee DJD, right rotator cuff tendonitis, and GRD.  Only the right knee condition was determined not to meet medical retention standards.  The applicant complained of near constant right knee pain.  His physical examination revealed full range of motion, full stability, full strength, full neurologic function, no effusion, with some tenderness to palpation.  Radiographs revealed some evidence of degenerative changes.  He took no pain medications.  His physical profile and commander's statement listed only his right knee as adversely affecting his military duties.  The applicant concurred with the MEBD.

	b.  The applicant's PEB was conducted on 4 October 2007.  He was found unfit for his right knee pain and was rated at 10 percent.  If he had been rated solely in accordance with VASRD 5003, degenerative arthritis, he would not have met the criteria for a 20-percent rating as he had a range of motion limitations and only one joint with X-ray evidence.  He might have been eligible for a 
10-percent rating if he was rated solely under code 5003 if VASRD 4.59 was applied in his condition.  In no case would the applicant be rated higher than 10 percent for his knee condition as it existed in 2007.  The applicant's other conditions that met medical retention standards, were found to be fitting for duty. 
Only unfitting conditions are compensable.  He concurred with the PEB's findings and waived his right to a formal hearing of his case.

	c.  The applicant has provided no new evidence that indicates his PEB rating was incorrect.  A subsequent DVA rating is not evidence of a PEB error.  The PEB's findings were supported by the preponderance of evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.

10.  The applicant was provided with a copy of this advisory opinion on 9 September 2009; however, he failed to respond.

11.  Army Regulation 635-40 establishes the Army 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 or her office, grade, rank, or rating.  It provides for MEBDs, 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.  If the MEBD determines the Soldier does not meet retention standards, the board recommends referral of the Soldier to a PEB.

12.  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 his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

14.  Title 38, U.S. 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his disability status should be upgraded because he claims he was discharged before all medical issues were determined and new medical information is now available.

2.  PEBs 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 recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The evidence of record shows that the applicant suffered from medical conditions that rendered him unable to satisfactorily perform the duties of his grade and specialty.  His immediate commander and medical personnel recommended his referral to an MEBD due to chronic knee pain.  Consequently, his records were evaluated by an MEBD that referred him to a PEB.  The PEB found him medically unfit and rated his disabling condition at 10 percent and recommended his separation by reason of physical disability with entitlement to severance pay.

4.  The applicant now believes he should receive an upgrade of his disability status because the DVA granted him a different percentage.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  The applicant was properly rated at 10 percent for his chronic knee pain.

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief.

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)                                         AR20090008169



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ABCMR Record of Proceedings (cont)                                         AR20090008169



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