IN THE CASE OF: BOARD DATE: 10 December 2014 DOCKET NUMBER: AR20140004884 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, correction of his records to show the Physical Evaluation Board (PEB), dated 24 September 2009: * Granted him a higher disability rating under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) for his medical condition * rated him for other medical conditions that were not diagnosed until after he was discharged from the Army 2. The applicant states his PEB ratings should be revised because he thinks he didn't receive proper guidance during the medical evaluation board (MEB) process. He received a letter, dated 14 February 2014, from the VA that informed him of this. Also, the PEB findings should be revised to add other medical conditions that manifested while he was on active duty but were not diagnosed until after his discharge (emphasis added). These conditions include major depressive disorder, chronic sleep apnea (or insomnia), esophagitis, gastritis, and a hiatal hernia. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief * 82 pages of various medical records, dated between 5 May 2009 and 27 May 2014 * DA Form 3349 (Physical Profile), dated 3 August 2009 * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 4 August 2009 * DD Form 2807-1 (Report of Medical History), dated 10 August 2009 * DD Form 2808 (Report of Medical Examination), dated 10 August 2009 * Narrative Summary of Medical Board (NARSUM), dated 27 August 2009 * DD Form 2648 (Preseparation Counseling Checklist), dated 31 August 2009 * two Memoranda for Record, dated 1 and 2 September 2009 * DA Form 3947 (MEB Proceedings), dated 8 September 2009 * DA Form 5889 (PEB Referral Transmittal Document), dated 9 September 2009 * DA Form 199 (PEB Proceedings), dated 24 September 2009 * Orders, dated 6 October 2009 * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 17 November 2009 * VA Form 21-525 (Veteran's Application for Compensation and/or Pension), dated 18 November 2009 * twelve VA letters and rating decisions, dated between 18 December 2009 and 14 February 2010 * four self-authored statements from the applicant to physicians, dated between 8 July 2010 and 19 July 2011 * VA Form 21-4138 (Statement in Support of Claim), dated 13 October 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 enlisted in the Regular Army on 12 June 2008 in the rank/grade of specialist (SPC)/E-4 and he completed basic combat training (BCT). On 9 April 2009, he was assigned to Company D, Quartermaster Training Brigade, Fort Lee, VA for advanced individual training (AIT) in military occupational specialty (MOS) 92Y (Unit Supply Specialist). 3. He provides: a. A Diagnostic Report, dated 5 May 2009, wherein it shows on 4 May 2009 he underwent a magnetic resonance imaging (MRI) of the lumbar spine at the Naval Medical Center Portsmouth (NMCP), Portsmouth, VA. The findings stated there was degenerative disc disease (DDD) at T11-12 and L5-S1. The visualized neuraxis was unremarkable, there was no evidence of spondylolisthesis, and there was no clear evidence of lysis. L5-S1 had a central prolapsed without mass effect on the adjacent neural structures, although it was intact with the right S1 nerve root sleeve. The foramina was patent and there was mild osteroarthritic changes. L4-5 and L3-4 had no evidence of disc herniation or central/lateral stenosis. L2-3 and L1-2 levels were unremarkable. b. A Radiologic Examination Report, dated 7 May 2009, wherein it stated there was a subtle annular bulge at T11-12. c. A medical consultation report, dated 11 June 2009, from the Southside Regional Medical Center (SRMC), Petersburg, VA, wherein it showed the applicant was admitted to the medical center for depression on 8 June 2009 and stated he was seen for a medical evaluation for headache, back pain, and reflux symptoms. The examining physician stated: (1) The applicant had a history of longstanding migraine headaches and had recently been having some back pain. He was brought in because of an adjustment disorder. He stated he had some anger issues, gets easily aroused, and almost wants to fight. He also stated he had been having bi-temporal headaches, blurry vision, and nausea but no vomiting. He was found to have gastritis [that day] and was placed on Nexium. (2) He denied any visual or auditory hallucinations, stated he might be depressed, and denied any suicidal thoughts or homicidal ideation. He had umbilical hernia repair and bilateral inguinal herniorrhaphy in 2009. He was awake, alert, and oriented to time, place, and person. He appeared depressed. (3) He was admitted because of depression; however, he had subacute epigastric pain with gastroesphageal reflux and he (the physician) would like to start him on Nexium. (4) The assessment was that he probably had migrainous headaches, chronic back pain secondary to herniated disk, reflux esophagitis, and depression/adjustment disorder. 4. On 3 August 2009, he was given a permanent profile of "3" in the L (lower extremities) category of the PULHES for the condition of chronic low-back pain due to DDD. The profile stated he could not take the Army Physical Fitness Test, could walk or swim at his own pace, could participate in upper and lower body weight training, could lift/carry a maximum of 20 pounds, and needed an MEB/PEB. 5. On 10 August 2009, he underwent a medical examination. The examining physician noted he had the medically disqualifying condition of chronic low back pain, he had migraine headaches that existed prior to service (EPTS), esophagitis and gastritis that met medical standards, bilateral inguinal hernia that was resolved with surgery, and anxiety disorder with depression that did not meet retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). He noted an MEB was in progress and recommended a mental health addendum be completed. 6. A NARSUM, dated 21 August 2009, shows the applicant underwent a fitness for duty evaluation at the Kenner Army Health Clinic, Fort Lee, VA. He had been command referred due to multiple absences from training activities for medical appointments/problems since arriving to Fort Lee in March 2009. The examining physician stated: a. His problems included low back pain, gastritis, bilateral inguinal hernias, umbilical hernia, migraine headaches, non-cardiac chest pain, depression and anxiety. He was undergoing medical management for gastritis and migraines and psychiatric counseling for depression/anxiety. The most disabling problem was severe low back pain which developed in February 2009 during BCT due to repetitive motion injury and lifting. There was no history of catastrophic injury or trauma. b. He developed helicobacter pylori erosive gastritis during BCT probably due to overuse of nonsteroid anti-inflammatory drugs (NSAID). He developed bilateral inguinal hernias and umbilical hernia during BCT, probably due to overlifting. The hernias were repaired in April 2009. He developed severe depressive symptoms during AIT requiring hospitalization in June 2009. c. His upper extremities were symmetric bilaterally in his shoulders, elbows, and wrists; his strength was intact bilaterally in his major muscle groups. His lower extremities were symmetric bilaterally in his hips, knees, and ankles; his strength was intact bilaterally in his major muscle groups. The NMCP MRI, on 4 May 2009, showed there was DDD at T11-12 and L5-S1. There was no evidence of spondylolisthesis or clear evidence of lysis. d. He had been treated optimally for low back pain with profiling, anti-inflammatory and analgesic medications, and physical therapy. He had received two epidural steroid injections with slight benefit but not enough to return him to unrestricted military training. He had reached a level of stability regarding his low back symptoms and was able to function fairly well in activities of daily living as long as he was cautious and protective of his back. e. His commander did not recommend retention and his condition had a deleterious impact on his ability to perform to standard. It was unlikely the condition would improve enough that he would be able to perform to standards in a reasonable amount of time to complete his AIT. He was diagnosed with chronic low back pain due to DDD. 7. He provides a memorandum for record, dated 2 September 2009, wherein the Chief, Community Mental Health, Kenner Army Health Clinic, Fort Lee, stated: a. He (the applicant) had been seen at the mental health clinic from 22 May through 19 August 2009 for a total of eight visits. He received a diagnosis of adjustment disorder and was prescribed a sleep aid for adjustment insomnia. He was hospitalized for 10 days at South Side Regional Psychiatric Unit between 8 and 17 June 2009 for voicing suicidal and homicidal ideation without a plan. b. There was no evidence of psychosis or a major mood disorder and, after careful review of his records, it was apparent that no addendum was warranted as he did not have a boardable condition. He was presently considered psychiatrically fit for duty and was released without limitations. The applicant [psychiatrically] met retention standards under the provisions of Army Regulation 40-501. 8. On 8 September 2009, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examination found he had been diagnosed with chronic low back pain due to DDD that was medically unacceptable under the provisions of Army Regulation 40-501, chapter 3. The MEB also found that his conditions of esophagitis/gastritis, bilateral inguinal hernia (resolved), and anxiety disorder did meet retention standards, and his condition of migraine headaches EPTS. The MEB recommended he be referred to a PEB. On 10 September 2009, the applicant concurred with the MEB findings and recommendation. 9. On 24 September 2009, an informal PEB convened at Washington, DC, and confirmed his one unfitting disability of DDD, referred to as chronic low back pain. The PEB, in part, stated: a. An MRI, dated 4 May 2009, revealed DDD at T11-12 and L5-S1. Range of motion (ROM) study, dated 5 August 2009, documented an averaged active forward flexion to 57 degrees with combined ROM in all planes to 170 degrees. Upon physical exam, there was tenderness over the sacral spine, left more than right. His gait and stance were normal. He was rated for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. His condition was unfitting as it prevented him from performing the duties required of his grade and specialty and he was physically unfit due to DDD. b. He was rated under VASRD code 5242 and assigned a 20 percent (%) disability rating. The PEB recommended he be separated with entitlement to severance pay if otherwise qualified. c. The conditions listed on his MEB of esophagitis/gastritis, bilateral inguinal hernia (resolved), and anxiety disorder did meet retention standards, and his condition of migraine headaches EPTS were not listed [on the PEB] as they did meet retention standards, were not listed on his profile as limiting any of his functional activities, were not commented on by the commander as hindering his performance, and his file contained no evidence to show that independently or combined, they rendered him unfit for his assigned duties. d. On 25 September 2009, after being counseled on his rights and options, he waived his right to a formal hearing and concurred with the PEB findings and recommendation. 10. He was honorably discharged on 9 October 2009 in the rank of SPC. He completed 1 year, 4 months, and 18 days of creditable active service. The DD Form 214 he was issued shows he was discharged by reason of disability with severance pay in the amount of $10,965.60. 11. The applicant provides: a. A VA Rating Decision, dated 2 April 2010, wherein it shows, effective 10 October 2010, the VA granted him service-connected disability with an evaluation of 0% each for DDD, laparoscopic bilateral inguinal hernia and umbilical hernia repairs, and for residual scars, bilateral lower quadrants. They denied service-connected disability for anxiety disorder with depression, migraine headaches, insomnia, esophagitis, and gastritis. It stated he failed to report for a VA scheduled examination and evidence from the examination that might have been material to the outcome of his claim could not be considered. A review of his virtual VA records were negative for medical records pertinent to his claim. b. A VA Rating Decision, dated 19 May 2011, wherein it shows, effective 10 October 2010, the VA granted him service-connected disability with an evaluation of 30% for major depressive disorder (claimed as anxiety disorder), 10% for gastroesophageal reflux disease (claimed as esophagitis and gastritis), and increased his evaluation of 0% to 10% for low back pain due to DDD. His evaluation of 0% for laparoscopic bilateral inguinal hernia and umbilical hernia repairs and for residual scars, bilateral lower quadrants was continued. The previous denial for migraine headaches was continued. His service records showed an in-service diagnosis of adjustment disorder with anxiety and depressed mood. His VA treatment reports showed he was treated on several occasions and diagnosed with major depressive disorder. c. A VA Form 21-4138, dated 13 October 2012, wherein his spouse stated she had been married to him since 1988. Prior to his joining the Army, he did not have any sleep problems. It would be a little hard for him to fall asleep but once he did, he slept all night long. In 2010, after he was released from the Army, she noticed he was having sleep problems. She would be woken up by his loud snoring, he would be gasping for air as if he was drowning, and she would have to shake him to wake him up. During the night, he would wake up and would not be able to go back to sleep. He continued to have problems with snoring, gasping for breath, and waking up in the middle of the night ever since he left the service. d. A VA letter, dated 29 November 2012, wherein it shows effective 27 June 2011 his evaluation of DDD was increased from 10% to 20% as the functional loss due to pain, fatigue, weakness, and flare-ups had been considered and applied. Effective 27 June 2011, he was granted service-connected disability with an evaluation of 20% for left lower extremity radiculopathy and 10% for right lower extremity. Effective 18 June 2012, he was granted 0% for erectile dysfunction and his condition of obstructive sleep apnea was determined not to be service-connected and not related to his military service. His combined rating was 70%. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating. 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. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. 13. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 14. 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 at less than 30 percent. 15. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. 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. 16. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating. 17. VASRD codes 5235 to 5242 pertain to the spine, with symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A rating of 20% is assigned in cases for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms that on 8 September 2009 an MEB found the applicant's condition of chronic low back pain due to DDD was medically unacceptable and did not meet retention standards. The MEB also found his conditions of esophagitis/gastritis, bilateral inguinal hernia (resolved), and anxiety disorder did meet retention standards, and his migraine headaches were an EPTS condition. The MEB recommended that he be referred to a PEB. He concurred with the MEB findings and recommendation. 2. On 24 September 2009, the PEB found him unfit due to DDD that prevented him from performing his military duties. This was the only condition his commander had stated prevented him from performing his duties. The PEB rated him under VASRD code 5242 and properly assigned a 20% disability rating based on his having forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. The PEB also noted the additional conditions listed on the MEB did meet retention standards. The PEB reviewed all the available and appropriate evidence. There were no other unfitting conditions found. The PEB recommended separation with entitlement to severance pay with a 20% disability rating. He concurred with the findings and recommendation. 3. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The applicant was properly rated at 20 percent for his DDD. There is no evidence to support a higher rating for DDD or for any other medical condition. Since this rating was less than 30%, by law he was only entitled to severance pay. 4. His physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 5. In addition, the VA initially rated his DDD as 0% disabling, increased it to 10% in June 2011, and didn't rate it as 20% disabling until November 2012 with an effective date of June 2011. The VA also initially denied him service-connected disability for anxiety disorder with depression and subsequently only granted him service-connected disability for major depressive disorder based on a VA diagnoses after he was released from active duty. The VA also denied him service-connected disability for sleep apnea as there was no evidence to show it was related to his military service. 6. A disability decision rendered by another agency does not establish an error on the part of the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge from active duty. The VA may award ratings because of a service-connected disability that affects the individual's civilian employability. 7. In view of the foregoing, there is insufficient evidence to grant the requested relief. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20140004884 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140004884 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1