IN THE CASE OF: BOARD DATE: 8 February 2018 DOCKET NUMBER: AR20160004692 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the applicant's hip conditions met a 40 percent disability evaluation level; b. showing that the applicant was placed on the Retired List due to physical disability; c. voiding the applicant's discharge orders and 14 December 2004 DD Form 214; d. issuing the applicant a new DD Form 214, showing he was medically retired on 14 December 2004; and e. paying him any monies he is due as a result of these corrections. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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: 8 February 2018 DOCKET NUMBER: AR20160004692 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :SWF :MWM :RCH GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 February 2018 DOCKET NUMBER: AR20160004692 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 correction of his records to show he was medically retired. 2. The applicant states his lower back (thoracolumbar myofascial strain) and bilateral knee (retro patellar pain) conditions were erroneously found to be fitting by the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) and affected his retention in the Army. If these conditions had been correctly determined to be unfitting and rated accordingly by the Army in 2004, a medical retirement would have been warranted. 3. The applicant provides copies of – * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Service Medical Treatment Records * 4 August 2004 MEB * Department of Veterans Affairs (VA) Rating Decisions (dated 24 February 2005 and 4 August 2015) * Lay Statements 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 Maine Army National Guard in January 1984. He was awarded the military occupational specialty 64C (later redesignated as 88M (Motor Transport Operator)). He served in a drill status with the National Guard for two years, and transferred to the Army Reserve in 1986 for the next 6 years. 3. Following a short break in service, he joined the Regular Army in October 1993 in the same MOS. He had duty in Europe and Korea, with deployments to Bosnia and Kuwait. He deployed in support of Operation Iraqi Freedom from January 2004 until May 2004, returning to the United States for medical reasons. 4. The medical documentation provided by the applicant shows treatment for – * right knee pain on 9 January 1995 * upper back pain on April 1999 * mid-back pain from March 2002 through 2003 * hip pain from October 2003 through his separation 5. On 9 July 2004, the applicant was given a permanent L-3 profile for severe bilateral hip osteoarthritis and referred to an MEB on 14 July 2004. 6. The DA Form 3947 (Medical Evaluation Board Proceedings), dated 4 August 2004, shows: a. The applicant was evaluated for bilateral hip osteoarthritis, recurrent low and mid-back pain, recurrent knee pain, and status post amputation of the tip of his right thumb. Only his bilateral hip condition was found to be unfitting. b. In November 1990, the applicant had reported past medical history on an enlistment physical for the Army Reserve, a past history of an ankle fracture at age eight, an amputation of the distal phalanx of the right thumb after a nail gun accident at about the same age, and that he required glasses for reading. (He was coded as E-2 for vision.) c. His past medical history has included intermittent mid-back pain, shoulder contusions, a puncture wound of the right ankle causing cellulitis, excision of right breast tissue for gynecomastia, shin splints, and bilateral retropatellar pain syndrome. Otherwise, his past medical history is unremarkable. d. The applicant agreed with the findings of the MEB and indicated he did not desire to continue on active duty. e. The Report of Medical History, completed by the applicant at the time of his MEB, did not include any references to complaints of knee pain. 7. The PEB recommended the applicant be discharged with a 20 percent disability rating. 8. On 14 December 2004, the applicant was discharged for a physical disability with severance pay in the amount of $67,435.20. 9. On 24 February 2005 the Department of Veterans Affairs (VA) awarded the applicant service connection at - * 10 percent for left hip arthritis * 10 percent for moderate degenerative joint disease (DJD) of the right hip * 10 percent for thoracolumbar myofascial strain 10. On 4 August 2015, the VA reevaluated the applicant's medical conditions and granted – * 20 percent for thoracolumbar myofascial strain * 10 percent for a right chest wall tender scar * 10 percent for right knee retro-patellar pain * 10 percent for left knee retro-patellar pain * 10 percent evaluation for left hip DJD with limited flexion * 10 percent evaluation for right hip DJD with limited flexion * non-compensable evaluation for residuals, status post cyst removal, right chest wall * combined 60 percent evaluation effective 5 March 2015 11. On 23 May 2017 an Army Physical Disability Agency (PDA) advisory opinion was obtained in the development of this case. It states: a. The Board members had reviewed the applicant's Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) case file. The MEB determined that applicant failed medical retention standards for his bilateral hip condition. These conditions were identified as conditions requiring profile restrictions. b. The MEB found that the applicant met retention standards for his mid and low back pain and knee pain (retropatellar pain syndrome). In their review they concurred that it appears the MEB was fully aware of the nature and severity of the applicant's back and knee conditions. The MEB indicated that these conditions met retention standards and were not cause for permanent profile restrictions. Based on the close correlation between medical retention standards and unfitness, they saw no error in the PEB's finding the applicant's back and knee conditions not unfitting. c. For rating purposes, it appears that the PEB relied on the hip range of motions as provided on the MEB Consultation, Medical Board, and SF 502 (Narrative Summary). This is because the DA 199 (PEB Proceedings) cited to the Narrative Summary (NARSUM) as its basis for finding that the condition (Bilateral hip pain with limitation of motion and MRI evidence of degenerative joint disease) warranted a 20% rating with reference to VA Rating Schedule diagnostic code 5003. d. With respect to the rating of the bilateral hip condition, notable range of motions as measured by the orthopedic physician's assistant (and signed off by orthopedic surgeon) included: Right hip: extension to 0 degrees; external rotation 10 degrees; Left hip: extension to 5 degrees; external rotation 10 degrees. Each of those range of motions is a basis for assigning a 10% evaluation (see Veteran Affairs Schedule for Rating Disabilities (VASRD) Diagnostic Code (DC) 5251 thigh limitation of extension) providing that when extension is limited to 5 degrees (or less), a 10% rating Is warranted (see VASRD DC 5253 Thigh, impairment of, providing a 10% rating for limitation of rotation of, cannot toe-out more than 15 degrees, affected leg). e. They noted the DD Form 2807-1 includes a passive ("P") range of motion, external rotation, on the right hip of 18 degrees (and 12 degrees on left). They found the more probative evidence of range of motion (to include consideration of functional loss, in accord with Title 38, Code of Federal Regulations, paragraph 4.10, 4.40, and 4.59) to be those reported in the Narrative Summary because these appear to be active (vs. passive) range of motion measurements. f. The PEB appeared to award a 10 percent rating for each hip based on noncompensable loss of range of motion (see DC 5003). However, it appears the PEB may have limited its analysis with reference to only hip flexion (see DC 5252) providing a 10 percent rating only once the limitation of flexion is reduced to 45 degrees). It appears the PEB may not have fully considered VASRD DC 5251, thigh limitation of extension; and VASRD DC 5253, thigh impairment. Assigning such multiple ratings does not appear to violate 38 CFR 4.14, Avoidance of Pyramiding. g. The evidence supports that the applicant was unfit for bilateral hip arthritis and that each hip disability, in lieu of a 10 percent rating with reference to 5003, instead met the requirements for four separate 10 percent ratings with reference to VASRD codes 5003-5252; and 5003-5251. Applying the bilateral factor, the combined rating would be 40 percent. Based on the above they supported granting relief to the applicant. 12. A copy of the advisory opinion was forwarded to the applicant. He responded that he had no additional statements or arguments. REFERENCES: 1. Title 10, United States Code (USC), chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 2. Title 10 USC, Section 1201, provides for the physical disability retirement of a member who has less than 20 years of service or a disability rated at least 30 percent. 2. Title 38, United States Code, sections 310 and 331, permit the VA to award compensation for a medical condition which 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 physically 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. 3. Army Regulation 40-501 provides at: a. Paragraph 3-1, that the mere presence of an 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. b. Paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating. DISCUSSION: 1. The applicant has not provided and the record does not support a finding that the applicant's bilateral knee problems or back condition were unfitting at the time of his separation. This is corroborated by the PDA review. 2. While the PDA did not find that the addition conditions were unfitting, they did determine that the applicant's hip conditions had been improperly rated and determined that he should have received a 40 percent total evaluation. Concurrence with the PDA would support a recommendation to grant medical disability retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004723 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004692 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2