BOARD DATE: 31 October 2017 DOCKET NUMBER: AR20160001229 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: 31 October 2017 DOCKET NUMBER: AR20160001229 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: 31 October 2017 DOCKET NUMBER: AR20160001229 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 his records to show he was retired by reason of physical disability, instead of showing he was discharged by reason of disability with entitlement to severance pay (non-combat related). 2.  The applicant states, in effect, he has proof that his back was worse than expected when he was given a disability percentage. a.  When he was involuntarily discharged from the Army, he was given a 20 percent disability rating for his back issue. He had surgery after he left the service; he found out there were more things wrong with his back, making it impossible for him to work. b.  He believes he should have been medically retired but he was one of the first at Fort Bliss, TX, to go through the new medical board system; most of its workers really didn't know what they were doing. "Section 16" states his injury affects him from working just like it did when he was in the military. 3.  The applicant provides 71 pages of medical records dated between 12 June 2014 and 7 December 2015 (post-service). CONSIDERATION OF EVIDENCE: 1.  The applicant enlisted in Regular Army on 4 August 1998. He completed initial entry training and was awarded military occupational specialty (MOS) 45T (Patriot Operator/Maintenance). 2.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 13 September 2012 finding the applicant physically unfit for military service because of a lumbar herniated disc (L5-S1) with radiculopathy. The PEB recommended a disability rating of 20 percent, and separation with entitlement to severance pay. (His case was adjudicated as part of the Integrated Disability Evaluation System (IDES).) On 21 September 2012, he did not concur with the PEB findings and requested a personal appearance before a formal hearing. He further requested the Department of Veterans Affairs (VA) reconsider his disability ratings (under IDES) and that the VA would consider his request after his formal hearing. A formal hearing was scheduled for 10 October 2012. The results of the formal hearing are not available for review. On 12 December 2012, the U.S. Army Physical Disability Agency (PDA) approved the informal PEB findings (emphasis added). 3.  The applicant was honorably discharged on 19 December 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4, by reason of disability, with entitlement to severance pay. His DD Form 214 further shows he was entitled to $97,893.60 in severance pay. 4.  The applicant provides medical treatment records showing a history of diagnosis, medical treatment and surgical procedures, related to his back issue, he has received since he departed the military. 5.  In the processing of this case, an advisory opinion was obtained on 30 November 2016 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official noted and opined: a.  Brief summary: (1)  Standard Form 88 (Report of Medical Examination) dated 19 June 1998, was unremarkable (birthmark and 15" scar thigh). (2)  A review of the applicant's electronic medical record (AHLTA) revealed clinical encounters between August 2003 and August 2012. (3)  Clinic visit on 14 January 2011, for Warrant Officer Candidate (WOC) examination with negative post-traumatic stress disorder and depression screening, reported prior orthopedic problems (left shoulder pain, August 2010; right thumb sprain, August 2010; left knee sprain, November 2007), left knee Osgood-Schlatter's disease, hypercholesterolemia, and dermatophytosis onychomycosis toenails (toe fungus). (4)  Interventional Spine Clinic on 10 November 2011 for lumbar epidural steroid injection with fluoroscopy for lumbar radiculitis. (5)  Numerous physical therapy, emergency room, primary care, interventional spine, neurosurgery visits during 2011. (6)  Neurosurgery note dated 24 January 2012 shows a herniated disc (L5-S1) on left, with recommendation for lumbar micro discectomy; however, he declined the procedure and was referred to a medical evaluation board (MEB). He received a permanent (P3) profile. He reached the medical retention decision point (MRDP) and appears to not be fit for duty. (7)  A psychiatric evaluation dated 5 June 2012 was reviewed. The note includes a summary of the applicant's military behavioral health history, with Axis I – adjustment disorder with mixed disturbance of emotions and conduct, alcohol abuse; Axis II – antisocial personality traits; Axis Ill – orthopedic injuries with chronic pain; Axis IV – pending separation from the Army, occupational concerns; and Axis V – global assessment of function score 65-70. (8)  Operative note dated 12 June 2014 for history of claudication in bilateral lower extremity and low back pain due to spinal stenosis of L5 and S1. Surgery – complete laminectomy, bilateral medial facetectomy, and foraminotomy at L5-S1, followed by the removal of the thickened ligamentum flavum and medial facetectomy, followed by a complete discectomy, arthrodesis, and placement of cage, along with the use of allograft, autograft, and bone marrow aspirate. Computed tomography scan lumbar spine dated 13 June 2014 with evidence of recent operative changes. Additional perioperative, operative and post-operative surgical, nursing and other notes were reviewed. Operative note from 16 June 2016 (post-service) for left S1 radiculopathy due to misalignment of the screw. (9)  Fluoroscopy of lumbar spine on 12 and 16 June 2014. b.  VA Spinal Cord Injury Compensation and Pension (C&P) Examination Consult dated 16 March 2015 (post-service) was reviewed. The applicant injured his back in 2010 while lifting a box from the ground and landed on his side. X-ray showed degenerative arthritis of the lumbar spine. The medical history describes recommendations for surgery, surgery and radiological evaluations in 2012 through 2015. A VA pain assessment note dated 9 July 2015 was reviewed. c.  Limited review of VA records through the Joint Legacy Viewer (JLV) with 13 problems listed (all 13 VA initiated including major depression, dyssomnia not otherwise specified, adjustment disorder, myofascial pain, lumbar radiculopathy, low back pain, patellar tendinitis, alcohol dependence, and scleral disease/pinquecula). d.  The applicant did not meet medical retention standards for lumbar/low back pain with degenerative changes in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. The applicant declined recommended neurosurgical treatment of his lumbar condition in January 2012 while still on active duty. He requested a permanent profile and initiation of the MEB process. e.  The applicant met medical retention standards for adjustment disorder with mixed disturbance of emotions and conduct, hypercholesterolemia, left shoulder pain, left knee pain, history of right thumb sprain, toenail fungal infection, and pseudofolliculitis barbae in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. The applicant also had a history of alcohol abuse. f.  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. 6. The applicant was provided a copy of the advisory opinion on 2 December 2016, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 2.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. The version in effect at the time, provided for medical review board's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a.  Paragraph 3-1 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. c.  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 mechanisms for final disposition. d.  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. e.  The DES consists of three systems: (1)  Legacy DES for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the VARSD. (2)  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. (3)  Expedited DES is a voluntary process for Soldiers unfit for catastrophic injuries or diseases in which U.S. Army Physical Disability Agency (USAPDA) may permanently retire the Soldier without referral to the PEB based on the medical treatment facility (MTF) narrative summary. f.  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. g.  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. h.  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 document 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 non-concur 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. i.  The USAPDA will review the PEB before the PEB recommendations and finding 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 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, 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 applicant requests retirement due to disability instead of the disability discharge with severance pay he received. He contends his back injuries were more severe than implied by the 20 percent rating he received. 2.  The evidence of record shows the applicant, during his period of active duty service, was suffering from a physical condition that failed medical retention standards. The PEB proceedings show his back limitation was the one condition that failed medical retention standards resulting in the 20 percent disability rating. There were no other conditions identified by the PEB that failed retention standards or were found unfitting. 3.  It appears that the one condition considered by the PEB, which was determined to be unfitting, was rated at 20 percent. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members requires a disability rating of at least 30 percent. The PEB recommended him for separation with an entitlement to severance pay. 4.  The applicant contends he underwent the IDES process when it was a new program, and the evaluators did not know what they were doing. The IDES process began on 1 October 2011. Prior to that date, the Army and the VA disability evaluation systems were independent of one another. Soldiers would receive a disability rating from the military, and on their own, they would contact the VA for a compensation rating after they separated from service. The IDES process merged the two disability evaluation systems to ensure Soldiers were evaluated one time and received a side-by-side report from the Department of the Army and the VA prior to separation. There is no evidence the IDES process itself affected the decisions made by medical examiners. 5.  An advisory opinion was requested to review the applicant's medical records and contentions. The advisory official found no evidence of a medical disability or condition during his period of military service that would support a change to the discharge in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001229 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2