BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001534 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: 3 August 2017 DOCKET NUMBER: AR20160001534 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: 3 August 2017 DOCKET NUMBER: AR20160001534 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 for correction of his records to show a service-connected physical disability rating of 40 percent (%) or more. 2. The applicant states that a Medical Evaluation Board (MEB) evaluated his ankle injury and granted a 10% disability rating with a medical discharge. This rating is way too low. He states he was medically discharged after the Gulf War and the U.S. Army was conducting many medical boards. He suggests this may have contributed to his other injuries being overlooked by the MEB. He now requests a new evaluation with all his medical conditions considered. a. He states his medical records show he had several other conditions (i.e., torn lumbar and cervical discs, fractured ankle, abnormally high liver counts, migraine headaches, etc.), but they were not evaluated by the MEB. He also states that all of his medical conditions should have been properly evaluated. This is not fair and if properly evaluated at the time of his service it would make a difference in his overall rating. b. He adds that he had two surgeries on his ankle since he was discharged and he may need to have another surgery. The Department of Veteran Affairs (VA) granted him service-connection for lumbar disc condition with a disability rating of 40%. 3. The applicant provides copies of his military medical records. 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 AR20150002082 on 4 February 2016. 2. After having prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army on 17 December 1990 in the rank of first lieutenant (O-2). He was ordered to active duty on 6 January 1991. 3. A DA Form 3947 (MEB Proceedings) shows an MEB convened on 7 January 1992 at Fitzsimons Army Medical Center, Aurora, CO. a. The applicant presented views in his own behalf. b. Item 13 (Diagnosis) lists the following conditions as permanently aggravated by service: * left lower extremity pain: radiculopathy, chronic * left L5-S1 herniated nucleus pulposus on imaging studies * elevated liver function tests of unknown etiology * chronic right ankle pain after fracture c. After consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant unfit for duty under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and referred him to a Physical Evaluation Board (PEB). d. On 13 January 1992, the findings and recommendation were approved. e. On 14 January 1992, the applicant was informed of the findings and recommendation of the MEB and indicated that he agreed with the board's findings and recommendations. f. On 15 January 1992, the applicant submitted an appeal that was forwarded to the PEB, along with the MEB proceedings. 4. A DA Form 199 (PEB Proceedings) shows a PEB convened on 28 January 1992 at San Francisco, CA. a. The following conditions were found unfitting: VA Code 5293 – chronic low back pain and left lower extremity pain. Magnetic Resonance Imaging revealed left paramedial L5-S1 herniated nucleus pulposus and mild degenerative changes with normal reflexes and electromyogram. The PEB considered MEB Diagnoses 1 and 2, Narrative Summary, Applicant's Appeal, and Health Records and recommended a 10% disability percentage. b. The PEB also considered the applicant's MEB diagnoses of elevated liver function tests of unknown etiology (MEB Diagnosis 3) and chronic right ankle pain after fracture (MEB Diagnosis 4) and found them to be neither unfitting nor ratable. c. The PEB recommended a combined rating of 10%. d. The PEB President signed the PEB proceedings on 28 January 1992. e. On 29 January 1992, the applicant concurred with the PEB's findings and recommendations. f. On 18 February 1992, the Acting Chief, Physical Disability Branch, U.S. Army Personnel Command, Alexandria, VA, affirmed that the PEB proceedings pertaining to the applicant's discharge with severance pay were approved. 5. Headquarters, U.S. Army Personnel Command, Alexandria, VA, Orders D34-13, dated 18 February 1992, discharged the applicant from the U.S. Army Reserve, effective 10 March 1992, based on disability (10%) with severance pay. 6. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 6 January 1991 and he was honorably discharged on 10 March 1992 under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures), paragraph 4-24b(3), based on physical disability with severance pay. He had completed 1 year, 2 months, and 5 days of net active service this period that included 4 months of foreign service. He was credited with 5 years, 2 months, and 20 days of total prior active service and 2 years, 4 months, and 15 days of total prior inactive service. 7. In support of his request the applicant provides copies of his medical records. The medical records provided are a subset of the same medical records that he provided with his original application and were previously considered by the Board. 8. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 16 December 2016. a. The ARBA senior medical advisor reviewed the applicant's military personnel records, service treatment records, and medical records provided with his application. He provided an extensive description of the applicant's clinical encounters and examinations, including a summary of the MEB proceedings, applicant's appeal, and the PEB proceedings. b. The senior medical advisor found the applicant did not meet medical retention standards for (1) left lower extremity pain/radiculopathy chronic, and (2) left L5-S1 herniated nucleus pulposus in accordance with (IAW) AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. c. He also found the applicant met medical retention standards for elevated liver function enzymes of unknown etiology, and chronic right ankle pain IAW AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. He noted, "No functional, duty or other impairment or profile restrictions related to the elevated enzymes. If taken separately, the chronic right ankle pain would have been profiled with no running (and possibly no walking) on the Army Physical Fitness Test (alternative event of bike or swimming to meet the aerobic requirement.)" d. The senior medical advisor concluded that the applicant's medical conditions were duly considered during his medical separation processing. He found no evidence of a medical disability or condition which would support a change to the applicant's medical discharge. e. A limited review of the applicant’s VA record on the Joint Legacy Viewer shows seven VA entered medical conditions including chronic lower back pain, lumbar spondylosis without myelopathy, fasciitis, bipolar I disorder and diabetes mellitus. The VA rated him 100% service connected. 9. On 21 December 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the disability evaluation system. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that 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. Any non-ratable defects or conditions will be listed on the DA Form 199, but will be annotated as non-ratable. 2. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30% * 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 at less than 30% 3. Title 38, U.S. Code, sections 1110 and 1131, provides for the basic entitlement of disability pay for disabilities which were incurred in or aggravated by active military service and shown to be in the line of duty. DISCUSSION: 1. The applicant's request for correction of his records to show a higher physical disability rating (of 40% or more) was carefully reconsidered. 2. Records show an MEB considered the applicant's medical conditions. a. The applicant presented views in his own behalf at the MEB. b. The MEB recommended referral to a PEB. c. The applicant agreed with the board's findings and recommendation. One day later, he submitted an appeal that was forwarded to the PEB, along with the MEB proceedings. 3. Records also show a PEB considered all the medical conditions listed on the applicant's MEB and matters presented in his appeal. The PEB found his chronic low back pain and left lower extremity pain was unfitting and rated at 10%. a. The PEB found the applicant physically unfit, recommended a combined rating of 10%, and separation from the service with disability severance pay. b. The applicant concurred with the results of the PEB. 4. The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the disability evaluation system process. The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing. 5. The evidence of record shows the VA may grant the applicant disability compensation for service-connected medical conditions. However, this does not constitute evidence that the approved findings of the PEB are in error. 6. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and in the line of duty, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001534 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001534 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2