ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20190008250 APPLICANT REQUESTS: reconsideration of his prior request for correction of his records to show he was discharged or retired due to physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * self-authored letter * numerous pages of medical records * high school documents * reference letters * Longmont Spine and Physical Medicine letter * medical reference extracts * Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) extract FACTS: 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 AR20140006275 on 3 December 2014. 2. The applicant states: a. The reason for the patellectomy (kneecap removal) of his right leg was due to medical misconduct, improper handling of his medical care, and concealment of his true injury by Army medical staff. b. He did not have knee problems prior to his entry in the Army. There is no evidence he had symptoms in 1975 and his enlistment physical shows he did not have any knee problems prior to 10 August 1978. His request to remain in the Army is documented on his Fort Sill Medical Department Form 284 (Statement of Change of Medical Status). c. He was injured when he sought medical help on 10 August 1978, but the only care he received was an Ace wrap and crutches, in spite of the results of his x-ray report showing that a loose body was evident in the joint space. d. His continuation of medical care and the results of his patellectomy should have been sufficient evidence to rule out chondromalacia (softening of cartilage beneath the patella causing pain and swelling), but the burden of proof fell on him. e. He arrived at Fort Sill, OK, on 5 August 1978 and his processing began on 7 August 1978, lasting until 9 August 1978. f. His injury occurred on the evening of 9 August 1978 when he and other Soldiers were ordered to drop to the pavement and do 20 pushups and get back to their feet. They were ordered to drop faster, then get up faster, and this was done until he could not do another pushup. He hit his knee on the pavement while doing pushups. g. He was ordered to bed and when he woke up he could no longer walk or limp. He could only hop on his left leg. h. He reported to sick call not because he could no longer walk, but because he could no longer walk or bend or straighten his leg and his knee cap was very swollen and painful to touch. He remained totally one-legged from the time he reported to sick call until his discharge on 6 September 1978. i. The first entry of his (Standard Form 600 (Chronological Record of Medical Care) is 10 August 1978. His x-ray showed joint effusion (abnormal accumulation of fluid) was evident. The x-ray also showed his patellar articular surface appeared irregular and a calcific density was projected into the joint space. j. He was referred to the physician assistant, Chief Warrant Officer Two (CW2) N F , who recorded probable strain; however, this individual never saw him on 10 August 1978. k. His next medical entry was on 15 August 1978. The entry clearly stated treatment was not indicated and shows CW2 N F altered the record of 10 August 1978 by writing above the stamp and signature of the clinical specialist, Sergeant First Class J_ L . This is also confirmed by the 14 August 1978 entry noting his physical profile evaluation records as being lost. The records are not in chronological order and the last entry shows CW2 N F profiling his ankle. l. He was ordered to get an evaluation to determine if his condition existed prior to service (EPTS). CW2 N F recorded "No Documented HX [history]." He has had five different doctors evaluate his x-ray report and all can see a piece of bone projected in his joint space and all unanimously agree it represents a fracture. 3. A Standard Form 88 (Report of Medical Examination), dated 28 June 1978, shows he underwent an enlistment physical examination on the date of the form and he was found acceptable for enlistment with a normal clinical evaluation. 4. A Standard Form 93 (Report of Medical History), likewise dated 28 June 1978, shows the applicant annotated “yes” for head injury, skin diseases, cramps in his legs and blood transfusion at birth. On the same date, he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years. 5. On 7 August 1978, he entered active duty for training and he was transferred to Fort Sill, OK, to undergo one-station unit training as a cannoneer. 6. A Standard Form 600 (Chronological Record of Medical Care), dated 10 August 1978, notes he was examined on the date of the form for right knee pain with edema (excess accumulation of fluid collecting in body cavity or tissue). The impression was probable strain and the notes on the form refer the reader to Standard Form 519-A (Radiographic Report). 7. The corresponding Standard Form 519-A, shows x-rays were taken of his swollen right knee on 10 August 1978. The report shows decreased range of motion (ROM), and increased tenderness to palpitation over lateral aspect with no history of trauma. The report contains the following comment: There's joint effusion evident. Patellar articular surface appears irregular, due to arthritic change. A calafic density [calcium build-up] projected in the joint space could represent a loose joint body. Clinical correlation's necessary. The examination's otherwise normal. 8. He was released on the same date and he was given crutches and an Ace wrap. He had a follow-up appointment on 14 August 1978 and he was referred to orthopedics for evaluation. 9. A Standard Form 502 (Narrative Summary), dated 18 August 1978, shows: * he was evaluated by the orthopedic clinic for a painful right knee while in his first week of basic combat training * he complained about training and wanted to get out of the military * he had some history his condition EPTS with a date of origin of 1975, but he was not seen by a civilian medical doctor * he was diagnosed with right knee chondromalacia patella (softening of the cartilage below the kneecap) * he was assigned a permanent physical profile rating of 4 for lower extremities * the evaluating physician determined he did not meet retention standards and recommended his referral to a medical evaluation board (MEB) 10. On 18 August 1978, he submitted a DA Form 2496 (Disposition Form) in which he requested discharge due to physical disability. He acknowledged: a. He was not qualified for retention on based on his physical disability which was found EPTS and which was neither incident to nor aggravated by his military service. b. He was entitled to the same consideration and processing as any other Soldier who was being separated for physical disability, which included consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations; however, he elected not to exercise this right. c. He would be separated by reason of physical disability EPTS and he would receive a discharge commensurate with the character of his service if his request were approved. 11. On 21 August 1978, the MEB determined his right knee chondromalacia patella was an EPTS condition and his condition was not in the line of duty (LOD) and not service aggravated. The MEB found optimum hospital improvement for disposition purposes and maximum hospital benefit was received. The MEB also determined he was unfit for continued service and recommended his discharge. 12. His DA Form 3947 (MEB Proceedings) shows in: a. item 22, the entry, “THE BOARD RECOMMENDS THAT THE PATIENT BE SEPARATED UNDER THE PROVISIOINS OF CHAPTER 5, ARMY REGLATION 635-40, EXPEDITIOUS DISCHARGE,” b. item 24, the entry, "THE PATIENT DOES NOT DESIRE TO CONTINUE ON ACTIVE DUTY UNDER ARMY REGULATION 635-40," c. item 25, the entry, “THE PATIENT IS NOT MEDICALLY QUALIFIED FOR CONTINUANCE ON ACTIVE DUTY,” d. item 35, he lined out the following sentence and placed his initials after it, "I DO NOT AGREE WITH THE BOARD'S ACTION AND DESIRE TO APPEAL. MY WRITTEN APPEAL IS ATTACHED AS INCLOSURE NO." 13. His DA Form 1811 (Physical and Mental Status on Release from Active Service) shows that on 6 September 1978 he was found qualified for separation. 14. On 4 September 1978, the separation authority approved his separation under the provisions of Army Regulation 635-40, chapter 5 (Expeditious Discharge). 15. On 6 September 1978, he was honorably discharged under the provisions of Army Regulation 635-40, chapter 5. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 month of active service. 16. A Perry Memorial Hospital x-ray report, dated 6 November 1978 (a mere 2 months after his discharge), with views of the right knee, states: “The distal end of the femur as well as the proximal portion of the tibia and fibula are normal. There is slight irregularity of the dorsal aspect of the patella seen in its inferior portion. There is also minimal sclerosis of the articular surface of the patella seen in its inferior pad. No other abnormalities of the patella are demonstrated. The soft tissues are unremarkable. Radiological Diagnosis: Chondromalacia patella.” 17. Documents provided by the applicant show he underwent a right patellectomy at Perry Memorial Hospital on 7 November 1978. The pathology report, dated 7 November 1978 states: “Gross description: The specimen consists of the patella, with shreds of fibrous tissue attached. The overall dimensions are 4.7 x 4.5 x 2 centimeters (cm). On the articular surface, there is a roughly circular area raised from the left of the cartilage, measuring about 1.3 cm in diameter and the usual shiny and smooth appearance is not present. On cross section, this piece of apparently bone 1 cm across imbedded into the cartilage and covered with overgrown cartilage. Microscopic: Sections of the of the area of elevation reveal a small piece of bone, necrotic and embedded into the cartilage with overgrown cartilage covering the entire piece of bone. Diagnosis: Right patella with necrotic piece of bone embedded into the cartilage.” 18. His discharge summary shows he was admitted on 6 November 1978 and discharged on 11 November 1978. His admitting diagnosis was chrondromalacia, right patella. His discharge diagnosis was osteochondral fracture, right patella. 19. On 3 December 2014, the ABCMR denied his request to change his reason for separation to medical discharge or permanent disability. 20. He provided a letter from the Longmont Spine and Physical Medicine, undated and signed by five physicians, which states it is their professional opinion that it is highly likely his knee injury was misdiagnosed by the original examining specialist and that the 5 true and correct diagnosis for his condition was an injury that was highly likely sustained during his service in the military. a. It is well documented in medical journals that chondromalacia patella very rarely has associated loose bodies in joint space and the presence of loose bodies much more commonly is evidence of fracture. Furthermore, the pathogenesis of chondromalacia patella is such that it would be extremely rare for the condition to be asymptomatic on one day and then present with edema, joint effusion, and a loose joint body the next day without the patient undergoing a significant trauma to the knee. b. Moreover, chondromalacia patella is classically categorized by a grinding or clicking sensation in the knee which would easily be discovered on an intake physical examination. His records indicate that he passed his enlistment physical with no apparent physical issues with the exception of a history of skin disease, head injury, a blood transfusion in his infancy, and cramps in his legs. The prevalence of chondromalacia patella, an arthritic condition, in an 18-year old male population is not very common in the current literature and in cases where it is present, the patient most often responds favorably to rest. c. His surgeon confirmed that he indeed had an osteochondral fracture and necrotic bony tissue protruding into the joint space, which is believed to have been the previously seen loose body. His medical history is congruent with someone who underwent trauma to the knee, evidenced by the fracture which was discovered upon removal of the patella. Prior evidence of the fracture was seen in his original examination when a loose body was seen on x-ray and he presented with asymmetrical edema and joint effusion of a sudden onset. d. The initial evidence was misdiagnosed by the examining clinical specialist and it is believed it is more likely than not that this misdiagnoses occurred due to the mishandling of the applicant by Army staff. The chronology of the applicant's examination form indicates he was seen briefly and then improperly followed up with the appropriate personnel, as evidenced by the dated medical history which indicates he was not followed up with for several days and pertinent medical records were lost in the meantime. e. The physicians reviewing his case believed it was highly likely the applicant sustained an acute injury that more likely than not occurred while participating in activities in his Army training, he was misdiagnosed with an acute exacerbation of a chronic injury, and he was not treated following a clinical standard of care due to the misdiagnosis he received. Had he been properly diagnosed, the outcome of his condition would very likely have been much more positive and he may, in fact, have been able to avoid his patellectomy and chronic knee issues. 21. He provided a notarized statement from his stepmother who states he lived in her home while he was growing up and he did not complain of any pain or demonstrate any discomfort with either of his knees. He was always quite active in basketball along with other sports. Up until the time he joined the Army, she saw no need for medical attention concerning his knee joints. 22. He provided six other letters from individuals who knew him prior to his enlistment in the Army and state he did not have any knee problems or physical limitations prior to his enlistment. 23. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It 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. The mere presence of 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 Soldier reasonably may be expected to perform because of his or her 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Chapter 5, in effect at the time, provided for the expeditious discharge of enlisted personnel who were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay. b. Procedures under chapter 5, in effect at the time, stated that if the Soldier disagreed with the findings and recommendations of the MEB, the case would be referred to a physical evaluation board for a fitness determination and benefit entitlements. c. A Soldier was eligible to apply for an expeditious discharge if the Soldier agreed with the findings of the MEB that the physical disability EPTS and was not aggravated thereby. A Soldier could apply for an expeditious discharge after being informed of the circumstances and rights using a DA Form 2496. The commander having separation authority, who approved the action, would order prompt separation. d. Any Soldier processed under chapter 5 could not be considered for any disability benefits administered by the Army under Title 10, U.S. Code, chapter 61. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief and amend the ABCMR's decision in Docket Number AR20140006275 on 3 December 2014. 1. The Board found that the Reason and Authority for discharge is incorrect in that the applicant’s record indicates that the applicant injured his right knee while performing physical training during basic training, which aggravated his preexisting knee condition and the Medical Board Proceedings dated 21 August 1978 were incorrect in determining that the applicant’s unfitting condition was not service aggravated and the injury was not in line of duty. There was sufficient evidence in the record to indicate that the unfitting injury was aggravated by military service and was in line of duty as it occurred during basic training, was initially diagnosed as Condromalacia Patella (inflammation of the patella) by military doctors (but did not respond to treatment) and was further diagnosed as Osteomalacia Patella (a fractured Patella) shortly after the applicant was discharged. 2. Because the Board found that the injury was in line of duty and was service- aggravated, the Board determined that the applicant’s expeditious discharge was improper. 3. The evidence of record reflects the following regarding the applicant’s service- aggravated injury: a. that the disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service), b. the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975, c. the disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216, and d. the disability severance pay was not and will not be awarded for disability incurred in a combat zone or incurred while preforming combat-related operations as designated by the Secretary of Defense (10 USC 1212). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief and amend ABCMR's decision in Docket Number AR20140006275 on 3 December 2014. The Board determined that Osteomalacia of the right knee, with no limitation to movement of the joint at the time of separation, having been found unfitting and compensable, would have been rated at 10 percent in accordance with the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), Sections 4.10, 4.40, 4.45, 4.59, and 4.71a for painful motion. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 1. amending the applicant’s DD Form 214 as follows: a. item 9a (Type of Separation) “Medical Separation,” vice “Discharge (Format 501)” b. item 9c (Authority and Reason) “Disability, Aggravated; Chapter 4 AR 635-40); SPD: JFQ,” vice “ ; Chapter 5 AR 635-40; SPD: KFN” 2. amending the applicant’s separation orders number 248145, dated 6 September 1978 to show medical separation due to service-aggravated disability at 10% and appropriate separation pay commensurate with his rank and time in service as reflected on his amended DD Form 214, and 3. DFAS paying him appropriate separation pay in accordance with the aforementioned corrections. X X X CHAIRPERSON SX 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18. It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The mere presence of 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 Soldier reasonably may be expected to perform because of his or her 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Chapter 5, in effect at the time, provided for the expeditious discharge of enlisted personnel who were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay. b. Procedures under chapter 5, in effect at the time, stated that if the Soldier disagreed with the findings and recommendations of the MEB, the case would be referred to a physical evaluation board for a fitness determination and benefit entitlements. c. A Soldier was eligible to apply for an expeditious discharge if the Soldier agreed with the findings of the MEB that the physical disability EPTS and was not aggravated thereby. A Soldier could apply for an expeditious discharge after being informed of the circumstances and rights using a DA Form 2496. The commander having separation authority, who approved the action, would order prompt separation. d. Any Soldier processed under chapter 5 could not be considered for any disability benefits administered by the Army under Title 10, U.S. Code, chapter 61. 2. The VASRD, provides guidance on and lists the detailed requirements for assigning disability ratings to conditions for military disability, assigning a four-digit VASRD Code to each condition or analogous symptom of a condition and regulating the amount of compensation received for each disability. VASRD code 5014 is used for Osteomalacia. Osteomalacia of the right knee, with no limitation to movement of the joint at the time of separation, having been found unfitting and compensable, would have been rated at 10 percent in accordance with VASRD, Sections 4.10, 4.40, 4.45, 4.59, and 4.71a for painful motion. a. Section 4.10 Functional impairment. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity. In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity. b. Section 4.40 Functional loss. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. c. Section 4.45 The joints. As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (1) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (2) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (3) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (4) Excess fatigability. (5) Incoordination, impaired ability to execute skilled movements smoothly. (6) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. d. Section 4.59 Painful motion. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 3. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 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.