BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20150001276 


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, in effect:

	a.  The Physical Disability Board of Review (PDBR) to reverse its earlier decision to deny his request for review based upon his not meeting the Congressionally-mandated review period.

	b.  He implies a request for a review by the Board of his disability rating as well as an increase above the 20 percent he was given by a physical evaluation board (PEB).

2.  The applicant states, in effect:

* it was unjust for the PDBR to deny his request for review
* although he was discharged on 17 February 2010, a date after the close of the PDBR's Congressionally-mandated review period, he was placed on transition leave effective 15 December 2009; given this he feels he should be considered eligible
* he also believes his disability rating of 20 percent does not accurately reflect his level of disability
* during his medical evaluation board (MEB), there was only a mention of his back pain, but the PEB did not assign it a disability rating
* upon later treatment at the Department of Veterans Affairs (VA) Medical Center in Columbia, MO, he was diagnosed with lumbar facet strain and sacroiliitis (an inflammation of the sacroiliac joints, where the lower spine and pelvis connect)
* he was also seen several times while still on active duty for foot pain; VA diagnosed him as having bilateral plantar fasciitis and determined it was service-connected
* based on this new evidence, he feels he should be reevaluated by an MEB and a PEB so he can be considered for an increase of his disability rating

3.  The applicant provides:

* DA Form 3947 (Medical Evaluation Board Proceedings), dated 8 September 2009
* MEB Narrative Summary, dated 7 August 2009
* 18 pages extracted from medical records
* DA Form 5893 (Soldier's MEB/PEB Counseling Checklist)
* DA Form 137-1 (Unit Clearance Record)
* DA Form 137-2 (Installation Clearance Record)
* two DD Forms 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement)
* Enlisted Record Brief
* Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement)
* DA Form 31 (Request and Authority for Leave)

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 requests the Board to require the PDBR to review his physical disability case.  The Department of Defense (DoD) established the PDBR in response to the National Defense Authorization Act of 2008 (NDAA 2008) (Title 10, U.S. Code, section 1554a), and implemented it in DoD Instruction 6040.44.
	a.  The PDBR was constituted to review disability ratings, and provide another avenue of administrative recourse for Service members who had a combined disability rating of 20 percent of less, and were not found to be eligible for disability retirement.  

	b.  By law the PDBR is mandated to evaluate cases only for Service members who were discharged (emphasis added) as unfit for continued military service by the Military Departments between 11 September 2001 and 31 December 2009 (emphasis added).

	c.  Because the PDBR is a DoD Board, the ABCMR has no authority to require a reevaluation of the applicant's case.  Notwithstanding this fact, the PDBR does not have any latitude in terms of the time periods of cases it evaluates.  This has been dictated by law.

	d.  Because of the foregoing, this portion of the applicant's request will not be addressed further.

3.  The applicant enlisted in the Regular Army on 14 June 2006.  After completing initial training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he held was specialist/E-4.

4.  In or around January 2008, while stationed at Fort Lewis, WA, the applicant injured his left knee as a result of a fall.  This injury was further aggravated one month later.  He was referred into the PDES for evaluation by an MEB.

	a.  On 21 April 2009 he completed a DA Form 2807-1 (Report of Medical History) in which he identified having knee and back pain.  He did not indicate any issues with his feet.

	b.  On 29 May 2009, he received a physical examination.  During this examination, his left knee is noted as having patellofemoral pain syndrome and his right knee as having compensatory pain.  It is noted, while he is shown as having back pain, he has full range of motion and, therefore, meets medical retention standards.  His feet are identified only as having pes planus (flat feet), at a moderate level and symptomatic (indicating the presence of a condition).  No mention is made of bilateral plantar fasciitis.

	c.  On 7 August 2009, he was medically evaluated as part of the MEB process.  In the Narrative Summary (NARSUM) prepared by the MEB doctor, his left knee is noted as having failed medical retention standards, but his right knee and back both meet medical retention standards.  The NARSUM is void of any reference to his feet.
	d.  On 8 September 2009, an MEB determined his left knee did not meet medical retention standards but his right knee and back both met medical retention standards.  No mention is made of his feet.  He was referred to a PEB for a fitness determination and possible disability rating.

5.  On 23 October 2009, a PEB found the applicant was unfit for continued military service.  

	a.  It determined he had arthritis, due to trauma, in his left knee and degenerative arthritis in his right knee, resulting in a disability rating of 20 percent for bilateral knee disabling condition.  The applicant's back was not found by the PEB to be unfitting.  No reference is made of his feet.

	b.  The PEB recommended discharge with disability severance pay.  On 6 November 2009, the applicant concurred and waived his right to a formal hearing.

6.  The applicant was placed on transition leave effective 15 December 2009 and was honorably discharged on 17 February 2010.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 3 years, 8 months, and 4 days of net active creditable service.  The separation authority is shown as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures).  The narrative reason for separation is disability, severance pay, non-combat-related.

7.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

8.  The VA Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of 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.

9.  Army Regulation 635-40 prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code.

	a.  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.  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.

	b.  Based upon the requirements of section 1203 of chapter 61, Title 10, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, his physical disability rating be increased from 20 percent based upon subsequent medical evaluations by the VA Medical Center.  In evaluating his claims, however, there is insufficient evidence to support his contentions.

	a.  Although providing no supporting documentation, he contends what was noted by his MEB as back pain has since been diagnosed by the VA to be lumbar facet strain and sacroiliitis.  Additionally, he states the VA has diagnosed his foot pain as bilateral plantar fasciitis, which it states is service-connected.

	b.  His records contain a report of medical history, completed by the applicant while going through the Army's PDES.  In this report he does identify having back pain, essentially stating it is a consequence of his knee injury.  In the entry addressing foot trouble, he has checked "No."

	c.  The physical examination conducted as part of the PDES addresses his back pain, but notes he had a normal gait, did not require any assistance devices (such as a cane), and showed full range of motion.  As a result, the physician determined his condition identified as back pain met medical retention standards.

	d.  This same physical examination also identifies the applicant as having pes planus or flat feet, which is noted as being at a moderate in level and symptomatic of an ongoing condition.  The condition is apparently not of such a level, however, as to require its inclusion in the MEB.  Additionally, there is no mention in either the applicant's self-reported medical history or this examination that suggests the applicant was suffering from bilateral plantar fasciitis at that time.

2.  Based upon his statement regarding VA's evaluation of his medical conditions, he appears to have been awarded service-connected disability compensation by the VA.  However, an award of a rating by another agency does not establish error in the rating assigned by the Army's disability system.  Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service (emphasis added).  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The findings of the VA as to disability conditions, particularly those noted after a Soldier's discharge, are not binding on the Army and do not require reassessment of earlier determinations.

3.  The applicant's physical disability evaluation appears to have been conducted in accordance with law and regulations and he 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.  There is therefore no basis upon which 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 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)                                         AR20150001276



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ABCMR Record of Proceedings (cont)                                         AR20150001276



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