ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  15 April 2019

	DOCKET NUMBER:  AR20170011490


APPLICANT REQUESTS:  an increase to the physical disability rating assessed by the 
Physical Evaluation Board (PEB), through the addition of a mental health condition not 
previously considered.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Army Review Boards Agency (ARBA) letter
*	95 pages of Service Medical Records
*	Medical Evaluation Board (MEB) Narrative Summary (NARSUM)
*	DA Form 3947 (MEB Proceedings)
*	DA Form 199 (PEB Proceedings)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Department of Veterans Affairs (VA) Rating Decision
*	VA Eligibility Verification Data
*	VA Compensation and Pension Examination (C&P)
*	VA letter

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:

	a.  He would like to have major depressive disorder added to the disabilities that 
were evaluated by the PEB, for reconsideration of a higher disability percentage.  His 
mental health records and supporting evidence should be used in the reevaluation 
showing he had post-traumatic stress disorder (PTSD) prior to service that was 
aggravated and worsened by the end of his service in 2003.

	b.  He was told to not add his mental health condition to the PEB for evaluation.  
When he wanted to appeal the decision, he was told to sign the document or face 
disciplinary actions from the chain of command.  He was told to not worry because the 
VA would take care of him.

	c.  Being unable to turn wrenches because of his wrist added to the mental anguish 
of having to deal with sergeants who couldn’t count on him to do the needed work on 
vehicles.  Not being able to bend over and life and carry around his over 45 pound tool 
box was met with humiliating, and embarrassing remarks that singled him out in a 
harassing manner for being unable to help the team.  All of this because he could not 
fulfill his duty in as a wheeled vehicle mechanic and vehicle recovery specialist.

	d.  He struggled even more on some days than others to keep it together, 
desperately trying to keep himself in working condition.  One day his frustration, anxiety, 
and suicidal thoughts all came out in a company formation, where he broke down.  That 
is when he asked his sergeant first class for some help, telling him he wasn’t going to 
make it.  The next day he was sent to the Mental Health clinic.

	e.  He was not previously aware he could rectify the situation after he was 
discharged.  He was told the VA would take care of him and he only just found out he 
could apply to the Board to correct his records.

3.  The applicant enlisted in the Regular Army on 13 April 2000.

4.  An MEB, dated 15 April 2003 states:

	a.  The applicant was referred to an MEB.  His chief complaint was bilateral knee 
pain, the left greater than the right.

	b.  His other considered conditions were chronic left shoulder bursitis, refractory to 
physical therapy, status post steroid injection times one; chronic mechanical low back 
pain, nonradicular, and de Quervain tenosynovitis (inflammation of two tendons that 
control movement of the thumb).

	c.  His bilateral knee pain started approximately 8 months ago after an 11 mile run 
with his battery.  He was evaluated by Orthopedic Surgery on 26 March 2003 and the 
impression was his knee pain would not benefit from surgery.

	d.  He stated his left shoulder bursitis started in Basic Combat Training after falling 
on an obstacle course.  He has been evaluated and treated with physical therapy 
aggressively without improvement in his shoulder pain.

	e.  His chronic mechanical low back pain without radicular symptoms, was treated 
with refractory to chiropractic care, nonsteroidal anti-inflammatories, activity modification 
and rest.

	f.  He was recently diagnosed with de Quervain tenosynovitis and was wearing a 
case on the left arm in an attempt to improve his symptoms.  An electromyogram (EMG) 
was negative for radicular nerve impingement or difficulties with the same.  There was 
no significant spinal cord stenosis or compression and no disk protrusion.

	g.  Presumably the applicant hand wrote on the NARSUM he was diagnosed with 
lumbar stenosis of the spine on 16 May 2003

5.  A DA Form 3947, dated 10 May 2003, shows an MEB convened on the date of the 
form to evaluate the applicant and referred him to a PEB for the following medical 
conditions incurred while entitled to base pay:

*	bilateral retropatellar pain syndrome
*	left, chronic shoulder bursitis
*	chronic mechanical low back pain
*	de Quervain tenosynovitis

6.  The applicant provided numerous service medical records, among them an 
outpatient clinic note, dated 16 May 2003 he wanted to draw attention to.  It indicated he 
received medical care for an evaluation of possible sarcoidosis (chronic disease 
characterized by the enlargement of lymph nodes).  Other noted medical concerns 
entailed Raynaud’s phenomenon (medical condition in which spasm of arteries cause 
episodes of reduced blood flow, typically to the fingers or less commonly toes), chronic 
back pain, carpal tunnel syndrome, and left shoulder tendonitis.  No mental or 
behavioral health concerns were noted.

7.  A DA Form 199, shows a PEB convened on 13 June 2003 and considered the 
following disabilities and made the following determinations:

*	chronic pain bilateral knees, due to retropatellar pain syndrome, left shoulder, 
due to bursitis, chronic, mechanical low back pain and left wrist, due to 
de Quervain’s Tenosynovitis
*	all disabilities were rated as minimal/occasional 
*	based on a review of the objective medical evidence of record, the findings of the 
PEB are the applicant’s medical and physical impairment prevent reasonable 
performance of duties by grade and military specialty
*	the PEB found the applicant physically unfit and recommended a combined 
rating of 0 percent and separation with severance pay
*	the applicant concurred with the findings and recommendations and waived a 
formal hearing of his case

8.  His DD Form 214 shows he was honorably discharged due to disability with 
severance pay on 4 September 2003, after 3 years, 4 months, and 22 days of net active 
service this period.

9.  A VA Rating Decision, dated 16 November 2007, shows he received a combined 
evaluation for compensation of 100 percent for the following service-connected 
disabilities from 5 September 2003:

*	major depressive disorder associated with left shoulder impingement, 100 
percent
*	left shoulder impingement, 20 percent
*	mechanical lumbar strain, 20 percent
*	left knee strain, patellofemoral syndrome, 10 percent
*	right knee strain, patellofemoral syndrome, 10 percent
*	bilateral tinnitus, 10 percent
*	tension headaches, 10 percent
*	carpal tunnel entrapment, right wrist, 10 percent
*	allergic rhinitis, 0 percent
*	cold injury residuals, right great toe, 0 percent
*	hemorrhoids, 0 percent
*	residuals, cold injury, hands and feet, 0 percent
*	residual scar, upper lip, 0 percent
*	pseudofolliculitis barbae (razor bumps), 0 percent
*	temporomandibular joint disease (TMJ), 0 percent

10.  A VA C&P Examination, signed by the staff psychologist on 14 January 2008, 
shows a C&P Examination Mental Disorders (Except PTSD and Eating Disorders) was 
conducted on 6 November 2007.  It shows the following:

*	he receives ongoing individual therapy and antidepressant medication treatment 
at the Minneapolis VA Medical Center (MVAMC) for a mental disorder
*	he was hospitalized overnight at the MVAMC in August 2004 due to “breaking 
down, not able to control myself”
*	he had not worked since 2004 due to an inability to cope with others as well as 
being unable to lift heavy objects
*	he was diagnosed with major depressive disorder, recurrent, moderate; PTSD, 
chronic; impulse control disorder, not otherwise specified; and personality 
disorder, not otherwise specified, chronic mental illness; chronic health problems; 
unemployment; and marital discord

11.  On 19 April 2018, the Army Review Boards Agency (ARBA) clinical psychologist 
provided an advisory opinion.  The ARBA clinical psychologist concluded there is 
insufficient cause to recommend a change in the PEB fitness determination and thus no 
additional disability rating(s) are recommended.  There is no evidence of a behavioral 
health condition at the time of his service that warranted referral to an MEB. The Army 
has neither the role nor the authority to compensate for progression or complications of 
service-connected conditions after separation.  A copy of the complete medical advisory 
was provided to the Board for their review and consideration.

12.  The applicant was provided a copy of the advisory opinion and given an opportunity 
to submit comments.  He responded on 7 May 2018, stating:

	a.  The major reason he has the problems he now does with his left shoulder is the 
injuries he sustained during bayonet training, Pugil stick fighting and that constant low 
crawling movement through the obstacle course with the bayonet and the weapon.  This 
is why he initially had to seek medical attention during Basic Combat Training at Fort 
Jackson, SC.

	b.  He details the way he had to hold the rifle which caused sharp pains through his 
left shoulder and both wrists.  The pain worsened as time passed with the various 
physical activities they participated in, but the drill instructors singled him out, telling him 
that if he couldn’t continue with the commands of the exercises he would need to go to 
sick call and get out of the Army.  Nobody believed him that he was injured.  They all 
thought he was lying and that he was weak.  He was never believed until his Magnetic 
Resonance Imaging came back and he had proof of his injuries and the cause for his 
inability to perform.  He included medical documents showing he was diagnosed with 
sarcoidosis by his physician in May 2013.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the Army 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 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.  Paragraph 3-2 states disability compensation is 
not an entitlement acquired by reason of 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 military 
service.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award 
compensation for disabilities that were incurred in or aggravated by active military 
service.  However, an award of a higher VA rating does not establish 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 VA does not have the 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.  These two government 
agencies operate under different policies.  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.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not 
warranted.  The applicant’s contentions, medical concerns, the medical advisory opinion 
and his rebuttal were carefully considered.  He requests to add behavioral-health 
concerns to his fitness determination and receive a higher disability percentage rating.  
The evidence of record does not support his reported any behavioral-health concerns 
during his period of service.  The medical advisory official concluded the applicant did 
not have behavioral-health concerns that would have been boardable during the period 
of his service.  The applicant provided a rebuttal that does not show he reported 
behavioral-health concerns nor received a diagnosis or treatment for them.  The Board 
agreed there was no error or injustice in this case, and there is insufficient evidence to 
grant 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.


		  
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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.  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 U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system 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 Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and 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 or not 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 either are 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.

	c.  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.  
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.

3.  Army Regulation 635-40 establishes the Army 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 
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.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by 
reason of 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 military service.

	b.  Paragraph 3-4 states 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:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation 
for disabilities that were incurred in or aggravated by active military service.  However, 
an award of a higher VA rating does not establish 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 VA does not 
have the 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.  These two government agencies operate under different policies.  
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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170011490

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