ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160013595 APPLICANT REQUESTS: disability retirement in lieu of disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3349 (Physical Profile) * Standard Form 93 (Report of Medical History) * Medical Evaluation Board (MEB) Narrative Summary * DA form 5892-R (PEBLO Estimated Disability Compensation Worksheet) * partial DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * he was found unfit for duty and medically separated with severance pay with a disability rating of 20 percent due to bilateral patellofemoral syndrome (also known as runner’s knee) and right knee pain * medical evidence supports the rating from the PEB should have been 30 percent or greater, allowing for a medical retirement 3. The applicant enlisted in the Regular Army on 20 August 1992. 4. A DA Form 3349, dated 29 February 1996, shows he had a permanent physical profile rating of 3 for his lower extremities due to bilateral patellofemoral syndrome. His assignment limitations included no running, jumping, squatting, kneeling, crawling, climbing, or Army Physical Fitness Test. 5. A Standard Form 93, dated 7 March 1996, includes the following statements by the applicant: * he had surgery on his right knee on 19 October 1995 * before surgery he could run up to 2 miles, but it was painful; now he can’t run at all * he has to use handrails going up and down stairs, which he did not do before the surgery * he cannot kneel at all or stand on his feet for extended periods of time or squat without excessive pain 6. His MEB Narrative Summary states: a. The applicant presented with a history of onset of right knee pain the summer of 1994 while he was kneeling. This was anterolateral type of knee pain which continued to get gradually worse with strenuous activities, until he had a 4 mile road march with a ruck sack which he was unable to complete due to significant knee pain. b. An evaluation was done at the time in the Orthopedic Clinic where he was found to have patellofemoral syndrome with some patellar tendonitis. He was placed into physical therapy for rehabilitation, however this has not helped over time and he has had a limiting physical profile since 1994. In October 1995, arthroscopic lateral release surgery was performed in an attempt to improve his patellofemoral syndrome, however this appears to have exacerbated some of his symptoms. c. X-rays revealed no abnormalities to include no degenerative changes in the patellofemoral joint. The orthopedic exam pertaining to his knees revealed full range of motion of both knees with no evidence of effusion. He had full extension and flexion bilaterally. He did have some very mild patellofemoral crepitus bilaterally, but not severe. d. His diagnosis was bilateral patellofemoral syndrome with failed lateral release on the right knee e. The recommendation was referral to the PEB for further disposition because of the prolonged course of patellofemoral symptoms and his lack of response to rest, physical therapy, physical profile, anti-inflammatory medications, and an attempt at a surgical measure (arthroscopic lateral release). It was deemed unlikely he would be able to improve to the point of resuming active military duty in the near future. It was determined he did not meet retention standards in accordance with Army Regulation 40-501 (Physical Evaluation for Retention, Retirement, or Separation). 7. His DA Form 199, dated 6 May 1996, shows: a. A PEB convened on 6 May 1996 and rated the applicant as 20 percent disabled due to bilateral patellofemoral syndrome, right knee pain. b. Based on a review of the objective medical evidence of record, the PEB found the applicant’s medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty. c. The PEB made a finding of in the line of duty and not due to own misconduct. d. The PEB recommended a disposition of separation with severance pay if otherwise qualified. 8. On 15 July 1996, he was honorably discharged due to disability with severance pay under the provisions of Army Regulation 635-40, paragraph 4, after 3 years, 10 months, and 26 days of net active service this period. 9. The Army Review Board senior medical advisor provided an advisory opinion on 17 July 2018, which states: a. All available records were reviewed. A limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer showed the applicant had 42 listed problems, all VA entered. The problems include anxiety disorder, other depressive episodes, shoulder pain, chest pain, low back pain, urethritis, chronic diarrhea, poison ivy dermatitis, hyperlipidemia, hypertension, obesity, alcohol abuse, tobacco use, gastroesophageal reflux disease, diverticulosis, visual acuity, sensorineural hearing loss, and tinnitus. b. He received a VA service-connected disability rating of 90 percent overall for the following conditions: * major depressive disorder, rated 50 percent * labyrinthitis (inflammation of the inner ear), rated 30 percent * traumatic arthritis, rated 20 percent * impaired hearing, rated 20 percent * limited flexion of both forearms, each rated 10 percent * thigh condition of both legs, one rated 10 percent and the other rated 0 percent * tinnitus, rated 10 percent * lumbosacral or cervical strain, rated 10 percent * paralysis of anterior crural nerve, rated 10 percent * limited flexion of both thighs, one rated 10 percent and the other rated 0 percent c. The applicant’s medical conditions were duly considered during medical separation processing. He met medical retention standards for elbow pain, hearing, chest pain, existed prior to service bilateral pes planus, and other medical, physical, dental and or behavioral conditions. Obesity is not a boardable medical condition. d. He did not meet medical retention standards for bilateral patellofemoral syndrome, right knee pain in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40. The evidence shows there was no limitation of flexion or extension of either knee, thus he was rated at the highest level for his disability at the time of separation, which was 20 percent. e. The VA Schedule for Rating Disabilities (VASRD) lists ( diagnostic code 5003) degenerative arthritis (hypertrophic or osteoarthritis). It states 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 combine, 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: * with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations rate at 20 percent * with x-ray evidence of involvement of two or more major joints or two or more minor joint groups rate at 10 percent * the 20 percent and 10 percent ratings based on x-ray findings, listed above, will not be combined with ratings based on limitation of motion and they will not be utilized in rating conditions under diagnostic codes 5013 to 5024, inclusive f. A review of all available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, rated conditions, disability determinations, and/or disability ratings for the discharge in this case. g. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. That role and authority is granted to the VA, operating under a different set of laws. 10. The applicant was provided a copy of the advisory opinion on 18 July 2018, and given an opportunity to submit comments. He responded on 16 August 2018, stating: a. The advisory opinion is attempting to downplay his overall medical condition at the time of his separation, which clearly supported a medical retirement, as the VA- rated conditions of major depressive disorder (VA rated at 50 percent) and labyrinthitis (VA rated at 30 percent) are not progression or complications of service-connected conditions after separation. Just as important, his conditions of traumatic arthritis (VA rated at 20 percent) and impaired hearing (VA rated at 20 percent) are still preventing him to this day from sustaining gainful employment. b. All factual evidence supports these unfitting conditions did exist at the time of his military service as confirmed by the VA rating determination, but they were never considered under the medical retention standards of Army Regulation 40-501 as they should have been. The PEB clearly played down his consideration for a full disability retirement. c. It is his positon he has too many unfitting conditions to consider, making it very easy to change the PEB fitness determination and provide him with at least the long overdue 30 percent overall disability rating, which would provide him a full disability retirement he fully deserves and is supported by the VA determination. 11. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 12. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 13. 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. 14. Title 38, U.S. Code, sections 1110 and 1131, permits 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. BOARD DISCUSSION: After reviewing the application and all supporting documents, along with the statement of the applicant, the Board determined that relief was not warranted. The Board found that the applicant had already received the maximum percentage of disability from a PEB for the unfitting medical condition effecting his disability discharge and that an appropriate rating was determined; no injustice existed to correct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. SIGNATURE: ___________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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. 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. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits 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.