ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170000741 APPLICANT REQUESTS: His disability separation be changed to a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant states he believes the record to be in error or unjust because his medical separation should be a medical retirement based on the combined four ratings which would place him above the 30% rating required to be medically retired. He indicates the ratings of lumbar radiculopathy for his right leg and left leg are 10% each, the cyst on his spine is rated 0%, and the lumbar spine degenerative disc disease (DDD) at 20% were all supposed to be rated together (combined). He states that because of his DDD, his left leg has loss of movement and feeling, the conditions should be rated together, and reviewed for medical retirement. 2. A review of the applicant’s service records shows: a. On 7 October 2013, he enlisted in the Regular Army. b. On 4 August 2015, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended for a referral to a physical evaluation board (PEB). Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Lumbosacral DDD X 2. Bilateral patellar tendinopathy X 3. Left shoulder tendinopathy and impingement X 4. Bilateral pes planus X 5. Bilateral lumbar radiculitis X 6. Pre-military migraine headaches X 7. Right greater trochanteric bursitis X 8. Subjective left ear tinnitus X 9. Adjustment disorder with mixed anxiety and depressed mood X c. On 10 August 2015, after having been counseled, the applicant indicated he reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on the DA Form 3947 * the DA Form 3947 included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time d. On 31 August 2015, an informal PEB convened to determine the applicant’s fitness for retention in the Army. (1) The PEB found him physically unfit for his lumbosacral DDD, recommended a rating of 20%, and that his disposition be separation with severance pay. (2) He was counseled, concurred with the PEB findings and recommendations on 1 September 2015, waived his right to a formal hearing, and did not request reconsideration of his Department of Veterans Affairs (VA) ratings. e. The applicant was discharged on 27 November 2015 under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4 (Procedures), due to disability with entitlement to severance pay. 3. On 26 April 2017, the Army Review Boards Agency senior medical advisor rendered an advisory opinion in the processing of this case. He opined: a. The applicant’s medical conditions were duly considered during medical separation processing. The applicant did not meet medical retention standards for lumbosacral DDD in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). a. b. The applicant met medical retention standards for bilateral patellar tendinopathy, left shoulder tendinopathy and impingement, bilateral pes planus, bilateral lumbar radiculitis, pre-military migraine headaches, right greater trochanteric bursitis, subjective left ear tinnitus, and adjustment disorder with mixed anxiety and depressed mood. c. After a comprehensive review of available documentation, the medical advisory found no evidence of a medical disability or condition which would support a change to the character, reason, rated condition(s), fitting/unfitting condition(s), disability determination(s), and/or disability rating for the discharge in this case. d. A review of all available documentation found there was no cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) are recommended. e. The Army has neither the role nor the authority to compensate for progressive or complications of service-connected conditions after separation. That role and authority is granted by Congress to the VA, operating under a different set of laws. 4. On 27 April 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 5. By regulation, 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. BOARD DISCUSSION: After review of the application and all evidence, the board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The medical advisory official recommended disapproval of the applicant’s request. He was provided the opportunity to rebut; however, he did not respond. The Board agreed his disability percentage given at the time of his separation was legitimately provided. Based upon the preponderance of evidence, the Board concluded there was no error or injustice in this case, and recommended denial of the requested relief. 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. 5/31/2019 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. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 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. a. //NOTHING FOLLOWS//