IN THE CASE OF:	  

		BOARD DATE:	    5 August 2010

		DOCKET NUMBER:  AR20090020135 


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, an increase of his disability rating to
30 percent (%) or more (i.e., a medical retirement).

2.  The applicant states:

* he was medically boarded for his bilateral shoulders and residual damages
* he was then medically discharged with a 10% disability rating percentage
* the board looked at his bilateral knee condition and his back but only addressed his shoulders
* the board should have looked at everything associated with his injury
* the Department of Veterans Affairs (DVA) immediately rated his disabilities (associated with his injury) at 50%
* had the board correctly rated his injuries he would have been offered a medical retirement
* the Department of Defense utilizes the very same 38 CFR [Code of Federal Regulations], Book C, to determine the ratings for disabilities as the DVA uses
* he did not submit anything other than his bilateral carpal tunnel syndrome to the DVA upon his discharge


3.  The applicant provides a copy of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 March 2002
* his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) results
* his DVA Rating Decision, dated 1 May 2002 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 23 June 1994.  He trained as a signal support systems specialist.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 September 2001, shows the applicant injured his left shoulder on
26 September 1999.  He was playing football with his unit when he fell and landed on his shoulder.

4.  On 29 August 2001, the applicant underwent a physical examination for the purpose of an MEB.  The Standard Form (SF) 88 (Medical Record - Report of Medical Examination) found the applicant's upper extremity (shoulder) to be the only condition that did not meet medical retention standards.

5.  The applicant provided a DD Form 2697 (Report of Medical Assessment), dated 29 August 2001.  Item 11 (Since your last medical assessment/physical examination, have you had any illnesses or injuries that caused you to miss duty for longer than 3 days?) of this form shows the applicant listed a right and left shoulder operation, a right wrist operation, and a lower back injury from a car accident.

6.  On 19 October 2001, an MEB diagnosed the applicant with chronic pain, left shoulder (approximate date of origin - September 1999); generalized ligamentous laxity (approximate date of origin - lifelong); and status post-bilateral shoulder capsular shifts for multi-directional instability (approximate date of origin - 1996 and 2000).  The MEB recommended referral to a PEB.  On 30 October 2001, the applicant agreed with the findings and recommendations.

7.  On 23 November 2001, an informal PEB found the applicant physically unfit due to chronic left shoulder pain with a history of football trauma (line of duty) and arthoscopic surgery, VA Schedule for Rating Disabilities (VASRD) Codes 5099/5003.  The Soldier has lifelong generalized ligamentous laxity and is intermittently using pain medications.  Physical examination notes 1+ anterior and 1+ inferior subluxation of the right arm and 2+ inferior and 1+ anterior on the left.  There are full active and passive ranges of motion.  The PEB recommended a combined rating of 10% and that the applicant be separated with severance pay.  On 3 December 2001, the applicant concurred with the PEB’s findings and waived a formal hearing.

8.  On an unknown date, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB’s findings and recommendations.

9.  On 20 March 2002, the applicant was honorably discharged by reason of physical disability with severance pay (10%) with entitlement to $28,032.00.  He had completed a total of 7 years, 8 months, and 28 days of creditable active service. 

10.  In support of his claim, the applicant provided a DVA Rating Decision, dated 
1 May 2002, which shows service connection was granted for:

* residuals of left shoulder surgery (10%)
* residuals of right shoulder surgery (10%)
* retropatellar pain syndrome with laxity of the right knee (10%)
* retropatellar pain syndrome with laxity of the left knee (10%)
* residuals of a carpal tunnel release of the right wrist (0%)
* carpal tunnel syndrome of the left wrist (10%)
* collagen disease of the temporomandibular joint (0%)

11.  In the processing of this case, on 29 April 2010, an advisory opinion was obtained from the USAPDA.  The advisory official states the applicant requests correction of his military records by increasing his military disability rating to reflect ratings subsequently provided by the DVA.  The opinion points out:

	a.  On 19 October 2001, an MEB was completed with a diagnoses of chronic pain of the left shoulder and generalized ligamentous laxity.  The MEB also noted two procedures accomplished to his shoulders in 1996 and 2000 but these were not diagnoses or conditions that did not meet medical retention standards.  The applicant's chief complaint was "chronic left shoulder pain and popping."  The physical examination revealed full active and passive range of motion but movement beyond 90 degrees abduction produced pain and sensation of instability.  Although the applicant did complain of some back pain and ankle/foot pain, the Report of Medical Examination, dated 29 August 2001, found the applicant's upper extremity (shoulder) to be the only condition that did not meet medical retention standards.  The applicant noted on his DD Form 2697 that his shoulder and back conditions were the only ones which resulted in any loss of duty time.  It appears that the back condition essentially resolved as it was not a limiting condition on his physical profile, was not a condition complained about to the MEB physician, and was not one for which a line of duty was accomplished.  On 30 October 2001, the applicant concurred with the MEB's findings. 

	b.  On 23 November 2001, an informal PEB found the applicant unfit for his painful left shoulder and correctly rated him at 10 percent for painful motion.  The applicant did not meet any of the criteria for a higher rating for his shoulder condition found in the VASRD codes for rating shoulders.  On 3 December 2001, the applicant concurred with the PEB's findings of separation with severance pay and waived his right to a formal hearing.

	c.  The PEB's findings only reflect these conditions that caused the applicant to be unable to perform his assigned military duties.  Only conditions that are found to be unfitting are authorized military disability compensation.  Subsequent DVA ratings for different conditions are not evidence of error for either agency.

12.  The USAPDA advisory official states the applicant has not provided any evidence of PEB error.  The PEB's findings were supported by a preponderance of the evidence, reflected the approved MEB findings, were not arbitrary or capricious, and were not in violation of any statue, directive, or regulation.  He recommended no change to the applicant's records.

13.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 30 May 2010, the applicant responded.  In summary, he stated:

	a.  In paragraph 2 of the advisory opinion, USAPDA stated he complained of left shoulder pain and popping, back pain, and ankle/foot pain, when in fact, on the DD Form 2697, dated 4 September 2001, the physician assistant annotated 


MEB for chronic left shoulder instability, left shoulder pain, and bilateral ankle pain.  That same physician assistant failed to address the bilateral ankle pain on the SF 88 that he had previously annotated on the report of medical assessment.  Per Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-10d(1), "Currently deformities, disease, or chronic joint pain of pelvic region, thigh (719.45), lower leg (719.46), ankle and/or foot (719.47) that have interfered with function to such a degree as to prevent the individual from following a physically active vocation in civilian life, or that would interfere with walking, running, weight bearing, or the satisfactory completion of training or military duty, are disqualifying."  Enclosure 1 (Army Regulation 40-501, paragraph 2-10d(1)) finds that the chronic pain of bilateral ankles caused by generalized ligament laxity is disqualifying.  USAPDA stated that it appears the back condition had been resolved due to no physical profile, no complaint to MEB physician, and no LOD accomplished, when in fact the MEB physician was notified of the continuing back injury on DD Form 2697, dated 29 August 2001.  The physician assistant failed to address the back injury that he continued to be seen for through 9 July 2001.  He finds the physician assistant failed to follow Army Regulation 40-400 (Patient Administration), paragraph 7-5, by failing to evaluate thoroughly and report all abnormalities and their impact on fitness for duty.

	b.  In paragraph 2 of the advisory opinion, USAPDA also argued that he concurred with the MEB's findings.  To this argument, he conceded that he did initial the form agreeing with the board's findings and recommendations.  Per Department of Defense Directive 1332.18, dated 4 November 1996, paragraph
3-13, "Service members referred for physical disability evaluation shall be afforded, at appropriate stages of processing, comprehensive counseling on the significance of the actions proposed and the related rights, entitlements, and benefits."  According to Enclosure 3 (Department of Defense Directive 1332.18, paragraph 3-13) if properly counseled, he would have known that the bilateral factor indicated in the VASRD states that the rating for the left and right side will be combined and then an additional 10% of this value will be added.  In addition to this information, the lack of range of motion and pain in his shoulders should have been rated at 20%.  A rating of 30% would have afforded him the option to receive medical treatment for his family.

	c.  The MEB failed to document all current medical conditions.  The inaccurate MEB report was then forwarded to the PEB.  If the MEB had followed policy and reviewed all medical records for issues pertaining to each service member they would have also found daytime sleepiness which when tested would have found a probability of borderline narcolepsy which is also disqualifying.  He annotated trouble sleeping on his SF 93 (Medical Record - 


Report of Medical History).  The MEB also failed to properly diagnose bilateral shoulder capsular shifts for multi-direction instability.  This caused the PEB to ignore and not rate entry 3 (status post bilateral shoulder capsular shifts for multi-directional instability) on DA Form 3947.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

16.  Army Regulation 635-40 states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

17.  Army Regulation 635-40 also states often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain under VASRD 5003 (arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis). 

18.  Army Regulation 635-40 further states when a partial disability results from injury or disease of both arms, or both legs, or of paired skeletal muscles, or pelvic or shoulder girdle injuries resulting in extremity impairment, the ratings for the disabilities of the right and left sides will be combined as usual, and 10% of this value (called the Bilateral Factor) will be added (that is, not combined) before proceeding with further combinations, or converting to degree of disability.  The Bilateral Factor will be applied to such bilateral disabilities before other combinations are carried out, and the rating for such disabilities, including the Bilateral Factor as above, will be treated as one disability for the purpose of arranging in order of severity and for all further combinations.

19.  Paragraph E2.1.7 (Compensable Disability) of Department of Defense Instruction 1332.38 (Physical Disability Evaluation) states only conditions that are found to be unfitting are authorized military disability compensation.


20.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention the board looked at his bilateral knee condition and his back but only addressed his shoulders was noted.  However, although the applicant did complain of some back pain and ankle/foot pain, the SF 88, dated 29 August 2001, found the applicant's upper extremity (left shoulder) to be the only condition that did not meet medical retention standards.  There is no evidence to show these conditions (bilateral knee condition and back) rendered him unfit.  Evidence of record shows the MEB only found his shoulder condition to be present and unfitting and he agreed with the findings of the MEB.

2.  The applicant's contention pertaining to the Bilateral Factor rating was noted.  However, the Bilateral Factor rating is not applicable in his case as he only had one unfitting joint.

3.  Although the applicant contends his shoulders should have been rated at 20%, there is no evidence of record which shows his shoulder condition (with full active and passive ranges of motion) met the criteria for a higher rating.

4.  The applicant's contention the MEB failed to document all current medical conditions was noted.  However, the PEB can only rate the applicant’s condition as reflected at the time.

5.  Although the applicant contends narcolepsy is one of his medical conditions, this condition was not noted by the MEB or the PEB and he agreed with the findings of both boards.


6.  The applicant's contention the MEB failed to properly diagnose bilateral shoulder capsular shifts for multi-directional instability was noted.  However, the MEB found this condition medically unacceptable.  The PEB found this condition not ratable and he concurred with these findings.

7.  Evidence of record shows the PEB found the applicant physically unfit due to chronic left shoulder pain with a history of football trauma and arthroscopic surgery.  No other conditions were found disqualifying.  The applicant concurred with the PEB's findings on 3 December 2001.

8.  The applicant's contention the DVA immediately rated his disabilities at 50% was noted.  However, the DVA only rated him at 10% for his left shoulder.

9.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 

10.  There is insufficient evidence to show the applicant’s disability was improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

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)                                         AR20090020135



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ABCMR Record of Proceedings (cont)                                         AR20090020135



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