BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160000778 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: 25 July 2017 DOCKET NUMBER: AR20160000778 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: 25 July 2017 DOCKET NUMBER: AR20160000778 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 correction of his records to show he was granted a higher disability rating for an unfitting medical condition. 2. The applicant states that under the Code of Federal Regulations (CFR), the Department of Veterans Affairs (VA) and the military services (as a whole) do not come together in relation to disability ratings. He states the U.S. Army rushed his discharge from military service, thereby not adequately assessing his medical conditions and disability ratings during the period of his basic combat training (BCT) and advanced individual training (AIT). He also states that, despite complaints of pain, x-rays were not completed on his ankles, back, or hip until his femur fractured during BCT. In addition, there were no behavioral health assessments completed during his AIT despite his inability to complete the training. He references CFR, Title 38 (Pensions, Bonuses, and Veterans' Relief), Chapter 1 (VA), Part 4 (VA Schedule for Rating Disabilities (VASRD)), paragraph 4.10 (Functional impairment). 3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), VA Form 21-526 (Veterans' Application for Compensation and/or Pension), and his medical records. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 4 April 2011 for a period of 8 years. He further enlisted in the Regular Army and entered active duty on 11 October 2011 for a period of 4 years and 32 weeks. He was advanced to private first class/pay grade E-3 on 11 October 2012. 2. A copy of the applicant's Medical Evaluation Board (MEB) proceedings is not available in his military personnel records. 3. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 28 December 2012 at R.W. Bliss Army Health Center, Joint Base Lewis-McChord, WA. a. The following condition was found unfitting: VA Codes 5299-5255 – fracture of the neck of the left femur requiring surgery (open reduction internal fixation), MEB Diagnosis 1; Recommended rating: 10 percent (%). (1) It also shows the condition was evaluated analogously to impairment of femur in accordance with (IAW) VASRD, paragraph 4.20. (2) It further shows the applicant developed an acute stress fracture of his left femoral neck while running during BCT, and underwent open reduction and internal fixation with a dynamic hip screw set at 135 degrees, short barrel 3-hole plate with a 95-millimeter lag screw, one compression screw, and three 4.5 millimeters cortical screws. After an appropriate period of convalescence, he remained unable to return to the rigors of basic training. He was found unfit, as continued exposure to the rigors of military service would create an unreasonable risk to the applicant's health and would also impose unreasonable requirements on the Army to maintain the applicant's health. Examination showed a normal gait with a painful but full range of motion. Rated 10% for slight hip disability. b. The PEB also considered the applicant's other diagnosis listed on the DA Form 3947 (MEB Proceedings): Diagnosis 2 (Degenerative disk disease in the lumbar spine). The PEB noted the Medical Treatment Facility determined the condition met retention standards and the case file contained no evidence that the applicant's conditions, independently or in combination, rendered him unfit for assigned duties. Accordingly, the PEB found the condition (MEB Diagnosis 2) not to be unfitting, and therefore, not ratable. c. The PEB proceedings further show the PEB found the applicant was physically unfit, recommended a combined rating of 10%, and separation with disability severance pay. d. The PEB President signed the PEB proceedings on 28 December 2012. e. On 2 January 2013, the PEB Liaison Officer (PEBLO) confirmed that she had informed the applicant of the findings and recommendations of the PEB, and that she explained to him the results of the findings and recommendations. f. On 4 January 2013, the applicant indicated with his signature that he concurred with the PEB findings and waived his right to a formal hearing of his case. g. The Chief, Operations Division, U.S. Army Physical Disability Agency, approved the PEB proceedings on 14 January 2013. 4. A DA Form 4187 (Personnel Action), dated 17 January 2013, shows the applicant requested early separation from active duty based on MEB/PEB action with disability severance pay effective 21 February 2013. 5. Headquarters, U.S. Army Intelligence Center of Excellence, Fort Huachuca, AZ, Orders 023-0102, dated 23 January 2013, discharged the applicant from the Regular Army, effective 21 February 2013, based on disability (10%) with severance pay. 6. A DD Form 214 shows the applicant entered active duty on 11 October 2011 and was honorably discharged on 21 February 2013 under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures), based on disability, severance pay, non-combat related. He had completed 1 year, 4 months, and 11 days of total active service this period. 7. In support of his application the applicant provides copies of his medical records. Information pertaining to a review of the available medical records by a medical professional is provided in paragraph 8, below. 8. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 11 October 2016. a. The ARBA senior medical advisor reviewed and provided a summary of the applicant's military personnel records and service treatment records. (1) He noted a review of the applicant's prescriptions indicated he was treated with sertraline (Zoloft), an anti-depressant, starting 2 January 2008 and through at least 20 April 2010. He also noted treatment with this anti-depressant for a behavioral/mental health condition was not disclosed/explained by the applicant on the medical pre-screen, medical history, or medical examination upon his enlistment. (2) A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 31 October 2011, shows the applicant was seen for right Achilles tendonitis (week 2 of BCT). There are no further complaints/problems noted associated with his ankles/feet. (3) An SF 600, dated 11 January 2012, shows the applicant's chief complaint of left hip pain with a history of running (week 11 of BCT); he felt two (2) "pops" and "went down to the ground." It shows the applicant originally injured his left hip the previous Friday and had been limping, but continued to run/participate in physical training. X-ray revealed a basic cervical left femoral neck fracture with coxa vara deformity; no dislocation. He was transferred to Palmetto Health-Richland Hospital for operative care (admitted on 11 January, discharged post-surgery on 13 January 2012). (4) X-ray, dated 4 May 2012 (compared with x-ray, dated 11 January 2012) showed left hip prosthesis with no evidence of hardware failure with well-healed femoral neck stress fracture. On 29 May 2012, he was cleared to return to training (AIT). (5) The medical advisor noted recurrence of symptoms while the applicant was at AIT with recurrent/chronic and worsening left hip/groin pain. He also noted an orthopedic evaluation (on 3 July 2012) with five-view x-rays of back with possible pars defect on the pars intra-articularis at L-5. Also, a computerized axial tomography (CAT) scan of his back (on 16 July 2012) showed mild mid and lower lumbar spine disc bulges without significant spinal canal stenosis. L5-S1 showed very mild bilateral neural foraminal narrowing, with the rest of the lumbar levels demonstrating no significant neural foraminal narrowing. The applicant was seen by Sports Medicine and referred to an MEB on 15 August 2012. b. The senior medical advisor further noted: (1) An MEB, on 24 September 2012, included hearing/audiology and optometry screening, and case management (laboratory work). (2) An informal PEB convened on 28 December 2012. (The PEB proceedings were previously summarized; see paragraph 3, above.) (3) A limited review of VA records through the Joint Legacy View indicate hip fracture (pain in left hip) and low back pain related to the applicant's request. There were no VA medical records or rating evaluations/decisions provided or received for review. c. The senior medical advisor found the applicant did not meet medical retention standards for left femur fracture with pain IAW AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. d. He also found the applicant met medical retention standards for degenerative disc disease, hearing, ankles/feet, and mental/behavioral health (Existed Prior To Service (EPTS), non-disclosed) IAW AR 40-501, chapter 3. These conditions were not unfitting. e. The senior medical advisor concluded that the applicant's medical conditions were duly considered during his medical separation processing. He found no evidence of a medical disability or condition which would support a change to the applicant's medical discharge. 9. On 12 October 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. CFR, Title 38, chapter 1 (VA), Part 4 (VASRD), shows in: a. paragraph 4.10 (Functional impairment), shows 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; and b. paragraph 4.20 (Analogous ratings), when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 2. AR 635-40 sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the disability evaluation system. a. Chapter 3 (Policies), paragraph 3-5 (Use of the VASRD), shows that 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. Any non-ratable defects or conditions will be listed on the DA Form 199, but will be annotated as non-ratable. b. Disability compensation 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. It also allows Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier be rated as the condition(s) exist(s) at the time of the PEB hearing. The VA may find a Soldier unfit by reason of a service-connected disability and may even assign a higher rating after separation. The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 3. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30 percent * section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent DISCUSSION: 1. The applicant contends that his military service records should be corrected to show he was granted a higher disability rating for his unfitting condition(s). 2. The evidence of record shows an MEB considered the applicant's medical conditions and recommended referral to a PEB. 3. The evidence of record also shows an informal PEB considered the medical conditions listed on the applicant's MEB. The PEB found his fracture of the neck of the left femur requiring surgery (open reduction internal fixation) was unfitting and rated at 10%. The remaining medical condition (degenerative disk disease in the lumbar spine) listed on his MEB was determined not to be unfitting. a. The PEB found the applicant physically unfit, recommended a combined rating of 10%, and separation from the service with disability severance pay. b. The PEBLO counseled him on the findings and recommendations. c. The applicant concurred with the results of the PEB. d. He requested separation with disability severance pay. Accordingly, he was discharged effective 21 February 2013. 4. The applicant's case was thoroughly reviewed and carefully considered throughout the disability evaluation system process. The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing. 5. The VA may grant the applicant disability compensation for service-connected medical conditions. However, this does not constitute evidence that the approved findings of the PEB are in error. 6. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000778 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000778 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2