IN THE CASE OF: BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150004923 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: 8 September 2016 DOCKET NUMBER: AR20150004923 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: 8 September 2016 DOCKET NUMBER: AR20150004923 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 his discharge with severance pay be changed to a disability retirement. 2. The applicant states he bases his consideration for a medical retirement on the Department of Defense requirement for discharges to be reviewed starting 11 September 2001 and the recommendation from the Review Boards Office to submit his packet. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 22 January 2001 * Department of Veterans Affairs (VA) Regional Office (VARO), Louisville, KY, Rating Decision dated 9 May 2001 * letter, dated 21 May 2001, from VARO Louisville, KY * VARO Louisville, KY Rating Decision dated 30 October 2001 * letter, dated 30 November 2001, from VARO Louisville, KY * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States), dated 23 November 2013 * letter, dated 6 January 2014, from the Department of the Air Force Review Boards Office * letter, dated 24 February 2014, from the Army Review Boards Agency (ARBA) * service medical records * VA medical 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. On 14 May 1997, the applicant enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Sergeant). 3. On 30 August 1999, he suffered a fractured right ankle after falling from a climbing rope. An open reduction and internal fixation (ORIF) on the right ankle was performed on 31 August 1999. 4. On 18 July 2000, the applicant was placed on permanent profile for right ankle pain (status post ankle fracture). Assignment limitations resulting from this physical profile were no running, jumping, or road marching. Under "L" (lower extremities) of the physical profile the applicant was assigned the numerical designator "3." 5. On 19 July 2000, the applicant's commander at Echo Company, 801st Main Support Battalion, 101st Airborne Division (Air Assault) provided a commander's letter of evaluation to the Physical Evaluation Board (PEB) Liaison Officer, Patient Administration Division, Blanchfield Army Community Hospital, Fort Campbell, KY. a. The applicant was not pending any adverse action. b. He was not flagged. However, he exceeded the weight for his height by 35 pounds and the allowable body-fat percentage by 5 percent. He was being medically evaluated for enrollment in the weight control program. If cleared for enrollment in the weight control program, he would be flagged and enrolled. c. His disability minimally impacted on the performance of his duties in his primary MOS of 91B. d. He had not been in direct supervision of the applicant. Since he took command of the unit the applicant had been in a position in the office of the Division Surgeon. e. He recommended the applicant not be processed through the Army Physical Disability Evaluation System (PDES). 6. On 20 July 2000, the applicant received a medical examination for chronic right ankle pain for a Medical Evaluation Board (MEB). a. The applicant had a musculoskeletal lower back pain which was activity related and more or less compensatory. This was not a condition serious enough to be a medical disqualifier. b. Radiographs revealed a simple pilon fracture of the distal tibia. He was taken to the operating room on 31 August 1999 and underwent an ORIF of the right ankle. Anatomic reduction was obtained. Post-operatively, he did well but developed decreased sensation of the dorsum of the foot which was now present over the lateral portion of the foot and did not involve the plantar surface. c. He underwent a prolonged course of physical therapy after the surgery. He continued to have pain in the right ankle. He described the pain as constant and slight in intensity with activity, however, he developed occasional moderate pain. He claimed that his discomfort was worse in the morning and with physical activity. Activities which made his ankle pain worse included: walking more than two miles, heavy lifting, standing for over 20 minutes, and he also had pain with weather changes. Elevation and keeping off his ankle improved this pain. He had undergone multiple profiles and had been on non-steroidal anti-inflammatory medications. d. Despite being on a temporary profile for a prolonged period of time and engaging in physical therapy for over 9 months, he continued to have discomfort to a point where he was having difficulties performing his duties as a Soldier. Recent radiographs revealed an anatomic reduction with some mild degenerative changes at the talotibial joint. The working diagnosis was chronic right ankle pain, status post-open reduction internal fixation, right ankle fracture. e. Physical examination of his right ankle revealed a well-healed wound on the lateral dorsal area of the foot and did not show any light touch sensation. On palpation, he also had medial and lateral joint line pain. No gross instability was noted to varus and valgus stress and anterior drawer. f. The applicant tried to manage his pain with rest and occasional Tylenol and Ibuprofen use. He was also wearing an air cast which provided him some comfort. He was unable to run. He could walk up to two miles. He could sit in a vehicle up to two hours and could carry up to 50 pounds. He had no difficulty wearing a ruck sack or carrying a weapon, though carrying a ruck sack and marching caused him discomfort. He was unable to jump or stand longer than 30 minutes. He could do 30 push-ups and 50 sit-ups. He had no difficulty wearing a helmet, firing a weapon or wearing LBE. He had no difficulty with sedentary activity such as writing and keyboard activity. The applicant was able to take care of himself and had not significantly deteriorated in his daily living. He did, however, have difficulties performing yard work. He used to participate in basketball, baseball, and boxing, which he had to give up. g. The applicant sustained a significant injury to his right ankle requiring a surgical correction. Though an anatomic reduction was obtained, he continued to have significant discomfort in the right ankle. Radiographs did reveal very mild degenerative changes. This arthritis, however, was not severe enough in it itself to cause traumatic arthritis and the pain associated with that. Nonetheless, he did have significant discomfort of the ankle which precluded him from performing his duties as a Soldier. He therefore met the criteria for separation as provided in Army Regulation 40-501, paragraph 3-41e(a). He was thereby referred to the PEB for further adjudication and action. 7. On 13 September 2000, an MEB referred the applicant to a PEB for chronic right ankle pain, status post ORIF, right ankle fracture. Frequency: Constant Severity: Slight. The applicant indicated he did not desire to continue on active duty. 8. On 19 September 2000, the findings and recommendation of the MEB were approved by the approving authority. On 24 September 2000, the applicant submitted an appeal to the MEB. It is not exactly clear what portion of his MEB he was appealing. 9. On 26 September 2000, the applicant's supervisor, Captain (CPT) M, Headquarters and Headquarters Company, 101st Airborne Division (Air Assault) Office of the Division Surgeon provided a supervisor's letter of evaluation to the PEB. a. The applicant was not pending any adverse action and he was not flagged. b. The applicant's disability negatively impacted on the performance of his duties in his primary MOS of 91B. CPT M listed 16 specific duties the applicant could not perform. His duty performance was excellent, but due to his physical impairment he could no longer function and his injury had prevented his unit from utilizing him in a productive manner. Consequently he had been working in the Division Surgeon's office as a clerk, a job that involved no 91B tasks. His injuries prevented him from fulfilling the requirements of a 91B. c. He recommended the applicant be processed and separated through the PDES. 10. On 27 September 2000, the applicant agreed with the MEB's findings and recommendation. 11. On 28 September 2000, the approving authority considered the appeal and confirmed the original findings and recommendation. 12. On 2 October 2000, an informal PEB found the applicant physically unfit under VA Schedule for Rating Disabilities (VASRD) diagnostic code 5299-5003 for chronic right ankle pain status post fracture and open reduction, internal fixation. Rated as slight/constant. Based on a review of the objective medical evidence of record, the PEB found the Soldier's medical and physical impairment prevented reasonable performance of duties required by grade and military specialty. The PEB recommended a disability rating of 10 percent (%). 13. The PEB recommended a combined disability rating of 10% and that the applicant be separated from the service with severance pay, if otherwise qualified. 14. On 10 October 2000, the applicant, after having received a full explanation of the results of the findings and recommendation of the PEB and his legal rights, concurred with the findings and recommendation of the PEB and waived a formal hearing of his case. 15. On 10 November 2000, the applicant was referred to the Western Kentucky Pulmonary Clinic from Fort Campbell, KY for evaluation of sleep trouble. a. His chief complaint was that he had been snoring a lot, stopped breathing, and in the daytime he was excessively sleepy. b. His problem had been going on for a long time and lately getting worse. He went to sleep around 9 and 10, sometimes very late, but when he went to sleep he started snoring heavily, he stopped breathing, and when he woke up in the morning he felt fatigued and tired. He fell asleep after lunch and in any quiet area. c. The examiner's overall impression was obesity and severe obstructive sleep apnea. d. The examiner's recommendations were a sleep study, continuous pulmonary airway pressure (C-PAP) treatment for obstructive sleep apnea, to lose weight, and to see the applicant after a sleep study. 16. On 29 December 2000, he was seen as a follow up at the Western Kentucky Pulmonary Clinic. He had a C-PAP study for his obstructive sleep apnea. C-PAP had been started. He was given a prescription and advised to use a C-PAP machine and follow up in 3 months. There was no indication his sleep apnea prevented the reasonable performance of his duties required by grade and military specialty. 17. On 22 January 2001, the applicant was discharged due to disability with severance pay. He had completed 3 years, 8 months, and 9 days of active duty service that was characterized as honorable. 18. On 24 March 2001, he received a general medical examination at the VA Medical Center, Nashville, TN. a. He fractured his right ankle in August of 1999 when he fell while climbing a rope. He had surgery at the time and had several pins inserted. Since that time, his ankle had done fairly well, although there were definitely times when it bothered him. If he attempted to drive further than one or two hours, he would get pain in the ankle. Walking or running long distances or attempting to lift heavy objects were things which he must avoid to try to avoid pain in the ankle. On exam, his ankle was slightly swollen over the lateral malleolus. He stated this slight swelling was from washing his car the day before. He was wearing an air cast and tight sock around the ankle to try to prevent any further swelling. He had a well-healed surgical scar and no other abnormalities. He had slightly decreased range of motion with dorsiflexion of approximately 10 degrees and plantar flexion of 20 degrees. b. The applicant also had low back pain. He thought this was related to the injury to his right ankle. c. He was diagnosed with obstructive sleep apnea in November of 2000 at the time of his military discharge physical. He was given a prescription for a nasal continuous positive air pressure (C-PAP) machine but he did not have it yet as he could not afford it and did not have insurance. He struggled with daytime sleepiness and would find himself falling asleep. His wife also complained about his excessive snoring. 19. VARO Nashville Rating Decision, dated 9 May 2001, granted him service connection for status post right ankle fracture (status post open reduction internal fixation) with traumatic degenerative disease under diagnostic code 5271 with an evaluation of 20% effective 23 January 2001. This decision was based on the VA examination in Nashville, TN, on 24 March 2001. Decisions for obstructive sleep apnea and a low back condition were deferred. 20. A VARO Nashville Rating Decision, dated 30 October 2001, granted him service connection for obstructive sleep apnea under diagnostic code 6847 with an evaluation of 50% effective 23 January 2001 and residuals, lumbar spine injury, sclerosis to the superior aspect of the right sacro-iliac joint with narrowing of the joint space (claimed as back pain) with a 0% evaluation. A non-compensable evaluation was assigned for this condition because the evidence pertaining to this condition showed that only slight, subjective symptoms of low back pain were present. 21. On 23 November 2013, he applied to the PDBR for a review of his discharge with severance pay. On 6 January 2014, his application was returned due to his discharge date preceding the guidelines set forth in Title 10 United States Code, section 1554a for the PDBR to reassess the accuracy and fairness of the combined disability ratings assigned to service member who were discharged subsequent to 11 September 2001 but prior to 31 December 2009. 22. On 1 October 2015, an advisory opinion was received from the U.S. Army Physical Disability Agency (USAPDA). The applicant did not provide any claim of error or injustice regarding his military disability records. USAPDA recommended no changes to the applicant's military records. a. The applicant's MEB was completed on 13 September 2000, with one diagnosis: chronic right ankle pain, status post ORIF. The ankle had healed properly, but the applicant complained of residual pain in the ankle. Medical findings were minimal with mild degenerative changes at the talotibial joint and some decreased sensation of the dorsum. There was no indication of any reduced range of motion. The applicant concurred with the MEB findings. b. An informal PEB found the applicant unfit for the listed condition and rated the ankle pain at 10% analogous to VA Schedule for Rating Disabilities (VASRD), degenerative arthritis; separate with severance pay. Disability military retirement requires a minimum of a 30% disability rating or 20 years of active duty service. The applicant concurred with the PEB findings and waived his right to a formal hearing. c. The MEB and PEB findings fully documented and considered the one condition that the applicant had in 2000. The PEB's rating of 10% was correct in accordance with the pain he was experiencing in the ankle at that time. For a higher rating for his ankle condition it would require his ankle to be ankylosed, have marked limited range of motion, or marked deformity due to malunion. None of these criteria were present in 2000 regarding his ankle. d. The PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statue, directive, regulation, or written policy. 23. On 19 October 2015, the applicant submitted comments/rebuttal to the above opinion. a. He requests the injustice be corrected. He requests that he be medically retired with a 30% rating or higher instead of a medical separation of 10% with severance pay. b. Evidence and other medical conditions were not taken in consideration at the MEB/PEB process which led him to apply to the PDBR to reassess the accuracy and fairness of his combined disability rating. The PDBR reassessed the accuracy and fairness of the combined disability ratings assigned to members who were discharged subsequent to 11 September 2001 and prior to 31 December 2009. Because his discharge precedes the opening period by 8 months, the PDBR could not process his applicant, but he was referred by the PDBR intake unit to submit an application to this Board. c. "There was no indication of any reduced range of motion." However, he had reduced range of motion on 29 November 1999, 16 November 1999, January 2000, and March 2000. All readings show an indication of marked reduced range of motion, but this was not taken in consideration at the MEB. He concurred with the MEB/PEB findings written at the time but he was unaware that the reduced range of motion on his ankle was an important factor. d. The MEB/PEB findings did not document or mention all relevant findings documented on his medical record like marked limited range of motion, post operation, and post physical therapy on his right ankle due to ankyloses. He states the PEB finding of 10% is unjust because it was adjudicated omitting medical facts present and documented on year 2000 preceding the MEB and PEB. e. He believes the decision of 10% disability and separation with severance pay was unjust because the VA, less than a year from separation, based on his military record, found evidence and criteria for: * marked limited motion in his ankle and awarded 20% disability * sleep apnea and awarded 50% disability * lumbar spine injury and awarded 10% disability REFERENCES: 1. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth the 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 states, in pertinent part, that after establishing the fact that a Solider is unfit because of a physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability. The VASRD, as modified in the regulation, is used to establish this rating. 2. AR 40-501 (Standards of Medical Fitness), then in effect, governed medical fitness standards for retention and separation, including retirement. Chapter 3 gave the various medical conditions and physical defects which may have rendered a soldier unfit for further military service and which fell below the standards required for the individuals in the Regular Army. a. The mere presence of an 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. Paragraph 3-3b(1) states that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating. b. Paragraph 3-41e(1) (Miscellaneous conditions and defects) stated conditions and defects not mentioned elsewhere in chapter 3 were causes for referral to an MEB if the conditions (individually or in combination) resulted in interference with satisfactory performance of duty as substantiated by the individual's command or supervisor. c. Obstructive sleep apnea or sleep-disordered breathing, which caused daytime hypersomnolence or snoring that interfere with the sleep of others and which could not be corrected with medical therapy, surgery, or oral prosthesis was cause for referral to an MEB. The diagnosis must have been based upon a nocturnal polysomnogram (sleep study) and the evaluation of a pulmonologist, neurologist, or a provider with expertise in sleep medicine. A 12-month trial of therapy with nasal continuous positive air pressure may have been attempted to assist in weight reduction or other interventions during which time the individual was profiled as T3. Long-term therapy with nasal continuous positive air pressure (CPAP) requires referral to an MEB. d. Chapter 7 (Physical Profiling) stated that the basic purpose of the physical profile serial system was to provide an index to the overall functional capacity of an individual and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing, and if reclassification action was warranted. (1) 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, and S-psychiatric. (2) Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. 3. Title 38, Code of Federal Regulations (CFR), section 3.400 (General) states except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 4. Title 38, CFR, section 3.400(b)(2) states the effective date of an evaluation is the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 5. Title 38, CFR, Part 4 - Schedule for Rating Disabilities, in effect at the time, stated the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. Section 4.71a (Schedule of ratings—musculoskeletal system) provided the following criteria for the level of disability for the VA diagnostic code 5271 - ankle, limited motion of: marked - 20 percent, moderate - 10 percent. 6. Title 10, United States Code (USC), 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. 7. Title 38, USC, 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. DISCUSSION: 1. The medical examination for the applicant's MEB was conducted on 20 July 2000. The medical examination for his VA disability rating was conducted on 24 March 2001, 8 months after his MEB examination and 2 months after his discharge. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 2. The effective date of his rating is 23 January 2001, 1 day after his separation from service in accordance with Title 38, section 3.400(b)(2). The effective date does not indicate his disability was 20% on 23 January 2001. The level of disability is based on the VA examination given on 24 March 2001. 3. It is noted that although the VA exam stated he had a "slightly decreased range of motion with dorsiflexion of approximately 10 degrees and plantar flexion of 20 degrees" the VA rated it as "marked" with a 20 percent rating. 4. An award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability. 5. 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. 6. Long-term therapy with nasal C-PAP requires referral to an MEB. The applicant was only treated for 2 months for sleep apnea prior to his discharge. There was no indication it was not being controlled or that it interfered with the satisfactory performance of his duties. 7. There is no evidence his lumbar spine condition interfered with the satisfactory performance of his duties. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004923 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004923 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2