ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20170015018 APPLICANT REQUESTS: in effect, an increase in his permanent disability rating from 40 percent to a higher percentage of 100 percent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form 619 (Radiological Consultation Request/Report), dated 24 March 1987 * Optional Form 275 (Medical Record Report), dated 8 April 1987 * DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated 5 June 1987 * Medical Evaluation Board (MEB) Narrative Summary 5 pages, undated * Standard Form 600 (Chronological Record of Medical Care), dated 9 June 1987 * DD Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 28 August 1987 * U.S. Army Military Personnel Center Disability Retirement Letter (Applicant), dated 28 October 1987 * Orders D212-16, dated 30 October 1987 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 November 1987 * DA Form 3713 (Data for Retired Pay), dated 30 October 1987 FACTS: 1. The applicant did not file within the 3 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, in effect, he believes the Department of the Army (DA) unjustly rated him during his PEB. He states he received a letter from DA showing he was rated with a 40 percent disabling rating and that if he choose to rebut the disabling rating, he could receive a lower percentage rating. He feels the U.S. Army did not fairly rate him. He recently learned he could appeal the PEB decision to the Army Review Boards Agency. 3. With prior enlisted service, the applicant enlisted in the Regular Army on 9 June 1971. He reenlisted on 5 September 1975 and again on 5 November 1981. During his military career he held four military occupational specialties (MOS) including Bradley fighting vehicle systems mechanic, transport operations, vehicle mechanic and recovery specialist. He served in the Republic of Vietnam from 3 June 1969 to 2 June 1970 where he received the Bronze Star Medal with "V" Device and the Bronze Star Medal. 4. On 10 April 1984, a Medical Corps officer from a regional military medical center informed the applicant’s commander that the applicant should be reclassified to a new MOS. The medical provider stated the applicant could no longer perform his duties as a Bradley fighting vehicle systems mechanic based on his medical condition of chondromalacic change of the lateral tibial plateau following a repair of his medial meniscus. He recommended the applicant be reassigned to duties in an administrative MOS which did not involve prolonged running, marching or standing or lifting over 30 pounds. He concluded by stating the applicant would continue to have difficulty with knee pain, periodic swelling and a lack of trust of the knee which will worsen with physical activity. 5. On 14 June 1984, the applicant signed a request for MOS reclassification based on the fact he had a permanent physical profile that disqualified him from his present MOS. He declined to appear before a reclassification board. He further stated he did not consent to involuntary reclassification action. He requested consideration of three administrative MOSs. 6. The applicant underwent a MOS/Medical Retention Board on 22 October 1984. He was present and appeared before the board because he had a permanent "3" profile due to his knees (lower extremities). The board found he was not performing in his primary MOS, that his current medical condition prevented him from performing the full range of physical duties of his primary MOS, and his condition prevented him from performing his primary MOS in a worldwide field environment. The board determined the applicant should be reclassified. On 5 April 1985, the approval authority approved the board’s findings and recommendation to refer the applicant's file into the Army’s MOS reclassification system. 7. On 17 September 1985, his regional personnel center prepared a memorandum for the U.S. Army Military Personnel Center (USAMILPERCEN) requesting he be reclassified based on the MOS/Medical Retention Board’s recommendation. It was stated he met the requirements for three MOS with all listed as shortage MOSs or balanced MOSs according to the skill alignment module listings. 8. On 15 November 1985, USAMILPERCEN denied the request to reclassify the applicant’s MOS. It stated the applicant’s physical limitations were too restrictive for reclassification to any MOS. He also was precluded from performing in his secondary MOS. In coordination with the Surgeon General, it was determined the applicant’s DA Form 3349 (Physical Profile) did not fully reflect all of his profile limitations. They requested a review. Concurrently, it was determined he would be referred to the U.S. Army Disability Evaluation System (DES) for evaluation and disposition. The applicant and his chain of command were allowed an opportunity to provide additional evidence before his record would be referred to the DES. 9. On 17 April 1986, USAMILPERCEN published a letter stating the applicant would be reassigned to Fort Irwin, California from U.S. Armed Forces – Europe. 10. Orders 98-9, dated 21 May 1986 reassigned (diverted) the applicant from going to Fort Hood, Texas to Fort Irwin, CA. 11. At Fort Irwin another MOS/Medical Retention Board evaluated his ability to perform the physical requirements of his primary MOS on or about 12 August 1986. This board determined after reviewing all available evidence that the applicant would remain in his primary MOS and would be placed on probation for 6 months. The purpose was to allow the applicant’s chain of command an opportunity for further evaluation. The board medical advisor opined that additional physical therapy would allow the applicant an opportunity to perform all physical requirements of his primary MOS. His chain of command was directed to coordinate his physical therapy with the local military medical treatment facility. 12. On 15 August 1986, a new DA Form 3349 was prepared by his profiling officer. He received a permanent "P3" rating for his lower extremities with the physical defect noted as left knee arthritis. His limitations included no climbing on vehicles, no jumping, no crawling, no stooping, and no mandatory strenuous physical activity. His alternate physical fitness test was to run at his own pace. It further recommended he should have a sedentary job. His company commander noted the applicant could not perform the supervisory duties of his MOS within the limitations of the physical profile. 13. On 22 January 1987, the applicant underwent another MOS/Medical Retention Board that determined the applicant’s profile restrictions were too limiting to preclude his retraining into any MOS in which the Army had a requirement. By letter, dated 27 January 1987, he was directed to undergo an MEB. His commander was further directed to initiate immediate coordination with the military medical treatment facility. Additional directives were the applicant’s record would go before a PEB regardless of the findings of the MEB. 14. The applicant provided and his record contained a report of his hospitalization. On or about 23 March 1987 he was admitted to the hospital for abdominal pain. He was discharged on 2 April 1987. The medical notes show he was admitted for a workup of a possible pancreatic retroperitoneal mass with his serum amylase and urinary amylase within normal limits. He was discharged to his home with no limitations and a return to duty without restrictions. The medical diagnosis was chronic pancreatitis. 15. The applicant provided and his record contained a Standard Form 600 (Chronological Record of Medical Care), dated 9 June 1987, wherein he underwent an endoscopic retrograde cholangiopancreatograph. The conclusion was he had a normal biliary system, a normal pancreatic duct and multiple pancreatic or left hepatic calcifications. The doctor noted he had a discussion with an Agent Orange Clinic in Virginia who was researching the impact of Agent Orange exposure on the pancreas. At the time, Agent Orange was not implicated in the onset of chronic pancreatitis. 16. On 10 August 1987, a representative at Fort Irwin, California, sent a request to the USAMILPERCEN asking for the applicant’s line of duty determination for his injury occurring on 3 August 1982 while he was stationed at Fort Lewis, Washington. The message stated the line of duty determination was needed for physical disability processing. 17. On 14 August 1987, a medical provider prepared the applicant’s medical board narrative summary wherein his chief complaint was chronic left knee pain with instability. He initially injured his knee in 1982 when he suffered trauma to the left knee while stepping off a truck onto a tank. He suffered a severe hyperextension injury of the joint. The impression was a possible meniscal injury. An arthroscopy of the left knee with an arthrotomy repair of the left medial meniscal tear was performed. The specifics were a peripheral tear of the left medial meniscus, grade I chondromalacia of the medial and lateral patellar facets and chondromalacia of the medial femoral condyle. His record contains a detailed history of treatment for his left knee injury including physical therapy following three surgeries. He received a permanent profile for his lower extremities of "P3" with multiple restrictions and authorization to run at his own pace. As of 15 August 1987 his diagnoses were: * left knee degenerative joint disease and chondromalacia patella * right knee pain secondary to stress and overuse secondary to long history of painful left knee * chronic abdominal pain felt to be secondary to chronic pancreatitis; possible Agent Orange implication to pancreatitis * chronic skin rash, flacking, cracking and bleeding, with uncertain etiology uncertain * essential hypertension, mild * mild left sensory neural high frequency hearing loss * migraine headaches * insomnia, felt to be secondary to mild situational depression secondary to above physical ailments 18. On 24 August 1987, the applicant’s records underwent an MEB. He was present during the MEB and presented views on his own behalf. After consideration of clinical records, laboratory findings, and physical examination, the board found the applicant had the following medical diagnoses of record on his MEB Proceedings: * left knee degenerative joint disease and chondromalacia patella * right knee secondary to stress and overuse secondary to long history of painful left knee * chronic abdominal pain felt to be secondary pancreatitis; possible Agent Orange implication in pancreatitis * chronic skin rash, flaking and bleeding etiology uncertain * essential hypertension, mild * mild left sensory neural high frequency hearing loss * migraine headaches * insomnia, felt to be secondary to mild situational depression 19. The MEB recommend his record be referred to a PEB because he no longer met the physical fitness standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. It was further felt he could not continue on active duty with his limiting profile restrictions. 20. On 28 August 1987, an informal PEB met and recorded its findings on DA Form 199. It found only the following two conditions unfitting and assigned a disability rating as per the Department of Veterans Affairs Ratings and Disabilities (VASRD). * chronic pancreatitis secondary to alcohol abuse, with pancreatic insufficiency; with hiatal hernia; rated as moderately severe at 30 percent * status post repeated surgery of left knee for medial meniscal tear, chondromalacia; rated at 10 percent 21. The PEB found the applicant was unfit and recommended a combined rating of 40 percent with permanent disability retirement from the service. The PEB found his disabilities did result from combat related injuries as defined by Title 26, USC, section 104. The other medical conditions documented by the MEB were not found to be unfitting; therefore, they were not rated by the PEB. 22. In September 1987, the applicant was counseled and he did not concur with the findings of the PEB. He demanded a formal hearing with a personal appearance. The applicant sought legal counsel as authorized by regulation. There is a DA Form 751 (Telephone or Verbal Conversation Record) filed in his record showing the applicant, his legal counsel and another official conversed by telephone. It shows the applicant now agreed with his informal PEB findings and asked for his request for a formal PEB hearing be withdrawn. 23. On 28 October 1987 the USAMILPERCEN issued a memorandum to the applicant informing him he would be retired by reason of physical disability. Orders D212-16 were issued on 30 October 1987 effectively retiring the applicant on 20 November 1987 with placement on the retired list effective 21 November 1987. He was retired in the rank and grade of sergeant first class/pay grade E-7 with a 40 percent disability rating. 24. In accordance with Orders D212-16 the applicant was honorably retired effective 20 November 1987. He was issued a DD Form 214 showing he was permanently physically disabled and the separation authority was Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(1). For basic pay purposes he had more than 19 years of service. 25. The applicant provided the following evidence in support of his application. A DA Form 3713 (Data for Retired Pay) showing he applied for retired pay in accordance with his medical separation orders. His Title 10, U.S. Code, section 1201 years of service were 18 years, 2 months and 5 days. His percentage of disability is in compliance with his PEB and medical separation orders at 40 percent. He also provided records associated with his medical separation processing that were contained in his military personnel record. 26. On 14 December 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and thus 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. The applicant is currently 100 percent service-connected disabled by the VA. The medical advisor noted that more than 2,500 medical documents were on file with the VA; however, not all were reviewed. The pertinent military treatment service records were all reviewed. He further noted the applicant receives combat related special compensation rated at 100 percent as of 23 July 2008. A copy of the complete medical advisory was provided to the Board for their review and consideration. 27. The applicant was provided a copy of the advisory opinion on 19 December 2017 and given an opportunity to submit comments. He responded by asking if the Board had received his VA medical records. He feels that his VA records from two locations are pertinent to the review of his application. (The medical advisory states more than 2,500 documents were available for review. However, these documents are post- service. The applicant was retired under the provisions of Title 10, U.S. Code, section 1201 while the VA operates under Title 38, USC.) BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and a medical advisory opinion. The Board considered the applicant’s statement, his record of service, the records of medical evaluations and board proceedings, the reason for his separation and the rating he was assigned for those conditions determined to be unfitting for continued service. The Board considered the review and conclusions of the medical advising official. The Board considered the difference in the rating assigned as unfitting and the criteria used by the VA to assign disability ratings post-service. The Board concurred with the advising official, finding there was insufficient evidence to determine that the conditions found to be unfitting and the ratings for those conditions upon his separation from active duty were in error or unjust. 2. 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 :XXX :XXX :XXX 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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 Department of Defense (DOD) Directive 1332.18 (Disability Evaluation System) 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. c. 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. These ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). (1) 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 their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. (2) 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. d. 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. The percentage assigned to a medical defect or condition is the disability rating. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permit 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.) ABCMR Record of Proceedings (cont) AR20170015018 11 1