BOARD DATE: 13 February 2018 DOCKET NUMBER: AR20160003475 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. 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: 13 February 2018 DOCKET NUMBER: AR20160003475 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 13 February 2018 DOCKET NUMBER: AR20160003475 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, to void his medical discharge, and replace it with a medical retirement. 2. The applicant states, in effect, he was medically separated with severance pay and a 0 percent disability rating in January 2006. Based on a recommendation by the Physical Disability Board of Review (PDBR), his disability rating was increased to 10 percent in 2015. The Department of Veterans Affairs (VA) originally rated him at 40 percent for his service-connected medical conditions. Within the first year after his separation, the VA increased his disability rating to 60 percent. The applicant asserts the Army failed to exercise due diligence when conducting his final medical examination. 3. The applicant provides: * 10 pages of documents associated with his PDBR case, including Army Review Boards Agency (ARBA) memorandum (11 May 2015), Record of Proceedings (ROP) (30 September 2014), and separation orders with amendment (9 January 2006 and 9 November 2015, respectively) * 164 pages of military medical records, dated between June 1998 to November 2005 CONSIDERATION OF EVIDENCE: 1. The Department of Defense (DOD) established the PDBR in response to the National Defense Authorization Act of 2008 (NDAA 2008) (Title 10, U.S. Code, section 1554a), and implemented it in DOD Instruction 6040.44 (PDRB). The PDBR's purpose is to review disability ratings, and provide another avenue of administrative recourse for Service members who had a combined disability rating of 20 percent of less, and were not eligible for a disability retirement. a. Due to the issuance of a permanent L3 (Lower Extremity level 3) physical profile on 16 November 2005, the applicant was referred to a medical evaluation board (MEB). The MEB found he failed medical retention standards for chronic low back pain. There were no other medical conditions identified. The MEB forwarded his case to a physical evaluation board (PEB) for a fitness determination. (A physical profile is based on six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation of "1" meaning a high level of fitness; "2" indicates some activity limitations are warranted, and "3" reflects significant limitations. Profiles can either be permanent (P) or temporary (T).) b. On 15 December 2005, a PEB found the applicant's chronic low back pain rendered him unfit for continued military service. The PEB recommended separation with severance pay and gave him a disability rating of 0 percent. On 22 December 2005, the applicant concurred with the PEB's findings and did not request a formal hearing. c. On 8 June 2006, the VA granted the applicant a 20 percent disability rating for degenerative disc disease of the lumbar spine, 10 percent for tinnitus (ringing in the ears), 10 percent for hypothyroidism (when the thyroid does not produce enough thyroid hormone), and 0 percent for a left shoulder condition. His combined rating for the aforementioned service-connected medical conditions was 40 percent. d. On 6 November 2013, the applicant applied to the PDBR for an upgrade of his disability rating. On 30 September 2014, the PDBR recommended increasing his disability rating to 10 percent for the medical condition of chronic low back pain. The Deputy Assistant Secretary of the Army (Review Boards) approved this recommendation on 11 May 2015. Based on this approval, on 9 November 2015, the U.S. Army Garrison Bavaria Transition Center issued an amendment (Orders Number 313-0006) to his separation orders reflecting a 10 percent disability rating. e. The PDBR is a DOD-level board. As such, the ABCMR has no authority to revise or reevaluate a PDBR decision. Based on the foregoing, that portion of the applicant's request that addresses an increase in disability rating for chronic low back pain (listed as degenerative disc disease of the lumbar spine by VA) will not be further addressed in this Record of Proceedings. 3. Having had prior enlisted service in the Florida Army National Guard, the applicant enlisted in the Regular Army on 30 September 2002. He held military occupational specialty 94P (Multiple Launch Rocket System (MLRS) Repairer). 4. He deployed to Iraq in support of Operation Iraqi Freedom during the period 8 March to 18 December 2003. 5. Based on the results of an MEB and PEB, he was honorably discharged on 26 January 2006 due to disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 27 days of net active service, with 9 months of prior active service, and 3 years, 6 months, and 6 days of prior inactive service. Item 18 (Remarks) reflects he received $16,147.20 in disability severance pay. The authority for separation was Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The narrative reason for separation was listed as disability, severance pay. 6. On 17 April 2017, the ARBA Medical Advisor provided a medical advisory opinion. a. The Case Management Division (CMD), ARBA, requested the Medical Advisor to evaluate the applicant's case and determine what, if any, medical conditions warranted separation through medical channels. In addition, assess whether those medical conditions were considered during separation processing. b. A limited review of his VA medical records showed 54 medical issues, of which 46 were entered by VA. His current combined VA disability rating is 70 percent, with 20 percent for degenerative arthritis of the spine. c. The Medical Advisor found the applicant failed to meet medical retention standards for having a history of low back pain and this medical condition was addressed by an MEB/PEB, as well as a subsequent PDBR. d. The applicant met medical retention standards for the conditions of left shoulder pain, hyperlipidemia (high levels of fat particles in the blood), hypothyroidism (when the thyroid gland does not produce sufficient thyroid hormone), history of neck pain, and history of epidermal cyst (a small hard lump under the skin). e. The applicant's medical conditions were duly considered during his separation processing and the available documentary evidence does not support a change in his discharge. 7. On 18 April 2017, CMD sent a copy of the ARBA medical advisory opinion to the applicant for review and comment. He did not submit a response. REFERENCES: 1. AR 40-501 (Standards of Medical Fitness) provides medical retention standards, and is used by MEBs to determine which medical conditions will be referred to a PEB. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in AR 635-40. The PEB makes the determination of fitness or unfitness. 2. AR 635-40, in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that governed the evaluation of Soldiers who might be unfit to perform their military duties due to physical disability. a. Chapter 3 stated the mere presence of impairment did not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably might be expected to perform because of his or her office, rank, grade or rating. b. Chapter 4 provided guidance on referring Soldiers for evaluation by an MEB when a question arose as to the Soldier's ability to perform the duties of his or her office because of physical disability. c. When medical conditions are found by the PEB to be unfitting, the final disposition could include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating was 20 percent or less, or retired, for those cases where the disability rating was 30 percent or higher). 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities incurred during, or aggravated by, active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. a. Title 10, U.S. Code, chapter 61 (sections 1201 through 1221) establishes guidance for retiring or separating military service members for physical disability. In implementing this law, the Army rates only conditions determined to be physically unfitting, at the time of discharge, that disqualify the Soldier from further military service. The Army's disability rating compensates the Soldier for the loss of a military career. b. The VA does not have the 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, to compensate the individual for loss of civilian employability. c. As a result, these two Government agencies, operating under different laws and policies, may arrive at a different disability rating for the same impairment. 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. 4. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases according the evidence that is presented in the military records and the independent evidence submitted with the application. DISCUSSION: 1. An evaluation by the ARBA Medical Advisor found the applicant had a number of medical conditions while on active duty, but only one failed to meet medical retention standards (history of low back pain). Following referral for a fitness determination, a PEB recommended separation with severance pay and a disability rating of 0 percent. Based on a later review by the DOD PDBR, his disability rating was increased to 10 percent. After a review of all available documentary evidence, the ARBA Medical Advisor did not find a sufficient basis to recommend changing the applicant's separation to a medical retirement. 2. The applicant contends that, within a relatively short time after leaving the Army, the VA gave him a combined disability rating of 40 percent, which was then increased to 60 percent. Given this higher combined rating, he asserted the Army did not exercise due diligence and should have offered him a medical retirement. a. With regard to the VA ratings he received, the award of a disability rating by the VA does not establish that the Army made an error. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining unfitness for military service. b. The VA awards its ratings following a determination that a medical condition was related to military service (service-connected), and the condition(s) are having a negative impact on the individual's civilian employability. The findings of the VA are not binding on the Army, and do not necessitate a reassessment of the Army's earlier determinations. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003475 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003475 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2