ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 January 2019 DOCKET NUMBER: AR20160012576 APPLICANT REQUESTS: * re-evaluation of his revised Physical Evaluation Board (PEB) Proceedings * upgrade of his disability rating * update of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect retirement instead of separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Separation orders and DD Form 214 * Medical Evaluation Board (MEB) Proceedings and Narrative Summary * DA Form 199 (PEB Proceedings) * DA Form 3349 (Physical Profile) * Post-discharge civilian medical records 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 (ABCMR) 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 the basis for the request is that upon review of his medical files, his disability was evaluated and rated under the Veterans Administration Schedule of Disability Ratings (VASRD) Code 7199/7118 which equates to angioneurotic edema, which is an allergic reaction that results in swelling. His actual diagnosis was for 2nd degree frostbite in both feet, which, if it had been evaluated properly under the guidelines for frostbite and in conjunction with his permanent P3 physical profile, would have resulted in a military retirement and not severance pay. After spending several years requesting his medical records and speaking with other disabled veterans and a former Army Surgeon General, it became clear that the characterization of his discharge from service was more a function of the RlF (Reduction in Force) that was in process during the time. 3. Review of the applicant's records shows: a. He enlisted in the Regular Army on 23 July 1993. He held an artillery military occupational specialty (MOS). b. In December 1993, he suffered a cold injury into his feet with subsequent pain, decreased sensation and discoloration of his toes. The initial discoloration and pain resolved. However, since that time, he noted increased propensity for his toes to go numb in cold weather. Upon rewarming, he experienced painful paresthesias in his toes. This represented a problem with functioning in his MOS in cold weather situations. He was initially seen in the Neurology Clinic in February 1995 and given a permanent physical profile (P3) in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). He underwent an MOS/Medical Retention Board and was referred back for MEB. His diagnosis was: status post cold injury to bilateral toes. c. On 11 July 1995, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of status-post cold injury to bilateral toes. The MEB recommended his referral to a PEB. He was counseled and he agreed with the MEB's findings and recommendation. He also indicated he did not desire to continue on active duty. The MEB proceedings were approved. d. On 22 August 1995 (revised administratively on 11 September 1995), an informal PEB convened. The PEB found the applicant's condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to status-post cold injury to bilateral toes. He was rated under the VASRD Codes 7199/7118 with a 10-percent disability rating. The PEB recommended his separation with entitlement to severance pay, if otherwise qualified. e. The applicant was counseled by a PEB liaison officer who explained to him his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, and the role of the U.S. Army Physical Disability Agency (USAPDA). He elected to concur with the PEB's findings and recommendation and waived his right to a formal hearing of his case. f. Orders 296-0205, issued by Headquarters, III Corps, Fort Hood, TX on 23October 1995, honorably discharged him in the rank/grade of specialist/E-4 effective 2 December 1995 with a 10 percent disability rating. g. He was honorably discharged on 2 December 1995 under the provisions of paragraph 4-24b(3) of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay. His DD Form 214 shows he completed 2 years, 4 months, and 10 days of active service. h. He provides his post-discharge civilian medical records. These were forwarded to the Army Review Boards Agency senior medical advisor who rendered an advisory opinion on 11 June 2018. He stated: (1) He reviewed this case for alleged medical condition(s) warranted separation through medical channels or medical condition(s) not considered during medical separation processing. This review revealed: (a) The available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition(s) existed at the time of the applicant's military service. (b) The applicant did not meet medical retention standards for status post cold injury to bilateral toes in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. (c) The applicant met medical retention standards for other medical, physical, dental and/or behavioral conditions in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to his era of service. (d) The applicant's medical conditions were duly considered during medical separation processing. Review of the available documentation found some evidence of a medical disability or condition which would support a change to the character, reason, rated condition(s), disability determination, and/or disability rating for the discharge in this case. It was unclear why the 7118 VASRD code (angioneurotic edema) was used in 1995 instead of the 7122 VASRD code for cold injury residuals. The NARSUM, MEB and PEB documents clearly document a bilateral condition. Right and left foot were each affected at 10 percent, taking into consideration §4.26 Bilateral factor, applying VA math, it appears that the final disability rating should have been 20 percent. It was unclear to this reviewer, without the applicant's VA Rating Decision documents for review, how and/or why the VA rated the applicant at 10% for cold injury residuals when it appears that both feet were involved. (e) The ARBA senior medical advisor recommended obtaining a separate advisory from the USAPDA regarding the findings noted above. i. The applicant's case was forwarded to the USAPDA for review. The USAPDA rendered an advisory opinion on 29 November 2018 in his case. An advisory official stated: (1) While assigned as a 13B10 Field Artillery Crewman, the applicant incurred a cold weather injury to both his feet when he spent four and one half hours outside during advance party operations in Saint Barbara Training Area, Chorwon, Korea exposure to ambient temperature of minus 24 degrees Fahrenheit. He was treated and released from the Troop Medical Clinic, Camp Stanley. A Line of Duty Determination was issued on 5 August 1995 and a PEB was held at Darnall Army Community Hospital Fort Hood, TX. The MEB had delivered a P3 profile with the following assignment limitation "No exposure to environments where temperature is less than 45 degrees for 15 minutes." On 11 September 1995, a DA Form 199 was issued by the PEB with the following determination: VASRD 7199-7118 "Status post cold injury to toes, bilateral without abnormality on physical examination." The condition was given a combined rating of 10 percent and was separated with severance pay. It was determined by the PEB that the injuries sustained were incurred during preparation or training (simulations) for armed conflict. (2) The USAPDA concluded that the adjudication of that the condition as unfitting was correct. However, the use of the Analogous Code VASRD 7199 - 7118 was in error because: (a) The correct diagnosis was Raynaud's syndrome not Angioneurotic edema. (b) The Soldier is mistaken concerning his contention that the appropriate VASRD Code in 1995 was DC (Disability Code) 7122 "Cold Injury Residuals". Diagnostic Code 7122 at the time of the PEB's 1995 adjudication was 7122 - Frozen feet, residuals of (immersion foot). (c) Ironically, the Soldier's cold injury residual is specifically described by a DC code that existed in 1995 on the same page within § 4.104 Diseases of The Heart, 7117 - Raynaud's syndrome. The description of the Soldier's residual does not support the diagnosis of angioneurotic edema, namely there is no mention of edema or an inflammatory component. The burning sensation upon re-warming is particular to Raynaud's syndrome as is the numbness and pain on re-exposure to cold. The MEB provider may be unfamiliar with § 4.104 Diseases of The Heart, since his field of specialty was Neurology, notice the scope of detail on the Neurologic system in the Physical Exam portion of the Narrative Summary (NARSUM). He may have been unfamiliar with the VASRD or even mistakenly met to site the code below, 7118-Erythromelalgia - which would be rated as Raynaud's syndrome. Even if this was the reason the appropriation of a 10% code it did not conform to the Federal Register of January 19, 1993 (58 FR 4960) Schedule which lists the described levels at 0 - 20 - 40%. At the time, there were no Notes of special instructions for DC 7118 that would explain the application of 10% for bilateral involvement. (d) Application of a disability rating of the appropriate DC Code for Raynaud's 7117 would require as assessment of the frequency of the symptoms. The application of the 100 and 60% rating could not be supported, since the NARSUM does not describe persistent vascular changes, or skin ulceration. The DA Form 3349 (Physical Profile) limitation states No exposure, therefore the onset of symptoms was felt by the author to be whenever there was exposure to cold rather than an "occasional" precipitation of Raynaud's phenomena. The Legacy application of disability rating therefore should have been 40%. The VASRD listed rather extensive Notes for diagnostic code 7117. (e) Note (1) - Scheduler evaluations under diagnostic codes 7114, 7115, 7117, and 7119 are for application to one arm or leg. If both an arm and a leg are affected and each is separately evaluated as more than 20 percent disabling, the percentages of both extremities shall be combined and assigned as the evaluation under agnostic code 7114, 7115, 7117, or 7119. If one or both extremities are evaluated as 20 percent disabling or less, the higher of the two evaluations shall be the total evaluation for both. (f) Note (2)- With both arms or both legs affected, each arm or leg separately evaluated as more than 20 percent disabling, 10 percent shall be added to the higher evaluation and assigned as the total evaluation for both; if one or both extremities are evaluated as 20 percent disabling or less, the higher evaluation shall be used as the total evaluation for both. The NARSUM describes the condition as bilateral and equally involved. (4) In conclusion, the disability rating in 1995 should have been: 40% Right & Left Foot Rating + 10% = 50% Permanent Retirement Rating vs. TDRL (Temporary Disability Retired List) 50% for up to 5 years with re-examination 1 year after separation. Without objective evidence of the Soldier's impairment after up to 5 years after separation, the agency recommends Permanent Retirement at 50%. j. The advisory opinion(s) was/were forwarded to the applicant to give him an opportunity to submit a rebuttal/additional comments. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. After review of the Record of Proceedings and all supporting documents, the Board agreed with both medical advisories and found error with the initial rating. The Board determined to go with the advisory which was most advantageous to the applicant; therefore, the Board decided to follow the advisory opinion of the PDA, awarding the applicant a 50% rating and medical retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Amending his DA Form 199 (Physical Evaluation Board Proceedings), dated 22 August 1005 and revised on 11 September 1995, to show a disability rating of 40 percent for Right & Left Foot Rating plus 10 percent, for a combined disability rating of 50 percent; and his disposition be placement on the permanent disability retired list. b. Voiding Orders 296-0205, issued by Headquarters, III Corps, Fort Hood, TX on 23 October 1995, and the resultant DD Form 214 (Certificate of Release or Discharge from Active Duty). c. Issuing a new separation order with a corresponding DD Form 214 that reflect his permanent retirement at a combined rating of 50 percent. d. Payment of back retired pay, less any severance pay or other pay received, as a result of this correction. SIGNATURE: ___________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. 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 USAPDA is responsible for administering the PDES 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 AR 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. AR 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. It states 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. 4. AR 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% to 100%, rising in increments of 10%. 5. 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 at less than 30 percent. 6. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management and explains separation document preparation. It states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier’s service. Paragraph 5-2 explains when not to prepare a DD Form 214. ABCMR Record of Proceedings (cont) AR20160012576 9 1