ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20160019517 APPLICANT REQUESTS: A disability rating for several medical conditions not considered by her Physical Evaluation Board (PEB) and a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Line of Duty (LOD) Investigation Worksheet * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical Evaluation Board (MEB) Proceedings * Letters to and from the U.S. Army Physical Disability Review Boards (PDRB) * DD Form 149 (Application for Correction of Military Record) * five letters from the Army Review Boards Agency (ARBA), Case Management Division (CMD), dated 4 January 2012 * PDRB Record of Proceedings, dated 11 September 2012 * Memorandum and letter from Deputy Assistant Secretary of the Army (DASA), ARBA FACTS: 1. The applicant states: a. She previously requested that substantially new evidence not previously submitted to the PDRB be reviewed by the Army Board for Correction of Military Records (ABCMR). The Director, CMD, stated “these same disabilities, which was only one disability (chronic lower back due to degenerative disc disease,” rated at 40 percent (%) was decided in 2012. The Physical Evaluation Board (PEB) only awarded her a 10% rating during her initial separation from active duty in 2003. In her application/case/packet, submitted on 25 October 2015, she requested review of the following conditions; however, they were never considered by the PEB or PDRB: * peripheral nerve damage pain, secondary to degenerative disc disease @L5- S1 * bilateral lower extremity radiculopathy pain secondary to degenerative disc disease @L5-S1 * cervical spine (C4-C7) damage * * neck impingement secondary to cervical spine injury * shoulder radiculopathy pain – pronounce right shoulder secondary to cervical spine injury * right arm pain secondary to cervical spine injury * chronic headaches secondary to cervical spine injury * loss of bowel and bladder control secondary to cervical spine injury * depression secondary to chronic lower back due to degenerative disc disease @L5-S1 b. She believes she has substantially new evidence which, by due diligence was discovered in her military personnel file and medicals records not available at the time of the initial hearing date of 11 September 2012. This evidence could not have been presented prior to this date because it was not made available to her until after the retirement decision date had passed. Had this information been available, she believes that it would have absolutely resulted in a higher disability rating. c. In addition, she is also requesting a medical retirement according to her new findings, with her same active duty separation date, as her initial injury warranted. The aforementioned conditions were not presented or discussed in her rating decision. The extensive nature of her injuries were not discussed, which resulted from a fall from an 8x10 foot all that resulted in other significant injuries to her neck, shoulder, upper (cervical) back/spine, lower (lumbar) back/spine as well as lower extremities. She believes, that had this information been aggressively pursued it would have warranted a medical discharge or a higher disability rating. The 25 October 2015 DD Form 149 clearly stated the issues or contention that was never presented or reviewed by any board inclusive of the PEB, PDRB, or ABCMR. d. She does not believe the PDRB rating decision of 40% is accurate enough to reflect the totality of all her injuries upon discharge due to the fact that the board did not take into consideration these important factors: * episodes of incapacitation were not considered (she was incapacitated for over 1 year) * peripheral nerve damage (L-5 Radiculopathy) * no upper extremity injury or cervical spine injury were rated or considered, although initial injury notes reflected these conditions were present * depression was not considered during her retirement hearing by the PDRB, she has suffered with depression since her traumatic back injury occurred, her inability to cope and recover caused her depression to worsen * chronic headaches and neck pain have plagued her since her back injury, these conditions were not considered * loss of bowel and bladder sensation/control directly related to her back injury have cause placement of Neurostimulators on 12 October 2012, to control her ability to go to the bathroom/urinate * e. On 7 August 2003, she was evaluated by a Medical Evaluation Board (MEB) and received a 10% disability rating for a traumatic back injury. She had fallen from an 8x10 foot wall during a Combat Litter Obstacle Course. In addition to the fall, she was involved in a motor vehicle accident during active duty (10 September 1990) that she feels was not taken into consideration. She feels this disability rating should be increased. f. On 11 September 2012, she was evaluated by the PDRB and received a 40%retirement disability rating. This rating should be reconsidered as it related to the peripheral nerve rating because there is sufficient evidence to prove that there was a functional impairment of her left lower extremity, i.e., nerve damage tied to her fitness that does not support a recommendation of peripheral nerve damage upon separation during the PEB. g. The PDRB stated “The available record does not contain information regarding any incapacitating episodes and a rating using the Veterans Administration Affairs Schedule of Ratings Disabilities (VASRD) Number 5293 (Intervertebral Disc Syndrome) cannot be determined.” The initial packet submitted to the PDRB contained documents requesting incapacitation pay for 6 months (beyond initial 12 months request). With this information being provided, she does not understand how the PDRB stated they had no records to validate a rating using VASRD Number 5293. In remaining true to the VASRD that states the individual must have 6 weeks of an incapacitated episode. These incapacitations episodes have already been proven to last 6 weeks. h. She is providing documentation pertaining to medical services provided to her after her traumatic back injury and her prior medical separation for lower left leg radiculopathy/lumbar radiculopathy (inclusive of incapacitation episodes). The findings have been directly linked to her traumatic back injury and were not fully or appropriately evaluated. She would like these conditions rated. 3. A review of the applicant’s records and documentation she provided show: a. She served in the Regular Army from 31 March 1989 to 27 September 1992. b. She enlisted in the Texas Army National Guard (TXARNG) on 21 August 1997. She was ordered to active duty for training (ADT) and entered on 11 March 2001. She was released from ADT on 24 May 2001 and was transferred to a Reserve unit. c. She was honorably discharged from the TXARNG on 19 December 2000, to accepted an appointment as a commissioned officer. She was appointed in the TXARNG, as a second lieutenant, on 20 December 2000. d. On 30 October 2002, an LOD investigation determined her back injury and pain to upper/lower back and legs, as a result of a superficial injury to her back, was in the LOD. a. e. On 21 January 2003, she was assigned a physical profile for a degenerative disc and an MEB was initiated. f. On 10 February 2003, the applicant’s company commander advised the President, PEB, that the applicant was limited in her ability to perform her current duty assignment, but not impossible with moderate modifications due to the limits of her injury. g. On 7 August 2003, an MEB determined her diagnosis of degenerative disc disease did not meet medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3-39. She was referred to a PEB. h. The complete facts and circumstances surrounding her medical separation processing are not available for the Board to review. However, her records contain the following: * Physical Disability Separation memorandum, dated 9 October 2003, authorizing her discharge with severance pay * Orders Number D197-2, dated 9 October 2003, discharging her from the ARNG, effective 27 October 2003, for disability 4. On 11 September 2002, the DOD PDRB reviewed her case and found the applicant’s chronic low back pain due to the L5-S1 condition should be rated at 40%. The PDBR recommended modification of her separation to permanent disability retirement, with a 40% disability rating, rather than 10%, effective the date of her prior medical separation. The PDBR noted there were no other conditions within the board’s scope of review for consideration. 5. On 28 September 2012, the DASA, ARBA, directed correction of the applicant’s records according to the PDRB memorandum. 6. Orders Number D312-11, dated 7 November 2012, amended her separation orders show placement on the retired list effective 28 October 2003, with a disability rating of 40% 7. An advisory opinion was received from the Senior Medical Advisor, ARBA, on 6 April 2017, in the processing of this case. The psychologist reviewed the record for alleged medical condition(s) that may have warranted separation through medical channels or medical condition(s) not considered during medical separation processing. The medical advisor reiterated the applicant’s period of military service and stated: * the applicant did not meet medical retention standards for chronic low back pain due to degenerative disc disease * her physical limitations (not meeting retention standards) leading to the MEB, were limited to those related to the lower back * * she met medical retention standards for all other physical, medical, and/or behavioral condition history and/or conditions in accordance with chapter 3, AR 40-501 and following the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) * her medical conditions were duly considered during the medical separation processing 8. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. She did not respond. 9. By regulation, 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. 10. The Fiscal year 2008 National Defense Authorization Act directed all military services, upon application, to review certain separations for medical conditions where the ratings was 20 percent or less and the member did not retire between the period 11 September 2001 and 31 December 2009. This Act directed the establishment of the PDBR, a board in which the Air Force is the Department of Defense lead component and is comprised of medical personnel form the military services. 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 of no evidence of a medical disability or condition which would support a change in the reason for separation, the Board concluded there was no error or injustice which would warrant making a change to the applicant’s record. 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. 5/16/2019 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. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, establishes the Army Integrated 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. 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. 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. The regulation states: a. 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. b. The VA Schedule for Rating Disabilities (VASRD) is 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. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 2. AR 40-501 (Standards of Medical Fitness), 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. Ratings can range from 0% to 100%, rising in increments of 10%. 3. 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. 4. 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 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 1. concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.