IN THE CASE OF: BOARD DATE: 3 May 2012 DOCKET NUMBER: AR20110019928 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, that his undifferentiated somatoform disorder (denoting psychogenic symptoms resembling those of physical disease) be added to his unfitting condition and his disability rating be increased. 2. The applicant states: * His Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) does not list his undifferentiated somatoform disorder * He wants his 10% rating for bilateral knee injury reconsidered for a higher rating * His somatoform disorder is reason for a medical discharge 3. The applicant provides: * Medical notes * Department of Veterans Affairs (DVA) medical records 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. Having prior inactive service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 31 January 2002 for a period of 3 years. 3. On 23 July 2003, he was issued a permanent profile of "3" for bilateral knee pain and inflammation. 4. On 22 October 2003, an MEB diagnosed the applicant with bilateral knee patellofomoral pain, and right knee, chondramalacia. The MEB recommended referral to a PEB. On 4 December 2003, the applicant agreed with the findings and recommendations. 5. On 17 December 2003, a PEB found the applicant physically unfit due to bilateral knee pain with history of injuries, Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Codes 5099/5003, 10%. The disability description on the DA Form 199 (PEB Proceedings) states he had a right arthroscopic procedure and was diagnosed with chondromalacia. Physical exam notes full ranges of motion without any ligamentous laxity. There is left subpatellar tenderness. Radiographs are within normal. There are two joints involved. 6. The PEB recommended a combined 10% disability rating percentage and separation from the service with severance pay. On 12 January 2004, the applicant did not concur with the findings and demanded a formal hearing. 7. He provided medical documentation which shows he was diagnosed with functional tremor - somatoform disorder on 9 January 2004 and he was referred for a psychiatric evaluation for the somatoform disorder. On 27 January 2004, per a psychiatric consultation, he was diagnosed with undifferentiated somatoform disorder. This medical record states the disorder is disqualifying and a definite impairment for further military duty. 8. A DA Form 751 (Waiver of Formal PEB), dated 5 March 2004, shows he withdrew his request for a formal PEB. He indicated he did not agree with the PEB decision but would not submit additional information at this time. 9. On 8 March 2004, the U.S. Army Physical Disability Agency approved the findings of the PEB. 10. On 18 June 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for physical disability with severance pay (10%) with entitlement to $11,349.00. He had completed 2 years, 4 months, and 18 days of creditable service. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states 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. 12. The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition. 13. The VASRD states the following pertaining to VASRD Code 5003 (Arthritis, degenerative (hypertrophic, or osteoarthritis)): Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion rate as below: * 10% with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups * 20% with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations DISCUSSION AND CONCLUSIONS: 1. Evidence shows: * the applicant's MEB was held on 22 October 2003 * his informal PEB was held on 17 December 2003 * he non-concurred with the PEB findings and requested a formal PEB on 12 January 2004 * on 28 January 2004 he was diagnosed with somatoform disorder * he withdrew his request for a formal PEB on 5 March 2004 2. He now requests that his undifferentiated somatoform disorder be added to his unfitting condition. The service medical record provided by the applicant which shows he was diagnosed with undifferentiated somatoform disorder and this disorder was determined to be a disqualifying impairment for further military duty was noted. However, he had the opportunity to provide this medical information at his formal PEB but he made the decision not to pursue a formal PEB on 5 March 2004. 3. Since he was not issued a profile for somatoform disorder, there is no evidence this disorder prevented him from performing his duties. The MEB only found his knee pain/condition to be present and unfitting and he agreed with the findings of the MEB. Therefore, there is insufficient evidence on which to add this disorder as an unfitting condition. 4. He also wants his disability rating for bilateral knee pain reconsidered for a higher rating. However, no evidence shows his bilateral knee pain met the criteria for a higher rating. At the time of his PEB, his physical examination noted full ranges of motion without any ligamentous laxity and his radiographs were within normal. Since there is insufficient evidence to show his disability was improperly rated by the PEB in 2003, there is no basis for granting the applicant's request to increase his disability rating. 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) AR20110019928 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1