IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150006148 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired vice discharged, and that compensation be added for his conditions of pain in his feet, impotence and his headaches. 2. The applicant states, in effect that: a. While he was assigned to an engineer unit, he was deployed to Afghanistan in August 2011. On deployment, he was the platoon sergeant’s driver. As the driving became longer and longer, his left side would start to get numb, lock up and cramp up. b. The situation began to get worse and worse until he started to even have trouble getting out of the vehicle. c. He wakes up and goes to sleep in pain, and is unable to walk without pain. d. While in the Army, he had gone to physical therapy which did not help; instead it brought about more pain. He was also issued orthopedic shoe inserts to help manage the pain in his feet and shins due to flat feet from the extensive training he did as a combat engineer. e. He was told by the doctors at the medical evaluation board (MEB) that no doctor would touch him until his symptoms were a matter of life and death, and that his pain would be with him for the rest of his life. f. After coming back from deployment, he started to have problems getting and keeping an erection the way he used to, so he was issued Viagra; however, after he was discharged, the Department of Veterans Affairs (VA) took away his Viagra and it has become even worse, to the extent that he has to wear a strap-on to please his wife. g. He does not believe he was compensated and taken care of accordingly with all of the problems he was having at the time of his separation. h. He wants a medical retirement so he and his family can have medical care. He also has a child with Down’s syndrome who needs specialized care. 3. The applicant provides: * a self-authored letter * a letter from the VA, dated 17 July 2014 * letters from a doctor of podiatric medicine * a DA Form 3349 (Physical Profile) dated 11 April 2013 * a DD Form 214 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) dated 17 October 2013 CONSIDERATION OF EVIDENCE: 1. On 21 October 2009, the applicant enlisted in the Regular Army. He completed initial entry training and was awarded MOS 12B (Combat Engineer). 2. His service medical records are not available for review. However, his Official Military Personnel File (OMPF) reveals on 11 April 2013, he received a physical profile which was signed by a physician assistant and shows a permanent profile rating of 3 for lower extremities (L). Block 1 (Medical Condition) lists bilateral knee pain secondary to patellofemoral syndrome (L3) and back pain due to spondylosis and myofascial pain syndrome (L2). Block 8 (Functional Limitations and Capabilities and other Comments) shows the applicant was able to run at own pace and distance, walking/marching at own pace and no jumping or landing. The MEB recommended the applicant's referral to a PEB. 3. The DA Form 3349 shows the applicant was recommended for an MEB. 4. On 17 October 2013, the applicant had a PEB, which found the applicant was physically unfit due to left and right patellofemoral syndrome. All other conditions were found not unfitting. 5. The PEB recommended the applicant's separation with a 20 percent disability rating and entitled to severance pay. 6. On 28 October 2013, the applicant acknowledged that he had been advised of the findings and recommendation of the PEB and that he had received a full explanation of the results of the findings and recommendation and his legal rights pertaining thereto. He concurred with the findings and recommendation of the PEB, waived a formal hearing and did not request reconsideration of his rating. 7. On 16 January 2014, he was honorably discharged from active duty and received severance pay. 8. The applicant provided a letter from the VA dated 16 July 2014 which stated that he was seen in the emergency room at the Denver VA Medical Center and was excused from work for one day. Additionally, the applicant states that he continues to have severe migraines and has issues performing for his spouse. 9. On 6 August 2015, an advisory opinion was sought from the U.S. Army Physical Disability Agency. In the advisory opinion, the Agency Legal Advisor stated the following: a. The applicant’s MEB was completed on 12 April 2013. The MEB found that the applicant’s bilateral patellofemoral (knees) was the only condition that did not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). All other conditions, to include foot pain and headaches, were found to meet medical retentions standards and there were no duty limitations included for any conditions other than the knees. b. On 19 April 2013, the applicant concurred with the MEB findings. c. The applicant has not provided any evidence that would require overturning the MEB or PEB findings that only his knee pain was medically unfitting in 2013. Only unfitting conditions are compensable in the military disability system. d. The PEB’s findings were supported by a preponderance of the evidence; the findings were not arbitrary or capricious; and the findings were not in violation of any statute, directive or regulation. 10. The applicant was provided a copy of the advisory opinion and had an opportunity to respond; however, he failed to do so. 11. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation and retirement. a. Chapter 3 provides guidance for 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 service. b. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service. c. Chapter 7 provides guidance for the physical profile serial system The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric d. Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitation * "4" indicates defects of such severity military duty performance is -drastically limited e. The DA Form 3349 is used to record both permanent and temporary profiles. A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander. All permanent 3 or 4 profiles are reviewed by a MEB physician or physician approval authority. f. Soldiers who have one or more conditions that do not meet medical retention standards are to be referred to a MEB after attaining the Medical Retention Determination Point (MRDP). The MRDP occurs when: * the Soldier's progress appears to be medically stabilized * the course of further recovery is relatively predictable * where it can be reasonably determined that the Soldier is most likely not capable of performing the duties required by his/her MOS, grade, or rank g. The MRDP and referral to an MEB/PEB will be made within 1 year of being diagnosed with a condition that does not meet medical retention standards, though referral may be sooner if it is determined the Soldier is not capable of returning to duty within 1 year. 12. 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. 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 VA Schedule for Rating Disabilities (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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support the applicant's request for correction of his record to show he was medically retired vice discharged. 2. The applicant received an MEB, PEB and was given a diagnosis of being unfit due to a left and right patellofemoral syndrome with a rating of 20 percent disability. He concurred with the PEB’s findings and did not request a formal hearing. 3. The VA awards compensation based on statutory and regulatory authority separate from that of the Army. The VA prepares an independent decision on veterans post service medical issues that are service connected. In addition, any medical condition that worsens over time, although it might generate a higher VA disability rating, does not automatically deem a service member to be medically retired. 4. The applicant’s separation with severance pay was accomplished in compliance with laws and regulations. There is no evidence of error or injustice in this case. 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) AR20140004356 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006148 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1