IN THE CASE OF:  

		BOARD DATE:  11 August 2020

		DOCKET NUMBER:  AR20180006937


APPLICANT REQUESTS:  Retirement due to physical disability instead of discharge
with severance pay.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Department of Veterans Affairs (VA) Rating Decision, dated 4 December 2018

FACTS:

1.  The applicant states the Physical Evaluation Board (PEB)/Integrated Disability 
Evaluation System (IDES) failed to address her upper back, to include her neck, as 
conditions not meeting retention standards.  Her conditions of persistent depressive 
disorder and bilateral plantar fasciitis also do not meet retention standards in 
accordance with Army Regulation 40-501 (Standards of Medical Fitness).

2.  The applicant enlisted in the Regular Army on 9 July 2013.  

3.  On 14 September 2017, a Formal PEB found the applicant unfit for further military 
service due to a diagnosis of thoracolumbar strain.  The PEB recommended a 
20 percent disability rating and the applicant's separation with severance pay.  

4.  The PEB found the applicant fit for the following medical conditions:

*	persistent depressive disorder with anxious distress
*	asthma, mild
*	right knee strain
*	bilateral plantar fasciitis
*	cervical strain
*	tension headaches

5.  The applicant's DA Form 199-1 (Formal PEB Proceedings) contains the following 
statements in section VII (Instructions and Advisory Statements):

	a.  During formal proceedings, the PEB reevaluated all available medical and 
performance records to include sworn testimony and exhibits provided by the Soldier.

	b.  This case was adjudicated as part of the IDES.

	c.  As documented in the VA memorandum dated 22 May 2017, the VA determined 
the specific VA Schedule for Rating Disabilities (VASRD) code(s) to describe the 
Soldier's condition(s).  The PEB determined the disposition recommendation based on 
the proposed VA disability rating(s) and in accord with applicable statutes and 
regulations.

	d.  Soldier's Contention:  The Soldier contends she is unfit for bilateral plantar 
fasciitis.  The Soldier received her first temporary profile for bilateral plantar fasciitis in 
March 2014.  Two permanent profiles for bilateral plantar fasciitis, dated 19 September 
2014 and 21 January 2015, limited only running.  The Soldier had additional temporary 
profiles for reconditioning for foot pain spanning 14 March thru 25 April 2016.  The 
Soldier subsequently passed the Army Physical Fitness Test (APFT) performing the 
2.5-mile walk in December 2016.  She was not able to complete the APFT after 
December 2016.  Secondary to a profile and referral to the Medical Evaluation Board 
(MEB) for her neck pain in December 2016.  The MEB reviewed her bilateral plantar 
fasciitis on 6 April 2017 in response to the MEB appeal.  The MEB determined the 
condition continues to meet retention standards, the condition was stable and the 
permanent L2 profile was appropriate.

	e.  As of April 2017, the Soldier testified she was using over-the-counter orthotics 
and she walks barefoot or in socks at home.  She also stated the only treatment she 
received between March 2016 and August 2016 was NSAIDs provided by the BAS.  
She sought treatment in August 2017 well after referral to the MEB process for her neck 
condition (December 2016).  The Soldier submitted two clinical notes from the 
orthopedic clinic dated 21 and 22 August 2017.  The exam conducted on 21 August was 
normal except for subjective pain with palpation and motion.  However, the Soldier had 
normal range of motion, normal gait, normal balance and normal stance.  The provider 
specifically indicated that mobility was not limited.  The Soldier was provided custom 
orthotics, night braces, and NSAID as the initial step in treatment for subjective pain. 
The Soldier received instructions for wearing the night braces on 22 August 2017.  Plain 
films of the bilateral feet dated 21 August 2017 showed only borderline pes planus. 

	f.  Additionally, there was no evidence of acute or healing fracture, no osseous 
coalition, alignment was normal, soft tissues were normal, and there were no ankle joint 
effusions.  There was no mention of calcaneal spurs, fibromas or other bony 
abnormalities.  Except for subjective pain, the VA Compensation and Pension (C&P) 
exam conducted on 17 February 2017 was significant for lack of signs associated with 
flat feet including no swelling, no calluses, no decrease in the longitudinal arch, no 
marked deformity, normal weight bearing alignment of the feet and toes, and no 
abnormalities of the Achilles' tendon.  Contributing factors for disability in section 13A of 
the VA Disability Benefits Questionnaires listed subjective symptoms only.  The provider 
assessed no evidence for swelling, deformity, atrophy of disuse, instability of station, 
disturbance of locomotion, interference with standing or lack of endurance.  The 
provider also assessed that regardless of the veteran's current employment, bilateral 
plantar fasciitis does not impact her ability to perform any type of occupational task such 
as standing, walking lifting, or sitting.  There is no objective evidence this condition is 
disabling.  The PEB does not find this condition is unfitting.

6.  On 22 September 2017, the applicant indicated she did not concur with the PEB's 
findings and recommendations.  She also indicated she was submitting a written 
appeal; however, her written appeal is not available.  

7.  On an unspecified date, the PEB, in consideration of the applicant's appeal, affirmed 
its initial findings and recommendations.

8.  The Formal PEB findings and recommendations were approved by the U.S. Army 
Physical Disability Agency for the Secretary of the Army on 22 January 2018.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
confirms she was discharged on 25 February 2018 under the authority of Army 
Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), 
paragraph 4-24, by reason of disability with severance pay.  
10.  The applicant provided a VA Rating Decision, dated 4 December 2018, and pointed 
out that she was granted service-connected disability compensation by the VA for, 
among other medical conditions, bilateral plantar fasciitis, persistent depressive disorder 
with anxious distress (claimed a depression, anxiety, sleep disturbances/insomnia, short 
term memory loss, suicide ideation, and adjustment disorder with depressed mood), 
and cervical strain (claimed as neck/upper back injury/pain).

11.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant's records in iPERMS, the Armed Forces Health 
Longitudinal Technology Application (AHLTA), Health Artifacts Image Management 
Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following 
findings and recommendations:  The applicant requests Army medical retirement.  She 
was discharged due to Thoracolumbar Strain at 20% and given severance pay.  In 
effect, the applicant also requests that the following conditions be given Army disability 
ratings:  Cervical Strain.  The condition was rated at 20 percent by the VA.  The 
07Feb2017 Neck DBQ exam indicated the condition began spontaneously, without 
known injury. The exam showed normal or near normal ranges of motion.  There was 
no localized tenderness, guarding or spasm of the neck.  Strength, sensation and 
reflexes were normal.  There was objective evidence of pain on passive movement and 
weightbearing.  There was no findings consistent with and no symptoms reported for 
cervical radiculopathy.  Review of in-service treatment records did not find therapy 
directed specifically for the neck condition.  No films were ordered.  Persistent 
Depressive Disorder with Anxious Distress, Mild.  Ten months into her military career, 
she had an ER visit for suicide ideation on 14Mar2014 and remained on suicide watch 
until 27Mar2014.  She entered regular treatment at the point and by 26Aug2016 was 
deemed stable enough to end treatment and follow up as needed.  Later on 20Sep2016 
she was started on medication for insomnia. In Dec2016, the sleep medication was 
changed and she has had no further treatment.  The 09Feb2017 Mental Disorders DBQ 
examiner assessed the behavioral health condition was mild and resulted in 
occupational and social impairment due to mild or transient symptoms which decrease 
work efficiency and ability to perform occupational tasks only during periods of 
significant stress, or; symptoms controlled by continuous medication-- the severity level 
consistent with a 10% evaluation, although the VA rated the condition at 70%.  The 
10Jan2018 Behavioral Health Screening for clearance for separation did not identify any 
barriers to separation.  It is also noted that the Commander’s statement did not identify 
behavioral health symptoms as impacting work performance.  Bilateral Plantar fasciitis.  
The condition was rated at 30 percent by the VA.  In the February 2017 VA C&P exam 
the applicant had subjective complaints describes as aches and stiffness; however, 
there were no objective associated findings with the flat feet (pes planus): There was no 
swelling, no callouses, no marked pronation or marked deformity of one or both feet.  
The 21Aug2017 film showed borderline bilateral pes planus.  Soft tissues were normal 
appearing and forefront alignment was normal.  The examiner also annotated that the 
applicant had not used any custom arch supports, built up shoes or orthotics.  
The 30Oct1994 MEB Proceedings found that the neck, behavioral health and bilateral 
foot conditions all met retention standards.  The PEB (Formal) did not find the 
conditions unfitting.  USAPDA reviewed the case and made no recommendations to 
alter the PEB’s decision.  The profile dated 30Dec2016 did not contain level 3 
permanent physical profiles for any of the conditions.  IAW AR 40-501, the neck, 
behavioral health and bilateral foot conditions all met retention standards.  As such, 
referral for further Army medical discharge processing is not indicated at this time.

12.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service.  The Army disability 
rating is to compensate the individual for the loss of a military career.  The VA does not 
have authority or responsibility for determining physical fitness for military service.  The 
VA may compensate the individual for loss of civilian employability.

13.  Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation 
for disabilities which were incurred in or aggravated by active military service.  However, 
an award of a VA rating does not establish an error or injustice on the part of the Army. 

14.  Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating 
disabilities.  The VA awards disability ratings to veterans for service-connected 
conditions, including those conditions detected after discharge.   As a result, the VA, 
operating under different policies, may award a disability rating where the Army did not 
find the member to be unfit to perform his duties.   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, including the applicant’s statement, the 
supporting documents and the Army Review Board Agency Medical Advisory Opinion, 
the Board found insufficient evidence to grant relief.  The Board agreed with the Medical 
Advisory Opinion that the PEB (Formal) did not find the applicant’s boarded conditions 
unfitting.  USAPDA reviewed the case and made no recommendations to alter the 
PEB’s decision.  The profile dated 30 December 2016 did not contain level 3 permanent 
physical profiles for any of the conditions.  IAW AR 40-501, the neck, behavioral health 
and bilateral foot conditions all met retention standards.  Because the applicant’s 
conditions were not unfitting during the applicant’s period of active service, sending the 
applicant’s case for further Army medical discharge processing is not warranted.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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, 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 Department of Defense Directive 1332.18 and Army 
Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation).

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.  

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

	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 or 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 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 
whose medical condition did not exist prior to service who are determined to be unfit for 
duty due to disability are either 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 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 medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

	d.  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 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.  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.

4.  Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the 
IDES.  It states:  

	a.  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.  The IDES 
features a single set of disability medical examinations appropriate for fitness 
determination by the Military Departments and a single set of disability ratings provided 
by VA for appropriate use by both departments.  Although the IDES includes medical 
examinations, IDES processes are administrative in nature and are independent of 
clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and 
procedures requirements promulgated in DODI 1332.18 and the Under Secretary of 
Defense for Personnel and Readiness memoranda.  All newly initiated, duty-related 
physical disability cases from the Departments of the Army, Air Force, and Navy at 
operating IDES sites will be processed in accordance with this DTM and follow the 
process described in this DTM unless the Military Department concerned approves the 
exclusion of the service member due to special circumstances.  Service members 
whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any 
other applicable medical examinations performed to VA C&P standards.  Collectively, 
the examinations will be sufficient to assess the member’s referred and claimed 
condition(s) and assist VA in ratings determinations and assist military departments with 
unfit determinations.

	d.  Upon separation from military service for medical disability and consistent with 
BCMR procedures of the Military Department concerned, the former service member 
may request correction of his or her military records through his or her respective 
Military Department BCMR if new information regarding his or her service or condition 
during service is made available that may result in a different disposition.  For example, 
a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his 
or her service treatment record that was missing during the IDES process.  If VA 
changes the disability rating for the unfitting condition based on a portion of his or her 
service treatment record that was missing during the IDES process and the change to 
the disability rating may result in a different disposition, the service member may 
request correction of his or her military records through his or her respective Military 
Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former service 
member desires to appeal a determination from the rating decision, the veteran has 
1 year from the date of mailing of notice of the VA decision to submit a written notice of 
disagreement with the decision to the VA regional office of jurisdiction.  

5.  Title 38 U.S. Cose, section 1110 (General - Basic Entitlement) states that for 
disability resulting from personal injury suffered or disease contracted in line of duty, or 
for aggravation of a preexisting injury suffered or disease contracted in line of duty, in 
the active military, naval, or air service, during a period of war, the United States will pay 
to any veteran thus disabled and who was discharged or released under conditions 
other than dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as provided in 
this subchapter, but no compensation shall be paid if the disability is a result of the 
veteran's own willful misconduct or abuse of alcohol or drugs.  

6.  Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic 
Entitlement) states that for disability resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, or air service, during other than a 
period of war, the United States will pay to any veteran thus disabled and who was 
discharged or released under conditions other than dishonorable from the period of 
service in which said injury or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but no compensation shall be 
paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol 
or drugs.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180006937


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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