IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150001124 


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:

The applicant requests defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's disability findings to add the following medical conditions to his existing unfitting condition and increase his disability rating for medical retirement:

* ankle instability
* knee instability

2.  Counsel states:

	a.  The applicant's ankle instability incurred while serving on active duty should be rated at 10-percent disabling under Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) code 5271, limited motion, moderate.

	b.  The applicant's knee instability incurred while serving on active duty should be rated at 10-percent disabling under VASRD code 5257, light.

	c.  The applicant should be medically retired as of the date of his separation.

	d.  The applicant was medically separated by an informal physical evaluation board (PEB) with a 20 percent rating for type II diabetes mellitus.  This decision was grounded in a medical evaluation board (MEB), dated 5 February 2004, which only addressed whether his type II diabetes mellitus failed to meet retention standards.

	e.  At no time was the applicant's knee or ankle injury considered by the MEB for referral to the PEB.  The absence of referral was in error.

	f.  One month before his MEB, the applicant provided a DD Form 2807-1 (Report of Medical History) for the upcoming MEB.  He reported he had knee and ankle problems.

	g.  In a DD Form 2687 (Report of Medical Assessment), dated 6 January 2004, he indicated he would seek VA disability for his knees and ankles.

	h.  The knee injury occurred in the line of duty and was aggravated by service as a helicopter pilot.  This injury requires a brace from time to time.

	i.  The recurring ankle injury was documented in 2000.  The only range of motion (ROM) study done in the record was in April 2000 and showed limited ROM. These recurring knee and ankle issues were noted on the MEB physical.  They weren't addressed in the narrative summary, although both conditions existed at the time.

	j.  It is the applicant's position that the knee is unstable and required a brace from time to time for stability.  He recognizes that the instability was slight, but submits that the condition did not meet retention standards.

	k.  The applicant's position that his unstable ankles, particularly the right ankle, was subject to turning and spraining without warning with consequent limitation of ROM.  The recurrent spraining required a brace from time to time.  This chronically weak ankle condition did not meet retention standards.

	l.  Accordingly, the applicant should have been rated at 20 percent for his type II diabetes mellitus and 10 percent for either ankle, or 10 percent for his knee, or 10 percent for each, thereby causing his medical retirement.  Relief should be granted.

3.  Counsel provides:

* PEB
* MEB
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2807-1
* 
DD Form 2687
* service medical records

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.  Having prior enlisted service in the U.S. Army Reserve (USAR) and Regular Army, the applicant was appointed as a warrant officer one in the USAR on 21 September 2001 with concurrent orders to active duty.

3.  Counsel provided:

	a.  medical records, dated in 2000, which show the applicant sprained his right ankle while walking/running and he injured his left ankle while in the field; and

	b.  medical records, dated March 2002, which show the applicant was treated for right knee pain.  No injury or trauma was noted.

4.  He was promoted to chief warrant officer two effective 21 September 2003.

5.  Counsel also provided:

	a.  a DD Form 2807-1, dated 6 January 2004, which shows the applicant marked "Yes" to:

* swollen or painful joint(s)
* knee trouble
* any need to use corrective devices such as prosthetic devices, knee braces, back support, lifts or orthotics
* bone, joint, or other deformity
* broken bone(s)
	b.  a DD Form 2687, dated 6 January 2004, which shows the applicant indicated he would seek VA disability for his diabetes, knees, ankles, lower back pain, and wrists.

6.  His records contain a DD Form 2808 (Report of Medical Examination), dated 6 January 2004, which shows the applicant's lower extremities were rated normal.

7.  In February 2004, an MEB diagnosed him with type II diabetes mellitus.  The MEB recommended referral to a PEB.  On 2 March 2004, he concurred with the board's findings and recommendation.

8.  On 5 March 2004, an informal PEB found him physically unfit due to type II diabetes mellitus.  The PEB recommended a 20-percent disability rating and separation with severance pay.  On 16 March 2004, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

9.  His records contain a DA Form 5893-R (Physical Evaluation Board Liaison Officer (PEBLO) Counseling Checklist/Statement) which shows the PEBLO counseled the applicant and inquired whether all medical conditions and physical defects were covered in the narrative summary and whether they were adequately described.  The applicant acknowledged he was counseled on 16 March 2004.

10.  On 17 May 2004, he was honorably discharged from active duty by reason of disability with severance pay.

11.  On 23 February 2015, in the processing of this case an advisory opinion was obtained from the Agency Legal Advisor, U.S. Army Physical Disability Agency. The opinion states:

	a.  The applicant was diagnosed with type II diabetes mellitus in 2003 and his flight status was suspended because of the diagnosis and the requirement to take medication for the condition.  Because of the diagnosis, the applicant was referred to the military disability system.  His MEB listed only one condition that did not meet medical retention standards.  The narrative summary and MEB did not list any other condition that did not meet medical retention standards.  The only other condition the narrative summary listed was seasonal allergic rhinitis that may have been affecting him while in the military.  On 2 March 2004, the applicant concurred with the MEB findings.

	b.  While undergoing his MEB, the applicant did list past problems with his knee and ankle.  Medical records reveal an ankle sprain in 2000 that was diagnosed as a soft tissue injury and resulted in treatment in 2000 with only a temporary physical profile.  The records do not reflect a requirement for further treatment of the ankle after 2000.  The applicant complained of a knee injury in 2002, but that also did not result in any permanent physical profile restrictions.  After reviewing all of the above information and examining the applicant, the DD Form 2808 indicated that his lower extremities were considered "normal" for examination purposes and they met medical retention standards on 6 January 2004.

	c.  The applicant's commander indicated that, notwithstanding the recent diagnosis of type II diabetes mellitus, the applicant was able to perform his assigned duties (except the temporary suspension of flight duties) and he recommended the applicant's retention on active duty.

	d.  The applicant's 1 March 2004 written statement to the PEB indicated the only problem he was having at that moment was related to his diagnosis of type II diabetes mellitus.

	e.  An informal PEB found the applicant unfit for his type II diabetes mellitus and rated it as 20 percent disabling and recommended his separation with severance pay.  On 16 March 2004, the applicant concurred with the PEB findings and waived his right to a formal hearing.

	f.  The military disability system is based on fitness for duty.  Only those conditions that cause a Soldier to be unable to perform his duties can be found to be unfitting and compensable.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Even after the applicant sprained his ankle in 2000 and hurt his knee in 2002, he continued to be qualified for flight duty and continued to perform all his assigned duties.  It wasn't until he was diagnosed with type II diabetes mellitus that anyone even considered having to refer the applicant into the military disability system.  Without the diagnosis of type II diabetes mellitus, the applicant would have continued to be flight qualified and would have continued to remain in the military.  The fact that he intended to file a VA claim for his ankle and knee is not germane to the issue in this case as the VA does not consider fitness for duty in deciding VA compensation.

	g.  The PEB findings were supported by a preponderance of the evidence; were not arbitrary or capricious; and were not in violation of any statute, directive, or regulation.  The clear preponderance of the evidence supported that the applicant's ankle and knee met medical retention standards at the time of his disability processing, did not require any permanent physical profile limitations at that time, did not require the suspension of his flight status, and did not hinder his ability to perform his assigned military duties.

	h.  The USAPDA recommends denial of the applicant's request.

12.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 10 July 2015, counsel responded and stated:

	a.  The thrust of the advisory opinion was that the ankle and knee conditions of the applicant did not independently fail to meet retention standards.  They disagree with respect to the applicant's ankles.

	b.  The advisory official noted that neither the knee nor ankles were mentioned in the MEB.  This fact had no meaning.  In 2004, the disability evaluation system was awash with error and inconsistency.  This is why there is now a Physical Disability Review Board (PDRB) for review of cases during that period with regard to appropriate percentages of disability.

	c.  It is true the absence of a condition does not fall under PDRB scrutiny, but it was not an exception during that period to mention only the "principal" disabling condition in the MEB narrative summary.

	d.  The medical records confirm a chronic condition in both ankles which did not meet retention standards and was unfitting.  Counsel provided medical records, dated 1991 to 2000, which show the applicant was treated for avulsion, pain, swelling, sprain, tenderness, bruising, and limited ROM of his ankles.

	e.  It is true that the applicant continued to function with chronic pain and instability, but the instability and pain of his ankles did not meet retention standards under VASRD codes 5299-5003.  VASRD codes 5299-5003 are the provisions that are generally accepted as applicable to ankle instability and pain cases as can be confirmed by a Google search of "Ankle Instability As An Unfitting Military Condition."  The PEB cases found there have recognized ankle instability and pain as an unfitting condition usually rated at 10 percent.  The bilateral nature of the ankle conditions should also be considered as a collective unfitting condition at no less than 10 percent.

	f.  The absence of consideration of the applicant's ankle conditions is not evidence of the absence of an unfitting condition.

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB.  Paragraph 3-13 (Lower Extremities) states joint ROMs that do not equal or exceed the measurements listed below as a cause for referral to an MEB:

* knee – flexion to 90 degrees or extension to 15 degrees
* ankle – dorsiflexion to 10 degrees or planter flexion to 10 degrees

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

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

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant should have been medically retired and requests addition of the following medical conditions to his existing unfitting condition and an increase in his disability rating:

* ankle instability
* knee instability

2.  Counsel also contends the applicant's medical records confirm a chronic condition in both ankles which did not meet retention standards and was unfitting. 
However, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  His ankle sprain in 2000 was diagnosed as a soft tissue injury and resulted in treatment in 2000 with only a temporary physical profile.  He complained of a knee injury in 2002, but that also did not result in any permanent physical profile restrictions.  After reviewing all of the above information and examining the applicant, the DD Form 2808 indicated that his lower extremities were considered "normal" for examination purposes and they met medical retention standards on 6 January 2004.

3.  His MEB did not list these conditions as medical conditions/defects and he agreed that the MEB accurately listed all of his current medical conditions.  He provided no evidence to show these conditions rendered him unfit to perform his military duties.  In addition, his DD Form 2808, dated 6 January 2004, shows his lower extremities were rated normal.  As such, there is insufficient evidence with which to add these medical conditions as unfitting conditions.

4.  The evidence shows a PEB found him physically unfit due to diabetes mellitus, type II.

5.  Counsel's remaining contentions were carefully considered.  However, there is insufficient evidence to show the applicant's unfitting condition was improperly rated by the PEB in 2004.  In addition, he concurred with the PEB findings and recommendation.  There is no basis for granting the applicant's request to increase his disability rating.

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)                                         AR20150001124



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ABCMR Record of Proceedings (cont)                                         AR20150001124



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