IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150011321 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150011321 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. IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150011321 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, correction of his records to show a physical evaluation board (PEB) assigned him a disability rating of 30 percent (%) or higher and recommended his permanent retirement by reason of physical disability. 2. The applicant states he should have been medically retired and not medically separated. A proper evaluation of his right knee should have been done after he completed physical therapy. The PEB based its consideration on an evaluation that occurred right after his knee surgery. He filed a written appeal with representation; the response he received stated that everything on file justified the rating he received. The Department of Veterans Affairs (VA) has since reevaluated him via physical and radiology exams; his ratings have increased accordingly with additional medical descriptions related to his right knee condition. 3. The applicant provides: * VA Disability Evaluation System (DES) Proposed Rating, dated 7 July 2011 * a memorandum from the VA Decision Review Officer to the U.S. Army PEB, dated 13 December 201, subject: Request for Reconsideration of Proposed DES Rating Decision, dated 7 July 2011, in the case of [Applicant] * DA Form 199 (PEB Proceedings), dated 14 December 2011 * Orders Number 037-0017, issued by Headquarters, U.S. Army Garrison, Fort Carson, CO on 6 February 2012 * Orders Number 044-0028, issued by Headquarters, U.S. Army Garrison, Fort Carson, CO on 13 February 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 June 2012 * VA Rating Decision, dated 2 June 2014 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. Following service in the Regular Army, the applicant was appointed as a commissioned officer in the Regular Army. On 17 May 2007, he executed an Oath of Office and entered active duty. 3. The applicant's medical evaluation board (MEB) proceedings are not available for review in this case. 4. On 14 December 2011, a formal PEB found him physically unfit due to pulmonary embolus with recurrent deep vein thrombosis (DVT) and right knee chondromalacia patella, in accordance with the VA Schedule for Rating Disabilities (VASRD) and recommended a combined disability rating of 20% and separation with severance pay. The PEB found that in spite of right knee surgery and treatment, the applicant continued to have difficulty climbing stairs, running, jumping, or carrying a combat load. Other conditions were considered but those conditions did not fail retention standards and/or were not unfitting. 5. On 14 June 2012, he was honorably discharged with severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability, non-combat. The DD Form 214 he was issued shows he completed 5 years and 28 days of net active service this period. 6. The applicant's complete service medical records are not available for review. 7. The applicant provides a VA DES Proposed Rating and a VA Rating Decision, dated 7 July 2011 and 2 June 2014 respectively, which granted him service-connected disability ratings for: * radiculopathy, left upper extremity, 30% * radiculopathy, right upper extremity, 20% * cervical spine degenerative joint disease C5-T1, from 10% to 20% * right knee (laxity/moderate recurrent subluxation, from 0% to 20% * right knee patellofemoral chondromalacia, 10% * hypertension, 0% 8. In connection with the processing of this case, an advisory opinion was obtained from the Army Review Board Agency's (ARBA) Senior Medical Advisor. The medical advisory opinion states: a. The applicant's DD Form 199 noted that he received a medical discharge from the Army with a 20% disability rating based on determinations of a formal PEB on 14 December 2011. A VA memorandum, dated 13 December 2011, with request from VA Decision Review Officer to U.S. Army PEB, requested reconsideration of the proposed DES rating decision, dated 7 July 2011, of evaluation of right knee patellofemoral chondromalacia proposed at 10% and reconsideration of his history of pulmonary embolus with recurrent DVT right leg proposed at 10%. b. A review of the applicant's electronic medical record (AHLTA) was completed. The review shows VASRD ratings, dated 2 June 2014, for: left upper extremity radiculopathy with 30%, effective 31 December 2013; right upper extremity radiculopathy at 20%, effective 31 December 2013; right knee (laxity/moderate recurrent subluxation) from 0% to 20%, effective 31 December 2013; right knee patellofemoral chondromalacia (limitation of extension) at 10% from 15 June 2012; and essential hypertension at 0%. Pulmonary vascular disease secondary to pulmonary embolism is in remission. c. The applicant did not meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. His medical conditions were duly considered during medical separation processing. 9. The advisory opinion was provided to the applicant to allow him the opportunity to submit comments or a rebuttal. He responded and provided a self-authored letter and an email from his physician, wherein his current medical conditions and expected long-term outcome are detailed. REFERENCES: 1. 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. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 2. 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 office, grade, rank, or rating. a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that 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. 3. 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 at less than 30 percent. 4. 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 an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. 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. 5. 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. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. DISCUSSION: 1. The applicant contends he should have been medically retired based on his right knee condition not being properly evaluated at the time of his PEB. 2. The evidence of record shows a PEB reviewed the applicant's diagnoses and found him physically unfit due to pulmonary embolus with recurrent DVT and right knee chondromalacia patella. The PEB recommended a combined disability rating of 20% and separation with severance pay. 3. Following his discharge from the Army by reason of disability, the VA increased his disability rating for his right knee condition and awarded service-connected disability ratings for several other conditions. He now contends the Army did not give him sufficient ratings for his medical conditions. The evidence of record does not support his contentions. 4. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. It appears the applicant was properly rated at 20% and the medical advisor found no evidence indicating an error in the Army's rating of his disabling conditions. 5. An award of a different rating by the VA does not establish error in the rating assigned by the Army's PDES. 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. Absent evidence to the contrary, it appears his disability evaluation was conducted in accordance with law and regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011321 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011321 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2