IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110003270 


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 his medical evaluation board (MEB) decision did not include all of his service-connected injuries.  He contends he should have a fair rating and deserves a 30% or higher disability rating because his service-connected injuries will be with him for the rest of his life.

3.  The applicant provides a Department of Veterans Affairs (DVA) Rating Decision and service medical record documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence or argument.

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 enlisted in the U.S. Army Reserve (USAR) on 20 June 1990.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He enlisted in the Regular Army (RA) on 23 April 1991 under training of choice enlistment option in MOS 12F (Engineer Tracked Vehicle Crewman).  On 18 November 1994, he reenlisted for 4 years.

3.  On 2 October 1996, he was examined by an MEB for a chief complaint of left knee pain and swelling, and bilateral foot pain.  The MEB diagnosed him with the following:

	a.  left knee pain with grade III chondromalacia of the medial femoral condyle seen on direct visualization;

	b.  status post anterior cruciate ligament (ACL) reconstruction left knee with residual instability symptoms; and

	c.  painful bilateral feet.

4.  A Medical Record Report attached to the MEB proceedings indicates the applicant related no other ongoing medical problems at the time of the MEB.

5.  The MEB concluded his medical condition precluded many of the activities required by his MOS and referred him to a physical evaluation board (PEB).

6.  On 26 November 1996, an informal PEB convened to evaluate the applicant's case.  The PEB assigned a 20% disability rating percentage under the Veterans Affairs Schedule of Rating Disabilities (VASRD) code 5003 for chronic pain, left knee, status post ACL reconstruction, with chondromalacia and bilateral foot pain.  The PEB recommended his separation with severance pay.

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

8.  On 28 January 1997, a PEB convened to conduct a formal hearing of the applicant's case.  After reevaluating all available medical records and the 

applicant's sworn testimony, the PEB rendered the same decision as in the informal PEB.  The PEB stated the applicant's chronic pain and profile restrictions precluded the performance of his duties and found him physically unfit.  The formal PEB recommended a 20% disability rating percentage and separation with severance pay, if otherwise qualified.

9.  On 12 April 1997, he was honorably discharged by reason of physical disability with severance pay.

10.  He provided a DVA Rating Decision, dated 16 July 2009 that indicates he is now rated somewhere near 100% for a number of medical conditions and is considered unemployable.

11.  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.

12.  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.

13.  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.  

14.  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 Physical Disability Evaluation System (PDES).

DISCUSSION AND CONCLUSIONS:

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

2.  The 28 January 1997 PEB proceedings show his unfitting diagnosed conditions were rated under VASRD 5003.

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.  He is currently being rated at near 100% by the DVA.  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.

5.  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.

6.  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)                                         AR20110003270



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ABCMR Record of Proceedings (cont)                                         AR20110003270



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