BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150001292 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 correction of her records to reflect an increased disability rating as well as consideration of the additional conditions based on her Department of Veterans Affairs (VA) diagnoses and disability rating. 2. The applicant states: * her Army disability rating was lower than her VA disability rating * additionally, the VA diagnosed her with mixed anxiety and depressed mood, left lower extremity sciatica, a right wrist condition, and a right elbow condition for which the Army did not rate her * chronic chest pain due to costochondritis and mechanical complications of a left breast implant required plastic surgery which was performed on 27 September 2010 and she experienced continued problems after the surgery as noted in medical documentation * her left knee has ongoing episodes of "giving out," resulting in other medical injuries to include lower back issues with numbness and pain going down both legs into her toes * she currently uses a cane and a stabilizing brace to prevent further medical issues * a magnetic resonance imaging (MRI) of her left knee from 8 July 2010 shows the mid-portion meniscus is likely degenerated, torn, or possibly has been previously partially removed * her left knee condition affects her ability to work and is documented in her VA Compensation and Pension Examination performed on 4 November 2014 * a VA doctor told her that her left knee will need replacement in the future * a 2010 MRI of her back revealed degenerative arthritis of the spine along with intervertebral disc syndrome, which is also documented on her 4 November 2014 VA Compensation and Pension Examination * a VA doctor informed her that her back condition should be rated at 40 percent * her ability to work is hindered by her left wrist condition and is documented in her VA medical records * her military medical records stated she was diagnosed with bilateral tibia plateau stress fractures on 26 March 2009 * ongoing issues with this condition have gotten worse over time and are likewise documented in her VA medical records * she was given a VA disability rating of 10 percent for her left foot due to left lower extremity sciatica dating back to 18 December 2009 * ongoing left foot issues are documented in her VA medical records * she continues to suffer from insomnia and this condition is documented in her VA medical records * her military medical records, dated 1 September 2009, stated she needed a diagnosis for her elbow pain and that she was seen by an orthopedist * a line-of-duty investigation, dated 3 September 2009, was completed due to elbow pain * after receiving cortisone injections, an MRI was done on her right elbow on 10 August 2012 * the MRI showed her anatomy appeared near normal with the exception of lateral epicondyle articular surface – there was a small cleft at the margin of the articular surface within the bone which traversed in an oblique fashion * the conditions of post-traumatic stress disorder, major depression, chronic right wrist pain due to synovial cyst, chronic hip joint pain, chronic right foot pain, and overuse in both ankles should have been listed in her medical evaluation board (MEB)/physical evaluation board (PEB) as medically-unacceptable conditions, but were not * her conditions are documented in either her VA medical records or her military medical records 3. The applicant provides: * self-authored statement * printouts from the Army Review Boards Agency website * multiple DA Forms 2173 (Statement of Medical Examination and Duty Status) * multiple Standard Forms 600 (Chronological Record of Medical Care) * DA Form 199 (PEB Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Rating Decisions * additional medical documents in excess of 100 pages 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 enlisted in the Army National Guard on 14 August 2008. 3. Military Entrance Processing Station Orders 8232012, dated 19 August 2008, ordered her to active duty for training. She was ordered to report to Fort Jackson, South Carolina, for basic combat training on 25 February 2009 and to Fort Lee, Virginia, for advanced individual training on 12 May 2009. 4. A DA Form 2173, dated 3 September 2009, shows while on active duty for training she was injured completing normal basic combat training physical activities. Her sustained injuries consisted of a left tibia plateau stress fracture and overuse syndrome in both knees. She underwent an examination and treatment on 10 March 2009 and the injuries were determined to have been incurred in the line of duty. 5. A second DA Form 2173, also dated 3 September 2009, shows she injured both wrists and her right elbow on or about 27 July 2009 while in basic training, climbing down from her bunk to do pushups. 6. In October 2009, she underwent an MEB. a. Her DA Form 3947 (MEB Proceedings) shows the MEB recommended her medical separation from the Army under the guidelines established by Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41(e)(2), and referred her to a PEB due to medical unacceptability of the following conditions: * chronic chest pain due to costochondritis (inflammation of the cartilage) and mechanical complications of a left breast implant * chronic left knee and left leg pain due to lateral tibia plateau stress reaction and chondromalacia (inflammation of the underside of the patella) * acute lower back pain due to sacroiliitis (inflammation of the sacroiliac joint at the lower spine) * chronic left wrist pain due to flexor tendonitis * chronic right knee pain due to overuse b. The following conditions were found medically acceptable: * intermittent paresthesia (tingling sensation) of left forearm * left foot pain * history of hematochezia (blood in the stool) * history of left breast cyst * history of abnormal pap smear * history of palpitations * insomnia which she claims is caused by pain * history of right elbow pain * left foot pain due to plantar fasciitis * left heel pain c. She agreed with the MEB findings and recommendation on 22 October 2009. 7. On 9 December 2009, the PEB found her physically unfit due to chronic chest pain in accordance with VA Schedule for Rating Disabilities (VASRD) codes 8799 and 8719, sacroiliac injury in accordance with VASRD code 5237, and degenerative arthritis in the left knee and leg pain in accordance with VASRD codes 5099 and 5003. Chronic left wrist pain was found unfitting, but with insufficient support for a rating of 10 percent in accordance with VASRD codes 5009 and 5024, and was rated at 0 percent. Chronic right knee pain due to overuse was not found unfitting and was not rated. The PEB recommended her permanent disability retirement with a combined disability rating of 30 percent. The applicant concurred with the PEB findings and recommendation on 17 December 2007 and waived a formal hearing of her case. 8. On 2 February 2009, she was retired accordingly. Her DD Form 214 shows her narrative reason for separation as permanent disability. She completed 9 months and 24 days of net active service. 9. The applicant provided copies of her VA Rating Decisions between 2009 and 2015. The most recent VA Rating Decision, dated 5 March 2015, shows she was given a combined increased service-connected disability rating of 80 percent for the following conditions at the new percentages: * degenerative joint disease of the left knee with degenerative medial meniscus and synovitis of all three compartments – 10 percent * right lower extremity sciatica – 10 percent * costochondritis with rib subluxation and dislodged left breast implant – 10 percent * left lower extremity sciatica – 20 percent * left wrist tendinitis – 10 percent * minimal lumbosacral degenerative facet arthritic changes with lumbar spasm with intervertebral disc syndrome – 40 percent * major depressive disorder with anxious distress (previously diagnosed as adjustment disorder with mixed anxiety and depressed mood) – 30 percent * right knee patellofemoral syndrome – 10 percent * residuals of breast surgery (claimed as numbness, disfigurement) – rating deferred pending medical examination * idiopathic peripheral neuropathy of the left lower extremity – rating deferred pending medical examination 10. She also provided copies of VA medical records which include numerous progress notes, surgical information, clinical evaluations, and laboratory reports supporting her VA diagnoses and ratings. These forms all postdate her MEB and PEB. 11. An advisory opinion was obtained from the U.S. Army Physical Disability Agency, dated 2 October 2015. The agency legal advisor stated: a. The applicant's MEB was completed on 13 October 2009 and contained the following listed conditions that did not meet medical retention standards in accordance with Army Regulation 40-501, chapter 3: chronic chest pain, chronic left knee and leg pain, acute lower back pain, chronic left wrist pain, and chronic right knee pain. The knees, wrist, and back ranges of motion were all found to be normal in all planes. Her history of right elbow pain was listed in the MEB as meeting medical retention standards. There were no listed diagnoses of any behavioral health condition, right wrist, or lower extremity sciatica at that time. Her DD Form 2808 (Report of Medical examination), dated 2 September 2009, indicated her psychiatric evaluation was normal at that time. The applicant concurred with the MEB findings on 22 October 2009. b. On 3 December 2009, an informal PEB found her unfit for chest pain rated analogous to neuralgia of the long thoracic nerve at 10 percent; lower back pain with full active forward flexion to 90 degrees, rated for functional loss due to pain at 10 percent; left knee and leg pain, rated analogous to degenerative arthritis at 10 percent due to functional loss; and chronic left wrist pain rated analogous to tenosynovitis at 0 percent as no limitation of motion and no specific finding of functional loss to her non-dominant wrist. The PEB found her right knee pain to be fit for duty as there were insufficient medical findings to support an unfit finding or rating. The PEB found that all other conditions met medical retention standards fit for duty. She concurred with the PEB findings on 4 December 2009, waiving her right to a formal hearing, and was permanently retired for military disability at 30 percent. c. She provided VA records that indicated the VA awarded a rating for adjustment disorder with mixed anxiety for 30 percent effective 19 December 2011. Evidence of a VA rating of 10 percent for her back effective 4 June 2010; 10 percent for left lower sciatica at 10 percent, left knee at 10 percent, right knee at 10 percent, left wrist at 0 percent, and chest pain at 0 percent effective 18 December 2009 were also noted. The applicant has not provided any evidence that the conditions not rated by the PEB or not listed in the MEB diagnoses were present at the time of the PEB findings and caused her to be unable to perform her assigned military duties. d. The applicant's unfitting conditions were appropriately rated by the PEB and concurred with by the applicant. 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, regulation, or written policy. The agency legal advisor recommended no changes to the applicant's military records. 12. The applicant was provided a copy of the advisory opinion on 5 October 2015. She did not provide a response. 13. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 14. The 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. 15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. 17. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. 18. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, 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's request for correction of her records to reflect an increased disability rating as well as consideration of additional conditions based on her VA diagnoses and disability rating was carefully considered. 2. Records indicate she was properly retired from the Army under the provisions of Army Regulation 635-40, chapter 4, for permanent disability after referral to an MEB and subsequent PEB which found she did not meet medical retention standards for the unfitting conditions of chronic chest pain, sacroiliac injury degenerative arthritis in the left knee with leg pain, and chronic left wrist pain. The PEB findings were supported by a preponderance of the evidence and the rating determinations totaling 30 percent were made in accordance with the VASRD. 3. The applicant has provided no evidence indicating that any conditions not rated by the PEB or not listed among the MEB diagnoses were present at the time of the PEB findings and caused her to be unable to perform her assigned military duties. There is no evidence she was diagnosed with a behavioral health condition, right wrist condition, right elbow condition, or lower extremity sciatica at that time. 4. The VA granted the applicant an 80-percent service-connected disability rating for degenerative joint disease of the left knee with degenerative medial meniscus and synovitis of all three compartments, right lower extremity sciatica, costochondritis with rib subluxation and dislodged left breast implant, left lower extremity sciatica, left wrist tendinitis, minimal lumbosacral degenerative facet arthritic changes with lumbar spasm with intervertebral disc syndrome, major depressive disorder with anxious distress (previously diagnosed as adjustment disorder with mixed anxiety and depressed mood), and right knee patellofemoral syndrome. The fact that the VA granted her a service-connected disability rating for multiple medical conditions after she was released from active duty does not prove an error on the part of the Army at the time of her separation. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 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) AR20150001292 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001292 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1