IN THE CASE OF:	

		BOARD DATE:	19 May 2011

		DOCKET NUMBER:  AR20100024399 


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 he received a medical retirement rather than the medical discharge he received due to a Physical Evaluation Board (PEB).

2.  The applicant states before he was deployed he was physically fit.  Due to his deployment injuries he has been rated 100% disabled by the Social Security Administration and rated 80% disabled by the Department of Veterans Affairs (VA). 

3.  The applicant provides his DD Form 214.

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 23 May 1992, the applicant was appointed as a Reserve commissioned officer.

3.  In August 2005, he injured his right shoulder; and on 5 January 2006, he injured his knee.  Both injuries occurred while he was deployed in Afghanistan. 

4.  On 19 October 2007, a formal PEB convened to reevaluate all of the available medical records and to hear sworn testimony from the applicant.  The PEB determined the applicant was physically unfit and he was to be separated with severance pay.  Based on the established VA Schedule for Rating Disabilities (VASRD) Codes the PEB recommended the following disability percentages:

   a.  VA codes 5099 and 5003.  Chronic pain in multiple joints (1) Right ankle pain following multiple twisting injuries; (2) Right shoulder pain status post BANKART repair in 1996 and subcromial decompression and debridement of a SLAP repair in 2007.  (3) Bilateral knee pain; range of motion (ROM) measurements:  Right ankle essentially equal to left ankle, Right shoulder flexion 130 degrees and abduction 140 degrees.  Knees:  Left knee ROM 8 [Hyperextension] to 138 degrees and right knee ROM 6 [Hyperextension] to 134 degrees.  It was determined that these conditions interfered with his ability to lift heavy objects, perform in his area of concentration (AOC) and wear protective military equipment.  Rated as slight/constant.  (Medical Evaluation Board (MEBD)) diagnosis 1-3, Narrative Summary (NARSUM), physical therapy note 3 May 2007, 1 August 2007 addendum, sworn testimony and evaluee exhibits).  Recommended disability percentage 10%.

   b.  VA codes 5299 and 5242.  Degenerative disc disease without neurological deficit.  Localized tenderness present.  Range of motion limited by pain.  Unable to lift heavy objects as required by his AOC.  (MEBD diagnosis 4, NARSUM, physical therapy Note 3 May 2007, sworn testimony and evaluee exhibits).  Recommended disability percentage 10%.

5.  The PEB findings were approved on 19 October 2007.

6.  On 22 December 2007, the applicant was discharged due to physical disability with severance pay.  He had attained the rank of captain, pay grade 
O-3, and he had completed a total of 4 years, 6 months, and 1 day of creditable active service.

7.  The only records available are the PEB results dated 19 October 2007.  There is no VASRD rating for multiple joint pains per se.  U.S. Army Physical Disability Agency (USAPDA) Policy Memorandum #13 (PM #13) was used to assign the 10% rating for multiple pains.  The policy mandated a 10% rating for pain that was slight and constant.  That policy did limit the rating of 20% and has been subsequently withdrawn.  Had the PEB used the VASRD method of rating VASRD code 5003 (arthritis) the rating would have been either 20% for x-ray evidence of involvement of 2 or more major joints with occasional incapacitating exacerbations or 10% for the same x-ray involvement of 2 or more major joints without any incapacitation.  

8.  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 a disability incurred while entitled to basic pay.

9.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.  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 VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been retired due to physical disability.

2.  The available evidence shows the applicant was medically disabled and evaluated by a PEB.  Based on the criteria established by the VASRD he was properly rated 20-percent disabled and discharged with severance pay.  The degenerative disc disease is rated by ROM.  Although the ROM findings are not provided, there is no reason to suspect that the PEB did not assign the correct rating.

3.  In this case, there is no apparent evidence of incapacitation so the use of USAPDA PM #13 yields the same percentage rating.  Without other evidence, i.e., initial PEB results, medical records, diagnosis reports, etc., it must be presumed the ratings rendered by the 19 October 2007 PEB are correct.  VASRD Code 5003 states:  Arthritis, degenerative (Hypertrophic or osteoarthritis): Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint, or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10% is for application for each major joint or group of minor joints affected by limitation of motion are to be combined not added under diagnostic code 5003."

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  There is no apparent error or injustice in this case.

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)                                         AR20100012218



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ABCMR Record of Proceedings (cont)                                         AR20100024399



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