BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150013120 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 BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150013120 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. BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150013120 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 1995 Physical Evaluation Board (PEB) proceedings to show he was retired based on physical disability not separated due to physical disability. 2. The applicant states he was rated at 10 percent and separated with disability severance pay. The Department of Veterans Affairs (VA) immediately rated him at 30 percent service-connected and has since adjusted his rating to 60 percent service-connected. 3. The applicant provides copies of his service medical records and a computer disk copy of those same records. 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 Soldier on 14 May 1982. He was promoted to sergeant/pay grade E-5 in military occupational specialty (MOS) 52D (power generation equipment repairer) on 1 June 1989. 3. The applicant's medical record is voluminous. In addition to numerous upper respiratory infections, he was treated for an injured left ankle, his right shoulder required surgical repair, and he suffered from chronic low back pain. 4. The applicant was issued a physical profile on 4 February 1994 for low back pain. This profile severely limited his activities and precluded running, repetitive jumping, stooping, climbing, crawling, bending, or lifting more than 20 pounds. His commander indicated this permanent profile required a change to his MOS because he could not work as a power generation equipment repairer. 5. In 17 March 1994, the applicant signed an acknowledgement statement wherein he received a copy of his "Clarification of Physical Profile Status." He also indicated he required an MOS/Medical Retention Board (MMRB) and that he desired a personal appearance before that board. He requested two witnesses appear at the MMRB on his behalf. 6. On 4 May 1994 an MMRB concluded that his physical condition was unlikely to improve and that his profile effectively precluded him from performing in any MOS. 7. A medical evaluation board (MEB) was recommended but neither it nor a record of a physical evaluation board (PEB) is filed in his official military personnel file or the service medical records he provides. His record does contain a message from the Army Personnel Command (PERSCOM) dated 20 January 1995 wherein it states the applicant would be immediately discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) (severance pay). The applicant’s disability rating was 10 percent disabling and did not result from a combat-related injury. The effective date of discharge was 3 March 1995 and he was entitled to separation pay. Subsequently, Orders 062-002 were issued by Headquarters, U.S. Army – Fort Dix, on 3 March 1995 discharging him from the Regular Army. 8. In compliance with the separation orders, the applicant was honorably discharged on 3 March 1995 under the provisions of Army Regulation 635-40, paragraph 4-24b(3). 9. During the processing of this case an advisory opinion was obtained from the Army Review Board Agency's (ARBA) Senior Medical Advisor. The ARBA Senior Medical Advisor noted that no service medical records and no VA or civilian medical records were provided with the initial application. The Senior Medical Advisor found no evidence that any condition was improperly rated or that any other medical condition should have been considered. The advisory opinion was forwarded to the applicant for possible rebuttal or comment. The applicant responded by providing a copy of his service medical records and VA records apparently maintained by the VA. 10. In his rebuttal letter dated 3 October 2016, he asserts he had initially provided a copy of his service and VA medical records in June 2016. He does not understand why the Medical Advisor did not receive those records he sent in June. He restates his request wherein the extent of all his service-connected injuries, disability and his length of service should have led to a decision to medically retire him not separate him with severance pay. He states, "I was low-ball rated by the Army and immediately rated at a much higher rating by the VA (this rating has since been increased due to ongoing complications and deterioration of my spine)." 11. The applicant’s service medical records and VA records were reviewed by the ARBA Senior Medical Advisor who, in turn, amended the advisory opinion on 5 December 2016. a. A review of his service medical records shows he received medical treatment or underwent medical examinations as follows – * 1982, medical entrance examination and history were clinically unremarkable * 1985, temporary physical profile for bronchitis * 1986, temporary physical profile for bilateral blisters on feet * February 1987, fracture distal right clavicle with grade II acromioclavicular (AC) separation * March 1987, surgery resection of distal right clavicle for nonunion fracture, distal right clavicle with second degree AC separation * April - July 1987, physical therapy post-operation for AC joint separation exercises * March 1987, 30 day physical profile status post-operation * April 1987, 30 day physical profile (pushups at own pace) * February 1989, report of medical examination determined he was medically qualified for retention with no profile restrictions * May 1990, fracture proximal phalanx left fifth finger * April 1991, left knee pain from running (patellofemoral syndrome) * October 1991, seen for lower back pain with recommendation to lose weight (he exceeded the weight standards), physical therapy, and medication * December 1991, nutrition consolation * December 1991, left ankle sprain * 1993, multiple clinic and physical therapy visits for low back pain secondary to spondylolistheses with transcutaneous electrical nerve stimulation treatment, flexion exercises, and epidural steroids with facet blocks * March 1993, 30 day temporary profile for low back pain * August 1993, 60 days temporary profile for slip of vertebra * February 1994, permanent physical profile for low back pain rated "3" for his lower extremity * May 1994, MMRB recommended referral to an MEB * September 1994, testicular pain with left spermatocele (cyst) * September 1994, neurosurgery clinic no evidence of herniated nucleus pulposus or root nerve compression * October 1994, MEB worksheets available; however, no MEB narrative summary, MEB decision document or PEB is in the available records * VA records show treatment for low back pain b. The medical advisor opined the applicant did not meet medical retention standards in 1994 for low back pain (with spondylosis/spondylolistheses) in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). c. The medical advisor opined the applicant met medical retention standards for the following medical conditions in accordance with Army Regulation 40-501: * right shoulder AC joint widening with osteophytosis * hypercholesterolemia * elevated blood pressure without formal diagnosis of hypertension * testicular pain (spermatocele) and history of vasectomy * hearing loss * vision problems (corrected with glasses) * history of distal phalanx fracture * history of left ankle strain * history of left knee pain * history of "walking" pneumonia d. The applicant’s medical conditions were duly considered during medical separation processing based on a review of the limited records. A review of the available evidence found no evidence of a medical disability or condition which would support a change to the character or reason for his separation. 12. A copy of the updated advisory opinion was mailed to the applicant for review and rebuttal. A second rebuttal was not received from the applicant. REFERENCES: 1. Army Regulation 40-501, chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric 2. A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. A physical profile rating of "2" under any or all factors indicates an individual possesses some medical condition or physical defect which may require some activity limitations. A physical profile rating containing one or more numerical designations of "3" signifies the individual has one or more medical conditions or physical defects which may require significant limitations. The individual should receive assignment commensurate with his or her physical capability for military duty. A physical profile rating containing one or more numerical designators of "4" indicates the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 3. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. This regulation provides that the servicing medical treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. The MEB will recommend referral to a PEB of those Soldiers who do not meet medical retention standards. Chapter 4, Section VI (Disposition Subsequent to Adjudication), paragraph 4-24 (Disposition by PERSCOM) stated PERSCOM would dispose of cases by publishing orders or issuing proper instructions to subordinate headquarters. In cases where the disability rating is less than 30 percent, the Soldier would be separated for physical disability with severance pay. 4. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent. 5. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends, in effect, his PEB should be corrected to show he is entitled to disability retirement because immediately upon his discharge the VA rated him at 30 percent service-connected. 2. The record of the applicant's MMRB is available; however, the records of the MEB and PEB are not filed in his available records nor did the applicant provide the Board a personal copy. 3. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 4. The applicant provided no evidence to show that any other ratable disabling condition existed except for his low back pain which led to his processing through the disability evaluation system. He provides no evidence that his back condition at the time of his service was improperly rated. The ARBA Senior Medical Advisor found no error in his medical separation processing through the physical disability evaluation system. The only unfitting condition noted was low back pain. All the other health conditions for which he received medical treatment throughout his many years of service appear to have met retention standards at the time and thus were not evaluated. Of note, a medical condition that is properly profiled must be referred to the PEB by the MEB. The PEB will only consider medical conditions identified in the MEB as not meeting medical retention standards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013120 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013120 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2