IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150004004 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: 12 April 2016 DOCKET NUMBER: AR20150004004 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: 12 April 2016 DOCKET NUMBER: AR20150004004 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, that his physical disability discharge with severance pay be converted to a medical retirement. 2. The applicant states: * he was discharged in 1984 by a medical board and it was stated that his foot condition was service-connected; however, he was never offered medical retirement * the Department of Veterans Affairs (VA) has started recouping his severance pay ($2,780.40) he received at the time he was discharged * his injury has affected his life, even today, and he has had two surgeries on his right foot * he has a 30 percent disability rating for his feet, 10 percent for his knees, and now has a bulging disc in his back; he has been unemployed because of his disabilities * he wants the benefits that he deserves as an Army serviceman 3. The applicant provides the following documents: * DD Form 214 (Certificate of Release or Discharge form Active Duty) * Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 6 March 1984 * DA Form 3947 (MEB Proceedings), dated 4 April 1984 with enclosures * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 1 May 1984 * DA Form 199, dated 7 June 1984, with formal board hearing transcript * VA Form 21-526 (VA Application for Compensation or Pension), undated * a letter from the VA, Columbia, South Carolina, dated 27 September 1984 * a letter from the VA, Columbia, South Carolina, dated 30 January 1985 * numerous documents from his service medical records (approximately 120 pages) of which many are duplicates 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 28 January 1983. He completed his initial entry training and was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic). The highest rank/grade he attained during his period of military service was private first class (PFC)/E-3. 3. On 4 April 1984, an MEB convened at the Madigan Army Medical Center, Fort Lewis, Washington. a. The MEB NARSUM indicated his chief complaint was symptoms in both his first metatarsal-phalangeal joints on the dorsa-medial aspect for approximately a five month period. It reviewed in his physical examination that his present condition with severe forefoot varus, subtalar joint bar - coalition, gastrocnemius equinas could not be controlled with an orthotic. He required extensive surgical procedures including subtalar joint fusion and total implant arthroplasty bilateral first metatarsophalangeal joints. b. The MEB concluded he did not meet medical retention standards and referred him to a PEB, based on the following diagnosis: * Symptomatic hallux rigidus (stiff big toe), bilateral, EPTS (Existed Prior To Service) condition, service aggravated * Symptomatic pes planus (flat feet) secondary to subtalor joint, synchondrosis right and synostosis left, EPTS condition, service aggravated c. On 4 April 1984, the MEB findings and recommendation were approved. d. On 6 April 1984, he submitted a DA Form 2496 (Disposition Form) subject: Application for Continuance on Active Duty, to Commander, EEA [Military Personnel Center (MILPERCEN)]. He requested continuance on active duty with assignment to duties he was able to perform within the limitations imposed by his physical disabilities. e. On 11 April 1984, he indicated he did not agree with the board's action and desired to appeal. He submitted a written appeal with three enclosures. (1) Enclosure 1 -- A statement from his company commander indicating the applicant was fully capable of performing all physical readiness training from 19 June 1983 until about November 1983 when his foot started hurting. He also stated the applicant never had any apparent problems prior to that time. He further stated the applicant should be given the opportunity to remain on active duty until some therapy could be applied to his foot. (2) Enclosure 2 -- A personal statement indicating he never had any foot problems before entering the Army. He was examined at the entrance station at Fort Jackson, South Carolina and was found fit for the Army. He had to wear combat boots, which created his problem with bunions. He wanted surgery but none was given. He did not have flat feet before entering the Army. (3) Enclosure 3 -- A DA Form 705 (Army Physical Readiness Test (APRT) Scorecard) that shows he passed his APRT during the months of April and May 1983. f. On 17 April 1984, the approving authority considered his appeal and confirmed the original board action. 4. On 1 May 1984, an informal PEB convened at [Presidio] San Francisco, California and considered the applicant's case. It was determined he was diagnosed with "hallux rigidus, symptomatic, bilateral with pes planus; EPTS, service aggravated" and was considered physical unfit. The board calculated his disability rating of 21 percent then subtracted 10 percent EPTS factor leaving a net rating of 11 percent. 5. The PEB recommended the applicant be given a disability rating of 10 percent with separation from the service with severance pay, if otherwise qualified. On 3 May 1984, the applicant non-concurred and demanded a formal hearing with personal appearance and appointed counsel. 6. On 7 June 1984, a formal PEB convened at [Presidio] San Francisco, California, with the applicant appearing in person and with counsel, to consider his case. After testimony and evidence were presented, the PEB found him unfit to perform his duties of his rank as a result of physical disability incurred while not entitled to basic pay. The PEB found the disability existed prior to service and was aggravated by service and recommended his percentage of disability be 20 percent and that he be separated with severance pay. 7. A review of his record contains a U.S. Army Physical Disability Agency (USAPDA) Standard Form (SF) 6 (Election Statement – Formal Hearing), signed by the applicant on 13 June 1984, which indicated he was counseled and agreed with the recommended findings of the PEB convened at the Presidio of San Francisco. 8. His record contains: a. A letter from the USAPDA, Washington, D.C., dated 27 June 1984, subject: Continuation of Disabled Enlisted Personnel on Active Duty, to Headquarters, Department of the Army [MILPERCEN] showed his findings [PEB] of unfit were approved. It further stated the applicant was diagnosed with hallux rigidus and pes planus on both feet. He would require extensive surgical procedures and the prognosis even after treatment was not good. The physical impairment precluded his satisfactory performance within his MOS and grade. The agency recommended his request for continuation on active duty be denied. b. A letter from the U.S. Army MILPERCEN, Alexandria, Virginia, dated 8 August 1984, subject: continuation on Active Duty of Disabled Personnel under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), to Commander Madigan Army Medical Center, which disapproved the applicant's request for continuation on active duty. 9. On 29 August 1984, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 4, by reason of physical disability with severance pay. His DD Form 214 confirms he completed 1 year, 7 months, and 2 days of net active service and received $2,780.40 in disability severance pay in conjunction with his discharge. 10. In the processing of this case, an advisory opinion was obtained on 8 July 2015 from the Legal Advisor, USAPDA, Arlington, Virginia. This official recommended denial of the applicant's request, stating that: a. The applicant's MEB was completed on 4 April 1984 and listed conditions of bilateral hallux rigidus and pes planus. The MEB indicated that these conditions existed prior to his military service (EPTS). The applicant did not concur with the opinion that his conditions were EPTS, but the MEB affirmed its findings upon further review. b. On 7 June 1984, a formal PEB found the applicant unfit for his listed conditions and indicated that any EPTS portion of his condition was not quantifiable. Accordingly, he would be entitled to his full compensation of 20%; separate with severance pay. The applicant had contended at the formal hearing that he should be found fit and provided additional treatment to enable him to continue on active duty. After the formal findings, available records do not reflect that any appeal was ever submitted. c. The present request for corrective action does not provide any evidence that the PEB rating was incorrect. His main contentions appears to be that: he should have been continued on active duty and been treated for his condition; he doesn't understand why the VA withheld the amount of any severance pay from future VA payments; and based on his current medical condition requests additional military disability compensation. d. The MEB found that his condition did not meet medical retention standards and that it was unlikely that further treatment would allow him to be able to complete his military obligation. Although the applicant had command support for continuing in the military, the military medical findings indicated that, because of his symptoms, continued service was not a good idea as the continued military stressors of marching, physical training, and required military footwear would only aggravate his condition even with treatment. Based on those symptoms and medical evaluation, it would not be appropriate to attempt to continue his military career. The applicant contends that the military medical findings, as noted above, were not correct and he should have been allowed to remain in the military. If ARBA is of the opinion that the applicant's contention regarding this issue is meritorious, ARBA should request a medical opinion from OTSG (Office of The Surgeon General) regarding the 1984 MEB findings. e. The claimed future problems with his feet in 2011 are not material or relevant to the applicant's condition in 1984. f. The PEB 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. 11. The applicant was provided a copy of the advisory opinion on 10 July 2015. On 13 July 2015, he responded to the advisory opinion, by stating he disagrees with the USAPD and provided additional documents. These documents included his MEB, PEB and other medical documents previously submitted to the board, the USAPDA advisory opinion, and a 16 page Board of Veterans' Appeals transcript, VA Docket No 10-16-250, dated 7 February 2013. He states his reason for disagreement, in effect, as: * his feet condition did not exist prior to his entry in the military * his commanding officer stated at the MEB that he should be given the opportunity to remain on active duty until some therapy could be given * he appealed the decision regarding his separation without continued benefits and retraining and that he should have been given treatment * he was treated unfairly by being discharged without treatment and the opportunity of rehabilitation/vocational training * he contends his condition did not render him unfit to continue his Army career * the MEB's decision was premature and surgery would have corrected the condition * he underwent surgery for his condition in September 2011; demonstrating he was not unfit at the time 12. Additionally, in the processing of this case, another advisory opinion was obtained on 3 March 2016 from the Chief, Integrated Disability Evaluation System (IDES) / MEB, U.S. Army Medical Department Activity, Fort Drum, New York. This official recommended denial of the applicant's request, stating in effect, that: a. After reviewing all medical documents provided, records indicate that during military service the applicant was evaluated, was correctly found to fail in meeting retention standards, to be unfit by a PEB, and was discharged from the Army. b. There was evidence that the diagnosis of bilateral hallux rigidus and pes planus did contribute and have a negative impact on Army functional limitations. Therefore, he failed to meet retention standards. Evidence supported a correct diagnosis and correct assessment that further treatment, including surgery, would likely not have allowed the applicant to fully complete military obligations without significant Army duty limitations. With combined diagnosis of bilateral hallux rigidus and pes planus, it is correct to note EPTS, but also potentially service aggravated. c. Any review of records after 1984 is not relevant to the applicant's condition that existed in 1984. d. Therefore, there is agreement with the initial findings of the MEB and PEB process. 13. The applicant was provided a copy of this advisory opinion on 9 March 2016, for information and to allow him the opportunity to submit comments or a rebuttal. However, he did not respond. 14. His record does not contain nor does he provide a VA Rating Decision document to review that determines the disability rating he received as he discusses. 15. The applicant provided: a. Documents indicating that on or about 20 September 1984, he submitted a VA Claim for Compensation or Pension. A letter from the VA, dated 27 September 1984, requested additional documentation for the claim to be processed. On 30 January 1985, he received a letter from the VA informing him that they did not grant his claim for disability benefits. b. A 16-page Board of Veterans' Appeals transcript, VA Docket No 10-16-250, dated 7 February 2013, which shows he appealed the VA decision. This document remanded his case for another review. c. Approximately 120 medical documents, mostly dated during the years 1983, 1984 and 2010, which show he was evaluated and treated for minor illness, injuries and his conditions related to his feet. These documents included multiple copies of his MEB NARSUM, MEB proceedings, and both informal and formal PEB proceedings. 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. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance on rating disabilities. 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. Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 2. Title 38, U.S. Code, sections 1110 (10 USC 1110) and 1131 (10 USC 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 that 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. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 3. Title 10, U.S. Code, section 1201 (10 USC 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. 4. Title 10, U.S. Code, section 1203 (10 USC 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 less than 30 percent. 5. Title 10, U.S. Code, section 1212 (10 USC 1212), sub-paragraph (d) provides that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA. Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered. DISCUSSION: 1. The applicant's request that his physical disability discharge with severance pay be converted to a medical retirement was carefully considered. 2. The evidence of record shows he suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty. His records were evaluated by an MEB because of his inability to physically perform the basic functions of his MOS due to his diagnosis of bilateral hallux rigidus and pes planus. Consequently, the MEB referred him to a PEB. The PEB found him medically unfit, rated his disabling condition at 20 percent after a formal PEB, and recommended his separation by reason of physical disability with severance pay. 3. The applicant contends his condition did not render him unfit to continue his military service and that the MEB's decision was premature and surgery would have corrected the condition. However, he was found medically unfit and in the opinion of the medical professionals any treatment, to include surgery, would likely not have allowed the applicant to fully complete his military obligations without significant duty limitations. 4. After his separation, he states the VA rated him for multiple conditions including those evaluated by the PEB. His record does not contain nor does he provide a VA Rating Decision document to review the disability rating he received; however, this rating only applies to the VA. 5. The applicant contends his percentage of disability, as determined by the VA, should be applicable to his Army separation; thus, he should have been retired by the Army instead of being separated with entitlement to severance pay in order to receive additional benefits. 6. An award of a different rating by another agency does not establish error in the rating assigned by the Army PDES. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service; only the Army can make that determination. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. 7. His physical disability evaluation was conducted in accordance with law and regulations, as substantiated by the advisory opinions, and he concurred with the recommendation of the formal PEB on 8 June 1984. There does not appear to be an error or an injustice in his case. 8. He takes issue with the VA's recoupment of his severance pay prior to his receipt of disability compensation. However, 10 USC 1212 (d) provides that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA. Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004004 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) 20150004004 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2