IN THE CASE OF: BOARD DATE: 2 December 2020 DOCKET NUMBER: AR20180013149 APPLICANT REQUESTS: In effect, to have his discharge with disability severance pay be converted to a disability retirement with full benefits as a military retiree. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * (3) DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (DVA) letter, 12 May 2017 * Medical documents * Accolades from military service * Chronological Statement of Retirement Points * (3) Non-Commissioned Officer (NCO) Evaluation Report (NCOER) * Career promotions * (4) Service school Academic Evaluation Report (AER) * DVA rating decision FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. The applicant states he believes that his nearly 14 years of honorable active duty service as well as 7 1/2 years of inactive reserve service should have warranted a medical retirement with full benefits. a. He served 13 years, 9 months and 30 days of active duty service, as well as an additional 7 years, 5 months and 14 days of inactive reserve service. He was well on his way to a regular Army retirement when his health issues became too severe to allow his continued service. He was only given a 20% rating by the Army during the Physical Evaluation Board (PEB) process, he was discharged with severance pay instead of being medically retired. b. All of his service was honorable. He was promoted early. He received good marks on his Non-Commissioned Officer Evaluation Reports (NCOER). He received many commendations and meritorious awards from his various units and commands. He did not want to leave the Army when he did, but he had no choice. c. During his PEB proceedings, the Board stated that his Barrett's Esophagus was an "unfitting" condition, meaning that it was used in the determination of his medical discharge. On that same form, it stated that his Barrett's Esophagus has "insidiously worsened" and that his condition had not responded to a "myriad of treatments, to include medication management, gastro intestinal referrals, limiting profiles, and surgical procedures." It further stated that the condition was unfitting because the symptoms "greatly hinder" his ability to complete the duties of his Military Occupational Specialty (MOS) as well as basic common functions required of every Soldier. d. Even with the above wording which indicates that the symptoms of the Barrett's Esophagus were severe enough to be a reason for his discharge from service, the Board only recommended a 0% rating for this condition. The Medical Evaluation Board (MEB) which referred him to the PEB, called his symptoms "persistent and severe." It is beyond his understanding how a condition such as this could have received a 0% rating. He believes that if the condition was considered "severe" and "greatly hindered" his ability to perform his duties, that at a minimum, it should have been given a 10% rating. If that were the case, he would have a combined rating of 27, which would round up to a 30% rating by the Army. This 30% rating would have been sufficient to change the disposition from a medical discharge with severance pay to a medical retirement. e. He understands that technically, his unit and the Army did not violate the rules regarding medical discharges versus retirements. However, he knows that it is within the scope of this Board to grant relief as a matter of fairness, or equity. He believes that his request falls into that category. f. If not for his medical conditions, he would have been able to complete the remainder of his active duty service to qualify for full military retirement. He was only slightly over 6 years away from full retirement. He served honorably and faithfully and was found to be unfit for service due to medical conditions incurred as a result of his military service. The Army was his career choice. He planned on the retirement benefits as part of his future planning. He planned on the availability of TRICARE benefits for his eligible dependents for the remainder of his active duty service as well as during his military retirement. Being medically discharged took away those benefits for his family, which has in fact caused a hardship. g. He was 42 years old with significant medical conditions when the Army discharged him. It was impossible for him to start a brand new career path at that stage of his life. So he is facing a "retirement" forced upon him by his medical issues, without the benefits of the retirement that he and his family were counting on. 3. The applicant provides * Self-authored statement addressed above * (3) DD Form 214 19 June 1990-24 August 1990 Honorably Released from Active Duty Training; 25 September 1997-24 September 2001 Honorably discharged for completion of required active service; and 14 April 2005-27 July 2014 Honorably discharged for disability, severance pay, non-combat (enhanced) * VA letter, 12 May 2017 showing his periods of service in the Army as stated above * VA rating decision showing his combined evaluation for compensation being 100% from 3 January 2017 * Medical documents from Medical Evaluation Board(MEB)/Physical Evaluation Board (PEB), physical profile and other medical records * Accolades from military service including: Good Conduct Medal (3rd award), Meritorious Service Medal, (3) Army Commendation Medal Certificates, Army Achievement Medal, and Army Aviation Badge-Basic * Chronological Statement of Retirement Points showing he completed 2 qualifying years for retirement while in the US Army Reserves; honorable discharge order * (3) Non-Commissioned Officer (NCO) Evaluation Report (NCOER) showing periods and overall ratings of: 11 February 2010-10 February 2011 (fully capable); 11 February 2011-10 February 2012 (among the best); and 10 February 2012-4 January 201 (among the best) * Career promotions to specialist/E-4, 13 April 1991; lateral appointment to corporal 30 May 1993; promotion to sergeant 1 July 2000; promotion to sergeant 1 February 2008 (after break in service), and promotion to staff sergeant 1 March 2011 * 4 Service school Academic Evaluation Report (AER); Primary leadership course; 4 June 1994-18 June 1994 (Reserve Component); Signals Intelligence Analysis 14 November 1997-19 March 1998; UH-60 Helicopter repairer course 23 May 2005-9 September 2005; and Signals Intelligence Analysis advance course 7 June 2011-2 August 2011 4. A review of the applicant’s service records shows: a. Having had prior enlisted service he enlisted in the Regular Army on 25 September 1997. He was honorably discharged in the rank of sergeant on 24 September 2001 for completion of required active service. He completed 4 years of service this period. b. After a break in service he enlisted in the Regular Army on 14 April 2005. He reenlisted on 10 November 2010 for a period of 6 years. He was promoted to staff sergeant on 1 March 2011. c. On 6 September 2013, a MEB convened and referred the applicant to the PEB for the following unacceptable medical conditions that failed retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness): * Mild Lumbar Spondylosis L5-S1 * Left knee status post proximal tibia/fibula fracture with residual patellar chondromalacia and ORIF (Open reduction and internal fixation) and hardware removal * Barrett's esophagus * Bilateral tinnitus, Dry eye syndrome, Benign neoplasm of the choroid, Migraine headaches, Left index finger laceration scar, Scars (as described in the body of report), Sleep apnea with Continuous positive airway pressure (CPAP), Adjustment disorder with anxiety, chronic, and Bilateral shin splints all met retention standards. d. On 25 March 2014, an informal physical evaluation board (PEB) convened and found the applicant's following medical conditions were unfitting and assigned a combined disability rating of 20% for: (1) Lumbar Spondylosis rated at 10%. Onset of Soldier’s condition occurred in February of 2011 from lifting equipment while assigned to Fort Campbell, KY. Despite treatment modalities of medication management, limiting profiles, physical therapy, surgical consultations and chiropractic appointments, his condition persists. In accordance with (IAW) DODI 1332.38, E3.P3.4.1.1, and E3.P3.2.2, this condition is unfitting because the limited mobility of the lumbar region inhibits the ability to lift 62 pounds for 10 feet and standing for prolonged periods of time, preventing the Soldier from completion of his 35N MOS (SIGINT Analyst). In addition, he is unable to complete five of the ten functional activities required of all Soldiers, to include wearing body armor for at least 12 hours per day and preventing deployment to an austere environment. (2) Left knee proximal tibia/fibula fracture rated at 10%. He reports onset of this condition on 25 December 2005 from a skiing accident while stationed in Germany. His condition has not responded to a myriad of treatments to include medication management, physical therapy, pain management, limiting profiles, and surgery. IAW DODI 1332.38, E3.P3.4.1.1, and E3.P3.2.2, this condition is unfitting because the limited mobility of the left knee inhibits the ability to lift 62 pounds for 10 feet and standing for prolonged periods of time, preventing the Soldier from completion of his 35N MOS. In addition, he is unable to complete five of the ten functional activities required of all Soldiers, to include wearing body armor for at least 12 hours per day and preventing deployment to an austere environment. (3) Barrett’s esophagus rated at 0%. Onset of his condition began in 2007 while stationed in Germany and has insidiously worsened. His condition has not responded to a myriad of treatments to include medication management, gastro intestinal referrals, limiting profiles, and surgical procedures. IAW DODI 1332.38, E3.P3.4.1.1, and E3.P3.2.2, this condition is unfitting because the symptoms of chronic cough, laryngitis, and nausea, greatly hinder the completion of his 35N MOS. In addition, he is unable to complete five of the ten common functional activities such as wearing body armor for at least 12 hours per day or living in an austere environment. (4) The PEB considered MEB Diagnoses 4-12 (bilateral tinnitus; dry eye syndrome; benign neoplasm of the choroid; migraine headaches; left index finger laceration scar; scars; sleep apnea with CPAP; adjustment disorder with anxiety, chronic; and bilateral shin splints) are not associated with profile limitations and do not impact his ability to perform any one of the ten functional activities. The MEB indicated these conditions meet medical retention standards. (Rapid Action Revision 4 August 2011, AR 40-501, paragraph 3-1). Therefore, these conditions are not unfitting. (5) This case was adjudicated as part of the IDES under the 19 December 2011 Policy and Procedure Directive-type Memorandum (DTM) 11-015. The specific Veteran's Administration Schedule for Rating Disabilities (VASRD) codes to describe the Soldier's condition and the disability percentage was determined by the Department of Veterans Affairs (VA) and is documented in DVA memorandum dated 19 March 2014. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). (6) The PEB found the Solider physically unfit and recommended a combined disability rating of 20% and that his disposition be separation with severance pay. (7) The applicant concurred and waived a formal hearing. (8) He requested that VA reconsider his disability ratings. His chief complaint Barrett’s esophagus rated at 0%. His memorandum for reconsideration for VA rating is attached. g. On 1 May 2014, Headquarters 101st Airborne Division (Air Assault), Fort Campbell published Orders 121-0604, ordering his discharge on 27 July 2014. He was authorized disability severance pay in the pay grade of E-6 based on 13 years, and 10 months of service due to 20% disability. * Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: No * Disability resulted from a combat related injury as defined in 26 USC 104: No * Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008 Sec 1646): No h. Accordingly, he was honorably discharged on 27 July 2014. His DD Form 214 shows he was discharged in accordance with chapter 4 of AR 635-40 due to disability, with entitlement to severance pay, non-combat (enhanced). The Remarks Block shows disability severance pay in the gross amount of $103,244.40. 5. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an increase in his military disability ratings and a medical retirement. He states: “I believe that my nearly 14 years of honorable active duty service as well as 7 1/2 years of inactive reserve service should have warranted a medical retirement with full benefits.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 14 April 2005 and was separated with disability severance pay on 27 July 2014 under provisions in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). c. The applicant was referred to the DES for “Lumbago” on 13 June 2013. He claimed twenty additional conditions on his VA/DOD Disability Evaluation Board Claim form (VA 21-0819). The medical evaluation board (MEB) determined three medical conditions did not meet the medical retention standards of AR 40-501, Standards of Medical Fitness: “Mild lumbar spondylosis,” “Left knee status post proximal tibia and fibula fractures,” and “Barrett’s esophagus.” d. The MEB determined the remaining nine medical conditions met medical retention standards. The applicant disagreed, requesting an appeal of the MEB’s findings and an Impartial Medical Review (IMR). e. From his IMR request through counsel: “SSG {Applicant} respectfully requests the IMR physician review and comment on his frontal lobe dysfunction with migraines and memory loss. SSG {Applicant}'s condition was neither included on the DA Form 3947 {Medical Evaluation Board Proceedings} nor listed in the NARSUM {Narrative summary} as either acceptable or unacceptable.” f. Following his review of the case, the IMR physician recommended against granting the applicant’s request: I reviewed available records and no record was found pertaining to the diagnosis of frontal lobe dysfunction in AHLTA. It appears SM did not claim for this condition on his VA C&P exam as it was also not listed. I have also reviewed Dr. S's neuropsychological evaluation report dated 2/9/2013 and there is no diagnosis of a frontal lobe dysfunction.” g. The issues he wanted addressed were slightly different in his written MEB appeal; he requested that “the appeal authority add the residuals from his meningitis infection to his med board and make a finding as to whether or not these conditions are medically unacceptable.” The MEB Appellate Authority physician’s findings were very similar to that of the IMR physician. She concluded: Based on the entirety of the medical records there is no evidence to conclude SM has a frontal lobe deficit of the brain. I do not support any additional diagnosis. I also agree that his headaches, OSA {obstructive sleep apnea}, and adjustment disorder are medically acceptable. I recommend no changes to the DA 3947. h. His appeal having been addressed and the IMR completed, the case was forwarded to the physical evaluation board (PEB). i. When the informal PEB convened on 25 March 2014, they found him unfit for “Lumbar spondylosis,” “Left knee status post proximal tibia and fibula fractures,” and “Barrett’s esophagus.” They found him fit for the nine other medical conditions. They applied the Veterans Benefits Administration’s (VBA) derived ratings of 10%, 10%, and 0% respectively, and recommended the applicant be separated with disability severance pay. On 4 April 2014, after being counseled on the informal PEB’s findings by her PEB Liaison Officer, the applicant concurred with the informal PEB’s findings and requested a VA reconsideration of the rating for his Barret’s esophagitis. j. From his initialVA dating decision narrative: Service connection for status post Nissan fundoplication (referred as Barrett’s esophagus claimed as GERD, Barrett’s esophagus) is proposed as directly related to military service. We have assigned a non- compensable evaluation for your status post Nissan fundoplication (referred as Barrett’s esophagus claimed as GERD, Barrett’s esophagus) based on: Pyrosis (Heartburn and/or Reflux) Note: In every instance where the schedule does not provide a zero percent evaluation fora diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. {38 CFR §4.31}. k. A higher evaluation of 10 percent is not warranted unless the evidence shows two or more of the symptoms for the 30 percent evaluation of less severity. l. We note that your Barrett's Esophagus, status post Nissan fundoplication has been found medically unacceptable for military service. We note that you have had to have surgery related to this condition in 2010 and since your surgery your condition has improved. At this time, your condition is best represented at a non-compensable evaluation. m. Upon reconsideration, the VA maintained the 0% rating for his currently non- compensable condition: Further review of the evidence of record is provided to ensure proper evaluation of your condition. Review of your July 9, 2013 exam, you reported having persistent heartburn for several years that improved considerably after surgery. You reported pyrosis (heartburn) and reflux occurring once per month. n. Given no evidence of error or injustice, it is the opinion of the Agency Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. 6. The law (10 USC 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% and (10 USC section 1203) physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Ratings can range from 0 to 100 percent, rising in increments of 10 percent. 3. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit due to disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states 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. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 4. 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 higher VA rating does not establish an 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 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. 5. The Integrated Disability Evaluation System (IDES) is the joint 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 the 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 the 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. a. Unless otherwise stated in this Directive-Type Memorandum (DTM) 11-015, IDES, DOD will follow the existing policies and procedures promulgated in DOD Directive 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. b. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. c. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective 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 the 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 the 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, they may request correction of his/her military records through his/her respective BCMR. d. If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) 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. 6. The Department of Veterans Affairs uses the VA Schedule for Rating Disabilities (VASRD) to assign diagnostic codes and disability ratings for unfitting (under IDES) and service-connected conditions. The VASRD is located in Part 4 of Title 38 in the U.S. Code of Federal Regulations. The VASRD contains the disabilities for which veterans can be rated, divided into 15 categories depending on the bodily system to which the disability pertains. a. Gastroesophageal reflux disease (GERD) is a condition where the acid in the stomach travels up the esophagus. It is rated under code 7346, hiatal hernia. b. Code 7346: A hiatal hernia is a hernia in the diaphragm that allows the organs in the abdomen to move up into the chest cavity. If the hernia causes pain, vomiting, significant weight loss, blood in the vomit or feces, and anemia, or if other symptoms cause a serious overall health disability, it is rated 60%. If there are regular episodes of pain in the upper abdomen, trouble swallowing, heartburn, the return of food into the back of the throat/mouth, and pain in the upper arm or shoulder, it is rated 30%. If two or more of the previous symptoms are present, but are not as severe, it is rated 10%. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013149 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1