ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20160016127


APPLICANT REQUESTS:  an increase in her disability rating for Avascular Necrosis and additional ratings for her other medical conditions to include (Bipolar disorder, Temporomandibular Joint Dysfunction (TMJ), Anxiety, Insomnia, Fibromyalgia, Post Traumatic Stress Disorder (PTSD) and chronic pain disorder).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Medical Evaluation Board (MEB), Narrative Summary (NARSUM)
* Addendum to MEB
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 3947 (MEB Proceedings)
* Telephone of Verbal Conversation Record

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 her Army disabilities rating did not include a fair rating for Avascular Necrosis of hips, no rating for Bipolar Disorder, TMJ, anxiety, insomnia, fibromyalgia, PTSD, and chrome pain disorder.

3.  The applicant provides:

	a.  The Walter Reed Army Medical Center MEB states Soldier continued physical therapy with activity modification.  She is to undergo MEB secondary to condition.  The patient reports inability to stand and sit for prolonged periods of time without return of pain.  The patient reports symptoms are only relieved by lying down for several hours.  Subsequently, the patient is unable to perform a physical training (PT) test as well as tolerate normal duty hours in her job as 91B (Health Care Specialist) without experiencing pain.  She is currently on a P3 profile, does not qualify for worldwide duty and claims was in line of duty.  She does not meet medical retention standards of Army Regulation (AR) 40-501 (Standard of Medical Fitness), chapter 3, paragraph 14d.  She was recommend referral to PEB.

	b.  The MEB Addendum states it is recommended that the patient continue to receive treatment from qualified physicians in physical medicine as well as psychiatry in a coordinated treatment plan designed to minimize pain, maximize function, and optimize medical outcome.  Treatment should include medications for symptomatic relief of neurovegetative symptoms as well as augmentation of her pain control regimen. Counseling focused on support, problem solving, stress management, and the development of insight regarding her role in relationship difficulties is expected to be of benefit to her.  Her prognosis for sustained recovery from mood disturbance is fair given access to and compliance with appropriate care.  It is the opinion of the MEB that this patient is mentally competent for pay purposes, has the capacity to understand the nature of and to cooperate in the MEB proceedings, and is not dangerous to herself or others at this time.

	c.  Based on a review of the medical evidence of record, the PEB concludes that her medical condition prevents performance of duty in your grade and specialty. Ratings of less than 30% for Soldiers with less than 20 years active service require separation with severance pay in lieu of retirement.  The amount of severance pay is based on her active duty service time and not on her disability rating.  She should contact a Department of Veterans Affairs (VA) counselor to learn about available benefits such as disability compensation, rehabilitation programs, insurance, employment assistance, home loans, and medical care benefits.  She was advised that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has.

4.  A review of the applicant’s service records shows the following:

	a.  She enlisted in the Regular Army on 15 August 1996.  

	b.  On 19 June 2002, an MEB convened, and after consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant had the following medical conditions: 

		(1)  Medically unacceptable: Bilateral osteonecrosis of the femoral head; medically unacceptable, in accordance with AR 40-501, chapter 3, paragraph 14d.

		(2)  Medically acceptable: Axis I Major Depressive Disorder, single episode, without psychotic features, moderate, in partial remission, manifested by depressed mood associated with sleep disturbance, daytime somnolence and marked fatigue, poor concentration, decreased appetite, anhedonia, guilt, and poor self-esteem, now manifested only by sleep disturbance and fatigue. Stressors, moderate: chronic pain, physical disability, occupational stressors, financial difficulties, marital problems.  Predisposition, mild; pattern of difficulty with interpersonal relations. Impairment for further military duty, minimal.  Impairment for social and industrial adaptability, mild.  She is competent to handle financial matters.  She is expected to require ongoing outpatient treatment consisting of medications and counseling for this condition.  Axis II No Diagnosis.  Axis III:  necrosis of bilateral femoral heads, migraine headaches, GERD.  Axis IV, marital, occupational, financial, and health stressors.  Axis V, Current GAF (Global Assessment of Functioning) =70

		(3) The MEB referred her to a PEB.  She was counseled and agreed with the MEB’s findings and recommendations.  

	c.  On 3 September 2002, an informal PEB convened and found the applicant’s condition unfitting.  

		(1)  The PEB rated her under the Department of Veterans Affairs Schedule of rating Disabilities, Codes 5099 5003, bilateral osteonecrosis of both hips with degenerative changes noted on radiographs. Hip flexion is 90 degrees bilaterally. Rating is for hip arthritis, rated at right 10% and left 10%.  The PEB assigned a combined disability rating of 20%.

		(2)  The PEB considered her other conditions (Axis I and Axis III), as listed on the MEB but found them neither unfitting nor rated.  

		(3)  Based on a review of the medical evidence of record, the PEB concludes that her medical condition prevented performance of duty in her grade and specialty. Ratings of less than 30% for soldiers with less than 20 years active service require separation with severance pay in lieu of retirement.  

	d.  The findings by the approving authority were approved.  The applicant did not concur with the board’s findings and recommendation.  She demanded formal hearing without personal appearance and did not submit a statement to the board.  She elected to have counsel of her choice at no expense to the government.

	e.  On 7 October 2002, she submitted DA Form 751 (Telephone or Verbal Conversation Record) agreeing with the informal decision.  She understood that submission of this wavier served to cancel the previously scheduled formal hearing and that her case would be forwarded for additional processing at this time. 

	f.  On 8 October 2002, an official of the U.S. Army Physical Disability Agency approved the PEB finding and recommendation on behalf of the Secretary of the Army. 

	g.  On 28 November 2002, the applicant was discharged from active duty.  Her DD Form 214 shows she was discharged under the provisions AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4-24b, by reason of disability, with entitlement to severance pay.  She completed 6 years, 3 months, and 14 days of net active service this period.

5.  On 7 May 2019, the ARBA Medical Advisor rendered an advisory opinion in the applicant’s case.  The advisor stated:

	a.  Review of the applicant’s electronic VA medical record (JLV) indicates that the applicant is 100% service connected.  100% for Bipolar disorder, 10% for Paralysis of the Median Nerve, 20% for Limited Flexion of Thigh, 20% for Fibromyalgia, 30% for Toxic Nephropathy.

	b.  Based on the available medical record, the applicant did not meet retention standards IAW AR 40-501 due to Bilateral Osteonecrosis of both Hips with degenerative changes.

	c.  According to the available information, there is no documentation to support additional medical or behavioral conditions while on active duty that would support a change to the ratings provided at the applicants previous PEB.

	d.  The VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DOD).  In essence, the VA will compensate for all disabilities felt to be unsuiting.  The Department of Defense, however does not compensate for unsuiting conditions.  It only compensates for unfitting conditions.  It is also important to note that the Department of Defense does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service.  This is a role reserved for the VA.

	e.  The medical advisor opined that a referral of the applicant’s record to Integrated Disability Evaluation System (IDES) for reconsideration of military medical retirement is not indicated at this time.

6.  On 16 May 2019, the applicant was provided with a copy of this advisory opinion to give her an opportunity (30 days) to submit a response and/or a rebuttal, she did not respond.

7.  By law (Title 10, U.S. Code, section 1201 and 1203), physical disability retirement is authorized to a member who has at least 20 years of service or a disability rating of at least 30 percent, and physical disability separation is authorized to a member who has less than 20 years of service and a disability rating of less than 30 percent.

8.  By law (Title 38, U.S. Code, sections 1110 and 1131), the VA is authorized 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 an 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 Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have 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.  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.

9.  By regulation (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.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the medical advisory finding no documentation to support additional medical or behavioral conditions while on active duty that would support a change to the ratings provided at the applicants previous PEB and the applicant failing to provide a rebuttal to that finding, the Board concluded that there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the disability rating of the applicant.

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, 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 United States Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) 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 AR 635-40.

	a.  The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.

	b.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; receive a permanent medical profile rating of "3" or "4" and are referred by an MOS/Medical Retention Board; are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC.

	c.  The PDES assessment process involves two distinct stages:  the MEB and the 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 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 are either 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.

	d.  The mere presence of 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.

2.  AR 635-40 establishes the Army PDES 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.

3.  AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

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 which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an 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 Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have 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.  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)	 AR20160016127


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