ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20160015970 APPLICANT REQUESTS: a medical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Evaluation Board (MEB) Medical Record Report * MEB and Physical Evaluation Board (PEB) Proceedings * Department of Veterans Affairs (VA) 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 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. After a review of the MEB and PEB Proceedings, she is contesting the 20 percent (%) rating for the symptoms noted in both proceedings. As documented in the PEB proceedings, 10% was assigned for chronic pain of the right knee and 10% for chronic back pain. She believes that the 10% rating for back pain is incorrect because it is documented that the pain is due to a herniated disc. Furthermore, due to the injury sustained during her training, the symptoms have progressed to the point where she has had to endure spinal injections for the pain, the implementation of a nerve stimulator, and eventually led to her having a spinal fusion. b. To this day, she is still receiving pain injections approximately every 6 weeks. Her lifestyle has dramatically been affected due to this severe injury to the point where he cannot perform simple day to day living activities. I am asking that the rating be raised due to the facts noted in both the MEB and PEB Proceedings. a. c. The injury she sustained during her enlistment is degenerative in nature. She has ensured chronic pain to where she has sought relief through various methods (pain injections, insertion of a nerve stimulator, spinal fusion, and oral medications). These methods provided only a temporary relief from the pain, but she will not be able to live a normal active life as her condition will only worsen due to the degeneration of the discs and the arthritis that is constantly building upon in the injured area. 3. The applicant provides the following: * MEB Narrative Summary * MEB Proceedings * PEB Proceedings * Patient Discharge Information * VA Form 21-0950M-14 (Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire) * VA Radiology Reports * VA Medication History * VA Confidential Notes 4. Review of the applicant’s military record shows: a. She enlisted in the Regular Army on 21 November 2002. b. An MEB Medical Record Report, dated 15 October 2003, shows she reported her back pain began in late March and continued to worsen. Clinical and Radiographic evaluations revealed a herniated disc in her mid-thoracic spine which was effacing her cord at essentially the T-6 level. c. On 3 November 2003, an MEB convened and considered her medical conditions of thoracic disc herniation with persistent back pain without neurologic findings, pain was moderate and constant in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraphs 3-39a and 3-41c; right knee pain consistent with patellofemoral pain; and intermittent parasthesios, medically acceptable. She was referred to a PEB. d. On 21 November 2003, an informal PEB convened and considered her medical conditions of chronic back and right knee pain. The PEB found her physically unfit and recommended a combined rating of 20% and her separation with severance pay. She concurred and waived her right to a formal hearing. The PEB was approved on 24 November 2003. e. She was honorably discharged on 31 December 2003, under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability, with severance pay. Her DD Form 214 (Certificate of Release or Discharge a. from Active Duty) shows she completed 1 year, 1 month, and 10 days of net active service and she was awarded/authorized the National Defense Service Medal. f. She provides the following: * VA Form 21-0950M-14 (Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire), she executed on 29 March 2015 for disability benefits * Patient Discharge Information showing she was hospitalized from 11 to 12 June 2015, for Spondylolisthesis of the lumbar region * VA Medication History, dated 11 July 2016, listing her medications * VA Radiology Reports, dated 25 March 2016, listing her VA radiology procedure/test * VA Confidential Notes pertaining to her medical history under the VA 5. On 30 April 2019, an advisory opinion was received from the Medical Advisor, Army Review Boards Agency, in the processing of this case. The medical advisor reiterated the applicant’s period of service and stated: a. Review of the applicant’s electronic VA medical record indicated that the applicant was 80% service-connected: 40% for paralysis of sciatic nerve, 40% for spinal fusion, and 10% for thigh condition. It was important to understand that the VA finding of service-connected did not automatically result in a military medical retirement. The VA operated under different rules, laws, and regulations when assigning disability percentages than the DOD. In essence the VA would compensate for all disabilities felt to be unsuitable conditions. The DOD; however, did not compensate for unsuiting conditions, it only compensated for unfitting conditions. b. Based on the available military records, there was no indication that the applicant suffered from any additional unfitting psychiatric or medical condition at the time of her discharge. It is also important to note that DOD does not compensate service members for anticipated future severity of potential complications of conditions that were incurred during active military service. That role was reserved for the VA. c. The applicant requested a military medical retirement based on the fact that she was now 80% service-connected for the aforementioned conditions by the VA and has had progression of her underlying medical conditions since her separation from the Army. Therefore, based on the information currently available, it was his opinion that a referral of the applicant’s records to the Integrated Disability Evaluation System for reconsideration of military medical retirement was not indicated at this time. 6. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. She did not respond. 1. 7. By regulation (AR 635-40), a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 and awarded a disability rating assigned by the Army’s disability system. 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. An award of a rating by another agency does not establish error in the rating assigned by the Army's disability system. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding and the failure of the applicant to provide a rebuttal to those findings, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the narrative reason for 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. 7/10/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, in effect at the time, set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustained or aggravated physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits. The regulation stated: a. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it was 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. b. The VA Schedule for Rating Disabilities (VASRD) was primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting condition(s) from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness was made, the Physical Evaluation Board rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 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, USC, 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, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards 1. compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.