ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160014415 APPLICANT REQUESTS: Correction of his records to show he was permanently retired due to physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Benefits Summary, dated 2 June 2016 * letter from UCLA Orthopaedic Surgery, dated 24 April 2016 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 Army incorrectly placed him on the Temporary Disability Retired List (TDRL) as his injuries are permanent and have not improved * He is currently rated 50 percent disabled by the VA * He knows the Army uses a different rating system; however, at the time of his separation the Army believed his injuries were temporary * At the time of my separation, his wife, an Army Soldier, was medically evacuated due to cervical cancer and given less than 80 percent chance to live; she had a radical hysterectomy * He did not know the rules and laws governing the disability process or his rights at that time * The Army Human Resources Command (HRC) staff advised him that his case warrants a review given the fact that his disabilities were not temporary but permanent * He accepted the Army medical board explanation at the time as he did not know the difference; however the injuries are permanent and the deterioration has prevented him from being able to work this past year and he was advised to stop * He is also asking that he be paid back retirement wages from the legal time period the law allows 2008; in addition, he does not believes the Army intentionally or the Army medical board new what the lifelong impact was going to be at the time of separation * Errors happen; however, at 58 years old, he needs this correction so that he too does not become another veteran's statistic 3. The applicant enlisted in the Regular Army on 30 August 1982. He was awarded military occupational specialty 71L (Administrative Specialist) upon completion of the required training. He was promoted the rank of specialist/E-4 1 February 1984. 4. On 26 February 1986, a Medical Evaluation Board (MEB) diagnosed the applicant with pectoralis major muscle tear, extensive, treated, improving. The MEB recommended that applicant's referral to a Physical Evaluation Board (PEB). 5. On 17 June 1986, a PEB found the applicant unfit due to a severe tear of minor pectoralis major muscle. The PEB concluded that the applicant's medical condition prevented satisfactory performance of duty as an Administrative Specialist in the grade of E-4. The condition had not stabilized to the point that a permanent degree of severity could be determined. The PEB recommended a 30 percent disability rating and the applicant's placement on the TDRL with reexamination during December 1987. The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. 6. The applicant's DD Form 214 shows he was released from active duty on 12 November 1986 and placed on the TDRL. 7. On 2 March 1988, the applicant underwent a TDRL periodic physical examination. . His Narrative Summary (Clinical Resume) shows a diagnosis of status post pectoralis major rupture and mild degenerative joint disease, left knee. The evaluating physician determined that the applicant was unfit for return to active duty under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), as previously noted. In addition, he was unfit for return under Army Regulation 40-501 with regards to his left knee, specifically. It was recommended that the applicant be referred to the PEB for final disposition. 8. On 15 March 1988, a PEB reevaluated the applicant's condition and recommended a 0 percent disability rating, for status post pectoralis major rupture, and the applicant's separation from the service with entitlement to severance pay. The PEB indicated that the PEB's rating of 0 percent more accurately reflected the degree of severity of the applicant's condition. The PEB considered his condition to have improved so as to be ratable at less than 30 percent. Ratings of less than 30 percent for Soldiers with less than 20 years of service requires separation with severance pay in lieu of retirement. 9. The applicant did not concur with the PEB findings and recommendations but waived a formal hearing. He submitted a letter of rebuttal; however, the U.S. Army PEB informed the applicant on 28 March 1988 that his rebuttal contained no new substantive medical information not previously considered. Therefore, the U.S. Army PEB affirmed the decision of the PEB that found him unfit with a disability rating of 0 percent. 10. Orders issued by the U.S. Army Military Personnel Center, Alexandria, VA, on 13 April 1988, directed the applicant's removal from the TDRL and his discharge from the service with entitlement to severance pay. 11. The applicant provided a VA Benefits Summary, dated 2 June 2016, showing he is currently receiving service-connected disability compensation, with a combined rating of 50 percent, for the following conditions: * left pectoral major muscle tear with longitudinal defect left biceps, decreased muscle strength and range, 40 percent * right knee strain post non-displaced right patellar fracture status post-surgery, osteoarthritis, claimed as patellar ligament rupture, 10 percent * left patellofemoral degenerative arthritis status post-surgery with scar, claimed as patellar tendon rupture, 10 percent 12. The applicant also provided a letter from UCLA Orthopaedic Surgery, dated 24 April 2016, and addressed to the VA, indicating the applicant was diagnosed with advanced and severely symptomatic degenerative arthritis of both knees. 13. On 7 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The opinion states that a review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the reason(s), rated condition(s), disability determination(s),and disability rating(s) in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. The applicant was provided a copy of the advisory opinion on 19 March 2019 and given an opportunity to submit comments. He responded and stated that he played basketball for the Army and injured his knee. He provided the medical records to the VA Medical Board of Appeals in 1985 and won. The applicant also provided with his rebuttal the following documents: a. A letter from the UCLA Family Health Center, dated 7 February 2019, showing the applicant was diagnosed with advanced and severely symptomatic degenerative arthritis of both knees, post-traumatic stress disorder, severe depression, anxiety disorders, and attention deficit disorder. b. A Social Security Administration Decision letter pertaining to his claim for disability and disability insurance benefits. c. A letter from the VA indicating he is currently receiving service-connected disability compensation with an 80 percent disability rating. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the advisory opinion. The Board considered the applicant’s VA rating and PEB proceedings and agreed with the medical advisory opine that there was insufficient evidence of a medical disability or condition that would support a CHANGE to the character(s), reason(s), rated condition(s), disability determination(s), disability rating(s), and combat relatedness for the discharge in this case. 2. 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 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical 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 or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a 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 service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 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. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). 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 his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. 3. Army Regulation 635-40 further states that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, USC, section 1201, but for the fact that his or her disability is not stable and the individual may recover and be fit for duty, or the degree of severity may increase or decrease so as to warrant a change in the disability rating. A Soldier on the TDRL must undergo a period medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. Medical examiners will recommend removal of the Soldier’s name from the TDRL as soon as the Soldier’s condition permits. A Soldier will be removed from the TDRL and separated with severance pay if the Soldier is unfit because of the disability from which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent. 4. Army Regulation 635-40, Appendix B, paragraph B-9, of the regulation in effect at the time, states that occasionally a medical condition which causes or contributes to unfitness for military service is of such mild degree that it does not meet the criteria for even the lowest rating provided by VASRD under the applicable code number. A 0 percent rating may be applied in such cases even though the lowest rating is 10 percent or more, except when "minimum ratings" are specified. 5. Title 10, USC, 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. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, 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. ABCMR Record of Proceedings (cont) AR20160014415 6 1