IN THE CASE OF:  

		BOARD DATE:  3 January 2013  

		DOCKET NUMBER:  AR20120010289 


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 he was retired due to physical disability instead of being discharged with severance pay.

2.  The applicant states he should have been awarded a higher disability percentage.  The physical evaluation board (PEB) assigned a minimum disability rating for the retropatellar pain syndrome (RPPS) injuries and did not take into consideration at all the ankle injury sustained during active duty.  The PEB indicated the ankle injury was resolving, which it is not.  The PEB did not acknowledge that the injury occurred while on active duty and that the injury did not exist prior to service.  As a result, the recommended disability percentage awarded is much lower than he expected.

3.  The applicant provides copies of his:

* Department of Veterans Affairs (VA) letter, dated 11 December 1998, with VA statement of the case acknowledging notice of disagreement
* Medical Examination Report from a German doctor, dated 22 June 1998
* VA Rating Decision, dated 12 April 1998
* DA Form 3957 (Medical Evaluation Board (MEB) Proceedings) 

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 Regular Army on 11 June 1993.  He held military occupational specialty 75H (Personnel Management Specialist).

3.  A 28 August 1997 medical examination shows:

	a.  the applicant's chief complaint was chronic knee pain.

	b.  The examining physician noted that while in basic training, the applicant experienced severe relatively incapacitating pain in both knees.  He was seen on multiple occasions and treated with Motrin (ibuprofen used to reduce fever and treat pain or inflammation); he was issued a physical profile.  Since that time, despite physical therapy, profiling, and careful exercise programs, there has no apparent improvement.  He is a chronic user of moderate pain relievers.  He arrived in Germany in 1995 and with the advent of 3-time weekly 5-to-7 mile runs, the situation became so severe that he was placed on a P3 profile limiting him in such a way that he no longer could satisfactorily perform the duties of his grade, rank, or station.

	c.  the examining physician also noted that while descending stairs in the barracks on 1 July 1997, the applicant slipped on a wet stair producing a supination injury of the right ankle.  He was seen at the emergency room.  Initial diagnosis was severe ankle sprain with avulsion chip fracture at the lateral malleous.  He was placed in an air splint, given a pair of crutches, Motrin, and a physical profile.

	d.  The examining physician noted the orthopedic physical examination revealed no problems except for those related to the knee and ankle.  At the knee there is full range of motion.  Examination of the ankle reveals discomfort at the distal portion of the lateral malleolus as well as anteriorly and medially at the attachments of the anterior and posterior fibula calcaneal ligaments.  The prognosis for further military service is listed as very poor.  The recommendation stated that in the opinion of the examining physician the applicant no longer meets the medical standards and is therefore being referred to a PEB for final adjudication.

4.  On 4 September 1997, an MEB was conducted at the 67th Combat Support Hospital.  The DA Form 3947 (MEB Proceedings) shows:

	a.  Based on consideration of clinical records, laboratory findings, and physical examinations, the applicant was diagnosed as having RPPS.  The approximate date of origin is listed as June 1993; the injury was shown as being incurred while he was entitled to base pay and it did not exist prior to service.  The diagnosis "Resolving Grade 1/2 ankle sprain on the right" is recorded.

	b.  The MEB recommended his referral to a PEB.  The applicant agreed with the findings and recommendation.

5.  An informal PEB was convened on 8 October 1997 at Walter Reed Army Medical Center, Washington, DC.  The DA Form 199 (PEB Proceedings) shows:

	a.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to patellofemoral syndrome right and left and herniated lumbar disc.  The PEB listed his VA Schedule for Rating Disabilities (VASRD) code/ratings as 5099 and 5003 and the disability description as chondromalacia patella in both knees, RPPS.  His other diagnosis listed by the MEB (grade 1/2 ankle sprain on the right) was found not unfitting and not ratable.

	b.  The PEB assigned a 20-percent disability rating and recommended the applicant's separation with entitlement to severance pay, if otherwise qualified.  He concurred with the PEB's findings and waived a formal hearing.

6.  His request to remain on active duty was denied on 6 November 1997.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 3 February 1998 based on disability with severance pay.  He completed 4 years, 7 month, and 23 days of net active service.

8.  A 12 April 1998 VA Rating Decision shows he was granted service connection for the chondromalacia patella in both knees with retropatellar pain with a rating of 20 percent effective 4 February 1998.  Service connection was also granted for his right ankle chip fracture of lateral malleous with a rating of 0 percent.  Service connection for isoniazid prophylaxis was denied.

9.  A medical report shows he was examined by a German doctor on 22 June 1998.  The report shows the applicant's right ankle was sensitive to touch; it responded painfully to compression and inner rotation.  Bending of the right ankle joint was restricted by 30 degrees compared to the left.  Outer rotation on the right side was restricted by 10 degrees compared to the left.  Inner rotation was restricted on the right side by 20 degrees compared to the left.

10.  An 11 December 1998 VA letter shows he filed a notice of disagreement with the 29 October 1998 statement of the case showing the right ankle fracture was increased to 20 percent effective 4 February 1998.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

12.  Army Regulation 635-40 governs the evaluation of 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.  

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA (and some other government agencies) may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the diagnosis "Resolving Grade 1/2 ankle sprain on the right" was listed in the MEB proceedings.  The MEB determined the applicant did not meet the Army's retention standards and referred him to a PEB.  The applicant concurred with the findings and recommendation of the MEB.

3.  The available evidence shows the 8 October 1997 informal PEB found the applicant unfit due to chondromalacia patella in both knees with RPPS and awarded a 20-percent rating.  The diagnosis of grade 1/2 ankle sprain on the right was not found unfitting and not ratable.  The applicant concurred with the PEB findings and waived his right to a formal hearing.

4.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.

5.  The applicant's ankle injury was considered and found non-ratable.  There is no available evidence that shows this condition hindered the performance of his duty as a personnel management specialist.

6.  The Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair(s) the individual's industrial or social functioning.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 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)                                         AR20120008114



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ABCMR Record of Proceedings (cont)                                         AR20120010289



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