IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20120000776 


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 disability rating.  

2.  The applicant states he received a disability rating of 10 percent (%) for his left knee but no rating for his right knee which he also hurt.  He also claims he was rated 0% disabled for his back injury because it had supposedly healed and 0% for a broken finger.  Further, a week before leaving Iraq he injured his right foot and still suffers from this injury.  

3.  The applicant provides the following documents in support of his application:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating Decision
* Medical Treatment Records  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 December 2005, and was trained in and awarded military occupational specialty 92Y (Unit Supply Specialist).  He was promoted to sergeant/E-5 on 11 December 2010 and this is the highest rank he attained while serving on active duty.  



2.  On 13 September 2010, the Seattle, Washington VA Regional Office completed a disability determination under the Physical Disability Evaluation System (PDES) Pilot Program, a joint venture between the Department of Defense and the VA.  The VA determination was prepared to assign evaluations to the applicant’s unfit conditions as well as to determine the member’s potential entitlement to VA disability compensation.  The VA recommended the PEB assign a 10% disability rating for “left knee retropatellar syndrome” under VA Schedule of Rating Disabilities (VASRD) code 5260 which was found to be an unfitting condition.  A 10% disability rating was recommended for the following two service-connected conditions that were not found unfitting:  service connected VASRD codes identified for the medical conditions listed: “right knee retropatellar syndrome,” VASRD code 5260; and “residuals of right middle finger fracture,” VASRD code 5229.  It also found the applicant suffered from low back pain and a left ankle sprain that were not service connected and as such were not ratable. 

3.  On 27 September 2010, a PEB evaluated the applicant’s case.  The PEB found the applicant’s “left knee retropatellar syndrome” was an unfitting condition.  The PEB rated this condition as 10% disabling and recommended the applicant’s separation with severance pay based on a physical disability rating of 10%.

4.  The PEB noted the applicant’s right knee condition and stated an exam showed a normal gait and stability with normal range of motion.  It further confirmed the three other conditions the applicant suffered from as noted in the disability evaluation system evaluation were not found unfitting for further service and as a result were not ratable. 

5.  On 29 September 2010, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing on 30 September 2010. The proceedings were approved by proper authority.

6.  On 11 December 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, non-combat (enhanced).  The DD Form 214 he was issued at the time shows he completed a total of 5 years, 5 months, and 19 days of creditable active service.

7.  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.  Paragraph 3-1 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.  

8.  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. 

9.  The VASRD rating guidance for code 5260 allows for a 10% rating in cases where leg flexion is limited to 45 degrees.  A 20% rating is not warranted unless evidence demonstrates leg flexion which is limited to 30 degrees.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of his disability rating has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  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 condition 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.  The evidence shows both the VA and PEB considered and evaluated the applicant’s other medical conditions and determined these conditions were not unfitting based on the medical evidence presented.  The PEB determined the applicant’s left knee condition was unfitting and assigned a 10% disability rating under VASRD code 5260 which is compliant with VASRD rating guidelines. 

4.  Absent medical evidence showing the applicant's right knee, right finger, back, or ankle conditions rendered him unfit for further service, or evidence of an error in his PDES processing, there is an insufficient evidentiary basis to support a change to his disability rating. 

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)                                         AR20120000776



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ABCMR Record of Proceedings (cont)                                         AR20120000776



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