IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20140021046 


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 medical separation be converted to a medical retirement.

2.  The applicant states the surgical report on his knee shows a more severe disability than his medical evaluation board/physical evaluation board (MEB/PEB) shows.  He also states that the MEB/PEB did not address an elbow condition, tinnitus, or post-traumatic stress disorder (PTSD).  

3.  The applicant provides copies of —

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a 2014 Department of Veterans Affairs (VA) rating decision
* a 4 page operation report
* Physical Profiles dated 10 May 2005 and 9 June 2005
* 6 June 2005 MEB Report of Medical History and Assessment
* 6 June 2005 MEB Report of Medical Examination
* 8 September 2005 MEB Proceedings
* 47 pages of his service medical records
* a 2005 Pre-Deployment Health Assessment packet

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 served on active duty in the Regular Army from 12 June 2003 through 4 November 2005 in the military occupational specialty (MOS) 31B (Military Police).  His service included a deployment to Kuwait/Iraq from 22 December 2003 to 4 April 2004.

3.  The applicant suffered an injury to his right knee during a war fighter exercise at Fort Riley, KS in June 2004.

4.  On 13 October 2004, after three months of conservative treatment the applicant underwent a diagnostic arthroscopic examination and debridement on his right knee.

5.  On 10 May 2005, the applicant was given an L-3 permanent profile for chondomalacia patella post-surgery.  This profile was approved by an appropriate authority.  The profiling official stated the applicant did not meet medical retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and referred him to an MEB/PEB.  

6.  A 6 June 2005 MEB medical history report shows preservice surgery to his right elbow and the 2004 knee surgery with continued complaints of pain.  There was not report of tinnitus or treatment for a mental health disorder.

7.  A 6 June 2005 MEB report of medical examination disclosed a finding of chondomalacia patella right knee post-surgery and minor surgical scars on his right elbow.  

8.  On 8 September 2005 MEB proceedings recommended the applicant be referred to a PEB for chronic right knee retropatellar pain syndrome in accordance with Army Regulation 40-501, paragraph 2-11b and determined this condition was unfitting and that he failed to meet retention standards.  The narrative summary stated the physical exam focused on the right lower extremity. The knee had full active range of motion without pain.  His flexion was to 145 degrees on the right knee and to 150 degrees on the left kneed.  There was some tenderness to palpation with patella grind.  There was no quadricep atrophy, no patella apprehensions and no effusion.  The applicant did not report any other symptoms other than his chronic right knee pain.  The applicant did not present views on his own behalf.  He indicated he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the board were approved and the applicant agreed with the findings and recommendation on 22 September 2005. 

9.  A 19 October 2005 PEB determined that the applicant's chronic right knee pain post diagnostic arthroscopy with chondromalacia patellae was unfitting and rated it at 0 percent.  The PEB noted the exam showed a full range of motion, normal strength and stability with patellar tenderness and patellar grind.  The knee pain and his permanent profile prevented effective duty performance in his primary MOS making him medically unfit to perform the duties required of a Soldier of his rank.  He was appropriately counseled.  The applicant agreed with the findings of the PEB and waived a formal hearing of his case on 21 October 2005.  

10.  The applicant was honorably discharged on 4 November 2005 for a medical disability with severance pay.

11.  On 22 April 2014, the VA rendered a decision and awarded the applicant service connected disability for:

* PTSD rated at 70 percent disabling effective 11 December 2013 (the date the VA received his PTSD claim)
* tinnitus rated at 10 percent disabling effective 24 September 2013
* residuals of a right knee meniscectomy rated at 10 percent disability effective 24 September 2013
* status-post meniscectomy scars rated at 0 percent disabling effective 24 September 2013

12.  The applicant provided numerous pages of medical evidence to include a letter from a medical doctor at the Ohio Valley Bone, Joint & Sports Medicine dated 30 May 2002 that attested to the fact the applicant had surgery on 6 December 2000 for an open reduction and internal fixation to the right humerus (elbow) based on a medial epicondyle fracture.  He reported this prior service surgery/condition during his Army medical entrance examination and continued to report it throughout his military career.  There is no indication he had any limitations associated to his prior service elbow surgery during his military career. A very careful review of all the medical evidence he provided shows he did not identify or seek medical treatment for any mental health disorders during his military service. 
13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set 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 or her office, grade, rank, or rating.  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 or retirement by reason of disability requires processing through the physical disability evaluation system (PDES).

14.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has less than 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.

17.  Title 38, United States Code, permits the VA to award compensation for a medical condition which 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, although not considered medically unfitting 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain any evidence that his pre-service incurred elbow condition impaired his ability to perform the duties of his office, rank, grade or rating.

2.  The applicant has not provided and the record does not contain any evidence that his tinnitus impaired his ability to perform the duties of his office, rank, grade or rating.

3.  The applicant has not provided and the record does not contain any evidence that applicant was suffering from or treated for any symptoms of any psychiatric, psychological, mental, or emotional disorder at the time of his MED/PEB.

4.  The fact that the 2004 surgical report shows different findings from the 2005 MEB/PEB is to be expected since the surgery was to correct a problem and the MEB/PEB was for the problems that still existed a year after that surgery.  The fact that two medical reports a year apart do not match does not indicate that either finding was improper or incorrect at the time it was made. 

5.  The applicant has not provided and the record does not contain any evidence that the applicant's knee condition (chondomalacia patella post-surgery) was of such a severity as to warrant a medical retirement.

6.  The VA rating, 9 years after his discharge, afforded the applicant a 10 percent disabling evaluation for his right knee pain.  Even utilizing this rating, the applicant still has not shown sufficient evidence to meet the 30 percent disabling rating required to award him a medical retirement.

7.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, has awarded the applicant additional disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for these conditions for Department of the Army purposes.

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)                                         AR20140021046



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ABCMR Record of Proceedings (cont)                                         AR20140021046



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