BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150006934 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 reconsideration of his request that, in effect, his Medical Evaluation Board (MEB) proceedings be expunged from his records and that a new MEB be conducted. 2. The applicant states: a. Federal law requires that a medical evaluation be conducted to show that a service member is unfit for further service. The Army uses the Integrated Disability Evaluation System (IDES). The first step in this process is the MEB. The procedures for the MEB are outlined in Army Regulation 40-400, paragraph 7. Army Regulation 40-400 (Patient Administration), paragraph 7-9a lists numerous baseline items that must be present and considered in order for a MEB to be considered valid. He was not present for his MEB and his statement was not provided. He brought this up in his appeal; however, no answer was provided concerning the lack of this necessary statement. b. A MEB should be considered invalid without consideration of all baseline items listed. It was likely that the Secretary of the Army considered this necessary as it provides the Soldier a voice as their case progresses, especially since the Physical Evaluation Board (PEB) only considers the Soldier’s record. c. In his appeal denial, Colonel (COL) R found that the format and coding were acceptable. If one examines the 25 May 2011 MEB Proceedings, it would show that no International Classification of Disease (ICD) codes were present for any of the conditions listed. d. The most likely reason COL R reached his conclusion was that he was examining a DA Form 3947 (Medical Evaluation Board Proceedings) that included ICD codes along with each condition as required. If that was the case, that document was never included in his disability file and he was not allowed to examine it. It was a forgone conclusion that a Soldier had the right to examine the entire disability file, to include the MEB, prior to being forwarded to the PEB. e. While this could be considered a technical issue, it was an order issued by the Secretary of the Army in Army Regulation 40-400. As such, the inclusion of proper medal coding as outlined in the directions for conducting a MEB are not optional. He believes that there is a DA Form 3947 in this case with proper medical coding as required by regulation and it was reviewed by COL R. COL R refers to a DA Form 3947 with not only medical coding, but proper medical coding. This issue is that the DA Form 3947 was never provided to him or the PEB. f. Medical coding ensures that all parties are discussing and considering the same medical issue as medical terminology changes and some diseases have regional/national names that ae not recognized outside of the area. Withholding the last produced MEB proceedings from him and the PEB invalidates further action taken and it is a clear denial of due process for both the Soldier and the Army. g. A narrative summary (NARSUM) dated 20 July 2011 was noted as evidence twice in the Department of Veterans Affairs (VA) findings and was the basis of the PEB’s decision; however, he has never been granted access to it. The commanding officer of the Fort Carson Medical Treatment Facility does not believe that this NARSUM exists. Multiple authors and reviewers overlooked this. Whether or not the NARSUM exists or the date was mistakenly entered multiple times, this invalidates the medical evaluation. h. In the American system, all evidence must exist and be shared with all parties involved. This is an underlying concept in all aspects of the government system. A Soldier has the right to due process in the Army’s disability evaluation system. As a basic right a Soldiers should be granted access to all documents no matter how inconvenient. Documents used as evidence should exist. The NARSUM he examined was dated 10 January 2011 and updated on 26 May 2011. i. Due process cannot be said to have taken place as long as there was a valid question as to the authenticity of evidence and the withholding of it from any party involved. It would have been required that both of the authors involved in producing the VA decisions provide statements verifying what the true evidence was. He was discharged without a valid medical evaluation due to the withholding of documents or the citing of evidence that did not exist. j. The only NARSUM that currently exists in his records is the one dated 10 January 2011, updated 26 May 2011. It was clear from reading AR 40-400 that the NARSUM is the primary item considered when conducting a MEB. If there are issues with any of the items necessary for the proper conduct of a MEB, then the MEB must be terminated, changes made, and a new MEB held. k. He was not present for the MEB activities. The evidence indicated that the MEB of 25 May 2011 was conducted using the NARSUM dated 10 January 2011 and was changed after the MEB was conducted. There were significant changes between the NARSUM dated 10 January 2011 and the one dated 25 May 2011. The need to make significant changes should invalidate the 25 May 2011 MEB. This should also invalidate the 26 May 2011 NARSUM because it was not properly considered by the MEB. The 10 January 2011 NARSUM could not be considered because it was not forwarded to the PEB within 30 days. l. Even if the evidence noting the use of a 20 July 2011 NARSUM was incorrect, using any other NARSUM would not be valid. The evidence indicated that the VA and PEB considered the 20 July 2011 NARSUM in their decision. The Army medical community’s inability to locate the document was not proof that it did not exist. The Army has a long history of losing documents. m. He believed that it was possible that the annotation of the 20 July 2011 NARSUM could have been an error; all the evidence makes it likely that the document existed. The preponderance of the evidence indicated a lack of due process in his medical evaluation. He was never been allowed to review and exercise his right of appeal and review. The MTF knew the requirement to include a Soldier’s written statement in the MEB; however, it was not adhered to. 3. The applicant provides: * a self-authored statement * a letter from Headquarters Western Regional Medical Command * three Department of Veteran Affairs (VA) Rating Decisions CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130012119, on 17 April 2014. 2. On 8 July 2009, the applicant was called to active duty from the U.S. Army Reserve, in the rank of major/O-4 3. An MEB Narrative Summary dated 10 January 2011 shows the applicant was diagnosed with 13 conditions, 12 of which met retention standards. 4. An MEB Narrative Summary dated 10 January 2011 (modified 26 May 2011) shows the applicant was diagnosed with 13 conditions, 12 of which met retention standards. 5. An MEB conducted on 25 May 2011, found that the applicant did not meet retention standards due to wegener granulomatosis. The MEB recommended referral to a PEB. The recommendation was approved on 1 June 2011. The applicant did not agree with the findings and indicated he would appeal. 5. On 6 June 2011, he acknowledged that he: * reviewed the contents of the MEB packet * read the DA Form 3947, NARSUM and the Physical Profile * had been provided with information on the impartial medical review * did not request an impartial medical review of his MEB 6. On 23 August 2011, the applicant was evaluated by a PEB. He was found unfit for duty with the following two diagnoses: a. Wegener's granulomatosis to include rhinitis, rated 100 percent. b. Renal involvement of Wegener's granulomatosis, rated 60 percent. c. Wegener's granulomatosis to include pan sinusitis and sinus headache, rated 50 percent. d. Residuals of right ankle fracture, zero percent. 4. The PEB recommended his retirement due to permanent disability with a combined rating of 100 percent. 5. On 22 November 2011, the PEB administratively amended his DA Form 199 (PEB Proceedings) to correct item 8b (Disability Description). The administrative correction did not change his disposition or rating. Item 8b noted that his other 11 conditions met medical retention standards and were not unfitting. 6. The original DA Form 199 is not available for review; however, it appears that he did not concur with the PEB findings and demanded a formal hearing of his case. 7. On 22 February 2012, after discussing his options with his legal counsel, he withdrew his demand for a formal PEB hearing. 8. On 16 March 2012, he was retired accordingly. The narrative reason for separation on his DD Form 214 is "Disability, Permanent (Enhanced)." 7. In processing this case an advisory opinion was obtained from the Legal Advisor, U.S. Army Physical Disability Agency (USAPDA). The USAPDA official stated: a. As the MEB relates to the PEB adjudication and disability processing, the purpose of the MEB is to provide important information regarding the applicant’s conditions when the applicant has one or more conditions that do not meet medical retention standards such that the PEB can make accurate determinations of each of its required findings. For example Army Regulation 40-400, paragraph 7(a). (7), indicates that the recommended format include the chief complaint stated in the Soldier’s own words and Army Regulation 40-400, paragraph 7-9f, provides that an ICD 9 code for the Soldier’s diagnoses be included. b. The applicant’s appeal of his MEB findings was reviewed by the MEB and the contents were found to be correct and acceptable for continued processing. The official noted that the applicant ultimately did not contest the PEB’s findings and did not request a formal board. c. The applicant went through the Pilot Program, which later became IDES. The NARSUM the PEB used for adjudication was dated 10 January 2011 (modified 26 May 2011). The NARSUM format was designed to leverage the fact the VA, and not the MEB, performed the physical examination portion of the NARSUM. Whereas here, the NARSUM was done for the Pilot Program and did not follow the recommended format as set forth in Army Regulation 40-400, chapter 7-9, but otherwise, in conjunction with the VA exams, provided sufficient information upon which the PEB based its findings. The agency found no error in the PEB’s findings. d. The PEB’s findings were supported by a preponderance of the evidence; were not arbitrary or capricious; and were not in violation of any statute, directive, regulation, or written policy. No changes were recommended to the military records related to the PEB’s findings. 8. The applicant was provided a copy of the advisory; however, he did not respond. 9. He provides three separate Rating Decisions which lists a NARSUM dated 20 July 2011 as evidence. 10. He provides a letter from Headquarters, Western Regional Medical Command, Joint Base Lewis-McCord, Washington, dated 5 May 2015, which stated in part that there appeared to be an error made by the VA referencing a NARSUM dated 20 July 2011. 11. The Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 12. Army Regulation 40-501 (Standard of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0 percent to 100 percent. DISCUSSION AND CONCLUSIONS: 1. The applicant requests, in effect, that his MEB Proceedings be expunged from his records and that a new MEB be conducted. 2. He provides a three-page narrative in which he alleges multiple administrative and regulatory irregularities in his MEB process. He initially disagreed with the findings of the MEB and indicated he would appeal; however, he decided not to request an impartial medical review of his MEB. 3. A PEB found him unfit for further military service with a 100 percent disability rating for two medical conditions. It appears that he did not concur with the PEB findings and demanded a formal hearing; however, he withdrew his request for a formal hearing on 22 February 2012. 4. The applicant contends that there was a NARSUM dated 20 July 2011; however, there is no evidence that it exists. 5. As noted by Headquarters, Western Regional Medical Command, it appeared that the VA mistakenly entered the wrong date of the NARSUM. Furthermore, a USAPDA official stated that the NARSUM the PEB used for adjudication was dated 10 January 2011 (modified 26 May 2011). 6. The NARSUM format was designed to leverage the fact the VA, and not the MEB, performed the physical examination portion of the NARSUM. The NARSUM was done for the Pilot Program and did not follow the recommended format as set forth in Army Regulation 40-400, chapter 7-9, but otherwise, in conjunction with the VA exams, provided sufficient information upon which the PEB based its findings. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130012119, dated 17 April 2014. _______ _ 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) AR20150006934 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006934 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1