IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100017722 


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 reconsideration of his earlier request for correction of his military records to show he was retired due to physical disability.

2.  The applicant states he should have been retired due to a 30 percent physical disability.  He asks that his case be reconsidered because the Department of Veterans Affairs (VA) has rated his medical condition 40 percent disabling.

	a.  He also contends the evidence enclosed with this request is new evidence material to his case and that at a minimum he should be allowed a formal hearing to personally present his case;

	b.  He states he was prescribed a brace to stabilize his left knee joint prior to his physical evaluation board (PEB) which reduced his disability rating to 
20 percent;

	c.  He would like the benefits of being retired because they would allow him to better provide for his family and their health care; and

	d.  He believes he was taken advantage of because he did not understand how his disability would affect him and his family the rest of their lives.

3.  The applicant provides copies of a letter from the American Legion, dated 
14 May 2009; office progress notes, dated 17 March 2010; a letter from Orthopedic Medicine of Alexandria, Virginia, dated 13 March 2009; and a clinical record from Dewitt Army Community Hospital, undated.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board grant the relief sought by the applicant.

2.  Counsel states the applicant was not given credit for the knee brace he was prescribed and still uses to this day.  This oversight caused the applicant to become ineligible for retirement, resulting in his separation.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090007760, on 19 November 2009.

2.  The letter from Orthopedic Medicine of Alexandria, Virginia, dated 13 March 2009; and the clinical record from Dewitt Army Community Hospital, undated, were submitted as evidence in the previous case.  However, they were not discussed in the proceedings.  The letter from the American Legion, dated 
14 May 2009; and the office progress notes, dated 17 March 2010, are new evidence that requires Board consideration.

3.  In the original proceedings, the Board found that the applicant had been properly assigned a disability rating from the Army based on the unfitting conditions diagnosed at the time.  The proceedings further stated that:

	a.  The applicant appeared with counsel before a formal PEB on 
19 September 1994;

	b.  The PEB determined the applicant's knee condition required no brace or assistance device and his nerve injury resulted in only partial numbness in his leg.  As a result, they were rated 10 percent each under the VA Schedule for Rating Disabilities (VASRD).  The assigned 10 percent rating appears to have been appropriate; and

	c.  The applicant concurred with the findings and recommendations of the PEB.



4.  The letter, dated 14 May 2009, written by a representative from The American Legion and provided by the applicant states that:

	a.  the applicant was rated 30 percent disabled for a period of 5 years while on the temporary disability retired list (TDRL);

	b.  the VA rated him 40 percent disabled for the same injuries;

	c.  after the time limit for the TDRL expired, the PEB reduced the applicant's disability rating and separated him without any benefits; and

	d.  the PEB ignored regulations and policy requiring the use of the VASRD, but makes no mention of the knee brace.

5.  The office progress notes, dated 17 March 2010, as provided by the applicant, indicate that:

	a.  he originally injured his left knee in 1991;

	b.  the injury necessitated separation from the military and he has had ongoing symptoms ever since;

	c.  he complained of pain, a sense of instability, and increasing problems with sitting, climbing stairs, and other activities;

	d.  he has not been able to compete in any sports activities since 1991;

	e.  he limps occasionally and has a history of gradual decline in left knee function;

	f.  the examiner assessed the applicant as having multi-ligamentous instability left knee, osteoarthritis left knee, and partial peroneal nerve palsy left lower extremity;

	g.  the examiner did not believe it was possible to stabilize the knee due to advancing degenerative changes;

	h.  the examiner did not understand how anyone could say the applicant's disability had decreased over the past 19 years because it was obvious his knee was "going downhill"; and

	i.  the examiner determined that the applicant was capable of being a driver, but his overall function was likely to continue to deteriorate.
6.  The letter, dated 13 March 2009, which was available to the original Board, states that:

	a.  the applicant is a 40-year-old man with a problem in his left knee;

	b.  he had reconstructive surgery in 1991;

	c.  he also had "peroneal nerve damage with foot drop on the left leg";

	d.  the applicant was experiencing weakness in the left knee, his leg buckles and he has pain;

	e.  the applicant's symptoms included crepitus [cracking or grating sound], effusion [escape of fluid], instability both in the AP [anteroposterior] plane as well as medially [near the middle];

	f.  the examiner determined the applicant to have a severe permanent disability of the lower left extremity, rated 40 percent disabling; and

	g.  the examiner recommended the services of another medical doctor because eventually the applicant would probably require a knee replacement.

7.  The undated clinical record, as provided by the applicant, indicates that:

	a.  the applicant was examined at Dewitt Army Hospital where he was diagnosed with left knee mild instability and early post-traumatic degenerative arthritis; status post anterior cruciate ligament (ACL) and lateral collateral ligament (LCL) reconstruction; and left peroneal nerve palsy incomplete motor and sensory recovery;

	b.  the applicant's condition at the time did not require medications, braces, or assistive devices; and

	c.  the examiner recommended permanent disability retirement.

8.  A VA Rating Decision provided by the applicant shows he was granted a combined disability rating of 40 percent for a status post complete disruption of the LCL and ACL, status post cruciate reconstruction and LCL repair (30 percent) and a left peroneal nerve palsy traumatice with left foot drop (20 percent), effective 15 February 1992, under VASRD Codes 5315 and 8521, respectively. 


9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.

10.  Appendix B of the same regulation provides guidance on the Army's application of the VASRD.  It stated at the time, that not all of the general policy provisions of the VASRD apply to the Army.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

11.  Paragraph B-35 of the same regulation contains guidance on VASRD code 5257 (Knee, other impairments) and states, in pertinent part, that a rating of 10 percent for slight knee instability is appropriately awarded in those cases where the lateral instability of the subject knee has failed to improve with the administration of physical therapy.  Paragraph B-104 contains guidance on VASRD codes 8510-8730 and states, in pertinent part, that VASRD code 8521 should be rated in terms of loss of function, rather than topographically.

12.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA, 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been retired due to a 30 percent physical disability.  He asks that his case be reconsidered because the VA has rated his medical condition 40 percent disabling.

2.  The applicant's counsel contends the original Board erred by not giving the applicant credit for the knee brace he was prescribed and still uses to this day.  This oversight resulted in the applicant becoming ineligible for a disability retirement.

3.  The available evidence clearly shows that the applicant appeared before the PEB in 1994, with counsel.  At that time the PEB determined the applicant's condition did not require a brace or other assistance devices.  The applicant subsequently concerned with the PEB finding.

4.  The evidence submitted with this request for reconsideration does not show the applicant was prescribed a brace or any other assistance device prior to being placed on the TDRL or his subsequent discharge.

5.  The applicant was previously advised in the original proceedings that the VA may rate any service-connected impairment.  It may also award 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. It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6.  Furthermore, an award or change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly assigned a disability rating from the Army based on the unfitting diagnosed conditions at the time of his discharge.

7.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090007760, dated 19 November 2009.




      _______ _   __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)                                         AR20100017722



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ABCMR Record of Proceedings (cont)                                         AR20100017722



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