BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160005597 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: 1 May 2018 DOCKET NUMBER: AR20160005597 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: 1 May 2018 DOCKET NUMBER: AR20160005597 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 her records to show she was medically retired versus medically discharged with entitlement to severance pay. 2. The applicant states, in effect, that: a. She was separated with severance pay in 2006, due to osteoporosis (previously rated as osteopenia). She developed this condition due to a lack of estrogen from the condition of pre-ovarian failure. She received treatment at the oncology department at the University of North Carolina at Chapel Hill, during her period of military service at Fort Bragg, NC. b. She was told on several occasions that her ovaries were not working; however, the medical professionals were reluctant to remove them due to her youth. They wanted to try other options including other types of surgeries and prescribing estrogen pills. c. She was non-deployable and was referred to a medical evaluation board (MEB) before all other options were tried. After her release from the Army, she started going to the Department of Veterans Affairs (VA) Hospital in Columbia, SC. Eventually, the VA referred her to an oncology clinic in Columbia, SC. The doctors stated her ovaries should have been removed since they were not working and they were causing her body to fight against them. Subsequently, in March 2008, she had both of her ovaries removed because of ovarian failure. d. The pre-ovarian failure caused secondary conditions but the MEB only deemed the medical condition of osteoporosis as medically unfitting. 3. The applicant provides six medical notes from the VA Medical Center, Fayetteville, NC. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Following prior enlisted service, the applicant enlisted in the Regular Army on 28 October 2003, in the rank/grade of specialist (SPC)/E-4. 3. A DA Form 3947 (MEB Proceedings), dated 1 August 2006, shows the applicant underwent an MEB at Fort Bragg, NC. a. After consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant was medically unacceptable due to osteoporosis secondary to premature ovarian failure. b. The MEB also considered three additional diagnoses of chronic non-nephrotic proteinuria, bilateral mild hallux valgus, and mild hypercholesterolemia and found them to be medically acceptable. c. The MEB recommended her referral to a PEB. She acknowledged she had no desire to continue active duty service and agreed with the MEB's findings and recommendation on 16 August 2006. 4. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 31 August 2006, shows the applicant underwent a PEB in Washington, D.C. a. The PEB diagnosed her with "osteoporosis secondary to premature ovarian failure." It also noted she was being treated but was at risk for fractures. b. The PEB noted the three other medical conditions as meeting medical retention standards. c. The PEB concluded that her medical condition prevented her from reasonably performing her duties required by her grade and military specialty. The PEB found her physically unfit and recommended her discharge with entitlement to severance pay with a 0 percent (%) disability rating. d. She concurred with the PEB's decision and waived a formal hearing on 12 September 2006. 5. The applicant was honorably discharged from the Army on 19 December 2006. The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, with severance pay. The DD Form 214 shows she completed 3 years, 1 month, and 22 days of net active service and received $12,110.40 in disability severance pay. 6. The applicant provides six medical notes from the VA Medical Center, Fayetteville, NC that show her medical history. She highlights her hysterectomy procedure occurring in 2008 for ovarian failure. 7. In connection with the processing of this case, an advisory opinion was obtained from the Senior Medical Advisor, Army Review Boards Agency (ARBA) on 11 September 2017, who opined, in effect: a. A review of the applicant's electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)) revealed encounters, clinical notes, laboratory, and radiology notes from November 2003 through August 2016. Her personnel records were also reviewed as well as the evidence he provided in support of her application. b. The MEB Narrative Summary (NARSUM), dated 28 July 2006 stated her chief complaint was and she was evaluated for "ovarian failure, chronic pelvic pain." Her only abnormality was mild pes planus bilaterally and to have hallux valgus of the right great toe, which later was diagnosed as bilateral hallux valgus, mild. Additionally, she was not being followed by behavioral health and takes no psychotropic medications. c. A limited review of VA records through the JLV (Joint Legacy Viewer) noted 83 problems listed (60 VA-listed) including major depressive disorder, mood disorder not otherwise specified, insomnia, migraine, alcohol dependence, hallux valgus acquired, congenital pes planus, osteoporosis, vitamin D deficiency, amenorrhea, urinary urgency, atopic dermatitis, allergic rhinitis, gastroesophageal reflux disease, and others. The VA service-connected the applicant at 100% overall (100% for major depressive disorder…). d. The applicant did not meet medical retention standards for osteoporosis secondary to premature ovarian failure 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 her era of service. (It is noted that this condition – thinning of the bones over time, can only be rated on limited motion. Therefore, the reason she was found unfit for further military service). Further, the applicant met medical retention standards for all the other physical, medical and/or behavioral conditions as set forth in the applicable regulatory guidance as stated above. e. The applicant's medical conditions were duly considered/evaluated at the time of his discharge. f. A review of the available documentation found no evidence of a medical disability or condition, which would support a change to the character, reason, disability determination or disability rating for the discharge in this case. 8. A copy of the advisory opinion was forwarded to her on 12 September 2017, for information and to allow her the opportunity to submit comments or a rebuttal. 9. The applicant responded on or about 21 September 2017 by letter provided five medical documents. She stated, in effect, that she was diagnosed with the behavior health condition of depression during her military service. She contends her depression intertwined with the pre-ovarian failure, and depression was the condition that VA rated her as 100% disability. The medical documents show a Patient Encounter Form, dated 22 March 2005 with the chief complaint of discussing emotional problems related to premature ovarian failure. An SF 600 (Chronological Record of Medical Care – Health Record), dated 18 January 2006, details a list of medical problems and shows no psychiatric diagnosis and an adjustment disorder with depressed mood. 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. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 2. Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating. 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 their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that 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. 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. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 4. 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: 1. The applicant requested her discharge with severance pay be changed to disability retirement. 2. The evidence shows the applicant underwent an MEB that found only one condition (osteoporosis secondary to premature ovarian failure) that did not meet retention standards and recommended her referral to a PEB. She was also evaluated for chronic non-nephrotic proteinuria, bilateral mild hallux valgus, and mild hypercholesterolemia and the MEB found them to be medically acceptable. She agreed with the findings and recommendation of the MEB. 3. The PEB reviewed her diagnoses and found her physically unfit due to "osteoporosis secondary to premature ovarian failure." The PEB found the three other medical conditions as meeting medical retention standards. The PEB recommended her discharge with entitlement to severance pay with a 0 percent disability rating. She agreed with the findings and recommendations and waived her right to a formal hearing of his case. Accordingly, she was honorably discharged with severance pay. 4. The applicant now believes, after receiving treatment from the VA, her condition caused secondary conditions but the MEB only deemed the medical condition of osteoporosis as medically unfitting. 5. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings in cases where a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 6. The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations and the applicant concurred with the recommendation of the PEB. There is no evidence of error or injustice in this case. 7. The applicant argues that her depression was intertwined with her medical condition of osteoporosis. However, the ARBA Senior Medical Advisory opined that after a review of the applicant's available documentation found no evidence of a medical disability or condition, to include behavior health, which would support a change to the character, reason, disability determination or disability rating for the discharge in her case. Additionally, her medical conditions were duly considered/evaluated at the time of her discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005597 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005597 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2