IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20130018993 


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 his discharge with severance pay be changed to disability retirement.

2.  The applicant states his disability was rated at 0 percent (%) although the records state the injuries and subsequent discharge were directly related to his military service and this disability ended his military career.  He understands the Department of Defense rates a disability for the loss of a military career as opposed to the Department of Veterans Affairs (VA), which rates a disability based on the loss of earnable income due to the disability.  

3.  He tried three bouts of physical therapy and several procedures to stop the chronic knee pain.  He tried to change his military occupational specialty (MOS) 88L (Watercraft Engineer), but he was told he could not reclassify due to critical shortages in MOS 88L.  He was recommended for promotion to sergeant/pay grade E-5, but he could not go to a primary leadership development course due to his inability to run and pass a physical training (PT) test.  He also received several shots in his shoulder for pain and popping in those joints.  He had surgery on his septum due to an injury received during PT while playing rugby.  The injury eventually led to his sleep apnea.  All of these conditions were not considered while he was being evaluated by the Medical Evaluation Board (MEB).




4.  The applicant provides:

* service medical records
* DA Form 3349 (Physical Profile)
* two letters, dated 22 January and 5 March 2001, from the 1098th Transportation Company, Fort Eustis, VA
* MEB Narrative Summary (NARSUM)
* DA Form 3947 (MEB Proceedings), dated 26 March 2001
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
16 April 2001
* a memorandum, dated 22 May 2001, from the U.S. Army PEB, Walter Reed Army Medical Center (WRAMC), Washington DC
* his letter, dated 1 June 2001, to the President, PEB, WRAMC
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 4 August 2001
 
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.  On 3 June 1997, he enlisted in the Regular Army for 4 years.  He completed the training requirements and he was awarded MOS 88L.

3.  He provided service medical records covering the period 23 May 1998 through 2 May 2001 that show treatment for his knees and shoulder.

	a.  He began complaining of bilateral knee pain in May 1998.  He was treated with physical therapy and given temporary profiles.

	b.  A neuromusculoskeletal consult, dated 29 June 2000, indicate he had experienced bilateral knee pain over 1 year.  He had physical therapy with some success.

	c.  On 19 October 2000, he was given an L-2 permanent profile for chronic retropatellar pain syndrome (RPPS).  His limitations included running at his own pace and distance.

	d.  On 2 May 2001, he was seen for pain in his left shoulder and he received a steroid injection into his left shoulder.

	e.  On 18 January 2001, he was given an L-3 permanent profile for chronic RPPS, both knees.  His limitations included no running, marching or jumping; no deep knee bends, squatting or lifting greater than 40 pounds; and no prolonged standing greater than 15 minutes per hour.

4.  In a memorandum, dated 22 January 2001, his commander stated the applicant's duty performance had been exemplary since his assignment to the 1098th Transportation Company in April 1999.  Upon discovering the existence of knee problems he still continued to perform his duties as an engineer to the best of his abilities.  However, as his physical pain increased, difficulties arose when he had to work in the confined space of an LCM's (landing craft mechanized) engine room (the environment associated with his MOS) or lift heavy objects.

5.  In a memorandum, dated 5 March 2001, his new commander stated that due to the existence of a chronic medical condition the applicant was unable to perform on board a vessel.  He had never been the subject of any adverse action while serving in the unit. 

6.  On 26 March 2001, an MEB found the applicant did not meet retention standards and referred him to a PEB for chronic RPPS, both knees.  The NARSUM for the MEB stated:

* the applicant denied a history of injury to either knee
* his current position required frequent stooping past 90 degrees of both knees, prolonged standing and heavy lifting, all of which were performed aboard a ship
* he had been experiencing recurrent bilateral knee pain since 1998 as a result of these activities which had been unresolved with rest, physical therapy, non-steroidal anti-inflammatory medicines, stabilization braces, and injections
* examination of both knees revealed a full active range of motion from 
1-145 degrees
* tenderness over the medial femoral condyle of both knees
* there was retropatellar tenderness and pain with compression of both patellas
* there was no joint line tenderness, no effusion, and no ligament laxity to valgus or varus stress
* X-rays of both knees revealed lateral tilt of both patellas consistent with lateral compression syndrome
* assessment:  chronic RPPS, both knees

7.  On 5 April 2001, the applicant agreed with the findings and recommendation of the MEB.  He indicated he did not desire to continue on active duty.

8.  On 16 April 2001, an informal PEB found the applicant unfit for duty due to chronic RPPS in both knees with no history of trauma or injury.  There was no ligamentous laxity.  Range of motion was normal.  There was no neurological deficit.  The radiographs showed lateral tilt of the patellae.  The Q-angle was 
15 degrees (average in a male is 10 degrees).  An excessive or increased 
Q-angle places force on the patellae and can cause subluxation or dislocation of the patella. 

	a.  He was given an analogous rating (5099) under VA diagnostic code 5003 (Arthritis, degenerative (hypertrophic or osteoarthritis)) of 0%.

	b.  He would receive the same amount of severance pay regardless of whether his overall rating is 0%, 10%, or 20%.  A rating of 0% does not mean that he does not have a disability.  The 0% rating is assigned when a condition does not meet the criteria for the minimum rating.

	c.  A combined rating of 0% was recommended.  It was also recommended that he be separated with severance pay if otherwise qualified.  He did not concur with the findings.  He submitted a written appeal, demanded a formal hearing with personal appearance, and requested a regularly appointed counsel to represent him.   

9.  On 25 April 2001, he submitted a written appeal of his PEB.

	a.  He had been going to the doctor to get his knees evaluated since 1998.  He was put on temporary profile, given motrin and an anti-inflammatory.  On a follow up appointment he was put on another temporary profile and he was given more medication.

	b.  He had been to three different physical therapy sessions and all three concluded the condition of his knees was related to the duties associated with his job.

	c.   He received a waiver for flat feet when he came in the Army.  A podiatrist told him his fallen arches were a major part of the pain in his knees.   However, after receiving arches at the Portsmouth Naval Medical Center they discovered the arches were not effective in the relief of any pain in his knees.

	d.  He then received a knee stabilization brace and a permanent no running profile; however, his knees did not improve.  He was then given a shot of cortisone and zylacain under the knee cap to help eliminate the pain.  The shot helped until the pain killer wore off and then it felt the same, just bigger.

	e.  The doctor did not recommend surgery and told him he would rather send him through an MEB.

10.  A letter, dated 21 May 2001, from U.S. Army PEB, WRAMC notified the applicant his formal PEB hearing was scheduled for 22 June 2001.  In addition, his case was assigned to the Soldier's Legal Counsel Office for his appointment with legal counsel on 21 June 2001.

11.  On 22 May 2001, the U.S. Army PEB, WRAMC affirmed the decision of the informal PEB hearing that found the applicant's unfit with a disability rating of 0%.  In his rebuttal he did not provide any information as to any new diagnosis or changes in his rated disability.

12.  On 1 June 2001, based on the memorandum, dated 22 May 2001, from U.S. Army PEB, WRAMC, the applicant waived the PEB hearing that had been scheduled for 22 June 2001 and concurred with the findings of the informal PEB.

13.  On 4 August 2001, he was discharged by reason of disability with severance pay.  He completed 4 years, 2 months, and 2 days of active service.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth the policies, responsibilities, and procedures that apply 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.  It states, in pertinent part, that after establishing the fact that a Solider is unfit because of a physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability.  The VA Schedule for Rating Disabilities (VASRD), as modified in the regulation, is used to establish this rating.  


15.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, that the mere presence of an 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 his or her office, grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

16.  Title 38, Code of Federal Regulations, Part 4 - Schedule for Rating Disabilities, in effect at the time, stated the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.

	a.  Section 4.20 (Analogous ratings) stated that when an unlisted condition is encountered it will be permissible to rate under a closely-related disease or injury
in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  This rating schedule is primarily a
guide in the evaluation of disability resulting from all types of diseases and
injuries encountered as a result of or incident to military service.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.

	b.  Section 4.31 (Zero percent evaluations) stated in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a 
0% evaluation shall be assigned when the requirements for a compensable evaluation are not met.

	c.  Section 4.71a (Schedule of ratings—musculoskeletal system) provided the following criteria for the level of disability for the VA code 5003 - Arthritis, degenerative (hypertrophic or osteoarthritis):


Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10% is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below:

With X-ray evidence of involvement of 2 or more major joints or 
2 or more minor joint groups, with occasional incapacitating exacerbations – 20%



With X-ray evidence of involvement of 2 or more major joints or 
2 or more minor joint groups – 10%

Note (1): The 20% and 10% ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion.

Note (2): The 20% and 10% ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive.

17.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  His chronic RPPS in both knees is rated under an analogous rating due to his exact condition not being listed in the VASRD.  Therefore, the VASRD code used is primarily a guide and will not necessarily meet the exact criteria for the level of disability awarded.

2.  The applicant contends he also received several shots in his shoulder and he had surgery on his septum.  This surgery led to his sleep apnea.  He contends these conditions were not considered while he was being evaluated by the MEB. There is no evidence the applicant was unable to reasonably perform the duties of his office or grade due to these medical conditions.  Therefore, these medical conditions were not referred to an MEB.  The applicant agreed with the MEB's findings and recommendation.

3.  An informal PEB found him unfit for duty due to chronic RPPS in both knees and assigned him a 0% disability rating.  The NARSUM does not show any limitation of motion such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Examination showed full active range of motion from 1-145 degrees.  Therefore, because he does not meet the requirements for a compensable evaluation an evaluation of 0% for chronic RPPS in both knees is correct.  He initially did not concur with the findings and recommendation of the PEB and submitted a written appeal and demanded a formal hearing.  However, after the USA PEB WRAMC affirmed the PEB decision, the applicant withdrew his request for a formal hearing and concurred with the findings and recommendation of the informal PEB.

4.  This does not mean he does not have a disability.  The 0% rating is assigned when a condition does not meet the criteria for the minimum rating.  He received the same amount of severance pay regardless of whether his overall rating was 0%, 10%, or 20%. 

5.  In view of the above, there is an insufficient basis to change his discharge.

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)                                         AR20130018993



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ABCMR Record of Proceedings (cont)                                         AR20130018993



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