ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20160010741 APPLICANT REQUESTS: * to have her left knee, right knee, neck, depression, rheumatoid arthritis, seborrheic dermatitis, and left shoulder condition added to her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) as unfitting conditions * correction to her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show her disability was combat related * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored email * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) * Department of Veterans Affairs (VA) letter, dated 23 February 2013 * VA Rating Decision, dated 13 February 2013 * VA Rating Decision, dated 8 August 2014 * VA letter, dated 14 August 2014 * 17 pages of medical records * AMTRAK employment related medical documents * three VA letters, dated 9 May 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. There was an error in her physical disability evaluation in that some ratings were unfair and some conditions were not considered. Her left knee, right knee, neck, depression, rheumatoid arthritis, seborrheic dermatitis (scaly, flaking skin), and left shoulder conditions were not considered. She was previously unaware she could apply to the Board with this request, as she did previously apply to the PDBR. b. In February 2003, while in Kuwait, her unit was in the process of moving and as she was getting in the back of the Humvee, the alarms went off due to improvised explosive devices (IEDs) going off in their direction. She lost her footing and fell on the ground on top of her ruck sack, injuring her neck and back. c. She remained in the field hospital for one week and was sent back to Kuwait where she stayed in the hospital until she was medically evacuated to Germany and eventually sent to Fort Campbell for a medical evaluation board (MEB). This should all be in her military records. d. This fall ended her military and civilian career. One morning as she went to get out of bed and get ready for duty, her neck and back locked up. She was taken to different hospitals and doctors, but never received the adequate care she deserved or the correct diagnoses. She has been diagnosed with chronic neck pain, chronic mechanical low back pain, asthma, chronic anemia, shoulder pain, bilateral knee pain, indigestion, acid reflux, eczema, gall bladder residuals, and depression. She is including a list of service-connected disabilities the VA awarded her which should be considered combat-related due to being under attack in armed conflict when incurred. 3. The applicant enlisted in the Army National Guard (ARNG) on 27 July 1993 and attended Active Duty for Training from 10 November 1993 through 1 April 1994, when she was honorably released from Active Duty for Training due to the completion of required active service. 4. Her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows she was honorably discharged from the ARNG due to expiration term of service (ETS) on 26 July 2002, after 9 years net service this period in the ARNG. 5. She enlisted in the Regular Army on 18 July 2002 and deployed to Kuwait/Iraq from 20 January 2003 through 12 July 2003. 6. A DA Form 3349 (Physical Profile), dated 13 October 2004, shows she received a permanent physical profile rating of “3” for her mechanical low back pain caused by injury. The form limited her to no running, jumping, or marching, and lifting or carrying a maximum weight of 30 pounds (with 20 pounds hand-written over the 30 pounds). It shows she was unable to take the Army Physical Fitness Test (APFT) and indicated on the form she needed an MEB. 7. Her commander provided a memorandum, dated 14 October 2004, stating: * her disability impacted the performance of her duties in her primary military occupational specialty (MOS) 92G (Food Service Personnel) * she was unable to lift over 30 pounds, run, march, jump, move with a fighting load, take an APFT, or conduct upper or lower body weight training * although she was medically cleared to deploy, her physical condition would impair her usefulness and safety in a war zone and each Soldier must be able to pull their weight and contribute to the team in difficult environments * without the prospect of a full recovery and the ability to train and meet these rigorous requirements, he recommended her to appear before an MEB * her duty performance was satisfactory, but her physical impairments prevented the unit from utilizing her in a productive manner 8. A MEB Narrative Summary (NARSUM), dated 10 December 2004, states: a. She underwent a physical examination on 10 November 2004, because of physician-directed referral to an MEB. Her chief complaint was chronic mechanical low back pain. Her other conditions examined were chronic neck pain, mild persistent asthma (controlled), hyperlipidemia (elevated lipid levels), chronic microcytic/hypochromic anemia (low levels of red blood cells), mild pes planus (flat feet). b. At the time of the examination she had difficulty functioning in her MOS of 92G due to her limited ability to lift greater than 10 pounds and stand for prolonged periods of time. She was non-deployable in her current state. Her mechanical low back pain and neck pain were stable and her asthma was well-controlled. She was compliant with all recommended treatment procedures. c. Her diagnoses were: * chronic low back pain, medically unacceptable * chronic neck pain, medically acceptable * mild persistent asthma, controlled, medically acceptable d. The recommendation was referral to the Physical Evaluation Board (PEB) for final determination. She had received the maximum benefit from her course of therapy and it was recommended she follow-up with the VA Medical Center upon separation from active duty. 9. A DA From 3947 (MEB Proceedings), dated 10 December 2004, shows: * a MEB convened on the date of the form to evaluate the applicant * chronic low back pain was found medically unacceptable, incurred while entitled to base pay, and did not exist prior to service * chronic neck pain was found medically acceptable * mild persistent asthma was found medically acceptable * she was referred to a PEB * the applicant submitted a one-page list of errors she noted in the NARSUM, including correcting the date she underwent a Cesarean birth, her status as divorced with three children, her inability to wear Kevlar for a long period of time due to her neck pain, and her inability to lift greater than 10 pounds without injury * the applicant indicated she did not desire to continue on active duty and she agreed with the Board’s findings and recommendations, signing the form on 17 December 2004 10. A DA Form 199, shows: * a PEB convened on 7 January 2005 to consider her disabilities * chronic back pain, without neurologic abnormality, thoracolumbar range of motion, limited by pain, with localized tenderness, 4/5 Waddell’s signs (physical signs of low back pain) was deemed unfitting and rated at 10 percent * the MEB NARSUM diagnoses 2 and 3 were deemed not unfitting, not rated * the PEB found her physically unfit and recommended a combined rating of 10 percent and that her disposition be separation with severance pay * her disability did not result from a combat related injury * on 10 January she signed the form indicating she did not concur and demanded a formal hearing with personal appearance and representation by Counsel * on 12 January 2005, she elected via memorandum to accept the PEB findings of 10 percent rating and separation with severance pay 11. Headquarters, U.S. Army Garrison, Fort Campbell, KY, Orders 024-0707, dated 24 January 2005, reassigned her to the U.S. Army Transition Center, Fort Campbell, KY, effective 28 February 2005 for transition processing where she would be honorably discharged with disability severance pay on 28 February 2005. Her percentage of disability was 10 percent. 12. Her DD Form 214 (Certificate of Release or Discharge from Active Duty), shows she was honorably discharged on 28 February 2005, due to disability, with severance pay, after 2 years, 7 months, and 13 days of net active service this period. 13. On 27 July 2005, she enlisted in the ARNG. An NGB Form 22, shows she was honorably discharged on 26 July 2006, due to ETS, after 1 year, 4 months, and 26 days net service in the ARNG this period. 14. Another NGB Form 22, shows she again enlisted in the ARNG on 20 November 2009 and was discharged on 10 April 2012, due to unsatisfactory participation. Her service was characterized as general, under honorable conditions. 15. She provided multiple pages of documentation pertaining to what is presumably her request for disability determination from her civilian employer Amtrak. A Treating Physician Medical Status Report – Statement of Disability, dated 16 December 2011, shows her treating physician indicated he reviewed the applicant’s Amtrak job description and concluded she was totally, but temporarily disabled with an unknown anticipated date of recovery. 16. On 7 June 2013, she applied to the PDBR, requesting a review of the rating awarded accompanying her medical separation from the Regular Army, stating her mechanical low back pain should have been rated higher than 10 percent and she wanted her other conditions of knees, asthma, depression, rheumatoid arthritis, and sarcoidosis considered. 17. The PDBR convened on 30 October 2013 to review the disability rating accompanying her medical separation from the Army. After carefully reviewing the application and medical separation case file, the PDBR recommended modification of the disability rating previously assigned to reflect a combined rating of 20 percent rather than 10 percent, without re-characterization of the separation. 18. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 156-0619, dated 5 June 2014 show her prior Orders 024-0707, dated 24 January 2005, were amended to show her percentage of disability was changed from 10 percent to 20 percent. 19. The applicant provided a 23 February 2013 VA letter which shows she was granted the following service-connected disability ratings: * major depressive disorder, recurrent associated with lumbar strain and mechanical low back pain, 70 percent * lumbar strain and mechanical low back pain, 20 percent * traumatic arthritis, right knee with history of chondromalacia and patellofemoral femoral pain syndrome, 10 percent * patellar chondromalacia with patellofemoral femoral pain syndrome of left knee, 10 percent * her combined rating was 80 percent 20. A VA Rating Decision, dated 8 August 2014 shows she was granted the following disability ratings: * seborrheic dermatitis of face and scalp increased from 0 percent to 30 percent effective 26 September 2013 * service connection for radiculopathy, right lower extremity was granted with an evaluation of 10 percent effective 26 September 2013 * service connection for radiculopathy, left lower extremity was granted with an evaluation of 10 percent effective 26 September 2013 * entitlement to individual unemployability was granted effective 26 September 2013 * evaluation of lumbar strain and mechanical low back pain was continued at 20 percent * service connection for sarcoidosis, status post hysterectomy, and dilation and curettage was denied 21. On 15 June 2018, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and thus no additional disability rating(s) are recommended. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 22. The applicant was provided a copy of the advisory opinion on 20 June 2018 and given an opportunity to submit comments. She responded on 6 July 2018, stating: a. In 2005, after she was discharge from the Army, she spoke with an ARNG recruiter. The recruiter told her he could get her back in with a reentry code “3” without waivers. She told the recruiter and the doctor everything. She was put out of the ARNG at the end of the 1-year enlistment and barred from the military. This was due to her depression and heavy drinking she engaged in due to leaving the Army. In 2009 she spoke with another recruiter and told him everything, including being barred from the military, and he said not to worry. The recruiter and the doctor did what they had to, to get her back in the ARNG. She was discharged and demoted while she was under a doctor’s care and turned in all required documentation, but was still discharged due to being disabled. To say she committed fraud is false. The recruiters and doctors did not do what they were supposed to do because she showed everyone all of her paperwork. b. At the time her Magnetic Resonance Imaging (MRI) was done, she was better and the disc was not hurting her. The problems always appeared normal when she wasn’t having a flare up. The doctors always say one then then write another. One particular doctor looked at her when she walked in his office and told her she had a bulging disc. When she went to the MEB it wasn’t in her medical records. c. As far as her back and neck are concerned, the reason she was medically discharged was because she fell out the back of a Humvee in Kuwait in 2003 and injured her neck and back. Her left side has always been worse than her right since the fall. Why that is not in her records she doesn’t know. d. There is evidence of her depression in her records. She never got help because she was never given an appointment for a follow-up. The diagnosis was given when she returned from deployment. e. She has been fighting since day one for all of her health issues and has gotten the run around from the military and the VA with regard to receiving appropriate care. She has to seek outside help in order to get the care she needs. If she knew then what she knows now, she would have stayed and fought. The reason she didn’t go to the hearing was because she was told she would receive nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for not doing her duties when she was clearly unfit. She got frustrated, turned around and said “forget it”, and accept whatever rating was offered to her. She has hated it ever since. She agrees she should not have been able to enlist in the ARNG after her discharge, because she has medical documents showing she was under doctor’s care when she was discharged in 2012. She hopes her conditions and ratings will be reconsidered. 23. On 22 April 2019, the ARBA senior medical advisor provided a second advisory opinion, to specifically address the contention that her injuries were combat related. The ARBA senior medical advisor concluded the applicant fell of the back of a Humvee in Kuwait, a designated “combat zone” at that time, but she was NOT in combat. Her retirement was NOT based on a disability from injury or diseased in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. Her disability did NOT result from a combat related injury. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 24. The applicant was provided a copy of the second advisory opinion on 22 April 2019 and given an opportunity to submit comments, but she did not respond. 25. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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. 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. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of 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 military service. 26. 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. 27. Title 38, U.S. Code, sections 1110 and 1131, permits 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 error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. 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. These two government agencies operate under different policies. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and two medical advisory opinions. The Board considered the applicant’s statement, her record of service in the RA and ARNG, the circumstances of her injury, the MEB and PEB proceedings and the reason for her separation. The Board considered the AMTRAK documents provided by the applicant, her VA ratings and the review by the PDBR that increased her Army disability rating to 20 percent. The Board considered the reviews and conclusions of medical advising official regarding her conditions and her response to the advisory. The Board also considered the conclusion of the second advisory opinion related to the applicant’s claim that her injuries were combat related. After a review of all documents, the Board concurred with the conclusions of the advising official and found insufficient evidence to add the requested conditions to the applicant’s PEB proceedings or to show her current disability as combat related. Based on a preponderance of evidence, the Board determined the conditions shown on the applicant’s PEB and the revision by the PDBR were not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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. 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. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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 of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permits 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 error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. 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. These two government agencies operate under different policies. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160010741 9 1