IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130002675 


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 medically retired due to physical disability.

2.  The applicant states he was medically discharged with a 0 percent disability rating due to bilateral knee pain.

	a.  In 2003, prior to deploying to Iraq, he was participating in a field training exercise in Germany to simulate combat.  His training buddy was carrying him on his shoulders and running when they fell.  The applicant hurt his back, arm, and knees and was taken to the Heidelberg Hospital Emergency Room (Germany) where he was treated and released the next morning.

	b.  He states the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) only evaluated him for bilateral knee pain.  They failed to evaluate all of his medical conditions (i.e., his injuries, illnesses, and four surgeries).

	c.  He states the Department of Veterans Affairs (VA) granted him service-connection with a combined disability rating of 100 percent, as follows:

* post-traumatic stress disorder (PTSD) with anxiety and depression – 100 percent
* asthma/sleep apnea/chronic obstructive pulmonary disease (COPD) – 30 percent
* diabetes (due to medication) – 10 percent
* hearing loss – 10 percent
* tinnitus (bilateral) – 10 percent
* feet (right and left) – 10 percent
* hemorrhoidectomy surgery – 30 percent
* sphincterectomy surgery – 10 percent
* paralysis of median nerve (both arms) – 20 percent
* deteriorating eyesight – 0 percent

3.  The applicant provides copies of his:

* MEB and PEB proceedings
* medical records
* VA ratings

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 had prior enlisted service in the Army National Guard from 18 December 1987 to 1 February 1990 and in the U.S. Army Reserve from 7 November 1995 to 6 November 2001.

3.  He enlisted in the Regular Army (RA) on 19 February 2002 for a period of 3 years.  He was awarded military occupational specialty 63W (Wheeled Vehicle Repairer).  He served in Kuwait/Iraq from 7 January 2004 to 11 March 2004.

4.  The applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), does not contain a copy of his MEB or PEB proceedings.

5.  On 16 September 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  He completed 2 years, 6 months, and 28 days of creditable active service.

6.  In support of his application the applicant provides:

	a.  MEB Summary, dated 31 March 2004, that shows the applicant complained that both of his knees were bothering him when he performed any type of activity (i.e., pain in both knees).

		(1)  The applicant indicated his right knee started bothering him in April 2002 and his left knee started bothering him in January 2004.  His symptoms became so severe that he was medically evacuated from Baghdad, Iraq to Heidelberg, Germany.

		(2)  The examining physician's diagnosis was bilateral knee pain secondary to degenerative joint disease.  He found the applicant's condition was medically unacceptable and recommended referral to the PEB.

	b.  A DD Form 2697 (Report of Medical Assessment), dated 21 April 2004, that shows the applicant reported his medical conditions as follows:

* injury to both knees (bilateral knee pain)
* back, shoulder, and foot problems/pain
* ringing in ears (tinnitus)
* bleeding of the gums (gingivitis)
* asthma/shortness of breath
* sinus problems (sleep apnea)
* deteriorating vision
* severe headaches (migraines)

	c.  A DD Form 2808 (Report of Medical Examination), dated 21 April 2004, that shows the examining physician entered in:

		(1)  item 76 (Significant or Disqualifying Defects):  bilateral knee arthritis; and

		(2)  item 77 (Summary of Defects and Diagnoses):

* recurrent bronchospasm
* high frequency hearing loss
* under counseling for temper and sleep disorder
* mild elevated cholesterol
* anal fissures (healed)

	d.  MEB Summary Addendum, dated 30 April 2004, that shows the examining physician reported the applicant had severe pain on flexion motion beyond the 75-degree mark in both knees.

	e.  A DA Form 199 (PEB Proceedings) that shows on 25 May 2004 an informal PEB reviewed the applicant's DD Form 2808, dated 21 April 2004, along with his medical records and found him physically unfit due to bilateral knee pain with a history of separate injuries to both knees and degenerative arthritis.

		(1)  There were no other conditions listed as unfitting.

		(2)  The PEB recommended separation under Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5099 and 5003, a 0 percent disability rating, and disability with severance pay.

		(3)  The applicant concurred with the PEB's findings, waived a formal hearing, and did not appeal the PEB proceedings.

		(4)  The PEB Liaison Officer (PEBLO) affirmed with her signature that she had informed the applicant of the findings and recommendations of the PEB, explained to him the results of the findings and recommendations, and advised him of his legal rights.  She also confirmed the applicant made the elections shown on the PEB proceedings.

		(5)  The PEB proceedings were approved on 18 June 2004.

	f.  Orders 174-01, issued by the Mannheim Transition Center (Germany), dated 22 June 2004, that assigned him to the transition center for separation processing on 16 September 2004 with a disability rating of 0 percent and disability with severance pay.

	g.  Military, VA, and civilian medical records (including medical literature related to the conditions) that show the applicant was treated for:

* asthma and COPD
* gingivitis
* diabetes and hyperglycemia
* eye problems
* erectile dysfunction, elevated cholesterol, and hypertension
* musculoskeletal issues
* hearing loss
* hemorrhoidectomy
* irritable bowel syndrome and fecal incontinence
* knee (right and left) injuries and surgeries
* migraine headaches
* PTSD, depression, and traumatic brain injury (TBI)
* rashes and surgeries
* back and shoulder injuries/pain
* sleep apnea
* spincterotomy (surgery)

	h.  VA rating decisions, spanning the period 19 November 2004 to 26 October 2012, that show (except as otherwise indicated), effective 17 September 2004, he was granted service-connection with a combined total rating of 100 percent for:

* PTSD – 100 percent
* hemorrhoids with anal fissure, status/post (s/p) hemorrhoidectomy – 
30 percent
* tinnitus – 10 percent
* hiatal hernia with esophageal reflux – 10 percent
* allergic rhinitis and sinusitis, s/p septoplasty – 10 percent
* degenerative joint disease, left knee – 10 percent 
* degenerative joint disease, right knee – 10 percent / degenerative joint disease, right knee, s/p total knee arthroplasty – 60 percent (1 January 2012)
* scar, residuals right knee arthroplasty associated with degenerative joint disease, right knee, s/p total knee arthroplasty – 0 percent 
(20 October 2008)
* carpal tunnel syndrome, right wrist – 10 percent / incomplete paralysis of lower radicular group, right upper extremity – 20 percent (21 July 2010)
* carpal tunnel syndrome, left wrist – 10 percent / incomplete paralysis of lower radicular group, left upper extremity – 20 percent (21 July 2010)
* mild conjunctivitis due to meibomain gland dysfunction and seasonal allergies (claimed as deteriorating eyesight) – 10 percent
* migraine headaches – 10 percent
* degenerative joint disease, right big toe with bunion – 10 percent
* degenerative joint disease, left big toe with bunion – 10 percent
* insertional tendo achillis tendinitis with plantar fasciitis, right foot – 
0 percent
* insertional tendo achillis tendinitis with plantar fasciitis, left foot – 
0 percent
* asthma – 10 percent (5 February 2009) / 30 percent (11 July 2012)
* bilateral hearing loss – 0 percent (20 January 2009)
* diabetes mellitus type II secondary to medication for PTSD – 
20 percent (21 July 2010)

	i.  A legal complaint (Burn Pit Claim) wherein the applicant is listed as one of the plaintiffs seeking redress for U.S. Soldiers and others deployed to Iraq and Afghanistan who were exposed to toxic smoke, ash, fumes, and contaminated water.

7.  Army Regulation 40-501 (Medical Fitness Standards) provides information on medical fitness, standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides that possession of one or more of the conditions listed in the chapter does not mean automatic retirement or separation from the Service.

	a.  Physicians are responsible for referring Soldiers to an MEB.  It is critical that MEBs are complete and reflect all of the Soldier's medical problems and physical limitations.

	b.  The PEB will make the determination of fitness or unfitness.  The PEB, under the authority of the U.S. Army Physical Disability Agency (PDES), will consider the results of the MEB, as well as the requirements of the Soldier's military occupational specialty, in determining fitness.

8.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Chapter 4 (Procedures), paragraph 4-18 (Initial processing), shows that upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete.  If documents are missing action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation.  The PEB may return a case to the medical treatment facility commander for additional information.

	b.  Appendix B, provides guidance for the Army's application of the VASRD. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, a percentage rating is applied to the unfitting condition from the VASRD.  The percentage is applied based on the severity of the condition.

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30 percent disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30 percent disabling.

10.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition that 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.  Consequently, due to the two concepts involved, an individual's medical condition(s), although not considered physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  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 PDES.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was retired due to physical disability because the MEB and PEB only considered his bilateral knee pain and failed to consider any other medical conditions that the VA has found to be service-connected with a combined disability rating of 100 percent.

2.  A complete copy of the MEB proceedings is not available.  However, the evidence of record shows the MEB found the applicant's condition of bilateral knee pain secondary to degenerative joint disease was medically unacceptable and recommended referral to the PEB.

3.  Subsequent to the MEB, the applicant underwent a physical examination that included further examination of his bilateral knee pain.  The evidence of record shows the applicant listed several other medical conditions in his medical history and the examining physician made note of the defects and his diagnoses.  Upon examination, the physician found only the applicant's bilateral knee arthritis as significant and/or disqualifying.

4.  Upon review of the applicant's physical examination and medical records, the PEB found the applicant medically unfit due to bilateral knee pain with a history of separate injuries to both knees and degenerative arthritis.  He received a 
0-percent disability rating with disability severance pay.

	a.  Except for the one rated condition, there is no evidence of record that shows any other medical condition limited the applicant in the performance of his military duties prior to or during the PDES process, or prior to his discharge.

	b.  The applicant concurred with the PEB's findings, waived a formal hearing, and did not appeal the PEB proceedings.

5.  The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the PDES process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning his disability processing.  Therefore, the applicant's MEB and PEB proceedings are presumed proper and equitable.

6.  There is no evidence of record that shows any of the other medical conditions the applicant complained of at the time of his physical examination were medically unfitting for retention in accordance with Army Regulation 40-501.  Therefore, the applicant is not entitled to correction of his records to show he was medically retired with a permanent disability rating of 30 percent (or more).

7.  Both statutory and regulatory guidance provide that 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 the individual's industrial or social functioning.

8.  In view of all 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)                                         AR20130002675



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ABCMR Record of Proceedings (cont)                                         AR20130002675



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