BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20150018344 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: 30 May 2017 DOCKET NUMBER: AR20150018344 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: 30 May 2017 DOCKET NUMBER: AR20150018344 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 retired due to physical disability. 2. The applicant states that he is currently medically separated from the Army. He states, in effect, that his medical condition was pre-diagnosed as depression (dysthymic disorder) and it is service-connected. It was not previously considered by his medical board. He was medically separated with a 20 percent disability rating for back and neck injuries. On 8 January 2015, his Department of Veterans Affairs (VA) combined disability rating increased to 40 percent, due to his depression being rated at 30 percent. 3. The applicant provides copies of: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * service medical records * VA rating documents CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 6 October 2010. His military occupational specialty was 11B (Infantryman). 2. The applicant completed a VA Form 21-0819 (VA/DOD Joint Disability Board Claim) on 7 May 2013. The only medical condition he listed on this form was back pain (upper, middle, lower). He did not list any other medical conditions. 3. A medical evaluation board (MEB) convened on 25 June 2013. a. After consideration of clinical records, laboratory findings, and physical examination, the MEB found thoracic spine spondylosis/degenerative disc disease with broad-based posterior disc bulge at multiple levels including thecal sac impingement without cord impingement at T6-T7 and T8-T9 levels did not meet retention standards. b. The MEB recommended the applicant be referred to a physical evaluation board (PEB). c. His other medical conditions considered met retention standards and were not referred to the PEB. * recurrent cervical spine strain * recurrent lumbar sprain d. The applicant did not appeal or present views in his own behalf. e. The applicant was informed of the findings and recommendation of the board and he indicated his agreement with the board's findings and recommendation. He also acknowledged that the MEB proceedings included all of his current medical conditions and whether or not they met medical retention standards. The applicant placed his signature on the document. f. On 12 July 2013, the findings and recommendation were approved and his medical record was referred to a PEB. 4. The applicant underwent a VA Compensation and Pension (C&P) Examination on 9 December 2013. He was referred to the VA under the Integrated Disability Evaluation System. The preferred medical condition was thoracic spine spondylosis/degenerative disc disease with broad-based posterior disc bulge and cervical spine strain. The PEB-referred combined evaluation was 10 percent. The VA C&P proposed a service-connected combined evaluation of 20 percent. 5. An informal PEB convened on 16 December 2013. a. The following condition was determined to be unfitting: VA Code 5242 – thoracic spine spondylosis/degenerative disc disease with broad-based posterior disc bulge at multiple levels including thecal sac impingement. The recommended disability is shown as 10 percent. b. The PEB found the applicant's medical diagnoses of recurrent cervical spine strain, and recurrent lumbar sprain met retention standards. Accordingly, the PEB found these conditions not to be unfitting and therefore not ratable. c. The PEB found the applicant physically unfit, recommended a combined rating of 10 percent, and recommended that he be separated from the service with severance pay, if otherwise qualified. d. The PEB President signed the PEB proceedings on 16 December 2013. e. On 18 December 2013, the PEB Liaison Officer (PEBLO) confirmed that he had informed the applicant of the findings and recommendations of the PEB and had explained to him the results of the findings and recommendations. f. On 18 December 2013, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. g. The PEB proceedings were approved on 27 December 2013. 6. The applicant was discharged with disability severance pay under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a disability rating of 10 percent. 7. In support of his case, the applicant provides VA rating decisions which show as of 24 June 2016 he received service-connected disability ratings for: * right ankle later collateral ligament sprain, chronic/recurrent (claimed as chronic right ankle pain), 0% disability rating * lumbar strain with thoracic spine spondylosis/degenerative disc disease with broad-based posterior disc bulge at multiple levels including the cal sac impingement and scoliosis, 20% disability rating * chronic cervical spine strain (claimed as cervical strain/radiculopathy), 10% disability rating 8. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA). a. The senior medical advisor provided a summary of the applicant's MEB proceedings and the informal PEB. He noted the applicant was seen by behavioral health in Afghanistan several times for adjustment disorder with mixed emotional features. In 2014, the applicant denied needing further services. b. He also noted that the applicant's medical conditions were duly considered during the MEB/PEB process and medical separation processing. Specifically, his diagnosis of adjustment disorder with mixed emotional features and depressive symptoms met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and AR 635-40. c. He concluded that a review of the available documentation found no evidence of a medical disability or condition which would support a change to the discharge. 9. On 19 October 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) in accordance with Title 10, U.S. Code, Chapter 61 and the Department of Defense Instruction 1332.18 (DES). It 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. If a Soldier is found unfit because of physical disability to reasonably perform their duties it provides for the disposition of the Soldier according to applicable laws and regulations. a. Public law defines physical DES as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the armed forces. It is comprised of MEBs, PEBs, counseling of Soldiers, and mechanism for final disposition. b. A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension or hospitalization with the VA or signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. c. Integrated DES (IDES) features a single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. A single set of disability ratings provided by the VA for use by both departments. The DES applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. d. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile in accordance with AR 40-501 and the profile contains a numerical designator of P3/P4 in any of the serial factors for a condition that appears to not meet medical retention standards. A Soldier must be assigned a P3/P4 profile to refer a Soldier to the DES. (2) A Soldiers is referred to the DES based on the outcome of a Military Occupational Specialty Administrative Retention Review (MAR2) evaluation. e. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501. An MEB may determine that a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. The MEB must not provide conclusions or recommendations regarding fitness determinations. (1) Upon referral into the DES, the physician approving the Soldier P3/P4 profile will initiate the VA Form 21-0819 (VA/Joint Disability Evaluation Board Claim) and send the form to the MTF commander. (2) The Soldier will be assigned a PEB liaison officer (PEBLO) who will provide a general overview of the DES process. (3) The Soldier will have the opportunity to claim conditions on the VA Form 21-0819. After the VA Form 21-0819 is submitted, the Soldier may also claim additional conditions, but the VA will not evaluate the added claimed conditions until after separation unless the PEB refers the condition for further VA or MEB evaluation before issuing a final fitness determination, or if the MEB approval authority concludes that adding a new medical condition is necessary. f. The PEB determines fitness for purposes of a Soldier's retention, separation or retirement. (1) All cases will be initially adjudicated by the Informal PEB. The Informal PEB conducts a documentary review of the case file without the presence of the Soldier to make an initial decision on the Soldier’s fitness for continued service. The decision will be documented on a DA Form 199. (2) With the exception of cases adjudicated under the legacy DES, if the initial decision of the PEB is that the Soldier is unfit, the PEB president will request preliminary VA ratings for each condition the PEB found to be unfitting. The PEB will apply the VA disability rating percentages to the conditions determined to be compensable by the PEB. (3) The Soldier can accept the Informal PEB decision thereby waiving his or her right to a formal hearing. The Soldier can nonconcur with the Informal PEB decision and demand or request a formal hearing. Accept or request reconsideration of the VA preliminary ratings. The VA will only reconsider when there is new medical evidence or sufficient justification of an error to warrant reconsideration. In addition, an appeal must be initiated and accepted within 1 year of the initial VA medical evaluation under IDES. g. The U.S. Army Physical Disability Agency (USAPDA) will review the PEB before the PEB recommendations and findings are approved for or by the Secretary of the Army (SECARMY) or higher authority, as applicable. The USAPDA has the authority to approve disability cases for the SECARMY and issues disposition instructions. 3. Title 38, U.S. Code, sections 1110 and 1131, 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 4. 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 a disability incurred while entitled to basic pay. 5. 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 rated at least 30 percent. 6. Title 10, U.S. Code, 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 less than 30 percent. DISCUSSION: The evidence of record shows, throughout the IDES process, the applicant did not identify or request the addition of a mental health condition. The ARBA medical advisor noted he was seen multiple times for adjustment disorder with mixed emotional features and depressive symptoms while in the service. He noted that these mental health conditions met medical retention standards, meaning they would not have been evaluated during the IDES process. The applicant concurred with both the findings of the MEB and informal PEB. He further waived his right to have his initial 2013 VA ratings, initiated under the IDES, reevaluated during an appeal process. The available evidence does not indicate there were additional conditions that should have been considered by the PEB. Because he was rated at less than 30 percent disabled, he was discharged with severance pay in accordance with statute. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018344 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018344 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2