IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150004563 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 IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150004563 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. __________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. IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150004563 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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show he was physically disabled at 30 percent or greater, thereby qualifying him for a medical disability retirement. 2. The applicant states: a. He was transferred to the Retired Reserve in 2007 in lieu of a disability discharge. If the PEB had followed the Medical Review Board's published directive, he would have received a 30 percent disability rating that would have resulted in a medical discharge (i.e., retirement). b. He was never rated for his lower back condition, which was the main source of his problems with respect to the performance of his duties. He was initially rated for neck pain at 10 percent; however, that rating was replaced by a rating for lower back pain. The memorandum from the U.S. Army Physical Disability Agency (USAPDA) instructs PEB presidents that the underlying cause of a Soldier's pain must be rated when evidence of a physical issue is present. c. He should have been rated at 10 percent for the lower back, 10 percent for the neck, and 10 percent for constant pain. That would have given him a 30 percent disability rating, which would have resulted in his medical retirement instead of his transfer to the Retired Reserve. d. The regulation for medical discharges states that a Soldier must be rated for all unfitting conditions, not just the ones the board decides to use. If a Soldier is found unfit because of one thing, then all the other things that also makes him or her unfit are supposed to be rated as well. e. He was initially rated at 10 percent for his lower back. He appealed that decision because they did not include his neck or the pain related to both. He was informed that their second decision removed his back condition as the unfitting condition and changed it to his neck condition with a rating of 0 percent. f. As part of his appeal, he submitted evidence in the form of x-rays of his neck and back, which clearly show that both areas were damaged equally. A year before, a directive from the medical board in Washington, DC, stated that if pain was present in an unfitting condition, the condition should be rated as well. g. He finds it highly suspect that an unfitting back condition rated at 10 percent could suddenly vanish in a one-month timeframe, only to be replaced by another unfitting condition rated at 0 percent. h. He believes that the various PEB units throughout the country were under pressure to reduce the number of medical discharges as much as possible. He believes he was among the tens of thousands of Soldiers who were victimized by this practice. i. He should have been medically discharged at the 30 percent rate instead of being transferred to the Retired Reserve. Because of this, he was forced to file for bankruptcy due to the backlog of files that the Department of Veterans Affairs (VA) was dealing with. He barely managed to save his home from being repossessed. j. All of his financial problems could have been avoided, along with the mental stress and problems for his family, if the PEB had done their job according to the regulations. k. He served in the military for over 26 years in total and he did not deserve to be treated in that fashion at the end of his career just because someone somewhere wanted to keep their budget numbers down. 3. In a separate self-authored statement, the applicant further states: a. He was incorrect on several points in his narrative (above) and he would like to correct those before the Board begins the review process. b. He was never rated for his lower back, which was the main source of problems affecting his ability to performing his duties satisfactorily. He was initially rated for neck pain at 10 percent, which magically disappeared and was replaced by lower back pain. c. The memorandum from the USAPDA instructs PEB presidents that the underlying cause of the pain must be rated when evidence of a physical issue is present with it. He should have been rated at 10 percent for the lower back, 10 percent for the neck, and 10 percent for the constant pain. That would have given him a 30 percent rating and a medical retirement instead of being transferred to the Retired Reserves. He is providing a copy of his VA rating decision. d. The regulations for medical discharges state the Soldier must be rated for all unfitting conditions, not just the ones the board decides to use. If you are found unfit because of one thing, then all the other things that also make you unfit are supposed to be rated as well. e. He was initially rated for his lower back at 10 percent. When he appealed that decision because they did not include his neck or the pain related to both, he was informed that their second decision removed his back as the unfitting condition and changed it to his neck at a rating of 0 percent. In his appeal, he submitted x-ray evidence of both his neck and back problems that clearly show both areas were damaged equally. f. A directive from the medical board in Washington had stated the year before that if pain was present in an unfitting condition, it should be rated as well. However, his pain was never even considered. He finds it highly suspect that an unfitting back condition rated at 10 percent could suddenly vanish in a month's time, only to be replaced by another unfitting condition rated at 0 percent that showed the same damage as the back. He believes that the various PEB units throughout the country were under pressure to reduce the number of medical discharges as much as possible and that he was among the tens of thousands of Soldiers who were victimized by this practice. 4. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 11 December 2004 to 18 February 2007 * Standard Form (SF) 600 (Patient Needs and Health Assessment), printed on 6 November 2006 * DA Form 2823 (Sworn Statement), dated 8 December 2006 * Radiologic Examination Report dated 17 July 2006 (pages 7 and 8 only) * a letter from the VA, dated 24 December 2012 * a memorandum from the USAPDA, dated 28 February 2005, subject: Policy/Guidance Memorandum #13: Rating Pain * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 16 October 2006 (first page only) * DA Form 199 ((PEB Proceedings), dated 15 November 2006 (first page only) * DA Form 199, dated 11 December 2006 * DA Form 3349 (Physical Profile), dated 8 December 2006 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. Following active duty service in the U.S. Marine Corps, the applicant enlisted in the Army National Guard (ARNG) on 24 March 1993. He was discharged from the ARNG on 26 March 1996 for the purpose of accepting appointment as a commissioned officer. 3. He was appointed as a Reserve commissioned officer of the Army on 27 March 1996 and he executed an oaths of office in the California ARNG (CAARNG) on the same date. 4. He was issued a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) on 2 August 2003. 5. On 16 October 2006, an MEB diagnosed him with neck pain secondary to cervical degenerative disk disease (DDD) and spondylosis, low back pain secondary to lumbar DDD and spondylosis, and obstructive sleep apnea, which were deemed medically unacceptable for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness). He was also diagnosed with six additional ailments that were determined to meet retention standards. The MEB recommended his referral to a PEB. 6. The applicant's MEB Narrative Summary (NARSUM) is not available. 7. On 15 November 2006, an informal PEB found him unfit to perform the duties of his rank and military occupational specialty (MOS) due to: a. Neck pain insidious onset while deployed to Kosovo in March 2005, secondary to DDD and spondylosis, rated as 10 percent disabling under the VA Schedule for Rating Disabilities (VASRD) code 5237. According to the PEB the exam showed tender to palpation. Motion limited by pain. Symptoms and profile prevented duty performance. Rated for tenderness. b. Low back pain secondary to DDD, with atraumatic onset in June 2002, rated at 0 percent under VASRD code 5237. Exam showed no tenderness to palpitation or muscle spasm. Motion was pain-limited. Symptoms and profile prevented duty performance. Rated for no tenderness to palpation or muscle spasm. 8. The PEB found the obstructive sleep apnea and six additional conditions were not unfitting. Therefore, those conditions were not rated. 9. On 8 December 2006, he was issued a permanent physical profile due to a diagnosis of neck pain, low back pain, and sleep apnea, which prohibited him from performing the following tasks: * moving with a fighting load at least 2 miles * wear a protective mask and all chemical defense equipment * construct an individual fighting position * 2-mile run * sit-ups, flutter kicks, jumping, running * standing in formation grater that 5 minutes without a 5-minute break * lifting greater than 25 pounds * must have access to electrical outlet for continuous positive airway pressure (CPAP) machine 10. The physical profile allowed him to walk, bike, and swim at his own pace. 11. On 11 December 2006, a formal PEB found him unfit to perform the duties of his rank and MOS due to: a. Low back pain secondary to DDD, with atraumatic onset in June 2002, rated at 0 percent under VASRD code 5237. Imaging showed DDD at L4-L5 and L5-S-1. Exam showed no tenderness to palpation or muscle spasm. Motion was pain-limited but no pain medications taken. Symptoms and profile prevented duty performance. Rated for no tenderness to palpation or muscle spasm. b. Chronic cough that varies in frequency and intensity, rated at 0 percent under VASRD codes 6699 and 6600, that prohibits the wear of protective mask. Unable to satisfactory perform duties and responsibilities of a chemical officer due to cough and limitations. 12. The PEB indicated that: a. The applicant's condition listed as MEB's diagnosis number one (neck pain) was considered by the PEB. Even though the medical treatment facility (MTF) determined the condition to fail retention standards, subjective neck pain with no history of trauma with full range of motion, taking no pain medications for DDD, has been evaluated only twice in an entire year for neck pain conditions; therefore, condition was found to be not unfitting and therefore not ratable. b. The applicant's condition listed as MEB's diagnosis number three (obstructive sleep apnea) was considered by the PEB. Even though the MTF determined the condition to fail retention standards, CPAP machines are available for use in a mature theater of operations, sleep condition partially resolved with medications; therefore, the condition was found to be not unfitting and not ratable. 13. The PEB found the applicant physically unfit and recommended a combined rating of 0 percent and his separation with entitlement to severance pay. 14. The PEB also informed the applicant that because he was awarded a disability rating of less than 30 percent and he had 20 qualifying years for Reserve retirement, he had the option of accepting disability severance pay and forfeiting his Reserve retirement or he could elect to be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60. 15. A memorandum issued by the U.S. Army Human Resources Command on 29 January 2007 shows the applicant requested release from active duty and transfer to the Retired Reserve in lieu of separation for physical disability with entitlement to severance pay. The memorandum also shows his request was approved. 16. CAARNG Orders Number 71-1026, dated 12 March 2007, as amended, directed the applicant's separation from the ARNG and his transfer to the U.S. Army Reserve Control Group (Retired Reserve), effective 18 February 2007. 17. His DD Form 214 confirms he was released from active duty and transferred to the Retired Reserve on 18 February 2007. 18. The applicant provides: a. SF 600, printed on 6 November 2006, that shows he underwent a health assessment on 26 January 2006 at Madigan Army Medical Center (AMC), Washington, for conditions mostly related to his back. It is presumed this form was part of his PEB packet. b. DA Form 2823, dated 8 December 2006, provided by a physician at Madigan AMC, Department of Physical Medicine and Rehabilitation, indicating the applicant lower back pain is the result of a herniated disk at the L5-S1 level. c. Pages 7 and 8 of a Radiologic Examination Report, dated 17 July 2006, and highlighted certain entries pertaining to his back condition. d. A letter from the VA, dated 24 December 2012, that shows he was granted service-connected disability compensation rated at 90 percent by the VA. The medical conditions for which he was rated by the VA are not listed on this letter. e. Memorandum from the USAPDA, dated 28 February 2005, addressed to the PEB presidents, which provides guidance for rating unfitting conditions that are manifested by pain with and without supportable medical findings for rating an underlying condition. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). Disability compensation is not an entitlement acquired by reason of a 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 service. a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. c. Appendix B, paragraph B-15, (Zero percent ratings and minimum ratings) states that occasionally a medical condition which causes or contributes to unfitness for military service is of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD. Apply a 0 percent rating even though the lowest rating listed is 10 percent or more, except when "minimum ratings" are specified or unless the minimum rating is for a "by analogy rating." In all instances where a zero rating is applied to a principle cause of disability, include a rationale explaining the exact reasons for unfitness. When an otherwise fit Soldier is "unfit" because of his profile and MOS, note this in the rationale. (The 0 percent rating does not preclude the award of severance pay.) d. Appendix B, paragraph B-24, of the regulation in effect at the time states that often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain. Inasmuch as there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded only on the basis of pain. Rating by analogy to degenerative arthritis (VASRD code 5003) as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 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 at less than 30 percent. 4. 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. 5. 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. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. DISCUSSION: 1. The applicant contends his records should be corrected to show an increase in his final percentage of disability rating in order to qualify for a medical disability retirement. 2. The evidence shows he underwent an MEB that diagnosed him with neck pain secondary to cervical DDD and spondylosis, low back pain secondary to lumbar DDD and spondylosis, and obstructive sleep apnea, which did not meet retention standards. The MEB recommended his referral to a PEB. He was also evaluated for six additional conditions. These additional conditions met retention medical standards, meaning he could perform his Soldierly duties with no profile limitations or restrictions. 3. A formal PEB reviewed his diagnoses and found him physically unfit due to low back pain secondary to DDD and chronic cough. Both conditions were rated at 0 percent. The PEB stated his back pain was rated for no tenderness to palpation or muscle spasm. The PEB found the sleep apnea condition met retention standards and was not unfitting based on the fact that CPAP machines are available for use in a mature theater of operations. Therefore, this condition was not ratable. 4. The PEB also concluded that the applicant's neck pain, with no history of trauma and with full range of motion, with no history of taking no pain medications for DDD, and with him having been evaluated only twice in an entire year for neck pain conditions, was not unfitting and therefore not ratable. 5. The PEB found the applicant physically unfit and recommended a combined rating of 0 percent and his separation with entitlement to severance pay. The PEB also informed him that because he was awarded a disability rating of less than 30 percent, and since he had at least 20 qualifying years for Reserve retirement, he had the option of accepting disability severance pay and forfeiting his Reserve retirement or he could elect to be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60. He elected transfer to the Retired Reserve. Accordingly, he was transferred to the Retired Reserve on 18 February 2007. 6. Based on the foregoing, it appears the applicant was rated primarily for pain. Because there are no objective medical laboratory testing procedures to detect the existence of or to measure the intensity of subjective complaints of pain, Army policy is that a disability retirement cannot be awarded only on the basis of pain, and there is a 20 percent ceiling for either a single diagnosed condition or a combination of diagnosed conditions each rated essentially for a pain value. 7. It is noted that a letter from the VA dated December 2012, almost 6 years after his transfer to the Retired Reserve, shows he was granted 90 percent service-connected disability compensation; however, an award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings in cases where a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 8. It is acknowledged that the applicant’s conditions may have worsened over time. However, the Army’s rating is dependent on the severity of a condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting a disability rating once a Soldier separates from the Army. 9. The applicant’s separation and transfer to the Retired Reserve was accomplished in compliance with laws and regulations and the applicant concurred with the recommendation of the PEB. There is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004563 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004563 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2