ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS (ROP) IN THE CASE OF: BOARD DATE: 2 January 2020 DOCKET NUMBER: AR20160016066 APPLICANT REQUESTS: In effect, reconsideration of her previously denied application for a medical retirement by a physical evaluation board (PEB) in lieu of discharge with severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Record of Proceeding (ROP) AR20150002162, 3 September 2015 * Attorney letter, 6 September 2016 * Military Personnel Records Jacket (Enlistments, Extensions, Awards, Orders, Record of Emergency Data, Service members’ Group Life Insurance Election and Certificate, Medical Board memorandums, PEB Proceedings * Department of Veteran Affairs (VA) record * Armed Forces Health Longitudinal Technology Application records from 2005 onward FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150002162 on 3 September 2015. 2. The applicant’s counsel states, during the applicant’s career she developed several medical conditions that were incurred in or aggravated by military service and were partially identified by the medical evaluation board (MEB): hysterectomy (uterine fibroids), abdominal adhesions, healed hysterectomy scars, adjustment disorder (Asperger's Syndrome), plantar fasciitis, right shoulder strain, and right knee osteoarthritis. The MEB determined that only the right knee osteoarthritis failed to meet medical retention standards and she was therefore non-deployable. The PEB found that the right knee osteoarthritis was unfitting and recommended a disability separation of 10% and severance pay. Without the advice of counsel, under pressure from her command to accept the disability separation and severance, and on the recommendation of PEB Liaison Officer (PEBLO), she reluctantly accepted the PEB findings, and was discharged with severance of $86,654. a. Legal argument on medical diagnosis and treatment protest the Army committed legal and medical error when it failed to properly identify and treat all of the applicant’s medical conditions, specifically her mental health disorders. Her most significant medical disorder was her mental health, but it is also the one that was highly subjective to the provider and was ignored in the MEB process. Therefore, it appears that because she does appear to have trusted her providers, she ''toughed it out." In doing so, she did not have "the record" to show that she received enough treatment for MEB medical fitness consideration. b. Legal argument on MEB protest the Army committed legal and medical error when the MEB failed to properly identify, treat, adjudicate, and assess for medical fitness all of the applicant's medical conditions. The MEB identified seven (7) medical conditions as potentially medically unfitting: hysterectomy (uterine: fibroids), abdominal adhesions, healed hysterectomy scars, adjustment disorder (Asperger's Syndrome), plantar fasciitis, right shoulder strain, and right knee osteoarthritis. The MEB properly identified the applicant’s conditions which fell below the standards required, but did not properly review the conditions in such a way that showed that they significantly limited or interfered with her performance of duty, compromised or aggravated her health or well-being if she were to remain in military service. In effect, they took the final evaluation received and/or the existence, or lack thereof, of a "profile" and used that as the basis for its findings - NOT a comprehensive review of the applicant's medical records and conditions. c. Legal argument on PEB protest the Army committed legal and medical error when the PEB failed to review all of the medical evidence available and weigh that evidence under a "preponderance of the evidence" standard in the evaluation of all of the applicant’s medical conditions. "The mere presence of an impairment does not, of itself, justify a finding of unfitness because of a 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 Soldier may be reasonably expected to perform…” The MEB referred to the VA one unfitting condition, the PEB reviewed the only the objective evidence available for the applicant's conditions, e.g., the CAT scans of her right knee osteoarthritis, and therefore only the right knee osteoarthritis was rated. Insofar as the PEB failed to review all of the conditions and the medical evidence available, the PEB failed to consider the totality and preponderance of the evidence available to determine "[t]he overall effect of all disabilities present in a Soldier whose physical fitness in under evaluation". d. The applicant’s MEB/PEB process was flawed, and despite the previous finding that the applicant "concurred with the MEB findings and did not submit an appeal or rebuttal," it is not to understand the totality of the circumstance surrounding her last years in the Army. She was separately being processed under two provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) (chapter 5 and 13) for mental health issues but were stopped when the MEB/PEB process was initiated. Those significant facts were not used in the consideration of all relevant evidence. When facing a disability discharge and a check of$84,000, or an adverse administrative discharge, she took the common sense and legally permitted "out." She feared that if she challenged the PEB findings, the command would pursue its adverse elimination proceedings, as it is permitted to do. Furthermore, the MEB failed to take into consideration the totality of the evidence available to it in its consideration of medical fitness, e.g. it did not review the entire history of mental health treatment, only the final assessment conducted. In short, the applicant should be, and is deserving of another and complete review of all of the evidence available - not just the most recent. 3. A review of the applicant’s service records shows the following: a. She enlisted in the Regular Army 6 July 2000. b. On 3 July 2013, the applicant was issued a permanent profile (DA Form 3349) Physical Profile showing a “3” under L – Lower category for chronic right knee pain (osteoarthritis). c. On 10 September 2013, an MEB convened and found one of her medical conditions did not meet medical retention standards while all the others did: * Right knee osteoarthritis (VA diagnosis: Chronic right patellofemoral syndrome) – Does not meet retention standards, was incurred while entitled to base pay and was permanently aggravated by military service * “S/P Hysterectomy” for history of uterine fibroids – Meets retention standards. * Abdominal adhesions – Meets retention standards * Healed hysterectomy scars – Meets retention standards * Adjustment disorder with anxiety and depressed mood, chronic (VA diagnosis: Asperger’s syndrome) – Meets retention standards * History of plantar fasciitis (VA Diagnosis: Normal bilateral feet) – Meets retention standards * Right shoulder strain (No VA diagnosis) – Meets retention standards d. Her narrative summary states she had reported recurrent episodes of depression since 2007 which were primarily related to work stressors. She had been seen by mental health during each of her deployments to Kuwait and Afghanistan, as well as periodically in garrison. As of her last comprehensive mental health evaluation on 11 January 2013, she met retention standards. The examiner noted only an occasional decrease in her work efficiency with generally satisfactory functioning. e. The MEB recommended referral to a PEB, the approving authority approved the MEB findings and recommendations, and on 3 October 2013, the applicant agreed with the MEB findings and recommendation. f. On 14 March 2014, she was found physically unfit by a PEB with a recommended rating of 10% for right knee Osteoarthritis. It was recommended that she be separated with severance pay. She concurred and waived a formal hearing of her case and did not request reconsideration of her VA rating on 20 March 2014. There were other medical conditions that were considered but found not to be unfitting and therefore were not ratable. * "S/P Hysterectomy" for history of uterine fibroids - Meets retention standards * Abdominal adhesions - Meets retention standards * Healed hysterectomy scars - Meets retention standards * Adjustment disorder with anxiety and depressed mood, chronic (VA diagnosis: Asperger's syndrome) - Meets retention standards * History of plantar fasciitis (VA Diagnosis: Normal bilateral feet) – Meets retention standards * Right shoulder strain (No VA diagnosis) - Meets retention standards g. Orders 086-0201, issued by Installation Management Command, Headquarters, U.S. Army Garrison Fort Wainwright, Alaska, dated 27 March 2014 shows she is authorized disability severance pay in pay grade E-5 based on 13 years, 11 months, and 14 days of service with a scheduled separation date of 19 June 2014. h. On 19 June 2014, the applicant was honorably discharged from active duty due to disability, non-combat (enhanced). She was authorized severance pay based on 13 years, 11 months, and 14 days of creditable active service in the amount of $86,654.40. i. On 3 September 2015, the Board considered her petition but denied it. The Board requested an advisory opinion then from the U.S. Army Physical Disability Agency (USAPDA). The USAPDA advisory official reviewed her case and opined that the MEB and PEB findings in regard to the applicant’s behavioral health were supported by the evidence in her disability case file. That evidence was sufficient to make the appropriate findings in relation to her condition in 2013 and 2014. Even if the MEB/PEB did not have all of the documents relating to her behavioral health condition since 2006, it would not have made any difference in the final determination. The applicant’s disability findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, regulation, or directive. 5. The Army Review Boards Agency (ARBA) medical advisor reviewed the applicant case and rendered an advisory opinion on 21 November 2019. The ARBA medical advisor opined that: a. Since the applicant's combined disability rating was determined to be less than 30%, and the applicant had less than 20 years of service as computed under 10 USC 1208, the applicant was not entitled to a medical retirement and was separated from the Army with disability severance pay. These findings were communicated to the applicant via a VA Memorandum dated 07 March 2014. The informal PEB adjudicated findings and recommendations were explained to the applicant by her counselor on 20 March 2014, and the applicant concurred with the findings and waived her right to a formal hearing or VA reconsideration of her ratings on 20 March 2014. b. The applicant's Armed Forces Health Longitudinal Technology Application (AHLTA) behavioral health notes were reviewed pertaining to visits prior to the initiation of the MEB. There is no indication from the AHLTA records that the applicant suffered from any unfitting Behavioral Health condition that would specifically warrant a MEB for said condition prior to her reaching the Medical Retention Determination Point (MRDP) for her right knee condition. These conditions included Personality Disorder, Generalized Anxiety Disorder, Adjustment Disorder with Depressed Mood, Adjustment Disorder with Anxiety, Schizotypal Personality Disorder, Developmental Disorder- Learning, Recurrent Depression, No Axis 1 Psychiatric Diagnosis, Relationship Problem, Phase of Life Circumstances Problem, and Social Phobia. There does not appear to be a consensus of opinion as to a single or combination of behavioral health diagnoses that would be categorized as unfitting in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 3-33. Additionally, IAW AR 40-501, a MEB is indicated at the time any single condition has met the MRDP, and does not require that all diagnosed or undiagnosed conditions meet the MRDP prior to initiating a MEB. c. Review of the applicant's profiles as stated on DA Form 3349 fail to demonstrate that the applicant was ever given a temporary or permanent profile for any behavioral health condition. d. In summary, the applicant underwent a MEB for chronic right knee pain for which she was given a 10% disability rating. Although she had multiple behavioral health visits and multiple behavioral health diagnoses throughout her career in the Army, none of these conditions were found to be unfitting. Both the medical and behavioral health conditions are documented in the applicant's AHLTA record, and she is entitled to receive care for these conditions through the VA. It is important to note that any finding of service connection on the part of the VA does not automatically result in a medical retirement from the Army. The VA operates under different rules, laws and regulations when assigning disability percentages as compared to the Department of Defense (DOD). Based on the DA Form 3349 submitted to the MEB the applicant had a permanent psychiatric profile of S1, which indicated that it was felt that she had no psychological impairment that prevented her from being deployed or performing her Military Occupational Specialty (MOS). Her performance as a Soldier and NCO was overall marginal according to the majority of her Non-Commissioned Officer Evaluation Reports (NCOERs). e. In conclusion, the record supports the MEB/PEB findings and does not support that the applicant be medically retired from the Army. According to her NCOERs there does not appear to be any one time that would support an overall diminish in her performance. Therefore, it is the opinion of the Agency physician, based on the available information that a referral back to the Integrated Disability Evaluation System for consideration for medical retirement is not indicated at this time. 6. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a response and/or a rebuttal. She did not respond. 7. By regulation, AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 8. AR 635-40, 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the findings of the advisory official stating her medical conditions were not unfitting for military service and a lack of rebuttal submitted by the applicant of those findings, the Board concluded that there was insufficient evidence of an error or injustice which would warrant changing 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. 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. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Veterans Administration Schedule for Rating Disabilities), modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states 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. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160016066 7 1