BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160000260 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: 21 September 2017 DOCKET NUMBER: AR20160000260 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: 21 September 2017 DOCKET NUMBER: AR20160000260 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, correction of her DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) by adding left kidney nephrectomy to her existing unfitting conditions to increase her disability rating. 2. The applicant states she had a kidney condition while on active duty and underwent surgery to remove one of her kidneys. She feels this condition should have been evaluated by the Army/Department of Defense (DoD). She understands the Department of Veterans Affairs (VA) and the DoD are totally separate, but in comparison, she believes the Army can reconsider her disabilities. She is looking to get at the very minimum 30% disability, or be put on the temporary disability retired list (TDRL). 3. The applicant provides: * a record of inpatient treatment, dated 14 October 2011 * 8 pages of patient labs for 17 June 1999 through 27 February 2012 * a patient lab inquiry for 7 January 2000 through 19 November 2012 * an emergency department report, printed on 11 May 2012 * Medical Evaluation Board (MEB) Narrative Summary (NARSUM), revised on 29 June 2012 * a rebuttal letter from the applicant through counsel, dated 19 July 2012 * a letter from the Clinical Service Director, MEB Department, Evans Army Community Hospital, dated 26 July 2012 * Disability Evaluation System (DES) Proposed Rating, dated 17 September 2012 * DA Form 199, dated 10 October 2012 * VA Rating Decision, dated 16 May 2013 * lab results printed from the Veterans Information Systems and Technology Architecture (VISTA) system on 16 May 2017 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 2 November 2010. She completed her initial entry training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). 2. The applicant was referred on 22 February 2012, for evaluation by an MEB. 3. The applicant was evaluated by an MEB on 22 May 2012. A revised NARSUM, dated 29 June 2012 shows she did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), for bilateral patellofemoral syndrome. Her NARSUM further notes the following diagnoses were determined to meet medical retention standards: * benign essential hypertension * subclinical hyperthyroidism * tonsillar hypertrophy bilateral * right foot 5th digit callus * muscle tension headaches * dyssomnia * depressive disorder * HIV antibody positive 4. The applicant, through counsel on 19 July 2012, disagreed with the MEB findings and requested a VA and MEB evaluation of her right kidney and a determination that such condition was medically unacceptable. 5. An independent medical review was conducted on 26 July 2012, to evaluate the applicant's kidney condition. The Clinical Service Director, MEB Department, Evans Army Community Hospital reviewed the applicant's Integrated Disability Evaluation System (IDES) packet and available medical records. Based on this evaluation, it was determined the NARSUM and MEB accurately reflected the applicant's complete spectrum of injuries and illnesses, and there were no changes regarding her kidney condition. 6. An Informal PEB found her physically unfit on 10 October 2012, due to right and left knee patellofemoral syndrome, in accordance with the VA Schedule for Rating Disabilities (VASRD) and recommended a combined disability rating of 20% and separation with severance pay. The PEB further found the following conditions not to be unfitting and therefore not ratable: * benign essential hypertension * subclinical hyperthyroidism * tonsillar hypertrophy bilateral * right foot 5th digit callus * muscle tension headaches * dyssomnia * depressive disorder * HIV antibody positive 7. The applicant concurred with the PEB findings and recommendation on 29 October 2012, and waived a formal hearing of her case. She did not request reconsideration of her VA ratings. 8. The applicant was honorably discharged on 20 January 2013. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows her narrative reason for separation as disability with severance pay, non-combat. 9. The applicant provides: a. A DES Proposed Rating, dated 17 September 2012, which shows the applicant's left kidney nephrectomy (claimed as left kidney condition) was assigned a proposed 30% rating. b. A VA Rating Decision, dated 16 May 2013, which shows she was granted an 80% rating for her service-connected disabilities. Her left kidney nephrectomy with hypertension was rated at 60%. c. Lab results printed from VISTA, on 16 May 2017. 10. In connection with the processing of this case, an advisory opinion was obtained on 1 June 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official recommended disapproval of the applicant's request, and stated: a. A limited review of VA records through the Joint Legacy Viewer shows 67 problems (26 VA-entered) including disorders of the patellalchondromalacia patella, mood disorder, adjustment disorder with mixed emotional features, abnormal serum thyroid stimulating hormone level, history of partial nephrectomy, tonsillitis, dysfunctional voiding of urine, benign essential hypertension, human immunodeficiency virus disease, and others. The applicant is currently VA service connected at 80% overall. b. Technically, the applicant did not meet medical accession standards for non­ functioning left kidney in accordance with Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable her era of service. The asymptomatic abnormality was not identified within the first 180 days of service. Identification of this existed prior to service congenital or developmental abnormality occurred as an incidental finding during the medical evaluation of hyperthyroidism. c. The applicant did not meet medical retention standards for right and left knee patellofemoral syndrome in accordance with, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to her era of service. d. The applicant met medical retention standards for status post left nephrectomy, benign essential hypertension, subclinical hyperthyroidism, tonsillar hypertrophy bilateral, right foot 5th digit callus, muscle tension headaches, dyssomnia, depressive disorder, and HIV antibody positive in accordance with Chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to her era of service. Note: Army Regulation 40-501 chapter 3-17, f(6) lists: hypoplasia of the kidney, when symptomatic and associated with elevated blood pressure or frequent infections and not controlled by surgery. The applicant's left kidney was removed, minimizing any negative contribution of the hypoplastic kidney and other directly associated congenital abnormalities from impact on blood pressure and the risk of malignancy. She did not have a significant history of urinary tract infections. e. The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 11. The applicant was provided a copy of the advisory opinion on 2 June 2017, for information and/or an opportunity for rebuttal. She did not respond. REFERENCES: 1. Army Regulation 40-501 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. 2. Army Regulation 635-40 establishes the Army DES 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 office, grade, rank, or rating. It states, in part: a. Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension. 3. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. The IDES is the joint DoD-VA process, by which DoD determines whether wounded, ill, or injured service members are fit for continued military service and by which DoD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DoD will follow the existing policies and procedures requirements promulgated in DoD Instruction (DODI) 1332.18 (DES Manual: IDES) and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with fitness/unfit determinations. d. Upon separation from military service for medical disability and consistent with Boards for Correction of Military Records (BCMR) procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition, based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating results in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 4. 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 at less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that 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, which 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 or retirement, 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. DISCUSSION: 1. The applicant's requests for correction of her Informal PEB proceedings to show left kidney, nephrectomy was included as an unfitting condition, with an appropriate adjustment in her combined disability rating, was carefully considered. 2. The evidence of record shows the applicant's left kidney was removed in September 2010. Her MEB and PEB proceedings do not show that her left kidney condition was considered for medical fitness standards. However, an independent medical review, dated 26 July 2012, shows that based on a complete review of the applicant's available medical records, there were no changes regarding her kidney condition. 3. Based on the information available for review at this time, there is no new evidence to support the applicant's contention that her left kidney, nephrectomy was medically unfitting. A review of the available documentation indicates she met medical retention standards at the time of her separation from the military with respect to her left kidney condition. The applicant's kidney was removed, and there were no reported or significant impact on her performance of duties. 4. The VA awarded the applicant 80% service-connected disability following her release from active duty. However, the Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army. Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service. The VA may award ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 5. Records indicate she was properly discharged from the Army under the provisions of Army Regulation 635-40, chapter 4, after referral to an MEB and subsequent PEB that found she did not meet medical retention standards for the unfitting condition of right and left knee patellofemoral syndrome. In addition, she concurred with the PEB findings and recommendation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000260 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000260 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2