ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160013894 APPLICANT REQUESTS: an increase in his permanent physical disability rating from 40 percent to 100 percent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Chronological Record of Medical Care * Providence Heart and Vascular Institute Operative Note * Department of Veterans Affairs (VA) and Department of Defense eBenefits printout * Walter Reed National Military Medical Center letter 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. He served the better part of 9 months leading a line and reconnaissance platoon in the First Cavalry Division on the Cambodian border from 1969 through 1970, until he was debilitated due to multiple gunshot wounds on 18 March 1970. This left multiple bullet fragments in his torso and three inches of his right hand were destroyed, including the loss of his right thumb, for which a 40 percent disability was assessed. The VA increased his disability percentage to 50 percent due to the continued tenderness of the stump b. He also came into significant contact with Agent Orange in the defoliated areas of the jungle and suffered ischemic heart disease, the first episode of which was documented in 1997 and he underwent quintuple bypass surgery in 2015. The VA assessed this as a 100 percent disability. In 2009, Agent Orange was determined to be the cause of his ischemic heart disease. Although the records show he was first treated for this disease in 1997, he clearly contracted in in Vietnam from 1969 through 1970, and it was not until 2015 that doctors at Walter Reed National Military Medical Center determined it had always been ischemic heart disease. 3. The applicant was commissioned in the Regular Army on 5 June 1968 and served in Vietnam for 9 months and 7 days. 4. A Western Union Telegram, dated 19 March 1970, shows he was wounded in action in Vietnam on 18 March 1970, by small arms fire while on a military mission when a hostile force was encountered. He received a wound to his right hand resulting in surgical amputation of his right thumb at the mid-metacarpal level. 5. A Standard Form 88 (Report of Medical Examination), dated 28 August 1970, shows: * there was an absence of the right thumb distally * there was a tender ulnar neuroma (growth or tumor on nerve tissue of the ulnar nerve, which travels from the wrist to the shoulder) * there was a well-healed 3 inch scar of the mid metacarpal aspect of the right thumb * there were well-healed left upper quadrant chest and left thigh scars, with no interference of function * he was given a permanent physical profile rating of 4 for the upper extremities * he was found not qualified for further military service 6. A Standard Form 502 (Narrative Summary), shows the applicant was transferred to Madigan General Hospital on 28 March 1970, after initial in country admission and care as U.S. Army Hospital, Camp Zama, Japan, following injury while on combat operations involving hostile fire on 18 March 1970. It shows: * he underwent numerous medical consultations at Madigan General Hospital * he was diagnosed with gunshot wound with multiple fragment wounds left thigh anterior chest and neck and right thumb, absence of right thumb due to these injuries, malaria (treated and cured), hookworm infestation (non-symptomatic; treatment not recommended) * it was recommended he be presented to a Physical Evaluation Board (PEB) due to unfitness by virtue of combat wounds sustained in Vietnam 7. A DA Form 8-118 (Medical Board Proceedings), dated 3 September 1970, shows a Medical Evaluation Board (MEB) convened on that date and determined: * the applicant was medically unfit due to the surgical removal at the mid metacarpal level of his right thumb on 18 March 1970 * the MEB recommended presentation to a PEB * the applicant did not desire to continue on active duty 8. A DA Form 199 (PEB Proceedings), and the DA Form 1361 (Recommended Findings of PEB), both dated 10 September 1970, show an informal PEB convened and found the following: * the applicant’s disability was right thumb amputation with major metacarpal resection * he was found unfit because of physical disability to perform the duties of his office, rank, or grade * his combined disability rating was 40 percent * the PEB recommended his permanent retirement from the service based on disability resulting from injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of was and incurred in the line of duty during a period of war as defined by law * he concurred with the findings and waived a formal hearing of his case 9. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was retired due to permanent disability with a rating of 40 percent on 26 October 1970, after 2 years, 4 months, and 22 days of net active service. It also shows, among other awards, he was awarded the Purple Heart. 10. A letter from his treating doctor at Walter Reed National Military Medical Center, dated 1 June 2016, confirmed he has been a patient in the cardiology clinic at Walter Reed since 1997 when he was initially diagnosed with ischemic heart disease and required angioplasty in 1997. The applicant provided medical documentation showing he underwent quadruple coronary artery bypass surgery on 1 October 2015, for a known history of coronary artery disease dating back to 1997. 11. He provided an eBenefits printout which shows he received a 100 percent service connected disability rating from the VA for: * status post right thumb amputation (40 percent) * painful scar of the right thumb (10 percent) * coronary artery disease related to Agent Orange (100 percent) 12. On 16 July 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. 13. The applicant was provided a copy of the advisory opinion on 16 July 2018 and given an opportunity to submit comments, but he did not respond. 14. 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). 15. 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. 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. 16. 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. 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: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, his medical record, and the medical advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed the unfitting medical condition was duly considered at the time of separation, and other conditions further accessed by the VA accordingly after service. There was no error nor injustice with the percentage awarded at his time of separation. 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. 4/23/2019 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. 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. c. 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. d. 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. 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, permit 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. //NOTHING FOLLOWS//