ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20160013707 APPLICANT REQUESTS: in effect, correction to his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show he received a disability rating of 30 percent or higher and then a correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired vice separated with severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 22 September 1998 * DA Form 199 page 1, dated 2 October 1998 * Department of Veterans Affairs (VA) Rating Decision, dated 29 June 2004 * VA Rating Decision, dated 9 April 2012 * VA Rating Decision, dated 14 October 2015 * Army medical records FACTS: 1. The applicant did not file within the 3 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 based on his medical conditions at the time of service he should have been found unfit for duty due to chronic daily headaches and chronic neck, shoulder and lower back pain, mechanical, posttraumatic. He states his medical evidence supports his rating from the PEB should have been 30 percent or more thus allowing him to medically retire as opposed to the rating of 20 percent he received with entitlement to severance pay. He states he is applying based on a board that Congress put in place to review PEB decisions. 3. The applicant enlisted in the Regular Army on 30 November 1988. He was trained in and qualified as a field artillery cannon crewmember. On 1 May 1996, he was promoted to the rank and grade of staff sergeant/pay grade E-6. 4. On 12 January 1997 the applicant received a permanent profile of three for his lower extremities. His limitations included no running, jumping or other high impact activities with no heavy lifting or wearing of heavy gear. He could march up to his own tolerance level and lift up to 25 pounds. He could carry his rifle and fire it, but he would not wear a backpack nor his helmet. For aerobic activities he could walk, bicycle and swim at his own pace. He was referred to an MEB. 5. On 7 August 1997, the applicant’s commander prepared a memorandum for the Military Occupational Specialty (MOS) and Medical Retention Board wherein he stated the applicant currently does not perform his MOS duties. He cannot participate in field training exercises due to his limiting profiles. He is required to walk long distances in the field and his profile limitations prevent him from doing so. He does participate in unit physical fitness training; however, a record Army Physical Fitness Test is not on record in the unit. The commander concluded by saying he no longer is an asset to the U.S. Army in his current MOS nor is he deployable to a worldwide field environment. He recommended the applicant be medically separated. 6. On 25 August 1998, the applicant completed Standard Form 93 (Report of Medical History) wherein he stated his health condition was very poor. He wrote he could not sit or stand for long periods of time nor bend to far or carry anything over his head. His upper back and neck hurts him all the time. He has headaches and had surgery on his right foot. 7. Concurrently, a medical provider completed Standard Form 89 (Report of Medical Examination). He stated the applicant had a bunionectomy and was issued a permanent profile for his lower extremities. He also prepared a narrative summary based on his examination. The applicant had a history of low back pain after falling off a cliff in Hawaii in 1992. His pain progressively increased with time interfering with his activities of daily living especially with prolonged sitting and standing associated with his right toe and posterior thigh paresthesia and radiation. He complained of chronic neck pain which was exacerbated by wearing a helmet. His neck symptoms are associated with occasional distal paresthesia. No neurological deficits were noted in the lower extremities and an x-ray of the lumbosacral spine revealed facet arthrosis with mild narrowing at the lumbosacral junction. Finally, he noted the applicant was being treated for depression with medication management. (The profile rating for the psychological factor was one with no duty limitations.) 8. Filed in the applicant’s military personnel record is DA Form 3947 dated 22 September 1998 showing he had three medical conditions which required referral to the PEB. The three medical conditions were – * Chronic neck and low back pain, mechanical, posttraumatic (paragraph 3-41e(1) of Army Regulation 40-501 (Standards of Medical Fitness)) * Hallux valgus with bunions * Chronic daily headaches, perhaps representing a transformed tension type headache (no suggestion of migraine headaches) 9. On 23 September 1998 the findings and recommendations of the MEB were approved. On 24 September 1998 the applicant was informed of the approved findings and board recommendations. He agreed with the board’s findings and recommendation. Further, with his signature he certified the MEB accurately covered all of his medical conditions, that all his medical records pertaining to his case were returned to the proper authorities and he had been counselled in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His profile limitations were no running, jumping, or other high impact activities. He also could not lift heavy objects or wear heavy (military) gear. 10. On 2 October 1998, the PEB convened and reviewed the applicant’s MEB and allied information. The PEB found the applicant was physical unfit for chronic mechanical low back and neck pain, posttraumatic (injury) assigning a rating of 20 percent based on the VA Code 5299-5295. The PEB determined his hallux valgus was not an unfitting condition, therefore it was not rated. It was determined based on a review of the objective medical evidence of record that his medical and physical impairments prevented his reasonable performance of his duties by grade and military specialty. The board recommended separation with severance pay, if otherwise qualified. 11. On 6 October 1998, the applicant concurred with the informal PEB findings and recommendation and waived a formal hearing of his case. His counselor also signed the DA Form 199 stating she had counselled the applicant on the findings and recommendations of the PEB. 12. On 14 October 1998 a Secretarial authority approved the findings and recommendations of the applicant’s informal PEB. 13. Orders 308-2203 were issued by Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, dated 4 November 1998, ordering the applicant’s separation from the Regular Army for disability. He was authorized disability severance pay in pay grade E-6 based on his 10 years and 9 days of active service. His scheduled date of separation was 8 December 1998. 14. On 8 December 1998 the applicant was honorably discharged from the Regular Army. He was issued a DD Form 214 containing the following information: * Block 25 (Separation Authority) – Army Regulation 635-40, paragraph 4-24(b)(3) * Block 28 (Narrative Reason for Separation) – Disability, severance pay 15. The applicant provided the following evidence in support of his application: a. VA Rating decision (6 pages), dated 29 June 2004, VA medical providers reviewed his service medical records and two VA examinations dated 18 June 1999 and 21 June 1999. (1) The following conditions were rated as service connected: * Right shoulder strain, 20 percent * Mechanical neck pain with limitation of motion, status post injury; 10 percent * Mechanical low back pain, status post injury; 10 percent * Hallux valgus, right big toe, status post bunionectomy, status post hardware removal; 10 percent * Hallux valgus, left foot, with degenerative joint disease of first metatarsophalanageal joint; 0 percent * Hiatal hernia with gastroesophageal reflux, 0 percent * Acne bulgaris, 0 percent (2) The following conditions were denied as service connected: * Right knee and right ankle injury * Headaches with vertigo * Rash on scalp b. VA Rating Decision (3 pages), dated 9 April 2012, shows the following conditions were further rated by the VA: * Mechanical neck pain with limitation of motion, status post injury; 30 percent based on forward flexion of the cervical spine 15 degrees or less * Peripheral nerve dysfunction, right upper extremity as secondary to cervical intervertebral disc disease, 20 percent * Hiatal hernia with gastroesophageal reflux, 30 percent c. VA Rating Decision (2 pages), dated 14 October 2015, showing his combined overall rating is 80 percent with an adjustment for tension headaches from 10 percent to 30 percent. d. Comprehensive copies of his service treatment records including multiple temporary DA Forms 3349 (Physical Profile) showing he had injured his shoulder and had chronic foot pain. He was restricted from running, marching, or performing the Army Physical Fitness Test. He was authorized alternate aerobic activities when taking the alternate physical fitness test. 16. On 5 July 2018, the Army Review Boards Agency (ARBA) 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. 17. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. On 30 August 2018, the applicant responded stating there were several behavioral health conditions at the time of his service which are supported by the record and the VA. He states his behavioral health conditions should have been given weight concerning his finding of unfitness for duty with medical retirement by both the MEB and PEB. He further states the residuals of right shoulder strain initially rated at 20 percent by the VA should have been considered by the MEB/PEB as it is directly related to his neck and lower back pain. Additionally, his headaches, depressive disorder and radicular nerve pain all stem from his back and neck pain which should have clearly been weighted by the boards. He argues his right shoulder pain should not have been excluded by the boards as it is all interrelated. All his medical contentions are noted by the VA (for which he receives compensation benefits.) His record should be corrected to show he was rated for his right shoulder because it is an injustice not to properly rate him at the time of his separation. The Board, with his evidence, now has ample room to correct this error of injustice and grant him his well overdue medical retirement with all retroactive benefits restored to him. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record, the medical advisory opinion and the applicant’s response. The Board discussed the unfitting condition the led to his medical separation, the other conditions reviewed, the VA rating, applicant’s statement regarding behavioral health and other conditions he felt should have been unfitting and the conclusion of the advising official that he was rated for only those conditions determined to be unfitting at the time of his separation. The Board concurred with the advisory opinion and determined, by preponderance of evidence, that his disability separation was not in error or unjust and no correction to the record was required. 2. After reviewing the application and all supporting documents, the Board found the 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. 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 Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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. 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 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. These ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). (1) The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. (2) 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. c. 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. The percentage assigned to a medical defect or condition is the disability rating. 4. Army Regulation 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 physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. a. Paragraph 3-31 (Disorders with psychotic features) the causes for referral to an MEB include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 (Affective disorders – mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. d. Paragraph 3-41e(1) (General and miscellaneous conditions and defects) are causes for referral to an MEB when the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service and to reevaluate and adjust their ratings with the progression of time. ABCMR Record of Proceedings (cont) AR20160013707 8 1