IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100010367 


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 medical separation. 

2.  The applicant states the disabilities (right and left knee injuries, right and left shoulder condition, right hip condition, hypertension and cardiovascular problems, GERD/hiatus hernia, groin problems, and kidney problems) noted in his medical records are injuries he incurred while on active duty at Fort Benning, GA, Iraq; and Kuwait.  He contends these conditions were documented on a DD Form 2807-1 (Report of Medical History), dated 2 August 2005, and on other medical records and statements; however, these conditions were overlooked by the Medical Evaluation Board (MEB).

3.  The applicant states as a result of the strenuous conditions at Fort Benning, Iraq, and Kuwait he suffered from total knee replacement (right and left knee).  He also suffered from medical conditions (right and left shoulder condition, right hip condition, hypertension and cardiovascular problems, GERD/hiatus hernia, groin problems, and kidney problems) he did not have prior to his deployment to Iraq.  He contends prior to his deployment, he could run up to 5 miles daily, he was not taking any medications, and he reinjured or aggravated his right and left knee while on active duty in Iraq.  He injured his groin and hip in Kuwait.  When he returned to Fort Benning he could not walk 1/4 mile without severe pain from his waist to his ankles.

4.  The applicant also states Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2, governs this entire 


situation.  First, the presumption is that if he was fit when he reported to duty, then unless there is a preponderance of evidence to the contrary, the presumption is that any medical condition that arises is service-connected.  Next, if the condition did exist prior to service, then it is service-aggravated if the condition worsens greater than the natural progression of the disease.

5.  The applicant provides:

* Standard Forms 600 (Chronological Record of Medical Care), dated 30 July 2003 to 4 August 2004
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 March 2004
* a DA Form 5181 (Screening Note of Acute Medical Care), dated 8 July 2004
* a DD Form 2807-1, dated 2 August 2005
* a DD Form 2808 (Report of Medical Examination), dated 10 August 2005
* a memorandum which outlines numerous attachments   

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 was born on 4 April 1950.  Having prior active service in the Regular Army and prior inactive service in the U.S. Army Reserve, the applicant enlisted in the Army National Guard on 27 June 1974.  He was ordered to active duty on 15 March 2003 in support of Operation Enduring Freedom.  He served as a military police in Iraq from 20 May 2003 to 12 July 2004.  

3.  On 29 August 2005, an MEB diagnosed the applicant with bilateral knees, total knee replacement.  The MEB proceedings state, in pertinent part:


* The applicant did experience cartilage damage in the right knee during active duty in 1972 and required surgery at the time with debridement and repair
* He did have right knee arthroscopic debridement in 1985 and then left knee arthroscopy in 1990
* Prior to deployment to Iraq the applicant noted that he twisted the right knee at Fort Benning at the barracks
* The applicant noted that while in Iraq he experienced exacerbation of the knee pains with swelling and pain aggravated with these stressors; however, he continued to function and serve and perform his duties in spite of the discomfort noted
* Once he returned to Fort Benning in July 2004 he was evaluated further and had x-rays and MRI's showing marked to severe degenerative arthritis of both knees
* He was initially treated with physical therapy and knee braces; however, this did not improve the condition
* Surgery for total knee replacement was performed on 29 December 2004 (right knee) and on 27 April 2005 (left knee)
* Prognosis is overall good with good relief of previous pain and some continued improvement in function
* The condition is complicated by his shoulder and hip pains, which are not as severe a limitation, but compounded with the knees, do create an ongoing accentuation of his physical limitations   

4.   The MEB recommended referral to a PEB.  On 7 September 2005, the applicant agreed with the findings and recommendations.  Item 30 (Continuation) of the applicant's DA Form 3947 (MEB Proceedings) states "I certify that this Medical Board accurately covers all of my medical conditions, that all health records pertaining to my case have been turned over to the proper authorities, and that I have been counseled in accordance with Appendix C-6, Army Regulation 635-40."  

5.  On 13 October 2005, a formal PEB found the applicant physically unfit due to bilateral total knee replacements.  The PEB recommended a combined rating of 0 percent (%) and that the applicant be separated from the service without disability benefits.  

6.  The PEB proceedings state, in pertinent part:

	a.  During the formal proceedings the PEB reevaluated all available medical records and sworn testimony by the applicant.  Based on this review, the board considered the applicant most appropriately rated as above.

	b.  There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.  There is no documentation to verify any injury to the left knee on active duty.  The right knee was injured on active duty in 1972, but was not unfitting.  The current state is due to progression during the break in service.  A Standard Form 88 states "limited flexion right knee with soft tissue swelling around the joint and some effusion."  Per U.S. Army Physical Disability Agency (USAPDA) policy, the preponderance of evidence established that the current state of unfitness is due to intervening injury or progression during a break in service and is not compensable.  Review of multiple periodic medical examinations in the applicant's outpatient record shows knee problems documented as early as 1984, with entries noting inability to run in May 1989 and continuing reference to knee pain.  Imaging in July 2004 showed far advanced arthritis of both knees.

7.  The applicant's letter of instructions for formal PEB proceedings is dated 
13 October 2005.  He was instructed to complete and return his DA Form 199-1 (Election to Formal Physical Evaluation Board Proceedings) by 23 October 2005.  The letter states if the PEB does not receive his signed DA Form 199-1 or request for extension within 10 days they will presume he agreed with the board's recommendation and his case will be forwarded to the USAPDA.  His completed DA Form 199-1 is not in the available records.

8.  A DA Form 18 (Revised PEB Proceedings), dated 1 November 2005, shows an administrative correction was made in the disability description of the applicant's formal DA Form 199 (PEB Proceedings), dated 13 October 2005.  There was no change to his disposition or rating.  The change states:  There is compelling evidence to support a finding that the applicant's severe osteoarthritis of the knee which progressed to the point of requiring him to have bilateral knee replacements was the result of natural progression of this condition.  The presumption of permanent service-aggravation is overcome by general medical principles which support that age is the most powerful risk factor for the development of osteoarthritis.  The applicant's current condition, bilateral knee replacement due to degenerative osteoarthritis of the knees, is due to the passage of time between 1973 and 2003 during a break in active duty service.  

9.  The USAPDA action is not available for review.

10.  On 17 November 2005, the applicant was honorably released from active duty by reason of completion of required active service.  

11.  On 15 December 2005, the applicant was honorably discharged from the Army National Guard and assigned to the Retired Reserve.  He was retired in the rank of master sergeant and placed on the Retired List effective 4 April 2010.

12.  In support of his claim, the applicant provided medical documentation (DD Form 2807-1, dated 2 August 2005, and DD Form 2808, dated 10 August 2005) which shows he underwent medical examinations for the purpose of his MEB.  These medical records list several medical problems/defects (right shoulder pain, right hip pain, right knee surgeries, left knee surgery, cardiac procedure, total knee replacements, high blood pressure, groin injury, both shoulder pain).

13.  The applicant also provided Department of Veterans Affairs (DVA) documentation which shows service-connection was granted for hypertensive cardiovascular disease with mild renal impairment associated with hypertension (10%); hypertension (0%); tinnitus (10%); and total right knee replacement (60%).  His overall or combined rating is 70%.

14.  Title 10, U.S. 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.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  

16.  Army Regulation 635-40 also states 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.

17.  Paragraph 6.1.7. (Disabilities not unfitting for military service) of Department of Defense Instruction 1332.39 (Application of the Veterans Affairs Schedule for Rating Disabilities [VASRD]) states that conditions that do not themselves render a Service member unfit for military service will not be considered for determining the compensable disability rating unless they contribute to the finding of unfitness. 

18.  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 contends his knees were injured while he was on active duty.  However, the PEB states there is no documentation to verify any injury to the left knee on active duty and that his right knee was injured on active duty in 1972 but was not unfitting.  The PEB also states there is compelling evidence to support a finding that the applicant's severe osteoarthritis of the knees which progressed to the point of requiring him to have bilateral knee replacements was the result of natural progression of this condition.  That appears to be a reasonable determination, as the applicant was almost 53 years old at the time he was ordered to active duty in 2003.

2.  The applicant's contention that several medical conditions were overlooked by the MEB was carefully considered.  However, the applicant's MEB listed one diagnosis (bilateral knees, total knee replacement) and he agreed that the MEB accurately listed all of his current medical conditions.  He provides no evidence to show any other conditions rendered him unfit to perform his military duties.

3.  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. 

4.  There is insufficient evidence to show the applicant’s disability was improperly rated by the PEB or that his separation was not in compliance with law and regulation.  Therefore, there is insufficient evidence as basis for granting the applicant's 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)                                         AR20100010367



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ABCMR Record of Proceedings (cont)                                         AR20100010367



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