IN THE CASE OF: BOARD DATE: 4 February 2020 DOCKET NUMBER: AR20170011972 APPLICANT REQUESTS: Reconsideration of his previous request for a change of his discharge for disability with severance pay to a disability retirement. As new issues, the applicant requests reexamination of his lower back condition by a Medical Evaluation Board (MEB) and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Power of Attorney * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) service-connected disability compensation decision letter, dated 14 June 2002 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * line of duty (LOD) investigation approval memorandum, dated 28 August 2000 * MEB Narrative Summary (NARSUM), dated 23 November 1999 * MEB NARSUM, dated 8 February 2000 * Addendum to MEB NARSUM, dated 24 July 2000 * applicant's appeal to MEB * memorandum, dated 21 September 2000, MEB for [applicant] * Standard Form 93 (Report of Medical History), dated 7 June 2000 * DA Form 3349 (Physical Profile), dated 6 October 1999 * memorandum, dated 1 September 2000, subject: Commander's Evaluation and Notification for MEB Proceedings * memorandum, dated 28 August 2000, subject: Lack of Physical Fitness Record * Standard Form 600 (Chronological Record of Medical Care) * 15 pages of service medical records FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090008610 on 2 February 2010. 3. The applicant states: * the MEB identified his torn anterior cruciate ligament (ACL) left knee, right wrist, and left pectoralis tear * his ACL tear was underrated * his right wrist and left pectoralis were unfitting given his military occupational specialty (MOS) as an aircraft mechanic * he was on a permanent profile for these conditions, he was unable to participate in physical training (PT), or effectively perform his MOS; these factors were not previously considered * his lower back condition was observed on the exam but the MEB failed to opine or refer it to the PEB; it should have been examined by the MEB * his petition is based on error and injustice * he asks that the Board consider his application in the interest of justice * although he is outside the three years, he took advantage of the passage of time to get a more accurate assessment 4. Counsel states: a. The applicant had multiple unfitting medical conditions incurred in service at the time of discharge. The preponderance of the evidence demonstrated that these physical conditions significantly interfered with his ability to perform the duties of his MOS and grade. The conditions were at least 40 percent disabling warranting permanent disability retirement. b. They respectfully contend that, in accordance with Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) and AR 40-501 (Standards of Medical Fitness), the applicant should have been medically retired due to the severity of his conditions at the time of his separation with severance pay. It was both an error and complete injustice for the U.S. Army to discharge him with the three conditions addressed by the MEB but refuse to acknowledge the lifelong effects of these conditions that existed at the time of his discharge. As such, they respectfully and humbly request that this honorable Board grant the aforementioned relief to correct the grave injustice that has occurred. c. It was both an error and injustice for the informal PEB to underrate the applicant's left knee instability, status post anterior cruciate ligament reconstruction (left knee torn ACL) and for the PEB to completely disregard the right scaphoid nonunion and left pectoralis major tear. This petition for upgrade is based on new and material evidence. d. The separation narrative assigned to the applicant was both an error and an injustice, which this honorable Board is vested with the power to remedy. His conditions are both service-connected and medically unfitting. He has exhausted all administrative remedies available to him, and the ABCMR is the only agency vested with the authority to grant the relief requested herein. His petition is not within the statutory limits however, in the interest of justice, they respectfully request that the Board review this application as the ABCMR is the only agency with the authority to grant the relief requested herein. e. The applicant received disability severance pay at 20 percent for the torn ACL in his left knee. The records reflect that he sustained the injury to his knee while performing PT. Following the injury, he underwent conservative nonoperative treatment. Noting no improvement over the following months, he underwent an ACL reconstruction with micro fracture of his osteochondral lesion. His ACL did not improve. He continued to experience pain and instability in his knee while serving honorably and diligently on active duty. This severity of his knee pain was problematic because his MOS required him to crawl underneath and around aircraft. He also needed the ability to lift heavy objects in the standing, kneeling, and squatting position. However, he was unable to do these tasks with the limitation of his left knee. The MEB physician opined, "The condition of his knee precludes him from the ability to squat and lift and climb around aircraft because of his knee pain and instability. Additionally, it prohibits him from being able to participate in regular Army physical training." The doctor concluded by stating that the applicant will have significant limitations throughout the rest of his life and may require total knee arthroplasty for arthritis. He was referred to the PEB for failing to meet retention criteria according to AR 40-501, paragraph 3. f. On February 8, 2000, an MEB examination was performed on the applicant's nonunion of the right scaphoid (right wrist). He was a right handed weapons mechanic when he reinjured his wrist on 15 October 1999. The original injury existed prior to service, however, it was found to be in the LOD. Thus, the right wrist is service- incurred because it was aggravated by service. The subsequent injury caused the right wrist pain to become more severe. On 16 December 1999, he underwent a distal pole excision surgery. Sadly, the surgery did not improve the pain nor did it improve the function of the wrist. Upon examination, the left wrist outperformed the right wrist in every test. The following conclusions were reached: grip strength on the left was 130 pounds and on the right was 100 pounds; pinch strength on the left was 17 pounds and on the right is 10 pounds; side-to-side pinch on the left was 23 pounds and on the right was 14 pounds. g. The recommendation seemed incongruent in that the doctor opined right wrist surgery may be needed to correct progressive degenerative arthritic changes while simultaneously recommending him to resume full activity. The finding is incompatible with the duties required for his office, grade, rank, or rating. He was a weapons mechanic which involved him working with his hands, which obviously involved his wrists. The results of all the tests showed that his dominant hand lacked the same strength or grip as his subordinate hand. The MEB erred in failing to properly assess the right wrist as unfitting. The VA rated the wrist immediately upon discharge as 10 percent. h. The MEB also examined the applicant's left pectoralis major tear. He injured his pectoralis in June of 1999. Despite rehabilitation for this condition, there was persistent deformity and weakness of his left upper extremity. The MEB examination did not opine on his unfitness for service in regards to this condition. However, based on the characterization that the left chest and shoulder area were deformed and weak, it follows logically that the condition caused him to be unfit. Given his MOS, it is safe to conclude that deformity and weakness could limit his ability to perform his job. i. On 15 September 2000, the applicant appealed the MEB findings. He requested the board examine his back for unfitness. There were ample documented complaints of back pain in his service treatment records (STR) to support this request. However, the board declined to examine his back, stating that the board’s purpose was to rate the left knee. This was a grave error and injustice as AR 635-40 requires all unfitting conditions to be rated for separation. j. Immediately upon discharge, the applicant was service-connected at a rate of 50 percent. He was rated 20 percent for his left pectoralis tear; 10 percent for left knee torn ACL; 10 percent right wrist; 10 percent mechanical low back pain, and 10 percent left ankle. He is currently service-connected at 80 percent. He submits this petition for reconsideration based on new and material evidence. This Board has the authority and ability to correct the error and injustice suffered by him. k. Based on the severity of the three conditions examined by the MEB, the PEB should have determined them to be unfitting and rated them accordingly. Additionally, the MEB physicians had a duty to examine the applicant's low back condition when he complained about back spasms and his STRs contained numerous complaints of low back pain. l. The applicant right wrist, left knee ACL tear, and left pectoralis tear made him unfit for his MOS. The commander’s referral to the MEB explained that the right wrist and left knee precluded him from performing the physical demands required of an Armament Missile Repairer Technician. He was reassigned to the gymnasium because of his limitations. He was also unable to perform "common military tasks" which included the Army Physical Fitness Test (APFT). According to the memorandum from the commander, he could not run or lift more than fifteen pounds. This surely would have precluded him from PT. m. The board was also mandated to analyze the overall effect of the impairments in its determination. It does not appear the board actually did this. If it had, it would have reached the conclusion posited here, which is the combination of these unfitting conditions was at a minimum of 40 percent disabling. First, consider the right wrist condition. His wrist surgery was in October 1999. It was still painful and tender in February 2000. While it is true the Army can only rate a disability for separation, based on the moment it is examined, the service-members input should be considered. He exhibited painful reactions to manipulating his wrist upon examination. Additionally, the physician opined that future surgery is likely. Based on this evidence, the PEB should have considered whether this condition was unfitting for service. Given his MOS as an aircraft mechanic, a finding of unfitness would be certain. n. Next consider the left pectoralis tear. The MEB exam found this condition to have persistent deformity and weakness. The LOD found this condition occurred in October 1999 during upper body strength conditioning. There is no doubt the applicant was restricted from using the full capacity of his left upper extremities in PT or while working. In fact, he was on a permanent profile for the left pectoralis tear. He had not completed an APFT since May 1998, due to profiles. The MEB does an insufficient job of addressing this issue on the exam. The exam states that the condition will be addressed in the rest of the MEB, however, it is not. Thus, there was insufficient evidence for the PEB to fully consider this condition. o. Lastly, the full severity of the left knee was not given proper deference. The condition was a major factor in ending his military career and causing limitations in his civilian life. He continues to seek treatment for this condition. This condition taken in combination of the other unfitting conditions warrant permanent disability retirement. It is the applicant's desire, that this honorable Board will acknowledge the errors committed by the Army and correct them. p. As outlined in AR 40-501, paragraph 3-3d, physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Many of the conditions listed in this chapter fall below retention standards only if the condition has precluded or prevented successful performance of duty. Additionally, AR 40-501, paragraph 3-4 states: Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the service. Physicians are responsible for referring Soldiers with conditions listed below to an MEB. It is critical that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations (emphasis added). The PEB will make the determination of fitness or unfitness. q. In order to comply with this regulation, an MEB exam should have been conducted on the applicant's lower back. The MEB exam noted a history of low back pain. But, for unknown reasons, the MEB did not take up this issue. The applicant brought it to the attention of the MEB in his appeal. They declined to examine the condition, stating that the MEB was only for his knee. This is plain error and in contradiction of the Army regulations cited above. The MEB must ensure the exam is a complete reflection of all of his conditions. There was sufficient evidence in his records, including the permanent profile for his back from October 1999. The VA rated his lower back condition 10 percent effective 1 February 2001. The Army has a duty to examine a condition that has continued to cause the applicant pain and limited civilian employability. This Board has an opportunity to ensure that the Army regulations are adhered to. r. They respectfully request that this honorable Board consider the evidence presented herein regarding the right wrist, left pectoralis tear, lower back pain, and left knee ACL tear, in considering whether to correct the wrongs that have taken place. They respectfully request that this Board grant the applicant a permanent disability retirement. In the alternative, should the Board determine that such a correction is not warranted, they ask that the Board order an MEB for his lower back condition. 5. The applicant enlisted in the Regular Army on 18 August 1993. 6. On 6 October 1999, the applicant was issued a permanent physical profile based on a diagnosis of chronic back pain, status post (s/p) ACL reconstruction with OCD, and left pectoral muscle tear. The physical profile precluded him from running, marching, climbing lifting overhead with left arm more than 15 pounds. 7. An MEB NARSUM, dated November 1999, shows a chief complaint of left knee pain. The NARSUM also shows the applicant was diagnosed with s/p ACL reconstruction, scaphoid nonunion on the right and left pectoralis major tear. The examining physician stated the applicant did not meet the retention criteria in AR 40-501 and recommended his referral to a PEB. 8. A second MEB NARSUM, dated 2 August 2000, shows a chief complaint of nonunion of the right scaphoid and a diagnosis of right scaphoid nonunion with degenerative arthritis of the radial wrist. The examining physician stated the condition was stable with good healing of his wound and anticipated improvement in his symptoms and recommended the applicant's return to full activity as far as his right wrist was concerned. 9. A DA Form 3947 (MEB Proceedings) shows that on 15 June 2000, an MEB diagnosed the applicant with left knee instability s/p ACL reconstruction, scaphoid nonunion of the right, and left pectoralis major tear. The MEB recommended the applicant's referral to a PEB. The DA Form 3947 also shows that on 15 September 2000, the applicant indicated he did not agree with the board's findings and recommendations. 10. The applicant submitted an appeal and stated: It has come to my attention as of 0830, 15 September 2000, that injuries sustained in reference to chronic back problems as mentioned in physical permanent profile is not noted in the MEB Summary Sheet. [On] 5 September 2000, I suffered another attack, this time with muscle spasms to mid and lower back regions. Doctor placed me on 24 hours quarters and five (5) days restriction and prescribed Valium and Tylenol #3. There are sufficient documents in medical records for a query. Please follow through so that the evaluation board may also take this into consideration. 11. On 28 September 2000, an orthopedic surgeon considered the applicant's appeal. The orthopedic surgeon confirmed the original MEB findings and recommendations and stated that the applicant complaint of an episode of muscle spam was not a boardable condition. The reason for his MEB was knee pain. 12. On 2 October 2000, the MEB approving authority considered the applicant's appeal and confirmed the original MEB findings and recommendations. He stated that a review of the applicant's history at the time of the MEB noted no history of recurrent back symptoms/problems. He concurred with the orthopedic surgeon that episodes of back spasms alone were not boardable. 13. On 16 October 2000, a PEB found the applicant physically unfit due to s/p ACL repair and treatment of osteochondritis dissecans lesion of medial femoral condyle, rated 20 percent disabling. The PEB also determined that the applicant's MEB diagnoses of scaphoid nonunion of the right and left pectoralis major tear were not unfitting and therefore not ratable. 14. The PEB recommended a 20 percent disability rating and the applicant's separation with entitlement to severance pay. The applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. 15. The applicant's DD Form 214 shows he was discharged on 1 February 2001 under the provisions of AR 635-40, by reason of disability, severance pay. 16. The applicant provided a letter from the VA pertaining to his service-connected disability payments indicating he was granted service-connected disability compensation, effective 1 March 2001, with combined rating of 40 percent for the following conditions: * s/p left pectoralis tear * left knee torn ACL s/p arthroscopic surgery with reconstruction * right scaphoid nonunion, s/p surgical repair * degenerative joint disease, left ankle 17. On 18 December 2019, the Army Review Boards Agency medical advisor provided an advisory opinion. The advisory found the available documentation showed that the outcome and characterization of the applicant's MEB/PEB and discharge were appropriate. His complaints were appropriately addressed, specifically his low back pain, and were not found to fail retention standards found in AR 40-501. His other conditions were addressed as well during his PEB. No new evidence has been presented with this submission to explain any further deterioration of his health or specific limitations resulting from any of these complaints to warrant a reevaluation of his case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. The applicant and his counsel were provided a copy of the advisory opinion on 13 January 2020 and given an opportunity to submit comments. No response was received. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the statements from the applicant and counsel, the applicant’s record of service, the conditions documented in the records, the MEB and PEB proceedings, the reason for his separation and associated disability rating. The Board considered the VA documents provided by the applicant and the review and conclusions of the ARBA medical advising official. The Board found insufficient evidence to show that the applicant had additional conditions that failed to meet medical retention standards. Based on a preponderance of evidence, the Board determined that the denial of additional conditions shown on the applicant’s MEB/PEB was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 to amend the decision of the ABCMR set forth in Docket Number AR20090008610 on 2 February 2010. 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, 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 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 establishes the Army Physical 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. It provides for MEB's 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 in chapter 3 of Army Regulation 40-501. 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. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 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, 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 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. The regulation states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011972 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1