ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20170007761 APPLICANT REQUESTS: a review of his disability processing to include his medical conditions of intractable migraine, cervical radiculopathy, neck pain, sinusitis, coronary artery stenting, skin disease-melasma, right and left upper for rating. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 there is no rating for conditions on disability 5 of his DA Form 199 (Informal Physical Evaluation Board (PEB)) or a low rating. These conditions prevent him from having a stable quality of life. He requests that the Board take another look at the rating and note that the following conditions were not warranted separation through medical channels or were not considered during medical separation processing but should have been: * Intractable migraine * Cervical radiculopathy * Neck pain * Sinusitis * Coronary artery stenting * Skin disease-melasma * Right and left upper and lower tingling numbness * Lumbar spine pain * Skin disease 3. The applicant provides a self-authored letter that states he requests that the Board take another look at his medical rating with missing medical conditions such as back issue, skin disease, Sinusitis Chronic, and Migraine headaches. His heart condition, left and right knee condition have worsened since he was medically retired on 22 November 2015. Since he has been retired, he has been under constant pain and prescribed pain medication, to the point where he cannot maintain a reasonable quality of life. He has provided doctor and specialist contact information. He also received a letter from the Army Review Board (ARBA) telling the applicant to submit his request through ABCMR, dated 1 September 2017. In addition, case AR20170018629 is currently open and address the same issues. 4. A review of the applicant’s records show: a. Having had prior service in the Regular Army and the U.S. Army Reserve (USAR), he reenlisted in the USAR on 18 July 1992. b. On 20 July 2000, he received a Notification of Eligibility for Retired at Age 60 (20- Year Letter). c. On 15 September 2003 he reenlisted in the USAR for an indefinite period of enlistment. d. He entered active duty on 4 April 2004. He served in military occupational specialty 42A (Human Resources Specialist) and attained the rank/grade of master sergeant/E-8. e. DA Form 1506 dated 21 December 2011 shows computation of his length of service. f. On 4 May 2015, a medical evaluation board convened and found the applicant with the below conditions that either met or failed retention standards. The MEB referred him to a physical evaluation board (PEB). He was counseled and agreed. (1) Failed retention standards: History of coronary artery disease with continued complaints of chest pain, Left Knee Osteoarthritis, Right Knee Osteoarthritis, Left Ankle Osteoarthritis, and Right Ankle Osteoarthritis. (2) Met retention standards: Dry eye syndrome, both eyes, with epiphora and decreased tear breakup time; Tinnitus; Right ear hearing loss; Left ear hearing loss; Conjunctival melanosis, both eyes; Renal insufficiency (post op Coronary Artery Bypass Graft); Chest scars; Right inner leg scar; Left inner leg scar; Lumbar strain with residuals of pain and limited Range of Motion; Migraines headaches (Chronic- Uncontrolled); Gastroesophageal Reflux Disease; Obstructive Sleep apnea; Chronic Sinusitis (Maxillary); Other Specified Depressive Disorder, with Anxious Distress; Degenerative Disc disease- (Moderate) Cervical (C5-C6) with residuals of pain and limited Range of Motion; Chest Wall (Left Lateral Mid Axillary Line) Lipoma with Positional Discomfort; and Post Procedure Scar Left Neck. g. On 7 August 2015, the informal physical evaluation board (PEB) found him physically unfit and recommended a combined rating of 80% with a permanent disposition disability retirement. The applicant concurred with the findings, did not request a reconsideration of his veteran affairs rating, and waived a formal hearing. He was rated for: * Coronary Artery Disease 60% * Right Knee Joint Osteoarthritis with knee Strain 10% * Left Ankle Degenerative Arthritis 10% * Left knee join osteoarthritis with anterior cruciate ligament tear and instability- impairment 10% * ACL tear 10% * Right ankle lateral collateral ligament sprain 0% h. On 22 November 2015, he was honorably retired from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired under the provisions of AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4 (disability, permanent enhanced). i. A DD Form 215 (Correction to DD Form 214, was issued with changes in Item 12d (total prior active service) and Item 12a (date entered active duty). He was on active duty from 4 April 2004 until 22 November 2015 with 22 years, and 14 days of inactive service time. 5. On 12 February 2018 the Army Review Boards Agency medical advisor reviewed his case and rendered an advisory opinion wherein he stated that after review of the available documentation, there was no evidence of a medical disability or condition which would support a change to the character, reason, rated condition(s), disability determination, and/or disability rating(s) for the discharge of this case. After a comprehensive review of the medical documentation the ARBA Medical Advisor states that there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions (back, skin, sinusitis, heart, knees, and migraines) and so no additional disability rating(s) are recommended. The Army has neither the role nor the authority to compensate for progression or complications of service- connected conditions after separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The applicant received a copy of the medical advisory opinion and was afforded an opportunity to submit a rebuttal but he did not do so. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 5. By law, DOD policy, and Army regulation, all relevant evidence will be considered in assessing Service member fitness, including the circumstances of referral. To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness. A factual finding that a Service member is unfit because of physical disability depends on the evidence that is available to support that finding. AR 635-40 is the controlling regulation that 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. 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 that there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, as well as the lack of rebuttal to those findings submitted by the applicant, the Board concluded that there was insufficient evidence to make 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. 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. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in AR 40-501, which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 3. AR 40-501 (Standards of Medical Fitness), states that individuals evaluated under the medical fitness standards contained in this regulation will be reported as medically acceptable for those who meet the medical fitness standard or are medically unacceptable by the reason of medical unfitness for those who possess any one or more of the medical conditions or physical defects listed in this regulation. ABCMR Record of Proceedings (cont) AR20170007761 5 1