BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000505 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 BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000505 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. BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000505 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, amendment of his permanent disability retirement rating of 30 percent to match his Department of Veterans Affairs (VA) rating of 100 percent. 2. The applicant states his percentage of disability was rated by the Army at 30 percent and found not be to in the line of duty. The VA rated his disability at 100 percent and determined it was incurred while serving on active duty during an overseas deployment. 3. The applicant provides: * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 3 June 2014 * U.S. Army Physical Disability Agency (USAPDA) order D176-29, dated 25 June 2014 * VA Rating Decision, dated 9 November 2015 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 U.S. Army Reserve on 21 January 1999. 3. The applicant's available medical records contain the following: a. A DD Form 2808 (Report of Medical Examination), dated 28 September 2006, shows he had a physical profile rating of "3" for hearing loss and a physical profile rating of "2" for right knee meniscal tear. He was determined qualified for service. b. A DD Form 2807-1 (Report of Medical History), dated 28 September 2006, shows the purpose of the examination was for retention. It shows the applicant was reported he was not taking any medications and he marked "Yes" to the following conditions: * worn contact lenses or glasses * recurrent back pain or any back problem * knee trouble * stomach liver, intestinal trouble, or ulcer * adverse reaction to serum, food, insect stings, or medicine (amoxicillin) * currently in good health * inability to perform certain motions * inability to stand, sit, kneel, lie down, etc. * treated in an emergency room (appendicitis in January 1997) * patient in any type of hospital (appendicitis in January 1997, right knee meniscal tear in March 2003) * any operations or surgery (appendicitis in January 1997, right knee meniscal tear in March 2003) * consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses (physical therapy for lumbar sprain) c. A Standard Form 507 (Functional Capacity Certificate), dated 28 September 2006, shows he had a permanent physical profile secondary to a right knee meniscal tear and he was prohibited from running. d. A DA Form 3349 (Physical Profile Form), dated 14 December 2006, shows he had a physical profile rating of "3" for hearing loss and a rating of "2" for a right knee meniscal tear. 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period 12 March 2008 through 1 April 2009 shows he was ordered to active duty in support of Operation Enduring Freedom and served in Kuwait from 22 April 2008 through 7 March 2009. He was honorably released from active duty due to completion of required active service. 5. U.S. Army Installation Management Command Orders 070-0270, dated 11 March 2009, released him from active duty, not by reason of physical disability, and reassigned him to the U.S. Army Reserve effective 1 April 2009. 6. A DA Form 199, dated 3 June 2014, shows a PEB found him physically unfit, recommended a disability rating of 30 percent, and recommended his disposition as permanent disability retirement. He concurred with the findings and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. Seven medical conditions were determined to be unfitting and three medical conditions were determined not to be unfitting, as follows: a. His osteoarthritis, left knee, status post-lateral meniscus tear and surgical repair, was found to be unfitting and with a rating of 10 percent. The onset occurred in November 2008 when he injured his right knee (compensating for the left knee) while conducting physical training in Kuwait. He was found unfit because physical profile restrictions prevented him from evading direct and indirect fire. b. His left hip labral tear was determined to be unfitting with a rating of 10 percent. The evidence suggested the onset occurred in September 2010 when he originally sought treatment at the VA for hip pain. He was found unfit because physical profile restrictions prevented him from riding in a military vehicle for at least 12 hours per day. c. His osteoarthritis, right knee, status post-arthroscopic surgery, was determined to be unfitting with a rating of 10 percent. The onset occurred in November 2008 when he injured his right knee (compensating for the left knee) while conducting physical training in Kuwait. He was found unfit because physical profile restrictions prevented him from evading direct and indirect fire. d. His bilateral hearing loss was determined to be unfitting with a rating of 0 percent. The onset occurred when he received physical profile rating of "3" in hearing based on a physical profile dated 18 October 2012. He did not have an approved line-of-duty investigation and was not on active duty orders. The required treatment for this condition imposed unreasonable requirements on the military to maintain and/or protect the applicant. e. His limited extension of the left thigh was determined to be unfitting with a rating of 0 percent. The evidence suggested the onset occurred in September 2010 when he originally sought treatment at the VA for hip pain. He was found unfit because physical profile restrictions prevented him from riding in a military vehicle for at least 12 hours per day. f. His impairment of the left thigh was determined to be unfitting with a rating of 0 percent. The evidence suggested the onset occurred in September 2010 when he originally sought treatment at the VA for hip pain. He was found unfit because profile restrictions prevented him from riding in a military vehicle for at least 12 hours per day. g. His degenerative joint disease lumbar strain was determined to be unfitting with a rating of 0 percent. He stated his back pain began in 2009. There is no approved line-of-duty investigation on file. There is no military medical evidence of treatment for this condition in the Armed Forces Health Longitudinal Technology Application (AHLTA) or the VA system. He was found unfit because physical profile restrictions prevented him from wearing load-bearing equipment for at least 12 hours per day. h. His gastroesophageal reflux disease, depression, and post-traumatic stress disorder (PTSD) were determined not to be unfitting. The PEB determined these conditions met medical retention standards. They are not listed on the physical profile as limiting any of the applicant's functional activities. They are not commented upon by the commander as hindering his performance of assigned duties. Continued service did not put his health at risk from them and the conditions individually or in combination with his other conditions did not put an undue burden on the military to protect him in the performance of his duties. 7. USAPDA Order D176-29, dated 25 June 2014, released him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his retirement for permanent physical disability. He was placed on the Retired List effective 30 July 2014 with a 30-percent disability rating. Disability was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law. 8. A VA Rating Decision, dated 9 November 2015, shows his combined VA rating was 100 percent effective 18 August 2015 and he was granted service connection for the following conditions: * back conditions – degenerative arthritis of the spine and lumbosacral strain with a rating of 40 percent effective 18 August 2015 * right knee limitation of extension with periarticular osteopenia, early osteoarthritis, with a rating of 50 percent effective 18 August 2015 * radiculopathy, left lower extremity, sciatic nerve with a rating of 20 percent effective 18 August 2015 * left knee limitation of extension, united tibial tubercle ossification center, early osteoarthritis, with a rating of 40 percent effective 18 August 2015 * scars, painful and unstable bilateral knees, with a rating of 40 percent effective 18 August 2015 * right knee strain and instability status post-arthroscopic surgery with scar, with a continued rating of 20 percent effective an unspecified date * left knee strain and instability status post-lateral meniscus tear status post-surgery with scar, with a continued rating of 20 percent effective an unspecified date * PTSD with depressive disorder, not otherwise specified, with a continued rating of 70 percent effective an unspecified date 9. The VA Rating Decision shows his combined VA ratings between April 2009 and August 2015 were rated as follows: * 2 April 2009 – 40 percent * 17 July 2009 – 100 percent * 1 February 2010 – 50 percent * 19 March 2010 – 60 percent * 11 August 2010 – 90 percent * 3 February 2014 – 100 percent * 1 June 2014 – 90 percent * 18 August 2015 – 100 percent 10. The Army Review Boards Agency Senior Medical Advisor provided an advisory opinion on 6 March 2017 wherein he states: a. He reviewed this case for medical condition(s) not considered during medical separation processing that may have determined the applicant should have received a higher disability rating. b. A Standard Form 88, dated 21 January 1999, shows the clinical evaluation was unremarkable. The applicant had a right lower quadrant appendectomy scar, tattoo pilonidal dimple, his vision was correctable to 20/20, and hearing loss with a physical profile rating of "2." He was found qualified for service. c. A DD Form 2807-1, dated 28 September 2006, shows the purpose of the examination was for retention. It shows the applicant was not on medication, he wore glasses, had back problems, an adverse reaction to amoxicillin, stomach trouble, physical therapy for lumbar sprain, right knee meniscal tear in March 2003, and appendicitis in January 1997. d. A Standard Form 507, dated 28 September 2006, shows he had a permanent physical profile secondary to a right knee meniscal tear and he was prohibited from running. e. A DA Form 3349, dated 14 December 2006, shows he had a physical profile rating of "3" for hearing loss and a rating of "2" for right knee meniscal tear. f. A review of his AHLTA record revealed clinical encounters from April 2008 through March 2014, all of which were physical/medical conditions and numerous physical therapy notes. There were no behavioral or mental health notes. Clinical notes were reviewed from April through November 2009, the one radiology report from April 2009 pertaining to the left knee x-ray series, and the laboratory results from March 2008 through April 2010. g. The PEB proceedings show he was given a combined disability rating of 30 percent for the following disabilities found unfitting: osteoarthritis, left knee, status post-lateral meniscus tear and surgical repair rated at 10 percent; left hip labral tear rated at 10 percent; osteoarthrisis right knee status post-arthroscopic surgery rated at 10 percent; bilateral hearing loss rated at 0 percent; limited extension of left thigh rated at 0 percent; impairment of left thigh rated at 0 percent; and degenerative joint disease lumbar strain with no rating due to no line-of-duty investigation on file. The not unfitting conditions which met medical retention standards included gastroesophageal reflex disease, depression, and PTSD. h. A review of VA records through the Joint Legacy Viewer reflects 32 problems, 24 of which were entered by the VA, including PTSD, depressive disorder, sciatica left side, femoral acetabular impingement, low back pain, hip osteoarthritis and pain, and chronic kidney disease. The applicant's service connected rating is 100 percent. i. The available records reasonably support PTSD and depression existed at the time of the applicant's military service, but neither condition warranted a separation through medical channels as both met retention standards. j. The applicant did not meet medical retention standards for bilateral knee osteoarthritis, left hip labral tear, hearing loss, and degenerative joint disease lumbar spine. He met medical retention standards for gastroesophageal reflux disease, depression and PTSD. k. All of the applicant's medical conditions were duly considered during his medical separation processing. A review of the available documentation found no evidence of a medical disability or condition that would support a change to his discharge. 11. The applicant was provided a copy of the advisory opinion on 7 March 2017 and afforded an opportunity to submit comments and/or a rebuttal. He did not respond. REFERENCES: 1. 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). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities. 2. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process for 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. 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that 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: 1. In June 2014 the USAPDA found the applicant unfit for duty due to left knee osteoarthritis, with a rating of 10 percent, right knee osteoarthritis with a rating of 10 percent, and left hip labral tear with a rating of 10 percent. These unfitting conditions were given a combined rating of 30 percent. 2. He was also found unfit for bilateral hearing loss, limited extension of the left thigh, impairment of the left thigh, degenerative joint disease lumbar strain each with a rating of 0 percent as he either did not have an approved line of duty investigation for the condition, there is no evidence in his military medical records of treatment for the condition, or was not on active duty orders at the onset of the condition. 3. The PEB determined gastroesophageal reflux disease, depression, and PTSD were not unfitting conditions and they met medical retention standards. These conditions are not listed on his physical profile as limiting any of his functional activities and they are not commented upon by his commander as hindering the applicant's performance of assigned duties. Continued service did not put the applicant's health at risk from these conditions and the conditions individually or in combination with the applicant's other conditions did not put an undue burden on the military to protect him in the performance of his duties. 4. He was accordingly placed on the Retired List effective 30 July 2014 with a 30-percent disability rating. 5. Effective 18 August 2015, the VA increased his service-connected disability rating to 100 percent for back conditions( degenerative arthritis of the spine and lumbosacral strain), right knee limitation of extension with periarticular osteopenia, early osteoarthritis, radiculopathy, left lower extremity, sciatic nerve, left knee limitation of extension, united tibial tubercle ossification center, early osteoarthritis, scars, painful and unstable bilateral knees, right knee strain and instability status post-arthroscopic surgery with scar, left knee strain and instability status post-lateral meniscus tear status post-surgery with scar and PTSD with depressive disorder (not otherwise specified). 6. The Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army. Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service. 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 may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 7. In the opinion of the Army Review Boards Agency Senior Medical Advisor, the applicant's medical conditions were duly considered during his medical separation processing. A review of the available documentation found no evidence of a medical disability or condition that would support a change to his disability rating. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000505 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000505 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2