RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            24 January 2006
      DOCKET NUMBER:   AR20050002917


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant’s request, argument and supporting documents are provided by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s record be corrected
to show he was medically retired with a disability rating of 30 percent
(%), effective
27 May 2004, in lieu of the honorable discharge, by reason of physical
disability with severance pay, of the same date he now holds.

2.  Counsel states, in effect, that while the applicant was on active duty,
he developed problems with his left shoulder and left knee, which rendered
him unfit for duty.  An informal Physical Evaluation Board (PEB) found him
unfit for duty and awarded him severance pay for the disability associated
with his shoulder; however, no disability percentage was granted for his
left knee.  The applicant rejected this decision, and requested a formal
PEB, at which he demonstrated that the shoulder disability was a 20%
impairment, which the PEB supported.  This formal PEB granted no disability
rating for the left knee condition because it concluded the condition
existed prior to service (EPTS), which the applicant vigorously rebutted.
The applicant pointed out that there was absolutely no evidence of a
degenerative change in the knee prior to his enlistment in 1999 and 2001,
and any degenerative change that may have existed in 1997 was corrected by
surgery in 1997.

3.  Counsel further states, in effect, that subsequent to his discharge,
the applicant went to the Department of Veterans Affairs (VA) for an
evaluation.  The VA granted him service connection for patellofemoral
arthritis, left knee, which was an EPTS condition, because it had
permanently worsened as a result of service.  The VA granted a 10%
disability rating effective on the day following the applicant’s separation
from active duty.  The VA indicated that the applicant underwent a left
knee arthroscopy for repair of a torn meniscus at age 17, secondary to a
football injury.  He was granted a waiver for enlistment in the Army and
was asymptomatic until late 2003, when the knee became painful due to
increased activity.  Counsel indicates their position is the same as the
VA’s, which is that yes there was a condition in 1997 that was resolved by
surgery in 1997, and that the applicant was asymptomatic upon entry into
the Army and was granted a waiver for enlistment.

4.  Counsel further indicates that there was no evidence that progressive
degeneration was occurring; to the contrary, there was no clinical proof of
degeneration.  As a result, the applicant should be awarded a 10%
disability for his left knee, which should result in his medical
retirement.

5.  Counsel provides the following documents in support of the application:
 Separation Document (DD Form 214); Counsel Letter, dated 9 April 2004;
Operative Report, dated 23 January 1997; Consultation Sheet; Doctor’s
Statement, dated 11 July 2001; X-Ray Report, dated 5 July 2001; Report of
Medical Examination, dated 23 August 2001; Counsel Letter, dated 15 April
2004; VA Rating Decision, dated 13 August 2004;

CONSIDERATION OF EVIDENCE:

1.  On 30 December 2003, a Medical Evaluation Board (MEB) diagnosed the
applicant with chronic left shoulder pain, bilateral pes planus and left
patellofemoral pain, which it concluded was an EPTS condiction that was not
permanently aggravated by service.  The MEB referred the applicant’s case
to a PEB for evaluation.  The applicant signed the MEB Proceedings and
agreed with its findings and recommendations.

2.  On 27 January 2004, the applicant’s case was evaluated by a PEB
convened at Fort Lewis, Washington.  The PEB found that the applicant was
physically unfit based on his diagnosed condition of chronic left shoulder
pain.  The PEB assigned a disability rating of 20%.  The PEB noted that the
other two conditions identified by the MEB were not unfitting and therefore
were not ratable.  The PEB finally recommended the applicant’s separation
with severance pay.

3.  On 30 January 2004, the applicant nonconcurred with the PEB findings
and requested a formal hearing.

4.  On 1 April 2004, a PEB was convened at Fort Lewis to consider the
applicant’s appeal at a formal hearing.  The applicant and his counsel were
present at the hearing.  Based on a review of the medical evidence of
record, the PEB upheld the original PEB findings and again rated the
applicant at 20% based on the medical evidence and testimony presented.  As
a result, the applicant’s separation with severance pay was again
recommended.   The PEB noted that the left patellofemoral pain had worsened
since the original MEB and was considered unfitting; however, this was an
EPTS condition and his current condition was a natural progression of the
pre-existing condition.


5.  On 12 April 2004, the President of the PEB noted that the applicant had

non-concurred with the findings and recommendations of the formal PEB
hearing and the PEB reviewed the supporting attorney statement and
documentation submitted.  Following its review of the original case, and
the appeal packet, the PEB adhered to its original findings and
recommendations.  It was indicated that the applicant’s case had been
properly evaluated in accordance with the existing Army disability policy
and regulation.  The PEB President noted that the applicant’s 1997
operative report noted post-traumatic degenerative changes in the
applicant’s knee.  The operation did not completely restore the knee as the
post-operative management called for weight loss and moderate bicycling to
smooth out the cartilage.  He also indicated that the 2001 enlistment
physical
X-Rays did not pick up the degenerative changes.  However, X-Rays often do
not, but the degenerative changes were still present based on the post-
operative report, and the most recent 2004 X-Rays showed only mild
degenerative changes, which were the natural progression of the
degenerative changes noted in 1997.  The applicant’s case was forwarded to
the United States Army Physical Disability Agency (USAPDA) for review.

6.  The USAPDA found that the PEB findings and recommendations were
supported by a preponderance of the evidence, and that the findings were
not arbitrary or capricious, and were not contrary to any law, directive,
or regulation, and on 20 April 2004, the PEB proceedings pertaining to the
applicant were approved for the Secretary of the Army.

7.  On 27 May 2004, the applicant was honorably separated, by reason of
physical disability with severance pay, under the provisions of paragraph
4-24b(3), Army Regulation 635-40.  The DD Form 214 he was issued confirms
he completed a total of 2 years, 9 months and 10 days of active military
service and held the rank of specialist.

8.  During the processing of this case, an advisory opinion was obtained
from the Deputy Commander of the USAPDA.  This official outlined the
disability processing completed on the applicant.  He noted that the
applicant had surgery on his left knee in 1997, during which his civilian
physician observed degenerative changes already inside the knee.  He
further indicated that a 1999 orthopedic examination completed during an
attempt by the applicant to enlist in the Army also found degenerative
joint disease.

9.  The USAPDA Deputy Commander further stated that in December 2003, a MEB
was completed on the applicant.  During this process, the applicant
informed the MEB that he suffered no trauma or injury to the knee, but it
just began to hurt.  The MEB found that the knee pain was the result of an
EPTS condition that was not incurred while the applicant was entitled to
basic pay, and was not permanently aggravated by military service.  After
reviewing the MEB Proceedings, the applicant concurred with these findings,
and offered no rebuttal statements.  The first document  related to his
knee condition during his disability processing was an MEB addendum, dated
30 March 2004, which indicated that the applicant reported worse knee pain.
 No medical problems were reported in the addendum, but it did report that
the applicant weighed 264 pounds and that it was likely such a large
increase in weight would increase knee pain.

10.  The Deputy Commander, USAPDA, also indicated that the applicant and
his attorney presented the same medical evidence they are now submitting to
the Board during the PEB appeal process, and all this evidence was
carefully considered by the PEB.  The PEB acknowledged that the 2001
entrance physical noted no degenerative joint disease; however, the PEB
pointed out that degenerative joint disease was observed during the 1997
surgery and again in 1999, and was confirmed by the MEB in 2003.  This
official further pointed out that it is well known that degenerative joint
disease is a natural occurrence after a traumatic joint injury and surgery,
and that if observed in 1997, it is more likely than not that such
degenerative joint disease did naturally progress and with 45 pounds
overweight, the knee would hurt more.

11.  The USAPDA Deputy Commander also states that based on the applicant’s
appeal of the PEB, the case was reviewed by that agency.  The USAPDA found
the PEB findings were supported by a preponderance of the evidence, the
findings were not arbitrary or capricious, and the findings were not
contrary to any law, directive or regulation.  He further states that the
applicant entered active duty in 2001 with a medical waiver of his EPTS
knee condition, and that Soldiers who enter the service with a medical
waiver can only be compensated if there are specific findings of permanent
service aggravation, which is different from the normal presumption of
service aggravation.  He further states that although cleared for
enlistment by the 2001 orthopedic examination, the military obviously did
not consider the applicant’s knee condition normal and without any defects
as a waiver was still required.  The waiver is required because it is well
known that once an injury is operated on the propensity of reinjury or
natural progression of the condition is enhanced.

12.  The USAPDA official finally indicates that the VA finding provided by
the applicant were reviewed; however, they are not relevant to the specific
findings and procedures followed by the Army.  He concludes by stating that
because the PEB findings are not incorrect and are supportable by the
evidence in the case file, they should not be changed.

13.  On 10 January 2006, the applicant provided a rebuttal to the USAPDA
advisory opinion.  He claims that after reviewing the advisory opinion, he
found that several of the arguments were supported by flawed conclusions,
inaccurate interpretations of the Department of Defense guidance, and a
lack of familiarization with his case file.  He provides his point-by-point
argument to the points made in the USAPDA advisory opinion.  He indicates
that during a 2001 enlistment examination, an orthopedic report found no
defects in his left knee and he was enlisted into the Army.  He also
explains the MEB findings by outlining the physical conditioning program he
followed while assigned to Presidio of Monterey, California that aggravated
his knee condition, and indicates that his weight gain was due to
medication he was taking.

14.  The applicant further states that contrary to the USAPDA official’s
assertion that because he received a medical waiver, his knee condition was
not considered normal, the military did find his knee was normal and
without defects. He also contests the USAPDA official’s conclusion that the
VA findings are irrelevant and contends that VA noted that his condition
was permanently worsened by military service, which is consisted with the
Department of Defense (DOD) policy guidance that stipulates that if an EPTS
condition’s natural progression is hastened by military service, then the
Soldier who is determined unfit for duty is entitled to disability or
retired pay.  He claims his knee condition was found unfitting by the MEB
and therefore he is entitled to disability or retired pay.  He further
argues the positions taken in the USAPDA advisory opinion and states the
findings of the PEB, which were supported in the advisory opinion are
without strength and lack sufficient evidence to back the assertions set
forth.

15.  An Operative Report, dated 23 January 1997, was provided by the
applicant and his counsel.  This surgery report shows that a defect in the
medial femoral cordyla articular surface of about two centimeters was
noted.  The postoperative management portion of the report did indicate
that he should lose 25 to 20 pounds and exercise to restore the articular
cartilage in order to smooth out the cartilage surface.

16.  The applicant and his counsel also provide a VA Rating Decision, dated

13 August 2004.  This document confirms the applicant was granted service
connection for patellofemoral arthritis, left knee, for which a 10%
disability rating was granted.

17.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System and sets 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.

18.  Title 38, United States Code, sections 1110 and 1131, 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.

19.  The VA can evaluate a veteran throughout his 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
Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The request of the applicant and his counsel that he receive a medical
discharge based on a 30% disability rating, which in effect is a request to
review the PEB findings and recommendations made in his case, and the
supporting documents submitted were carefully considered.  However, there
is an insufficient evidentiary basis to support the requested relief.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations,
and was separated with severance pay by reason of physical disability based
on a 20% disability PEB rating for a chronic left shoulder pain condition.
His case was properly considered by a PEB and his appeal was properly
reviewed at a formal PEB hearing at which he and his counsel were present.

3.  All the arguments and medical evidence provided by the applicant, with
the exception of the most recent VA Rating, were already considered and
evaluated by the PEB during its reviews of the case.  The evidence and
arguments presented by the applicant and his counsel were also reviewed by
the PEB during the appellate process, and by the USAPDA, which upheld the
original PEB findings and recommendations.

4.  The PEB findings and recommendations, to include the assigned
disability rating, were based on comprehensive medical evaluations of his
disabling medical conditions made by competent medical authorities
throughout his PDES processing.

5.  The evidence of record confirms he underwent knee surgery in 1997, and
that degenerative joint disease was noted in the post-operative report.
This degenerative condition was also noted during an enlistment examination
completed in 1999, and confirmed in the MEB in 2003.  The finding of no
degenerative disease during his 2001 enlistment processing was the
aberration, and the fact a waiver of this medical condition was required to
allow his enlistment was an acknowledgement that the knee condition existed
prior to his entering the Army.

6.  In light of the EPTS and no aggravation medical findings of the MEB,
and the findings of the PEB during both its informal review and its formal
hearing, which were upheld by the USAPDA, it is concluded that there is
insufficient medical evidence to support the applicant’s assertions in this
case.  Absent any evidence of error or injustice in the medical findings
arrived at during the applicant’s PDES processing, the VA findings in this
case are not sufficient to overcome the findings and evaluations of
competent Army medical authorities rendered during this processing.

7.  In order to justify correction of a military record the applicant must
show
to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that
the record is in error or unjust.  The applicant has failed to provide any
new medical evidence that would call into question the original decision of
the
PEB, and the affirmation of that decision during a formal PEB hearing, and
by the USAPDA.  As a result, there is an insufficient evidentiary basis to
support
granting the requested relief in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PNM_  ___RDG _  __RCH _  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.




            ____Patrick H. McGann_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002917                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/01/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/05/27                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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