ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160013424 APPLICANT REQUESTS: Reinstatement into the U.S. Army Reserve (USAR) for the purpose of reevaluation by a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * two DA Form 3349 (Physical Profile), dated 18 March 2015 and 4 June 2015 * self-authored statement, dated 21 April 2015, subject: Request to Change Nurse Case Manager * Department of Veterans Affairs (VA) disability rating decision letter, dated 19 February 2016 FACTS: 1. The applicant states: * he understands that his permanent 3 (P3) profile for his left knee, asthma, and physical stamina required him to be retired due to physical disability * all his aliments combined did not make him fit for duty * his medical disability process was handled poorly and inappropriately by his nurse case manager * his nurse case manager did not follow up correctly on his records * his multiple medical conditions forced him to retired early * he went to San Antonio, TX for an appeal before the medical board but was told by their lawyer he would only receive severance pay * at that moment , he understood that he did not have any other choice but to refuse going in front of the medical board or get severance pay against his will * he served in the military for 39 years and did not like to just get severance pay 2. The applicant was born on 27 June 1957. Following service in the Army National Guard and the Regular Army, he enlisted in the USAR on 24 October 1986. 3. The applicant's Notification of Eligibility for Retired pay at Age 60 (Twenty Year Letter) is dated 19 February 2003. 4. A DA Form 199 (Informal PEB (IPEB) Proceedings) shows that an IPEB convened on 16 February 2015 to evaluate the applicant's case. The DA Form 199 shows the IPEB found him fit for duty. The form further shows: * the applicant concurred with IPEB findings and waved a formal hearing * his case was adjudicated as part of the Integrated Disability Evaluation System (IDES) 5. A DA Form 3349, dated 18 March 2015, shows he was issued a permanent physical profile based on a diagnosis of left knee, pain, pseudofolliculitis barbae, and asthma. 6. A memorandum from the U.S. Army Physical Disability Agency (USAPDA) shows the USAPDA approved the applicant's PEB findings on 15 April 2015. The USAPDA stated the following: a. The PEB findings pertaining to the applicant are approved. He has been found physically fit to perform the duties of his office, grade, rank and military occupational specialty (MOS) within the limits of his profile. b. This memorandum constitutes final administrative action regarding the applicant's processing. Findings of fit are based on the preponderance of evidence provided to the PEB. The mere presence of an impairment does not, of itself, always justify a finding of unfitness. The PEB provided detailed rationale in the DA Form 199 regarding why the Soldier was found fit for duty. The applicant's case is now considered closed and complete. If his medical condition is determined to have worsened, the Soldier's command or medical treatment facility should initiate a new MEB and forward to the PEB for a new fitness determination. 7. The applicant provided a self-authored statement, dated 21 April 2015, subject: Request to Change Nurse Case Manager, in which he expressed his dissatisfaction with his appointed nurse case manager. 8. A DA Form 3349, dated 4 June 2015, shows his physical profile was changed to a temporary profile. The form also shows he was expected to be fully mission capable by 2 September 2015. 9. The applicant was transferred to the Retired Reserve on 1 December 2015. He was placed on the Retired List effective 2 December 2015. His Chronological Statement of Retirement Points shows he was credited with over 35 years of qualifying service for a non-regular retirement. 10. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Senior Medical Advisor. It states: a. A review of the applicant's electronic medical record (AHLTA) revealed clinical encounters from September 2009 through December 2015. The following records were reviwed: * clinical notes from December 2009 through August 2015. * radiology reports from February 2005 through May 2015 * laboratory results from February 2005 through June 2015. b. The applicant's paper official military and/or paper service treatment record were not available for review from the National Personnel Records Center at the National Archives and Records Administration. The applicant's iPERMS (Interactive Personnel Electronic Records Management System) records were reviewed. c. Limited review of VA records through the Joint Legacy Viewer with 37 listed problems (19 VA-entered) including major depression recurrent, chronic sinusitis, headache, asthma, left knee osteoarthritis, tinnitus, Achilles tendonitis, mixed hyperlipidemia, atopic dermatitis, dental caries, and others. The applicant is currently VA service-connected at 100 percent overall. d. The applicant's medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition that would support a change to reason, rated condition(s), disability determination(s), and/or combat relatedness for the discharge in this case. f. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) recommended. The applicant left knee condition may have not met medical retention standards, but he was clearly able to perform his MOS duties commensurate with his rank as well as the Army Physical Fitness Tests despite intermittent problems with his knee. His other conditions were clearly not disabling and met medical retention standards. Multiple appeals, impartial medical reviews, and quality assurance checks performed. Overall and combined effects of various conditions considered. The applicant was eligible to retire and did retire shortly after the conclusion of disability evaluation system processing. g. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the VA, operating under a different set of laws. 11. The medical advisory opinion was provided to the applicant to give him the opportunity to provide additional evidence or a rebuttal. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board considered the applicant’s contentions, medical concerns, and medical advisory opinion. The Board agreed there was no evidence of a medical disability or condition during his period of military service to support referral to the OTSG. 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. ___________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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) in accordance with Title 10, U.S. Code, Chapter 61 and the Department of Defense Instruction 1332.18 (DES). It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability to reasonably perform their duties, it provides for the disposition of the Soldier according to applicable laws and regulations. a. Paragraph 5-5 (Presumptions of Fitness) provides the DES compensates disabilities when they cause or contribute to career termination. Soldiers who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service. b. 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. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. 3. Department of Defense (DoD) Technical Manual (DTM) 11-015 (DES) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the technical manual were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DoD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DoD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member's referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA's disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former Service member desires to appeal a determination from the rating decision, the veteran has one year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office. ABCMR Record of Proceedings (cont) AR20160013424 2 1