ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20180002400 APPLICANT REQUESTS: in effect, an increase in his physical evaluation board (PEB) disability rating to qualify for medical retirement by adding additional medical diagnoses that were not considered to be unfitting. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * Medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs Documents FACTS: 1. The applicant states: a. He signed all of the forms throughout the process of the medical evaluation board (MEB) and PEB. Regrettably, he minimized his mental health condition (post-traumatic stress disorder (PTSD)) as long as he could just to stay deployable and served 20 years in the military. The fact is the improvised explosive device (lED) caused more issues than he was willing to admit. After he learned he was not being recommended for retention, he was willing to sign anything placed in front of him in order to get himself and his family back to Wisconsin to be around his support network. He was told by a nurse during the PEB process he should not have agreed to the severance pay because he had other conditions that should have been considered unfitting. At that point it was too late for him to talk with anyone in order to help him at Ft. Drum, NY. He and his family were already set to return to Wisconsin. He understands he signed paperwork agreeing to the severance pay, but after he returned to Wisconsin he was contacted an advocate with the U.S Army Wounded Warrior Program in Wisconsin. After a discussion and review of his information she highly recommended he attempt to request the Army take another look at his discharge and consider his right wrist tendinitis, left leg sciatica, secondary to the lumbar spine, and PTSD as not meeting retention standards. She believed he should have been considered for retirement and not the severance pay. He was then connected with a Dunn County Wisconsin's Veteran Service Officer who reviewed the information and whose thoughts were the same based upon his experience. b. He loved the Army and wanted to complete 20 years of service. Unfortunately, he was injured by an lED that placed him in the position of not being retained. He believes his job performance in the military suffered and that is why he was removed from my military occupational specialty (MOS) and placed as a Platoon Sergeant during the MEB/PEB. His commander did not recommend he be retained. The main reason he is requesting ABCMR change his discharge to retired, due to disability is to protect his wife and children. His mental state during the process was not good due to the issues he has with PTSD, headaches, and memory issues. He believes if the Physical Evaluation Board Liaison Officer (PEBLO) would have sat down with him and his wife, he would have had the support to disagree with the decision to not add the above listed issues to the not meeting retention standards list. 2. On 18 November 2016, the applicant was issued a permanent P3 profile due to lower back injury/pain. 3. A PEB Commander’s Performance and Functional Statement, dated 6 December 2016, indicated, in part, the applicant’s medical conditions/limitations affect unit accomplishing mission and the commander did not recommend retaining him. 4. A MEB found the applicant failed to meet retention standards due to spondylosis of lumbar spine. The MEB recommended referral to a PEB. On 16 February 2017, the applicant agreed with the board’s findings. He indicated he reviewed the MEB packet and read the attached DA Form 3947 (MEB Proceedings), Narrative Summary, and the Physical Profile. He further acknowledged: a. In regards to issues relating to fitness for duty and disability compensation, he understood that the PEB will consider and review only those conditions listed on the MEB. b. The MEB includes all of his current medical conditions and whether or not they meet retention standards. c. The conditions which do not meet retention standards are properly listed on the following documents DA Form 3947; the Narrative Summary; and the physical profile. d. All documents of military medical care in his possession have been provided to the PEBLO for inclusion in his MEB. e. This MEB accurately covers all of his current medical conditions. f. If he did not agree with any of these statements and/or did not agree with the contents of the MEB as reflected in his election at item 24, he had provided all of his disagreements in the attached appeal. 5. An Informal PEB Proceedings which convened on 13 June 2017, found the applicant physically unfit due to spondylosis lumbar spine with a 10 percent disability rating and left leg sciatica with a 10 percent disability rating. The board recommended a 20 percent disability rating and separation with severance pay. The applicant concurred and waived a formal hearing of his case and did not request reconsideration of his VA ratings. The applicant was found fit for the following conditions: * tinnitus * allergic rhinitis * testicular contusion * oligospermia * right wrist shrapnel wound * residual scar * residual tendonitis * carpal; tunnel syndrome, left * cervical spine degenerative disc disease * right foot benign new bone growth * tension headache * occipital neuralgia * lateral epicondylitis, left * fracture of left 5th finger * patellofemoral pain syndrome, bilateral * scar right wrist, scar right foot * PTSD * traumatic brain injury (TBI) 6. On 11 August 2017, the applicant was discharged for physical disability with severance pay. 7. On 3 May 2018, the Army Review Boards Agency (ARBA), medical advisor provided an advisory opinion. The ARBA medical advisor concluded the applicant did not meet the medical retention standards that were applicable to the applicant’s era of service; however, the disqualifying condition, per records was Spondylosis of the Lumbar Spine. The applicant’s PTSD and TBI were found by the PEB to meet retention standards. The applicant’s medical conditions were duly considered during medical separation processing. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. On 7 May 2018, the applicant was provided a copy of the medical advisory for comment or rebuttal. He did not respond. 9. 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. 10. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for the Integrated Disability Evaluation System (IDES). The IDES is the joint Department of Defense (DOD) - VA process by DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability 11. 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. 12. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, his profile that started disability processing proceedings, the results of the MEB and PEB and the determination of the unfitting condition that led to his discharge for disability with separation pay. The Board considered the conclusions of the medical advising official and concurred that his PTSD and TBI met medical retention standards and that there was insufficient evidence to conclude that any of the applicant’s other stated conditions were unfitting. Based on a preponderance of evidence, the Board determine that the reason for the applicant’s separation was not 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 :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, 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. 2. 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. 3. 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. 4. DTM 11-015, 19 December 2011, provides for the Integrated Disability Evaluation System (IDES). The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability. a. Appendix 10 to Attachment 4 states within 15 days of receiving proposed disability ratings from the (D-RAS), the PEB would apply the ratings using the diagnostic code(s) provided by the D-RAS to the Service member’s unfitting conditions and publish the disposition recommendation. b. Appendix 11 to Attachment 4 (D-RAS Procedures), in effect at the time, stated: 1) Upon receipt of the case files (request for rating and service treatment record) of unfit Service members from PEB administration, the D-RAS determines whether the VA C&P disability examination report is adequate for disability rating purposes. 2) The D-RAS will rate the service member’s referred and claimed service- connected disabilities and provide a proposed rating decision, with rationale, to the PEB within 15 days of notification by the PEB administration staff that a service member is unfit. 3) Once the D-RAS has rated all unfitting conditions, the D-RAS will provide their proposed rating decision to the PEB. The D-RAS will defer rating all other conditions that require additional claim development in accordance with VA business practices and regulations. 4) Within 15 days of receipt from the PEB of a service member’s written request for a one-time reconsideration of a proposed disability evaluation assigned for unfitting conditions by VA, the VA decision review officer will consider any new documentation or information from the Service member and provide the PEB updated proposed ratings, if any. 5) This is a one-time “request for reconsideration” of the rating(s) from the D- RAS. Subsequent appeals of ratings to VA must occur when the Service member has separated, attained veteran status, and has been formally notified of the rating decision.