IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20110023992 


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 reconsideration of the Board's denial of his previous request for correction of his military records to show he was retired due to physical disability rated as 100-percent disabling.

2.  He states he received a 0-percent disability rating which is an error due to the medical conditions which arose during his service.  He was diagnosed with various medical issues during his service, but he never received proper care.  He was not given the option to remain in the military and was forced to separate.  He received a DD Form 2765 (Department of Defense/Uniformed Services Identification and Privilege Card) and assumed he was medically and honorably discharged with a 100-percent disability rating.  He contends that he is entitled to a 100-percent disability rating.

3.  He also requests a personal appearance before the Board.

4.  He provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings
* DD Form 2765
* U.S. Department of Defense News Release Number 274-98, dated 2 June 1998
* correspondence from W.G. (Bill) Hefner Department of Veterans Affairs (VA) Medical Center, dated 29 August 2011
* statement from Dr. S____ L. V____, M.D., dated 9 October 2011

* civilian medical records (191 pages)
* military medical records
* medical records from recent surgery on 19 October 2011
* North Carolina Department of Health and Human Services Disability Determination Services Evaluation, dated 15 December 2010
* letter of recommendation from Mr. D____ E____

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's case.

2.  Counsel states the applicant was issued a DD Form 2765 upon separation and was, therefore, under the impression that he was receiving a 100-percent disability rating.  He did not want to leave the military but was told he must do so due to his medical diagnoses (osteoarthritis of the knee and lower back).  He was forced to sign paperwork that he did not understand.

	a.  The applicant should have been given a full physical instead of the standard physical he was given in conjunction with his medical evaluation board (MEB)/PEB evaluation.  He was never able to consult with a Judge Advocate General attorney.  He did not understand why he was receiving a severance and being discharged.

	b.  According to the Department of Defense, the DD Form 2765 is provided to honorably discharged veterans with a 100-percent disability rating.  The applicant is currently being treated by the VA.  He has seen several doctors who have discovered several conditions, none of which include the military's original diagnosis of osteoarthritis.  Additionally, the VA doctors were unable to find evidence in his records of a diagnosis of osteoarthritis.  The statement from Dr. S____ L. V____ is new evidence which substantiates this assertion.

	c.  The applicant underwent magnetic resonance imaging (MRI) on his ankles, knees, and hips.  It was discovered that the tendon in his ankle was shredded along his ankle into his toe.  Dr. N____ from the VA noted in the applicant's medical file that this injury dated back to basic training and was the cause of his incredible pain.  He also experienced severe pain in his tail bone.  He was diagnosed with a polygonal cyst, which also dated back to his time in basic training.  The MRI of his knee revealed small tears along his tendon.  The MRI of his hips revealed a tear in his left hip and bone spurs in both hips.  It also revealed a strain of cysts inside or around the applicant's anus cavity or there about, close to the small intestine.  Had the applicant been given MRI's during his military service, these preexisting conditions could have been discovered and treated.

	d.  The applicant contends that the condition that was rated had not fully matured.  He argues herein that there is evidence contained and referenced above which would show that the PEB rating of the existing medical condition at the time, based on the Department of Veterans Affairs Schedule of Rating Disabilities (VASRD), was not conclusive and not inclusive.

3.  In conclusion, counsel states the applicant is unable to work due to his current medical condition.  At the time of the applicant's separation, his case was not properly reviewed.  He was honorably discharged for medical reasons and received a DD Form 2765.  His military medical records prove his medical issues arose during basic training.  He had no medical problems prior to entering the military.  The applicant's conditions are not "conditions that were not ratable."  Had he received proper care and medical examinations, the underlying conditions would have been discovered.

4.  Counsel provides the documents on the attached list of exhibits.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100024166 on 4 May 2011.

2.  The letter from Dr. S____ L. V____, M.D., provided by the applicant is new evidence and, as such, merits consideration by the Board.

3.  On 25 September 1998, he enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 63H (Track Vehicle Repairer).

4.  A memorandum from the U.S. Army Medical Department Activity, Fort Carson, dated 29 September 1999, stated the applicant began to experience pain in his feet after a road march during basic training.  The memorandum indicated that an MEB and a PEB were pending.

5.  A memorandum from the U.S. Total Army Personnel Command, Alexandria, VA, dated 30 September 1999, stated 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.

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

7.  The applicant provided 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 – often caused from improper fitting footwear) and sesamoiditis (inflammation of the sesamoid bone – common ailment that affects the forefoot, typically in young people who engage in physical activity like running or dancing) associated with (B) congenital pes cavus (abnormal hollowness or concavity of the sole of the foot – commonly known as flatfoot) (EPTS); and

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

8.  He indicated on the reverse side of the DA Form 3947 that he did not desire to remain on active duty and he agreed with the MEB findings and recommendation.

9.  An addendum to the 9 November 1999 MEB states the applicant was seen in orthopedics on 7 February 2000 for evaluation of bilateral anterior knee pain and was scheduled for a bone scan and radiographic evaluation along with the clinical examination done at the time.  Subsequent visits indicated the applicant's knee pain was not improving.  The bone scan and MRI's of his bilateral knees did not demonstrate any objective findings.

10.  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 osteoarthritis (degenerative joint disease – arthritis) in left great toe joint
* chronic right tibial (lower large leg bone) sesamoiditis

	b.  he was advised to wear soft shoes, and

	c.  he was pending an MEB.

11.  A DA Form 3947, dated 6 September 2000, indicates 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).

12.  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.

13.  A DA Form 199 (PEB Proceedings), dated 25 September 2000, reports that a PEB convened to consider the applicant's case on 18 September 2000.  The PEB assigned a 0-percent disability rating under 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 military occupational specialty.  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.

14.  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.  The PEB recommended a combined disability rating of 0 percent and separation with severance pay, if otherwise qualified.

15.  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.

16.  Orders 284-0015, dated 10 October 2000, published by Headquarters, 7th Infantry Division and Fort Carson, show the applicant's military medical care would expire on 4 January 2001.

17.  A Physical Disability Information Report printed in conjunction with his separation shows his percentage of disability as 0 percent.

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

19.  The applicant submits a Uniformed Services Identification and Privilege Card issued on 6 November 2000 with an expiration date of 4 January 2001.

20.  The applicant's 60-page supportive claim provides:

	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 received an honorable discharge vice a discharge for his medical condition.

21.  Recent medical documents submitted by the applicant indicate he has several medical conditions.  One such document, dated 9 October 2011, indicates Dr. S____ V____, M.D., had not found any evidence in the applicant's records of a diagnosis of osteoporosis.

22.  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.

23.  The VASRD guidance for code 5003 further states that 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.

24.  The 2008 National Defense Authorization Act, section 3.1, effective 28 January 2008, prescribes 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 VA.

25.  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.  The VA 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 counsel contends the applicant believed he received a 
100-percent disability rating.  Orders show he was eligible to receive medical care from the day after his discharge until 4 January 2001 and the DD Form 2765 submitted by the applicant expired on that same date.  His PEB and a Physical Disability Information Report show he was given a disability rating of 0 percent.

2.  His counsel's numerous contentions, including that the applicant's military medical care was inadequate and that his disability rating from the PEB was unjust and should have been higher, have been carefully considered.  However, his records show he underwent extensive medical evaluations and treatment for his identified medical conditions.  He indicated on the DA Form 3947 that he did not desire to remain on active duty and he agreed with the MEB findings and recommendation for referral to a PEB.  As such, there is insufficient evidence to support this claim.

3.  The DA Form 199 prepared to document the applicant's the PEB proceedings on 18 September 2000 shows his diagnosed conditions were rated under VASRD codes 5099 and 5003 as insidious (lacking symptoms) pain.  The PEB rated him for intermittent moderate pain.

4.  The VASRD guidance for code 5003 states that 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-percent 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 he had full range of motion.

5.  Recent medical documents indicate the applicant has a few medical conditions which may have begun in basic training.  However, there is no evidence any of these were unfitting during his military service.  The DA Form 199 also shows he 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 his case.

6.  There is no available evidence showing the VA has rated his medical condition.  However, the VA 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.

7.  An award or change in the disability rating granted by the VA 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.

8.  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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100024166, dated 4 May 2011.



      ____________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)                                         AR20110023992



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ABCMR Record of Proceedings (cont)                                         AR20110023992



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