IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110017650 


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.  Through a remand action, dated 12 August 2011, the United States Court of Federal Claims, Washington D.C. requests the ABCMR to consider the following issues:

	a.  whether the applicant’s separation from active duty complied with applicable laws and policies;

	b.  whether the applicant had other unfitting physical conditions in addition to shoulder and wrist pain at the time of separation; and

	c.  whether the applicant’s disability rating was appropriate.

2.  The court directed the ABCMR to take any corrective action the Board deems appropriate based on its review.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 15 December 1995 from the Reserve Officers' Training Corps (ROTC).  He was promoted to first lieutenant on 15 December 1997, to captain on 1 June 2000, and to major on 7 June 2006.

2.  On 30 April 2000, while serving in the USAR, the applicant entered active duty (AD) as a member of the Active Guard Reserve (AGR) program.
3.  On 12 November 2009, an orthopedic consult was completed on the applicant as part of the Medical Evaluation Board (MEB) process.  This consult listed the applicant's chief complaint as left shoulder pain and left wrist pain.  This consult lists pes planus and plantar fasciitis in the past medical history portion of the document.  The examination portion of the form shows examination of only the left shoulder, left ankle, and left wrist and lists only these three conditions in the diagnoses portion of the consult form.

4.  The conclusions/recommendations portion of the 12 November 2009 consult form contains a recommendation that the applicant’s case be referred to a Physical Evaluation Board (PEB) based on his medical conditions.  It specifically noted that the applicant’s shoulder and left wrist interfered with his ability to perform military duties such as fire his weapon or wear body armor or backpack.  No limitations related to pes planus and plantar fasciitis are listed in the consult conclusions/recommendations.

5.  On 26 February 2010, the applicant’s commander completed a DA Form 7652 (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement).  The unit commander provided the following comments explaining his “No” response to Section III (Performance Section), item a.1 (Soldier performs duties in MOS (military occupational specialty)):

	a.  applicant was not performing duties in his MOS, could not be deployed for MOS duties, could not perform the Army Physical Fitness Test (APFT) or alternate events, and had diminished typing and standing capability;

	b.  applicant could not be deployed to support his assigned equipment in Iraq and Afghanistan as is required of an acquisition or logistics officer;

	c.  applicant could not tolerate carrying/lifting/pulling duffle bags or luggage due to left shoulder and left wrist conditions;

	d.  applicant could not don, wear, or remove his individual body armor for training or deployment due to chronic pain in left shoulder, left wrist, and intolerance to weight bearing from bilateral pes planus and bilateral plantar fasciitis;

	e.  applicant could not lift/carry items in his left hand due to chronic pain and lack of endurance in his left shoulder and left wrist;

	f.  applicant could not qualify with his assigned weapon due to chronic pain, weak grip, and lack of endurance in his left wrist; and


	g.  applicant could not hold up his assigned weapon for qualification due to chronic pain and weakness in his left shoulder.

6.  The unit commander provided the following comments regarding his “Yes” response to Section III, item a.3 (Soldier’s medical conditions/limitations affect unit accomplishing mission):

	a.  applicant’s condition prohibited performing physical training, deployment, and severely limited his garrison performance;

	b.  extended typing causes the applicant chronic left wrist pain despite wrist brace and regimented anti-inflammatory medication;

	c.  extended standing caused the applicant chronic pain, fatigue, and inflammation from bilateral pes planus and bilateral plantar faciitis to the point he had to frequently sit for relief;

	d.  chronic pain and lack of endurance in left shoulder and left wrist prevents donning, wearing, and removing body armor;

	e.  chronic pain and lack of endurance in left shoulder and left wrist prevents gripping and qualifying with assigned weapon; and

	f.  chronic pain and lack of endurance in left shoulder, left wrist, and both feet prevents performing the APFT or any of the alternate events.  Swim and bike are eliminated as alternate events due to left shoulder and left wrist conditions.

7.  The unit commander provided the following comments regarding his “No” response to Section III, item a.4 (I recommend retaining this Soldier):

	a.  applicant’s physical capabilities were severely diminished;

	b.  applicant completed multiple surgeries and physical therapies on his left shoulder and pec tendon, yet he still was in a severely-diminished capacity that prohibited him from doing physical training, deploying, or carrying/lifting/pulling items with his left wrist and left shoulder;

	c.  applicant was dealing with bilateral pes planus for over 7 years and the condition does not allow running, weight bearing, extended standing, and was attributed to recent Achilles tendon rupture;


	d.  applicant received injections, ultrasound, and therapy over the past
8 months to relieve bilateral plantar fasciitis; however, the condition still provided much pain and prohibited running and limits standing despite daily anti-inflammatory consumption;

	e.  applicant’s left wrist tendonitis and degenerative joint disease condition had an 8-year history that progressively worsened and despite wearing a wrist brace, flares up significantly while carrying items in his left hand, during extended typing, or when holding or griping items, to include assigned weapons, and this condition prohibits performing the push-up or sit-up events of the APFT.

8.  On 2 March 2010, the applicant underwent an MEB that evaluated the following medical conditions and made the fitness determinations indicated:

	a.  Left shoulder pain status post-arthroplasty with limitation of motion and function (Does not meet regulatory medical retention standards);

	b.  Left wrist pain early degenerative joint disease (Does not meet regulatory medical retention standards);

	c.  Pes planus symptomatic on weight bearing with military equipment and footwear (Does not meet regulatory medical retention standards);

	d.  Plantar fasciitis interfering with running, marching, and wearing military foot wear (Does not meet regulatory medical retention standards);

	e.  Left Achilles tendon rupture with repair (Meets regulatory medical retention standards); and

	f.  Hypertension (Meets regulatory medical retention standards).

9.  On 8 March 2010, the applicant was seen at a civilian Pulmonary and Critical Care facility and underwent a complete pulmonary function study.  The impressions listed by the examiners included intermittent asthma, mild obstructive sleep apnea, hypertension, and dyslipdemia.  The therapist noted the applicant had previously had surgery to correct mild sleep apnea.

10.  On 31 March 2010, an MEB addendum was completed on the applicant’s case.  It indicates the applicant’s bilateral foot pain was not evaluated during the original orthopedic consult because it was not noted he had a podiatry consult.


11.  The 31 March 2010 MEB addendum further indicates the applicant had a podiatry consult on 13 April 2009 that indicated he had symptomatic bilateral pes planus and plantar fasciitis and that his symptoms included instability, tenderness on the plantar surface, severe pronation, intolerance to weight bearing while standing, running, and extended walking, and chronic pain and fatigue.  The conclusions and recommendations portion of this form indicates that based on the podiatry evaluation, the examining physician concurred with the recommendation of a P3 profile that would not meet retention standards due to the requirement for significant limitations of activity that would interfere with his performance of duty.

12.  On 25 March 2010, a PEB evaluated the applicant’s case.  The PEB found the applicant’s chronic left shoulder pain (rated as analogous to arthritis, degenerative) and chronic left wrist pain (rated as analogous to arthritis degenerative) were unfitting conditions.  The PEB rated these conditions as
10 percent (%) disabling and recommended the applicant’s separation with severance pay based on a combined physical disability rating of 20%.

13.  The PEB indicated it evaluated conditions 3 (pes planus) and 4 (plantar fasciitis) and even though the MEB determined these conditions failed to meet regulatory medical retention standards, the conditions were not found to be unfitting by the PEB and, therefore, were not ratable.  The PEB noted the orthopedic consult for the MEB did not mention a problem with either pes planus or plantar fasciitis.  It further noted the applicant had completed an APFT as late as April 2008 and that his Officer Evaluation Reports (OERs) were outstanding through May 2009.  It also indicated the pharmacy profile indicated minimal analgesic use on an occasional basis.  The PEB pointed out that the mere presence of a condition does not constitute a physical disability.

14.  The PEB also noted that the applicant’s left Achilles (5) and hypertension (6) were determined to meet regulatory medical retention standards by the MEB.  Further, consideration of these conditions by the PEB found the conditions not to be unfitting.

15.  On 7 April 2010, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

16.  On 13 April 2010, the PEB Proceedings were approved by proper authority in behalf of the Secretary of the Army.

17.  On 13 July 2010, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, 


Retirement, or Separation), chapter 4, by reason of disability, severance pay, combat-related.  He completed 10 years, 2 months, and 14 days of net active service this period for a total of 14 years, 2 months and 14 days of creditable active service.

18.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official recommended no change to the applicant’s military records.  He indicates the applicant’s MEB was completed on 2 March 2010 that determined the applicant’s conditions of left shoulder and wrist pain and bilateral pes planus and plantar fasciitis did not meet regulatory medical retention standards.  The conditions of left Achilles tendon rupture with repair and hypertension did meet regulatory medical retention standards.  He confirms there were no other medical conditions listed on the MEB.  He further states on 9 March 2010, after reviewing the contents of the MEB and receiving required counseling including the opportunity to consult with free independent legal counsel, the applicant concurred with the findings and recommendation of the MEB and waived his right to an independent medical review of the MEB's findings.  He states the MEB was physician-directed based on the applicant’s complaints concerning his left shoulder and wrist and his bilateral foot pain.

19.  The advisory official also indicated that as part of the MEB process the applicant completed a DD Form 2807-1 (Report of Medical History) on 9 July 2009, in which his main complaints were related to his left shoulder and wrist and feet.  The applicant also noted the following conditions with the comments indicated:

	a.  back pain, occurred in March-June 2005 and were treated by a chiropractor with no indication he was suffering from back pain at the time;

	b.  shortness of breath/asthma problems, indicated they were not causing any problems with wheezing and that he had not been prescribed any medications for respiratory complaints in the past; and

	c.  anxiety condition was temporarily medicated in November 2007, but no symptoms existed at the time.

20.  The advisory official also indicates the DD Form 2808 (Report of Medical Examination) documenting the medical examination completed on the applicant on 9 July 2009 showed the examining physician noted the applicant’s psychiatric, respiratory, and spinal areas were all considered normal and did not reflect any current diagnosis that would require the applicant’s military duties to be limited by 


physical profile restrictions.  The applicant’s DA Form 3349 (Physical Profile) indicated the applicant’s duty should be restricted because of left shoulder and wrist pain and his bilateral foot pain.  No other conditions were listed on the DA Form 3349.

21.  The advisory official further indicated on 26 February 2010 that the applicant’s commander declared the applicant was no longer fit for duty.  The commander’s cited reasons for this determination almost exclusively related to the restrictions on duty caused by left shoulder and wrist pain.  He states the commander did note some restrictions on duty related to bilateral foot pain.  The advisory official stated physical examination of the left shoulder revealed some tenderness to palpation with ranges of motion (ROM) of 140 degrees flexion,
40 degrees of extension, 80 degrees of external rotation, and 65 degrees of internal rotation.  The examination of his left ankle demonstrated some mild hypertrophy of his scar but there was no tenderness.  Dorsiflexion was noted to be neutral with 45 degrees of plantarflexion.  His left wrist had tenderness over the dorsum compartment and over the radial styoid.  ROM was noted to be dorsiflexon of 50 degrees, palmar flexion of 55 degrees, Ulnar deviation of
25 degrees, and radial deviation of 10 degrees.  There was no significant physical findings regarding his foot pain and he had been prescribed orthodontics for insertion in his shoes.

22.  The advisory official further states the informal PEB found the plantiff unfit for his left shoulder and wrist conditions but not for any of the other listed conditions.  The PEB indicated they had fully considered the applicant’s foot conditions but they were not unfitting for a field grade acquisitions officer.  His main problems causing him to be unable to perform his assigned military duties were his recent left shoulder and wrist conditions.  The PEB noted the foot conditions were long standing and had been present since 2002, and that the applicant had completed the APFT as late as April 2008 and his OERs consistently found he could perform his duties in the past even with his reported foot pain.  The PEB also noted minimal evidence of any required prescribed analgesic medications for relief of any continued foot pain.

23.  The advisory official also indicates the applicant was examined by civilian medical personnel for some respiratory and sleep complaints outside of the MEB process on 8 March 2010.  Based on normal findings of pulmonary function testing at that time he was diagnosed with intermittent asthma and mild obstructive sleep apnea.  Polysomnogram testing on 27 June 2010 was interpreted as severe sleep apnea and he was prescribed a continuous positive airway pressure (CPAP) machine.  The applicant was discharged from active 


service on 13 July 2010.  Testing on 19 July 2010 revealed that use of the CPAP machine resolved much of the symptoms of sleep apnea resulting in only mild obstructive sleep apnea.  The applicant was advised to lose weight to further alleviate the sleep apnea symptoms.

24.  The advisory official opined that the applicant’s physical disability evaluation system (PDES) processing was accomplished in accordance with applicable laws and policies.  He further opined the applicant had no other unfitting conditions in addition to shoulder and wrist pain at the time of his separation.  He states the applicant’s physical examination was thorough and the physician reviewed the applicant’s complaints and comments noted on his DD Form 2807-1.  Based on the applicant’s report of medical history and the follow up medical evaluations, the MEB presented the conditions currently then known that were documented and being treated by the military.  A complete review of the disability case file provides no evidence the MEB should have added any new conditions to the DA Form 3947.  The applicant, after reviewing all the MEB documents, agreed the MEB was complete and accurate.

25.  The advisory official further indicates the PEB’s findings were in accordance with all applicable policies.  The fact the PEB did not find all conditions listed on the MEB to be unfitting do not reflect material procedure mistakes or arbitrary or capricious actions on the PEB's part.  The applicant had no other unfitting conditions in addition to shoulder and wrist pain at the time of his separation.  The mere presence of impairment does not in itself justify a finding of unfitness because of physical disability.  The applicant’s assertions that a new standard applies because of the statutory requirement to use the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) in rating unfitting conditions is incorrect.  The standard of resolution of reasonable doubt only relates to rating decisions; it does not relate to fitness determinations which are the sole province of the military.  Only unfitting conditions are rated by the PEB and if the PEB does not find a condition unfitting the VASRD is not used to rate the condition by the military even though the VA may subsequently independently provide a disability rating for the same condition.

26.  The advisory official further indicates the PEB is authorized, in making their fitness determinations, to take into consideration the applicant’s rank and job specialty.  The fact the applicant is a field grade officer in the Acquisition Corps are viable factors that the PEB is authorized to consider in making their findings.  The PEB also considered the MEB’s subjective opinions concerning the level of the applicant’s complaints of pain but still can consider the lack of any real physical findings relating to those complaints.  Clearly the applicant’s feet hurt 


upon prolonged standing or running but he is not in one of the combat arms corps.  Even if his job performance was hindered to some extent by his foot pain the PEB in its allowable discretion found it was not so severe as to be unfitting in his particular circumstances.

27.  The advisory official further states there is no evidence of any psychiatric, spinal, or respiratory conditions that were adversely affecting the applicant’s ability to perform his duties at the time of separation.  The commander’s comments on what was affecting the applicant’s performance of duty were quite specific and only mentioned the feet and his left upper extremity as possible limiting factors.  Even if the PEB had seen the sleep apnea data it would not have resulted in a different finding.  There is no evidence indicating the applicant ever experienced symptoms or residuals from a lack of sleep that affected his ability to perform his duties.  Sleep apnea obviously did not simply manifest in March-July 2010, but had to have been present in the past.  As such, even if present the applicant’s performance was found to be outstanding and he was cited for immediate promotion numerous times.  Those continuous performance superlatives would not have been provided had the applicant’s sleep or respiratory symptoms interfered in any way with his ability to perform his assigned tasks.  Further, after treatment in July 2010, the condition was even better than before and it was only considered mild.

28.  The advisory official finally states the applicant has failed to provide substantial evidence of any material error that would have resulted in a different decision by the informal PEB.  The PEB’s findings were within the sound discretion of an administrative board of officers, were supported by the preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, regulation, or written policy.

29.  On 13 December 2011, counsel for the applicant responded to the USAPDA advisory opinion.  He states the opinion is incorrect on numerous points and its recommendation to deny relief is contrary to law and does not address the injustices in this case.  He states the statements in the advisory opinion all support an unfit finding for the applicant’s bilateral pes planus and plantar fasciitis.  He further indicates that contrary to the advisory opinion's interpretation of the applicant’s commander’s statement of 26 February 2010 that the applicant’s unfitness for duty was almost exclusively related to the restrictions caused by left shoulder and wrist pain, it is improper and incorrect and outlines the reasons why the commander’s statement would have supported a finding of unfitness for bilateral foot pain.


30.  Counsel claims the commander’s statement indicated the applicant could not don, wear, or remove body armor for training or deployment due to chronic pain in his left shoulder, left wrist, and intolerance to weight bearing from bilateral pes planus and bilateral plantar fasciitis.  It further indicates extended standing caused chronic pain, fatigue, and inflammation from bilateral pes planus and bilateral plantar fasciitis to the point the applicant must frequently sit for relief.  Chronic pain and lack of endurance in left shoulder, left wrist, and both feet prevents performing the APFT or any of the alternate events.  Swim and bike are eliminated as alternate events due to left shoulder and left wrist condition.  It further indicates the applicant had been dealing with bilateral pes planus for over 7 years and the condition did not allow running, weight bearing, extended standing, and was attributed to a recent Achilles tendon rupture.  The applicant had received injections, ultrasound, and therapy over the past 8 months to relieve bilateral plantar fasciitis; however, the condition still provided much pain and prohibited running, and limits standing despite anti-inflammatory consumption.

31.  Counsel states the advisory opinion statements regarding the applicant’s foot conditions are neither evidence nor a correct application of the law to the facts in the record.  He further states in arguing an unfit finding for the applicant’s bilateral foot condition, the advisory opinion states the PEB indicated that it had fully considered the conditions but that they were not unfitting for a field grade acquisition officer.  His main problems causing him to be unable to perform his assigned military duties were his recent left shoulder and wrist conditions.  The PEB noted the foot conditions were long standing and had been present since 2002.  He had completed an APFT as late as 2008 and his OERs consistently found he could perform his assigned duties in the past even with his reported foot pain.  The PEB noted minimal evidence of any required prescribed analgesic medications for relief of any continued foot pain.  Counsel claims this argument and the logic underpinning it are wrong as stated in their opening brief to the court applying this logic to his bilateral foot pain could equally be applied to the unfitting conditions.  Further, counsel argues the PEB ignored the commander’s opinion and failed to recognize the applicant’s MEB report that stated the applicant’s pes planus was severe as of April 2009.  The PEB’s failure to acknowledge the MEB report and commander’s statement aside from supporting the arbitrary and capricious nature of the Army’s findings also makes the findings not based on substantial evidence.  He further states the advisory opinion ignored these arguments and instead glossed over the issues raised.  The evidence clearly showed the applicant’s foot condition was unfitting.  Counsel states the advisory opinion essentially adopts and incorporates the same errors of the informal PEB.


32.  Counsel further argues the applicant was on active duty when severe sleep apnea was diagnosed.  He states the applicant notified the military of his new diagnosis while still on active duty.  Notably his sleep apnea failed retention standards and required an MEB as he suffered from both loud snoring and daytime hypersomolence that did not respond to treatment with CPAP.

33.  Counsel finally states the advisory opinion misstates facts, ignores arguments raised in this case, and makes unsupported and conclusory arguments based on the reasons he outlines in his rebuttal to the advisory opinion.  He states for these reasons the advisory opinion should be rejected and the Board should grant the relief requested.  Counsel goes on to outline his arguments regarding the issues the court directed be addressed by the ABCMR. In closing, counsel states his belief is that he has shown the advisory opinion to be in error and the applicant should be provided full relief.  At a minimum, the applicant should be provided partial relief and be retired due to his disabilities.  Counsel claims they have shown the MEB did not properly evaluate the applicant’s case, that the PEB did not properly adjudicate his case, and that he was denied a proper rating.  Counsel states they have also shown, in the alternative, the applicant’s separation was improper and did not comply with applicable law and regulation.  Counsel claims they also recognize they raise issues of first impression and that the case is complex.

34.  Army Regulation 635-40 establishes the Army 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/her office, grade, rank, or rating.  It stipulates that in each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

35.  Paragraph 3-1 of the same regulation outlines the standards of unfitness because of physical disability.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  It further states to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an 
MEB.  The major objective of these standards is to achieve uniform disposition of cases arising under the law. 
36.  The disability regulation further states these retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier's performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.

37.  Paragraph 3-5 of the disability regulation contains guidance on rating disabilities.  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.  The percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VASRD. 

38.  Appendix B of the disability regulation contains guidance on application of the VASRD.  It states for those members rated under VASRD code 5003 (Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis) a 10% rating will be assigned for each major joint (or grouping of minor joints) with objective limitation of motion plus X-ray evidence.

DISCUSSION AND CONCLUSIONS:

1.  As directed by the court remand action, a careful review of whether the applicant’s separation from active duty complied with applicable laws and policies; whether the applicant had unfitting physical conditions in addition to the shoulder and wrist pain at the time of separation; and whether the applicant’s disability rating was appropriate has been carefully considered.


2.  In regard to whether the applicant’s separation from active duty complied with applicable laws and policies, the evidence of record confirms the applicant was properly processed through the PDES and provided a disability rating based on the unfitting conditions identified by the PEB.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  In regard to whether the applicant had other unfitting physical conditions in addition to shoulder and wrist pain at the time of separation, the evidence shows the PEB considered and evaluated the other medical conditions identified by the MEB, including pes planus and plantar fasciitis, which did not meet regulatory retention standards; and left Achilles tendon rupture with repair and hypertension, which did meet regulatory retention standards, and determined these conditions were not unfitting based on the medical evidence presented.  

4.  The PEB explained that the pes planus and plantar fasciitis were long standing and that the applicant’s continued outstanding duty performance record over the period he suffered from the conditions and the lack of medical evidence confirming the conditions were being aggressively treated with appropriate medication as the reason for this determination.  The argument by counsel and the applicant regarding why these conditions should have resulted in unfitness determinations are not compelling.  Although the commander included these conditions in his statement regarding the applicant’s fitness for duty, the limitation on the applicant’s duty performance only became apparent with the progression of the left shoulder and wrist pain.  The medical evidence related to these conditions do not show his bilateral foot pain disqualified the applicant from taking an alternate APFT or rendered him unfit to perform his duties as a field grade acquisition officer.  As a result, there is an insufficient evidentiary basis to support overturning the determination made by the PEB within its regulatory discretionary authority.

5.  Although the applicant’s concurrence with the findings and recommendation of the PEB did not prohibit a review by this Board and evaluation of this decision by the court, it does show the applicant believed he was properly evaluated through the PDES and that he agreed with the final fitness determinations including those related to his bilateral foot pain.  This clearly shows he understood his unfitness was primarily related to his left shoulder and wrist pain and had no objection to these conclusions at the time.  The PEB determined the other medical conditions that did not meet regulatory retention standards, which were pes planus and plantar faciitis, were not unfitting.  



6.  The applicant’s concurrence with the MEB and PEB also shows he did not believe an evaluation of his diagnosed sleep apnea condition was necessary or appropriate.  Further, the medical examination completed on the applicant on 9 July 2009, as documented in a DD Form 2808 completed during the PDES processing, shows normal clinical evaluations in the psychiatric, respiratory, and spinal areas.  In addition, the medical evidence related to this condition is not sufficiently compelling to show this condition was unfitting at the time of his separation, as evidenced by the fact it was not raised before the MEB or PEB by the applicant during the PDES process.

7.  In regard to whether the applicant’s disability rating was appropriate, the evidence shows the PEB determined the applicant’s left shoulder and left wrist conditions were unfitting and assigned a 10% disability rating for each under VASRD codes 5099-5003 and a combined disability rating of 20% which is compliant with VASRD rating guidelines for arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis conditions rated under codes 5099-5003.  

8.  The applicant and counsel use creative and convoluted arguments and reasoning to essentially turn the PDES process into something it is not.  They argue the applicant should be provided a disability rating for every medical impairment he has, regardless of whether the Army has determined it is unfitting.  Army regulations and DOD authorities state that a medical impairment alone does not constitute a physical disability for DOD rating purposes.  Furthermore, determinations of fitness or unfitness rest with the military departments.  In this case, the applicant was properly evaluated through the PDES and he was properly advised and counseled regarding his options throughout the process by the PEB Liaison Officer.  All regulatory and legal requirements appear to have been met and the rights of the applicant were fully protected throughout the process.

9.  The evidence of record and independent evidence submitted by the applicant and his counsel fail to show any error or injustice related to the applicant’s processing through the Army’s PDES process.  As a result, there is an insufficient evidentiary basis to support this Board correcting or amending the determinations made by the PEB.



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.



      ___________XXX____________
               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)                                         AR20110017650



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ABCMR Record of Proceedings (cont)                                         AR20110017650



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