IN THE CASE OF:	   

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017590 


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 an increase in his December 1986 disability rating and, in effect, correction of his records to show he was retired by reason of physical disability instead of discharged by reason of physical disability with entitlement to severance pay.

2.  The applicant states:

* he was run down by a 2-ton truck in 1979 and he does not believe his medical examination was conducted properly
* the physical evaluation board (PEB) did not follow the statutory guidelines and those of the Department of Defense (DOD)
* there were more than three reasons why he could not continue with his military service
* the Department of Veterans Affairs (VA) gave him a 30-percent disability rating, but the Army only awarded 10 percent 5 months earlier

3.  The applicant provides:

* Congressional correspondence
* Disabled American Veterans (DAV) Magazine article titled "DAV and Air Force Veteran Win Battle for Benefits"
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (PEB Proceedings)
* VA examination
* VA Rating Decision
* Standard Form 93 (Report of Medical History)
* Medical Board Medical Record Report
* Standard Form 88 (Report of Medical Examination)
* clinical records, consultation sheets, medical treatment records, and other medically-related documents
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Fort Benning Form 2028 (Disability Counseling Worksheet)
* DA Form 3349 (Physical Profile)

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's available records show he enlisted in the Regular Army on 3 March 1970.  He initially held military occupational specialty (MOS) 45B (Small Arms Repairman) and later held MOS 11B (Infantryman).

3.  He served through multiple reenlistments or extensions and he attained the rank/grade of staff sergeant/E-6.  He was assigned to Company C, 2nd Battalion, 29th Infantry, Fort Benning, GA.

4.  His Medical Board Medical Record Report dictated on 16 June 1986 shows:

	a.  He had chronic low back pain for approximately 6 to 7 years.  He also related a history of chronic anterior knee pain for about the same duration.  He was allegedly struck by a truck while riding a bicycle, but he could not recall the details of the incident.  He continued to experience pain in his back and knee.

	b.  His pain was achy and radiated to the inner scapular region.  He claimed that bending forward; sitting in a soft, easy chair; and riding in a car caused increased pain.  He was previously hospitalized for low back pain in April 1979.  He was managed with conservative therapy consisting of weight reduction, exercise, non-steroidal anti-inflammation pain medications, and analgesics as necessary but with only temporary relief.

	c.  On physical examination, his lumbar range of motion was flexion to 2 inches from the floor, extension to 30 degrees, right lateral bending to 40 degrees, and left lateral bending to 40 degrees.  There was no scoliosis, no muscle spasms, no echomyosis (bruise), and no localized tenderness.

	d.  He was admitted for arthroscopic surgery of the right knee which was performed on 12 June 1986.  At the time, he was noted to have a degenerative tear involving the anterior horn of the lateral meniscus and patellofemoral arthrosis (joint).

	e.  The multiplicity of his musculoskeletal complaints prevented him from performing the duties of an infantryman in accordance with the governing regulation.  His prognosis was such that he was not expected to improve significantly.

	f.  He was diagnosed as having chronic low back pain syndrome without neurological deficit or radicular pain; chronic right shoulder pain, status post-right Mumford procedure from acromioclavicular (AC) arthritis without neurological deficit; and chronic bilateral anterior knee pain, chondromalacia patella bilateral with degenerative tear of the right lateral meniscus and proliferative synovitis.  As he was unable to satisfactorily perform the duties expected of a member of his rank and MOS, he was referred to the Army Physical Disability Evaluation System (PDES).

5.  An MEB convened at Fort Benning, GA, on 25 August 1986 and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of:

* chronic low back pain syndrome without neurological deficit or radicular pain
* chronic right shoulder pain status post right Mumford procedure from AC arthritis without neurological deficit
* chronic bilateral anterior knee pain, chondromalacia patella bilateral with degenerative tear of the right lateral meniscus and proliferative synovitis

6.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue serving on active duty.  He was counseled and acknowledged his understanding by stating, "I certify that this medical board accurately covers all of my medical conditions, that all health records pertaining to my case have been turned over to proper authorities, and that I have been counseled IAW [in accordance with] Appendix C-13, AR [Army Regulation] 635-40 [Physical Evaluation for Retention, Retirement, or Separation]."

7.  On 4 September 1986, an informal PEB convened at Fort Gordon, GA  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to degenerative arthritis in his right shoulder and knees, rated as x-ray evidence of involvement in two or more joints (MEB diagnoses 2 and 3), and low back pain syndrome without neurological deficit or radicular pain, rated as slightly subjective symptoms only (MEB diagnosis 1).  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned the following codes and ratings, and granted a 10-percent disability rating:

* code 5003, arthritis, degenerative – 10 percent
* code 5295, low back pain without neurological deficit – 0 percent

8.  The PEB recommended the applicant's separation with entitlement to severance pay if otherwise qualified.  On 5 September 1986, the applicant was counseled by a PEB Liaison Officer regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

9.  He was honorably discharged on 2 December 1986 by reason of physical disability with entitlement to severance pay under the provisions of Army Regulation 635-40, paragraph 4-24e(3).  His DD Form 214 shows he completed 7 years, 4 months, and 16 days of active service during this period.  It also shows he received disability severance pay in the amount of $34,214.40.

10.  On 3 February 2003, the VA awarded him service-connected disability compensation for various conditions as follows:

* traumatic arthritis, right shoulder – 20 percent
* degenerative arthritis, lumbar spine – 20 percent
* residual instability status post medial meniscectomy, right knee – 10 percent
* tinnitus – 10 percent
* chondromalacia, left knee – 10 percent
* degenerative arthritis, left second metatarsal – 10 percent
* traumatic arthritis, right knee associated with residual instability status post medial meniscectomy, right knee – 10 percent
* residuals of laceration, ulnar nerve – 10 percent
* recurrent left ankle strain – 0 percent
* recurrent right ankle strain – 0 percent
* excoriation, bilateral tympanic membranes – 0 percent
* tinea cruris – 0 percent
* bilateral hearing loss – 0 percent

11.  The VA had initially granted him a 20-percent combined service-connected disability compensation rating on 3 December 1986.  This was increased to 30 percent in January 1987, 40 percent in 1992, and 60 percent in 1997.  The initial rating, dated 28 January 1987, was for:

* arthritis – 10 percent
* traumatic arthritis – 10 percent
* knee condition, right -10 percent
* arthritis – 0 percent
* bone condition – 0 percent
* condition of skeletal system – 0 percent

12.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB finding
* receive a permanent physical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either discharged from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are discharged receive a one-time severance payment while veterans who are retired based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

12.  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 office, grade, rank, or rating.  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.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  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.

15.  The VASRD is used by the Army and the VA as part of the process for adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  The VASRD Code 5003 (at the time) stipulated that degenerative arthritis established by x-ray findings will be rated based on the limitation of motion.  A 10% is assigned when x-ray evidence of involvement of two or more joints or two or more minor joint groups.  A 20% is assigned with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbation.  

16.  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 an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a knee/back injury that warranted his entry into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical condition prevented him from reasonably performing the duties required of his grade and MOS.  He was determined to be physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay with a 10-percent disability rating.  He appears to have agreed with the findings and recommendations and waived his right to a formal hearing of his case.

2.  The rating was assigned based on a finding that his x-rays produced evidence of involvement of two or more joints or two or more minor joint groups.  According to the VASRD, such finding warranted a 10-percent disability rating.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated as 10-percent disabled for his medical condition.  There is no evidence to support a higher rating for this condition or any other medical condition.

4.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him as 10-percent disabled for his condition (his x-rays produced evidence of involvement of two or more joints or two or more minor joint groups.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

5.  He was awarded service-connected disability compensation by the VA.  However, an award of a different rating by another agency does not establish an error in the rating assigned by the Army PDES.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 

7.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20120017590



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ABCMR Record of Proceedings (cont)                                         AR20120017590



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