IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20140021612 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: 31 May 2016 DOCKET NUMBER: AR20140021612 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: 31 May 2016 DOCKET NUMBER: AR20140021612 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 her percent of disability assigned upon separation from the Army be reevaluated in light of higher percent disability assigned by the Department of Veteran Affairs (VA) immediately after separation and that she be granted medical retirement. 2. The applicant states that she was evaluated for only one injury instead of being evaluated for multiple musculoskeletal injuries that were present at the time of her separation. Upon discharge, she was granted 50% disability rating by the VA and then increased to 70% taking into account all the medical issues present at the time of her separation. She believes that the medical evaluation board (MEB) and physical evaluation board (PEB) did not thoroughly evaluate all her disabilities. 3. The applicant provides: * VA and military medical records * DD Form 199 (Physical Evaluation Board Proceedings), dated 3 December 2012 * DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period 6 July 2005 to 16 June 2012 * Separation orders, dated 16 April 2012 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 was a regular Army staff sergeant assigned to the 172nd Support Battalion in Germany when in September 2011 she was referred to a MEB. Based on her military medical records, the MEB on 20 October 2011 considered the following diagnosis and made the indicated determinations. The applicant agreed with the MEB findings. The applicant was referred to a PEB with the following diagnoses: * Right hip pain (chronic pubisitis [inflammation of the pelvic bones] and painful pelvis instability), medically unacceptable in accordance with Army Regulation 40-501, chapter 3-17h, paragraph 3-41e(1) and (2); incurred in the line of duty as a result of physical training in 2005 * Right knee pain, medically acceptable * Left shoulder pain, medically acceptable * Right elbow pain, medically acceptable * Acne, medically acceptable 3. The MEB Narrative Summary (NARSUM) concluded based on a series of x-rays and one magnetic resonance image (MRI) that the applicant had a stress fracture in her right hip bone that had healed but she still experienced right hip pain. 4. The disabilities noted by the MEB were reviewed by a PEB on 12 March 2012. The unfitting right hip pain, diagnosed as periostitis (inflammation of the outer layer of bone); the resulting range of motion (ROM) limitation; and the inability to wear military load bearing equipment resulted in a finding of 10 percent disability. This disability was determined to have been incurred in the line of duty and the proximate result of performing duty. The other conditions (right knee pain, left shoulder pain, right elbow pain, and acne) were found to meet retention standards and were not found unfitting. These other diagnoses did not affect her performance in her military occupational specialty, did not pose medical risk to the health of the Soldier or the welfare of others, and did not impose unreasonable requirements on the military to maintain or protect the Soldier. 5. The 10 percent disability rating for the applicant’s hip pain was based on the VA Schedule of Rating Disabilities (VASRD) disability diagnostic code 4.45 (Joints – reduced ROM and related pain) which is rated according to the VASRD ROM rating codes 5251 (thigh, limitation of extension), 5252 (thigh, limitation of flexion), and 5253 (thigh, impairment abduction), and provisions of diagnostic code 5003. The PEB evaluation of the applicant’s ROM limitations at the time of her separation found them to be 95 degrees for flexion, 8 degrees for extension, and 20 degrees for abduction and able to cross legs. These three ROM findings are greater than the limitations defined in 5251-5253 requiring disability rating and are therefore not compensable. If the ROM is not compensable, the VASRD stipulates that a rating of 10 percent be assigned under diagnostic codes 5022 and 5003. 6. The other conditions considered by the MEB were found to meet retention standards, were considered by the PEB, and were not found unfitting. The PEB recommended separation with severance pay with a rating of 10 percent disability. The applicant concurred with this recommendation and waived a formal hearing by the PEB. The applicant was accordingly honorably discharged on 16 June 2012 for disability with severance pay, non-combat related, with 6 years, 11 months, and 11 days active service. 7. After separation, the applicant continued to experience right hip pain. She was seen at the Bayne-Jones Army Community Hospital, Fort Polk, Louisiana. On 1 July 2014, an MRI was conducted on her hips which found that her right hip labrum (cartilage in the socket between the hip bone and the leg bone) was frayed (torn). On 26 November 2014, a VA physician concluded, “After examining this Veteran and reviewing her military medical treatment records, I have concluded that this injury was present during her military service and was left untreated. The Veteran suffered a grade IV stress fracture to the right symphsis pubis (hip bone) in 2005. I believe that this injury, labral tear, was suffered also at the same time and was overlooked due to the more obvious fracture.” The VA doctor recommended arthroscopic surgery to repair the labral tear. 8. The U.S. Army Physical Disability Agency (PDA) provided an advisory opinion. After a review of the applicant’s military service medical records, her MEB and PEB, and the evidence provided by the applicant, the PDA concluded that the PEB findings of separation with severance pay with 10 percent disability are correct and supported by the preponderance of evidence; are not arbitrary or capricious; and are not in violation of any statute, directive, or regulation. The applicant was provided by mail on 9 September 2015 a copy of the PDA opinion for comment. As of the date of this board, the applicant has not provided comment or further evidence. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. a. Paragraph 3-17 states chronic pelvic pain, with or without demonstrative pathology that has not responded to medical or surgical treatment and is of such severity to necessitate recurrent absence from duty, may be cause for referral to an MEB. b. Paragraph 3-41 states that a Soldier may be referred to an MEB if the Soldier’s physical or medical conditions result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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. a. Paragraph 4-10 states that MEB are convened to document a Soldier’s medical status and duty limitations. A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40–501, chapter 3. If the MEB determines that the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. b. Paragraph 4-17 states that the PEB is established to evaluate the Soldier’s physical disability nature, cause, degree of severity, and probable permanency of the disability; evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; provide a full and fair hearing for the Soldier as required by under Title 10, United States, Section 1214, (10 USC 1214); and to make findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability (10 USC 61). A finding of unfitness can be determined if a condition affects performance in a Soldier’s military occupational specialty, poses a medical risk to the health of the Soldier or the welfare of others, or imposes unreasonable requirements on the military to maintain or protect the Soldier. c. The percentage assigned to a medical defect or condition is the disability rating. Under the provisions of 10 USC 61, these ratings are assigned from the VASRD. To be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more. Soldiers rated with less than 30% disability are separated for disability with severance pay, the amount determined based on years of service. 3. The VASRD provides the guidelines for the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. It lists potentially disabling conditions and provides the criteria for assigning a rating to those conditions. a. The VASRD diagnostic code for the condition determined by the PEB to be periostitis is 5022. The diagnostic code 5022 states that it will be rated based on limitation of range of motion of affected parts, as is degenerative arthritis, diagnostic code 5003. b. The VASRD further states that when a condition that has not been assigned a specific diagnostic code is encountered, it will be permissible to rate that condition under a closely related disease or injury analogous the anatomical location and symptomatology. c. Diagnostic code 5003, used to designate a diagnosis of degenerative arthritis, is the most closely related disease or injury analogous to the applicant’s hip labral tear. The diagnosis is rated on the basis of limitation of ROM under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of ROM of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent will be assigned for such major joint. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. d. VASRD ROM ratings for the following disability codes are given as: (1) 5251 (thigh, limitation of extension) – extension limited to 5 degrees is rated as 10 percent. (2) 5252 (thigh, limitation of flexion) – flexion limited to 45 degrees is rated as 10 percent. (3) 5253 (thigh, impairment abduction) – abduction limited to 10 degrees and not able to cross legs is rated as 10 percent. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered 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. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. As a result of her right hip injury, the applicant was found to not meet retention standards by an MEB and found unfit for continued military service by the PEB. The diagnosis of the injury was periostitis, based on the available medical evidence at the time of her separation. This resulted in a 10 percent disability rating and separation for disability with severance pay. Following her separation, the VA found through additional tests that her right hip pain was the result of a tear in her right hip labral. The applicant contends that this new diagnosis should result in a higher separation disability rating and medical retirement. 2. However, whether the right hip pain is caused by periostitis or a labral tear, both diagnoses would be rated on the same VASRD pain and ROM criteria so that there would be no difference in the percent of disability at the time of separation if the diagnosis were changed from periostitis to labral tear. Her ROM for her hip at the time of separation would be the same. Her ROM for her hip was greater than the limitations defined in the VASRD that would require a rating. Accordingly, VASRD diagnosis code 5003 would apply in both cases which designates 10 percent disability rating if the affected joint ROM is greater than the ROM limitations requiring disability rating and the ROM is not compensable. The PEB confirmed the applicant’s ROM was greater than the ROM disability limitations and that they were not compensable. 3. The applicant’s other conditions at the time of separation (right knee pain, left shoulder pain, right elbow pain, and acne) were found to meet retention standards and were not found to be unfitting. Accordingly, they are not subject to a disability rating for separation. An individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. A higher disability rating by the VA under its disability criteria does not demonstrate an error in the percent disability rating determined by the Army for unfitness for further military service at the time of separation. 4. Considering the evidence, applicable regulation, and VASRD provisions, there is no basis for any change in the applicant’s disability separation with severance pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140021612 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140021612 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2