IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100024166 


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 military records to show that he was retired due to physical disability.

2.  The applicant states he wants his honorable discharge changed to a retirement due to physical disability so that he may apply for medical coverage under TRICARE for himself and his family.  He contends that his zero (0) percent (%) disability rating percentage from the Army should be increased.  He is not receiving the necessary treatment from the Department of Veterans Affairs (DVA) which is allowing his condition to progress.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 6 September 2000
* his DA Form 3947, dated 9 November 1999
* a self-authored 60-page report of his medical condition
* his letter to the Disabled American Veterans, dated 4 September 2010
* an undated letter of support from his Congressman

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.  On 25 September 1998, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 63H (Track Vehicle Repairer).  He was subsequently assigned for duty at Fort Carson, CO.

3.  A memorandum from the U.S. Army Medical Department Activity, Fort Carson, dated 29 September 1998, stated that the applicant began to experience pain in his feet after a road march during basic training.  The memorandum indicated that an MEB and a physical evaluation board (PEB) were pending.

4.  A memorandum from the U.S. Total Army Personnel Command, Alexandria, VA, dated 30 September 1999, stated that a presumptive finding of "in line of duty" had been made in the applicant's case for the bilateral foot pain he experienced on 19 October 1998.

5.  On 4 October 1999, the applicant underwent a physical examination wherein the physician indicated the only abnormal medical condition was chronic foot pain that qualified him for referral to an MEB.

6.  The applicant provided the front side of his DA Form 3947, dated 9 November 1999, that indicates he did not present views in his own behalf.  The MEB referred the applicant to a PEB based on the following medical conditions which either existed prior to military service (EPTS) or the date of origin was unknown.

	a.  chronic (B) metatarsalgia [severe pain in anterior portion of the foot between the tarsus and phalanges] and sesamoiditis [inflammation of the sesamoid bone] associated with (B) congenital pes cavus [abnormal hollowness or concavity of the sole of the foot] (EPTS); and

	b.  evident mild osteoarthritis of the left first metatarsal phalangeal joint (unknown date of origin).


7.  On 1 June 2000, the applicant was advanced to the rank/grade of specialist (SPC)/E-4.

8.  A DA Form 3349 (Physical Profile), dated 31 July 2000, shows:

	a.  His medical condition as:

* chronic bilateral knee pain
* chronic pain from mild very early O.A. (DJD) (arthritis) in left great toe
* chronic right tibial (lower large leg bone) sesamoiditis

		b.  His physical profile of "1-1-3-1-1-1" with no running and standing to tolerance.

	c.  The applicant was to wear soft shoes and he was pending an MEB.

9.  A DA Form 3947, dated 6 September 2000, indicates that the applicant did not present views in his own behalf.  The MEB referred the applicant to a PEB based on the following medical conditions:

	a.  chronic (B) metatarsalgia and sesamoiditis associated with (B) congenital pes cavus (EPTS);

	b.  evident mild osteoarthritis of the left first metatarsal phalangeal joint (unknown date of origin); and

	c.  (B) anterior knee pain (origin in 1998 while entitled to base pay).

10.  The applicant indicated on the reverse side of the DA Form 3947, dated 
6 September 2000, that he did not desire to remain on active duty and he agreed with the MEB findings and recommendation.

11.  A DA Form 199 (PEB Proceedings), dated 25 September 2000, reports that on 18 September 2000, a PEB convened at Fort Lewis, WA to consider the applicant’s case.  The PEB assigned a 0% disability rating percentage under Veterans Affairs Schedule of Rated Disabilities (VASRD) codes 5099 and 5003 for insidious [lacking symptoms] onset bilateral knee pain which had failed to respond to therapy including activity modification and remained symptomatic under conditions of military service in his primary MOS.  The applicant had full range of motion without instability.  The rating was for pain that was moderate and intermittent.  The proceedings further indicated the applicant’s disability occurred while he was entitled to basic pay, was in the line of duty, and did not result from a combat-related injury.
12.  The PEB determined the applicant’s medical and physical impairment prevented reasonable performance of his duties and concluded he was physically unfit for further service and recommended a combined disability rating of 0% and separation with severance pay, if otherwise qualified.

13.  On 20 September 2000, the applicant concurred with the findings and recommendation of the PEB.  As such, the PEB proceedings were approved by proper authority on behalf of the Secretary of the Army.

14.  On 5 November 2000, the applicant was honorably discharged by reason of physical disability with severance pay.  The DD Form 214 he was issued shows he held the rank/grade of SPC/E-4 and he had completed 2 years, 1 month, and 11 days of active military service.  It further shows he authorized $8,238.60 of severance pay at the time of his separation.

15.  The applicant's 60-page argument provides, in effect:

	a.  a summary of his MEB and PEB;

	b.  reference to consultations;

	c.  reference to various service medical records,

	d.  his reflection of his time served in the military; and

	e.  his argument that until August 2010, he did not know he had only received an honorable discharge vice a discharge for his medical condition.

16.  The letter of support provided by the applicant from his Congressman states:

	a.  the applicant's condition has progressively worsened since his discharge;

	b.  the applicant is currently working with the VA;

	c.  the applicant is attempting to acquire and provide TRICARE health coverage for himself and his family at a lower rate than his standard insurance can provide; and

	d.  the applicant, at 31 years of age, is no longer capable of performing the jobs he has been trained to do.


17.  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.  Paragraph
4-17 provides guidance for PEB's.  Specifically, it states that PEB's are established to evaluate all cases of physical disability equitably for the Soldier and the Army.

18.  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 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.

19.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the DVA.

20.  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 Army Physical Disability Evaluation System (PDES).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention 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 prepared to document the proceedings of the applicant's
18 September 2000 PEB shows his diagnosed conditions were rated under VASRD 5099/5003 as insidious [lacking symptoms] pain.  The PEB rated him for pain, moderate, intermittent.

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.  The PEB determined the applicant had full range of motion.

4.  The DA Form 199 also shows the applicant concurred with the findings and recommendation of the PEB.  As a result, there is no apparent error or injustice related to the PEB process or its findings and recommendations in the applicant's case.

5.  There is no available evidence showing that the DVA has rated the applicant's medical condition.  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 based on the medical evidence and the severity of a condition as it existed at the time.   As a result, absent any evidence the disability ratings assigned the applicant by the PEB were not properly based on the VASRD based on the existing medical evidence at the time, it is concluded 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, 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)                                         AR20100024166



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ABCMR Record of Proceedings (cont)                                         AR20100024166



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