BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150010896 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: 7 July 2016 DOCKET NUMBER: AR20150010896 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 to amend the decision of the ABCMR set forth in Docket Number AR20130019724, dated 30 October 2014. ____________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: 7 July 2016 DOCKET NUMBER: AR20150010896 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 reconsideration of his earlier request to correct his disability findings to add the following medical conditions to his existing unfitting condition and increase his disability rating for medical retirement: * patellofemoral syndrome, right knee * patellofemoral syndrome, left knee * left lower extremity (LLE) paresthesia * lumbar degenerative disc disease with herniated nucleus pulposus (HNP), L4-L5, L5-S1 * right lower extremity radiculopathy 2. The applicant states, in effect, the medical conditions should be added to his existing unfitting condition. 3. The applicant provides: * self-authored memorandum for Physical Evaluation Board (PEB), dated 29 May 2015 * Department of Veterans Affairs (VA) Rating Decision, dated 30 April 2015, with supporting documentation * DA Form 3349 (Physical Profile), dated 29 January 2013 * correspondence from a Member of Congress, dated 18 June 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130019724 on 30 October 2014. 2. The 2015 VA documentation provided by the applicant is new evidence that was not previously considered by the Board and warrants consideration at this time. 3. Having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 30 January 2004. He served as an infantryman in Iraq from 8 November 2005 to 28 October 2006 and from 2 October 2008 to 27 September 2009. 4. A DA Form 3349, dated 29 January 2013, shows he was assigned permanent physical profile ratings of 2 in the upper extremities factor, 3 in the lower extremities factor, and 2 in the psychiatric factor for lumbar degenerative disc disease and paresthesia syndrome, patellofemoral syndrome, anxiety disorder, and left-sided rib cage sprain. 5. On 30 January 2013, a medical evaluation board (MEB) diagnosed him with the following medically unacceptable conditions: * lumbar sacral degenerative disc disease with HNP, L4-L5 and L5-S1, central neuroforaminal stenosis, and left lower stenosis, with left L5 and S1 radiculopathy; discitis L5-S1 * left knee patellofemoral syndrome/arthralgia * right knee patellofemoral syndrome/arthralgia 6. The MEB further found the following conditions met retention standards: * left rib cage sprain * anxiety disorder * allergic rhinitis * hypermetropia, bilateral eyes * bilateral recurrent tinnitus, no hearing loss 7. The MEB recommended his referral to a PEB. 8. Item 30 (Continuation) of his DA Form 3947 (MEB Proceedings) states, in part: a. "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947." b. "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards." c. "I agree that this MEB accurately covers all my current medical conditions." 9. On 4 April 2013, an informal PEB found him physically unfit due to lumbar degenerative disc disease and assigned a disability rating of 10 percent. 10. The PEB determined the conditions of bilateral patellofemoral syndrome were not unfitting. Based on a review of the objective medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by grade and military specialty, the PEB found the condition of bilateral patellofemoral syndrome not unfitting. Though the reported onset of this condition is 2000 while the applicant was in basic training, the PEB noted he had served successfully for 12 years in spite of this condition, indicating that this condition has not negatively impacted his ability to perform in his military occupational specialty (infantryman). His noncommissioned officer evaluation reports (NCOERs) on file from May of 2008 through December of 2011 are generally exemplary. His most recent NCOER from year 2011 indicated he scored 271 points on the Army Physical Fitness Test and took the lead in organizing physical readiness training for his platoon. The previous NCOER from year 2010 lauded him for leading physical training sessions. The NCOER prior to this one indicated he was awarded the Army Physical Fitness Badge in August of 2008 for excellence on the Army Physical Fitness Test. The NCOERs indicate this condition has not negatively impacted his ability to do his job. In addition, the commander's statement also makes specific mention of the back condition twice in the comments section and relates the applicant's inability to perform his duties to the pain in his back. The commander's statement neglects to mention any knee condition at all. 11. The PEB determined the following conditions were not unfitting and were therefore not rated: * left rib cage sprain * anxiety disorder * allergic rhinitis * hypermetropia, bilateral eyes * bilateral recurrent tinnitus, no hearing loss 12. The PEB considered these conditions both individually and in combination with other conditions. These conditions (individually and in combination) are not associated with physical profile limitations and do not impact the applicant's ability to perform any one of the 10 functional activities. The MEB indicated these conditions met medical retention standards. 13. The PEB recommended a rating of 10 percent and his separation with severance pay. On 4 April 2013, he concurred with findings and waived a formal hearing. 14. On 18 June 2013, he was honorably discharged by reason of disability with severance pay, non-combat related, with a disability rating of 10 percent. 15. On 30 October 2014, the ABCMR denied his request for correction of his records to show an increase in his physical disability rating in order to qualify for a medical disability retirement. 16. In 2015, the VA awarded him service-connected disability for: * upper airway resistance syndrome/sleep apnea – 50 percent * right lower extremity radiculopathy – 20 percent * left patellofemoral syndrome with painful and limited motion – 10 percent * right patellofemoral syndrome with painful and limited motion – 10 percent * hypertension – 0 percent * post-traumatic stress disorder – 70 percent * lumbar degenerative disc disease (with herniated disc L4-L5 and L-5-S1) (claimed as lower back pain) – 40 percent * left L5 and S1 radiculopathy (claimed as lumbar radiculopathy, bilateral lower extremities) – 20 percent * right patellofemoral syndrome (diagnosed as right knee arthralgia) (claimed as chronic knee pain) – 10 percent * left patellofemoral syndrome (diagnosed as left knee arthralgia) (claimed as chronic knee pain) – 10 percent 17. He provided a memorandum he wrote to the PEB, dated 29 May 2015, which states: a. He was medically boarded and found unfit for: * lumbar degenerative disc disease with HNP, L4-L5, L5-S1 – 10 percent * LLE paresthesia – 0 percent * patellofemoral syndrome, left knee – 0 percent * patellofemoral syndrome, right knee – 0 percent b. Based on his initial ratings he was medically separated from the Army with severance pay on 18 June 2013 with a 10-percent permanent disability rating. He filed a claim with the VA as soon as he separated. The VA granted him a 100-percent disability rating. c. Since his medical board and release from active duty, he appealed his VA ratings for his knees, back, and LLE paresthesia, and received the following disability ratings: * lumbar degenerative disc disease with HNP, L4-L5, L5-S1 – 40 percent * LLE paresthesia – 20 percent * patellofemoral syndrome, left knee – 10 percent * patellofemoral syndrome, right knee – 10 percent d. He had a new PEB Liaison Officer assigned to him during his medical board and he was not counseled on his right to appeal his VA disability ratings while he was still serving on active duty. He requests reconsideration of his military disability rating based on his new VA ratings for the conditions he was previously found unfit for. He requests a permanent combat-related medical retirement since all his conditions were service connected. REFERENCES: 1. 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 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. 2. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 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 of less than 30 percent. 4. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition that was incurred in or aggravated by active military service. The VA, however, is not required 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's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant contends his disabilities were not properly rated and he should have been medically retired with addition of the following medical conditions to his existing unfitting condition and an increase in his disability rating: * patellofemoral syndrome, right knee * patellofemoral syndrome, left knee * LLE paresthesia * lumbar degenerative disc disease with HNP, L4-L5, L5-S1 * right lower extremity radiculopathy 2. Although the MEB determined his bilateral knee patellofemoral syndrome were disqualifying conditions, the PEB found these conditions were not unfitting. He concurred with the PEB findings on 4 April 2013. 3. His MEB did not list LLE paresthesia and right lower extremity radiculopathy as medical conditions/defects and his DA Form 3947 states he agreed that the MEB accurately listed all of his current medical conditions. He provided no evidence to show these conditions rendered him unfit to perform his military duties. As such, there is insufficient evidence with which to add these medical conditions as unfitting. 4. The evidence shows the PEB found him physically unfit due to lumbar degenerative disc disease. 5. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. 6. There is insufficient evidence showing the unfitting condition of lumbar degenerative disc disease was improperly rated by the PEB in 2013. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010896 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010896 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2