BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150015171 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: AR20150015171 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20140003708, dated 30 September 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. BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150015171 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 earlier request to increase his disability rating for a medical retirement. 2. The applicant states: a. In the interest of justice he requests his application be reconsidered to prevent a complete miscarriage of justice. b. His lower back and neck injuries occurred at the same time. To split the injuries up prejudiced him. The Army gave him a 20-percent disability rating for his back condition and the Department of Veterans Affairs (VA) awarded him 20 percent for his neck condition. He claims he has an original 40-percent combined rating, but if this were true he would have received a 30-percent or higher disability rating for a medical retirement. This act prejudiced him and violated his due process rights. c. His injuries incurred following the automobile accident on 3 August 1980 were not considered by the medical evaluation board (MEB). His entry into the Physical Disability Evaluation System was for his lower back condition. This injury originated during his initial training was aggravated by his motor vehicle accident. This is the only condition the Army stated failed retention standards and was unfitting. His DA Form 3947 (MEB Proceedings) clearly states to list all medical conditions and/or physical defects, whether or not disqualifying. This was not done. The members of the MEB failed to mention the neck and reinjured low back. d. Prior to his separation, he had hepatitis for the second time in October 1980. During his formal physical evaluation board (PEB) proceedings in December 1980, no one spoke of hepatitis. The hepatitis C virus may have been new and not available until the U.S. Food and Drug Administration required reporting it for blood donations in the 1980s and 1990s. Once a person contracts infectious hepatitis A, that person subsequently becomes immune to this disease forever. His hepatitis cleared up by July 1980 and it was considered resolved. e. In October 1980, he was quarantined for his second bout of hepatitis. This time it was hepatitis C. Failure to include the diagnosis of hepatitis C prejudiced him and violated his due process rights. The Army took advantage of his youth and naïveté. f. It took 28 years before the Army admitted he had hepatitis while serving in the military and it was 31 years before he got a copy of his service medical records. The Army hid the October 1980 hepatitis C diagnosis behind the February 1980 resolved diagnosis. You cannot tell if a person has hepatitis by looking at him or her. Five months following his discharge, the VA tested him and he was positive for residuals of hepatitis. The Army should have retained him on active duty until all of his injuries were properly boarded. He requests reinstatement on active duty so an MEB can properly discharge him. g. He was placed in jail twice before his discharge. He beat his girlfriend and broke her face. He did not remember it the following day. The VA states he had been admitted on numerous occasions for psychological problems. h. Prior to his discharge, the doctor noted he was in a catatonic state at the time of his auto accident on 3 August 1980 and there was a marked psychological overlay to anxiety. At his formal PEB hearing, he told the members he lost weight because he worried a lot and his nerves were bad. He has been on psychotropic medication for 28 years since his discharge. The VA diagnosed him with probable paranoid-type schizophrenia, antisocial personality, and mass major depression. i. He questions why the hepatitis C diagnosis was not in his file at the time of his discharge and how the cervical spine injury could be introduced at the formal PEB hearing without following protocol. A claim for disability is first considered by an MEB which reviews the individual's medical records to determine the nature of the disability. If the disability is found to be permanent, the issue of disability retirement is referred to a PEB which provides a formal fitness and disability determination. Had this been done, he would have been eligible for disability retired pay. This was not done and it prejudiced his separation and violated his due process rights. Not one, but two disabilities were left completely out of his separation consideration. There are cases where two or three MEBs were convened for two or three different injuries that were not permanent. The Army gave him a disability rating of 20 percent and the VA gave him a disability rating 20 percent. Both ratings have been in place for 35 years. He never agreed to anything the government suggested. j. He would never have known of his cervical spine injury or the severity if not for the PEB. He demanded a full and fair hearing. His cervical spine injury was not noted on any of the board documents. k. He questions if the PEB only recognizes permanent injuries, why the Army's lawyer was pleading during the PEB hearing that his cervical spine was persistent neck pain and limitation of motion in his neck. This was arbitrary, capricious, and contrary to law. l. At the time of his discharge, he failed retention because he had hepatitis C. Had this disease not been hidden behind the first February 1980 bout, he would have been entitled to his money 35 years ago. m. He was hoodwinked by the Army, but he never concurred with any of their recommendations. He was injured in the line of duty. He was eligible to receive incapacitation pay, active duty pay during a period of physical incapacitation, and disability payments, including disability retirement if the disability is permanent. No one counseled him about these things. He was not liked by many in his unit or guard duty crew. There were only two black Soldiers on the crew. The white Soldiers and black Soldiers were not cool. They even burned crosses and ran through the unit wearing sheets over their heads. n. The unit tried to get rid of him by pawning him off on another company. The company thought they had a real work horse until he disclosed his work physical profile limitations. They gave him a work schedule, but he filed a complaint. He was given nonjudicial punishment under Article 15 of the Uniform Code of Military Justice and returned to his unit. o. He is entitled to money owed to him by the Army. 3. The applicant provides: * service personnel and medical records * declaration by his cousin * MEB proceedings * PEB proceedings * Department of Veterans Affairs (VA) medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR20140003708 on 30 September 2014. 2. The applicant's arguments are new evidence that was not previously considered by the Board and warrants consideration at this time. 3. The applicant's records show he enlisted in the Regular Army on 26 January 1979 for a period of 3 years. He completed his training and was awarded military occupational specialty 95B (military police). 4. His MEB Narrative Summary states: a. He injured his back in April 1979 in a judo class at Fort McClellan, AL. He had moderate discomfort on flexion extension, which transiently improved. He did not have any x-rays. He was sent to Germany and assigned as a guard at a nuclear site. He had gone to sick call multiple times, complaining of recurrent back pain and he was referred to the 97th General Hospital Orthopedic Clinic where x-rays were taken that disclosed avulsion fractures of the spinous processes at L-2, L-3, and L-4. He was assigned a permanent physical profile rating of "3" in the lower extremities factor and he was disqualified as a guard due to the restrictions. b. He had been on physical therapy and medications without any relief for his pain. Due to the chronic lower back pain secondary to the avulsion fractures, he was a non-functional Soldier. He was unable to stand in formations for more than 15 minutes and he could not perform any lower extremities physical training without aggravation of the pain. He could not lift over 15 pounds with both arms without causing an increase in pain. He also contracted hepatitis in February 1980 and he was referred to the Community Drug and Alcohol Assistance Center (now known as the Army Substance Abuse Program) for alcohol abuse. He was released from the program after determining he did not have a significant drinking problem. c. His present physical examination of the eyes, nose, ears, throat, heart, lungs, chest, abdomen, upper and lower extremities, and neurology was within normal limits. On examination of the spine, he was able to flex to 30 degrees forward and 15 degrees backward without aggravating his pain. He had a 30-degree limitation range of motion on lateral bending. He was tender over the spinous processes of L-1, L-2, L-3, and L-4. Some paravertebral muscle spasm was noted adjacent to these tender areas. d. Although there appeared to be some degree of functional overlay to his pain complaints, the x-rays demonstrated clearly that avulsion fractures were present at L-2, L-3, and L-4 and that local tenderness was present at these sites. His condition was determined to have failed retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36. His diagnosis was chronic lower back pain (secondary to avulsion fractures of L-2, L-3, and L-4, spinous processes) and hepatitis (type unknown), resolved. e. The MEB unanimously recommended his permanent retirement in that he had reached maximum hospital benefits and maximum medical benefits. He was unable to perform the duties of his office and grade in such a manner as to reasonably fulfill the purpose of his employment in the military. The board unanimously recommended against placing him on the Temporary Disability Retired List. 5. On 23 July 1980, a second MEB diagnosed him with: * chronic lower back pain (secondary to avulsion fractures of L-2, L-3, and L-4, spinous processes) * hepatitis (type unknown), resolved 6. The MEB recommended his referral to a PEB. On 25 September 1980, he did not concur with the MEB findings and recommendation. 7. On 8 October 1980, an informal PEB found him unfit due to chronic lower back pain with local tenderness and limitation of motion of lumbar spine (moderate). The informal PEB determined his diagnosis of hepatitis was resolved and non-ratable. The informal PEB recommended a combined disability rating of 20 percent and separation with severance pay. On 22 October 1980, he did not concur with the findings and recommendations of the PEB and demanded a formal hearing. 8. On 2 December 1980, a formal PEB found him unfit due to chronic lower back pain with local tenderness and limitation of motion of lumbar spine (moderate). The formal PEB determined his diagnosis of hepatitis was resolved and non-ratable. The formal PEB recommended a combined disability rating of 20 percent and separation with severance pay. On 2 December 1980, he did not concur with the findings and recommendation of the formal PEB and his counsel submitted a statement in rebuttal. Counsel stated, in effect, the applicant should have received a higher percentage of disability for his lower back pain. He has a marked limitation of forward flexion. His back is constantly painful and caused him constant discomfort walking, standing, or sitting. He also has persistent neck pain and limitation of motion in his neck. 9. On 8 December 1980, the PEB President notified the applicant that he reviewed his counsel's rebuttal statement. The review affirmed the formal PEB's recommended findings. His case would be forwarded to the U.S. Army Physical Disability Agency for review. 10. On 9 December 1980, the U.S. Army Physical Disability Agency approved the formal PEB's findings. 11. On 26 January 1981, an Ad Hoc Review Board conducted a review of the applicant's records for the purpose of determining his disability separation grade. The Ad Hoc Review Board determined the highest grade he held satisfactorily as private first class/E-3 and he was eligible for severance pay in accordance with Title 10, U.S. Code, section 1203, at the highest grade satisfactorily held. He completed 1 year, 11 months, and 4 days of active service and 1 year, 11 months, and 6 days of service for pay. 12. On 27 January 1981, he was honorably discharged under the provisions of paragraph 4-24e(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay. 13. A VA Rating Decision, dated 10 March 1981, shows he was granted service-connected disability compensation (combined disability rating of 40 percent) for the following conditions: * residuals avulsion fracture L1-2-3 with lower back syndrome with traumatic arthritis (20 percent) * arthralgia cervical spine (20 percent) * residuals laceration right wrist (0 percent) * residuals hepatitis (not found on last examination) * pain in left leg (not found on last examination) 14. On 30 September 2014, the ABCMR denied his request for an increase of his disability rating for a medical retirement. REFERENCES: 1. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. 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. b. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. It is necessary to compare the nature and degree of the physical disability presented with the requirements of the duties the Soldier is reasonably expected to perform because of his or her office, grade, rank, or rating. 2. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Title 38, U.S. Code, sections 310 and 331, permit 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. DISCUSSION: 1. The applicant contends his lower back and neck injuries occurred at the same time, but the Army only gave him a 20-percent disability rating for his back condition and his neck injury was not considered by the Army. He contends the VA awarded him 20 percent for his neck condition; however, the rating action by the VA does not demonstrate an error or injustice on the part of the Army. 2. 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 it determines were incurred during military service and subsequently affect the individual's civilian employability. Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 3. He contends failure to include the diagnosis of hepatitis C prejudiced him and violated his due process rights. The evidence shows the MEB diagnosed him with hepatitis (type unknown), resolved. The informal and formal PEB determined his diagnosis of hepatitis was resolved and was therefore non-ratable. The governing regulation states 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. 4. He contends the Army should have retained him on active duty until all of his injuries were properly boarded. There is no evidence showing his single unfitting condition of chronic lower back pain with local tenderness and limitation of motion of lumbar spine (moderate) was improperly rated by the formal PEB in 1980. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015171 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015171 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2