IN THE CASE OF:	 

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100022525 


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 records to show an increase in his physical disability rating to at least 30 percent in order to qualify for a medical retirement. 

2.  The applicant states he had other medical conditions that were not considered during the medical evaluation process.  He contends that he should have been rated for asthma, migraine headaches, right shoulder and back injuries, chest pain, and left ankle/foot injury.  He has a DA Form 2173 (Statement of Medical Examination and Duty Status) that states "in line of duty."  He states the rating awarded for his knees after surgery was unfair and should have been more than 10 percent for both knees.  

3.  The applicant states that he will always need to be under medical care and a 10 percent disability rating was not fair to him, his family, and his body.  He adds that he filed a claim with the Department of Veterans Affairs (DVA) and his combined disability rating was 40 percent in 2001 and it is now 90 percent as of September 2005.

4.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), military and civilian medical records, and DA Forms 199 (Physical Evaluation Board (PEB) Proceedings).


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.  After having had prior enlisted service from 29 August 1989 to 29 October 1992, he again enlisted in the Regular Army on 5 May 1997.

3.  On 15 February 2001, he was examined by a Medical Evaluation Board (MEB) for a chief complaint of bilateral knee pain.  The MEB diagnosed him with the following:

	a.  bilateral chondromalacia patella [soft cartilage on both sides of kneecap]

	b.  history of bilateral lateral meniscus tear debridement [tearing of cartilage and removal of damaged tissue]

	c.  history of sinusitis [inflammation of sinus]

	d.  history of reactive airway disease but no evidence of reactive airway disease by chart review, physical exam or spirometry

4.  The MEB concluded he did not meet the medical standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness) and referred him to a PEB.  

5.  A DA Form 2173, dated 13 March 2001, indicates that on 23 June 1998, the applicant was playing softball and another player stepped on the outside edge and across the toes of his left foot.  The injury was considered to have been incurred in the line of duty.

6.  On 5 April 2001, an informal PEB convened to evaluate the applicant's case.  The PEB assigned a 10 percent disability rating percentage under Veterans Affairs Schedule of Rating Disabilities (VASRD) codes 5099 and 5003 for bilateral anterior knee pain with a history of meniscal tears of both knees with debridement.  Grade II chondromalacia was noted in the left knee.  He had ranges of motion 0 -135.  There was no ligamentous laxity [lax ligaments].  Radiographs were normal.  The condition was rated as analogous to arthritis.  The PEB also concluded that the MEB diagnoses 2-4 as listed in paragraph 3 above were not unfitting; hence, not ratable.  The PEB recommended the applicant's separation with severance pay.

7.  The applicant did not concur with PEB findings and conclusions and demanded a formal hearing.

8.  On 15 May 2001, the applicant's platoon leader provided a memorandum for the PEB.  The platoon leader stated that, due to his knee condition, the applicant was unable to perform his duties as the platoon's automated logistics noncommissioned officer.

9.  On 18 May 2001, a PEB convened to conduct a formal hearing of the applicant's case.  The PEB rendered the same decision as in the informal PEB. The applicant was found physically unfit and the PEB recommended a combined rating of 10 percent and that he be separated with severance pay if otherwise qualified.

10.  In a memorandum dated 19 June 2001, the U.S. Army Physical Disability Agency informed the applicant that his disagreement with the findings of the PEB had been noted and a review of his entire case file was conducted.  That agency's conclusion was that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The PEB's findings and recommendations were supported by substantial evidence.  He was also advised that he could apply for a disability rating through the DVA for any of the service-connected illnesses or injuries.

11.  On 1 October 2001, he was honorably discharged by reason of physical disability with severance pay.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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.  

13.  Appendix B of the same regulation provides guidance on the Army's application of the VASRD.  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 DVA 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.

14.  Army Regulation 635-40 continues that the VASRD guidance on code 5003 further states inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or to measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

15.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The DVA 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 PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his disability rating from the PEB was unjust and should have been higher has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The DA Form 199 documenting the proceedings of the applicant's 18 May 2001 PEB shows his unfitting diagnosed conditions were rated under VASRD 5099/5003 as analogous to arthritis.  
3.  The VASRD guidance for code 5003 states a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  It further states there is a 20% ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  However, any resulting limitation of motion must be confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  There is no such evidence in the applicant's case.  

4.  There is no evidence that any of the applicant's other conditions, either those considered by the MEB or those he mentions now, rendered him unfit to perform his duties.  His platoon leader stated only that it was his knee condition that rendered him unfit to perform his duties.  Therefore, there was no requirement to rate any other conditions he may have had.

5.  His contention that he is currently rated at 90 percent disabled by the DVA was noted.  However, the DVA may rate any service-connected impairment, thus compensating for loss of civilian employment.  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.  An award or change in the disability rating granted by the DVA 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, and is now properly being treated and compensated for all his service-connected conditions by the DVA.

7.  In view of the above, there is no basis for granting the applicant's request.

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)                                         AR20100022525



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ABCMR Record of Proceedings (cont)                                         AR20100022525



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