ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20180013251 APPLICANT REQUESTS: Correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding his cervical and lumbar spine and right knee conditions as unfitting conditions and adjusting the final percentage of his disability to reflect these added conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * power of attorney * DA Form 199, dated 19 September 2014 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM), dated 9 January 2014 * Standard Form (SF) 600 (Chronological Record of Medical Care) * six DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision, dated 17 November 2017 * Innovative Spinecare, INC, medical report * line of duty (LOD) determination memorandum, dated 14 April 2013 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 February 2013 * VA Rating Decision, dated 26 June 2013 * VA Rating Decision, dated 19 September 2013 * DA Form 3349 (Physical Profile), dated 8 March 2013 * memorandum, dated 9 May 2013, subject: Fitness for Duty Evaluation (FFDE) Board for (applicant) * VA Compensation and Pension (C&P) Examination * VA Progress Notes * DA Form 2173, dated 30 November 2011 * Arkansas Surgical Hospital Radiology Report, dated 21 September 2012 * VA Rating Decision, dated 1 August 2018 * Applicant's Sworn Declaration, dated September 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states, in part: a. The applicant was not provided a physical examination of his back that included a measurement of his range of motion prior to his PEB. The NARSUM and MEB therefore improperly determined that his back met retention standards. Furthermore, Colonel (COL) M, who performed the National Guard fitness for duty board, told the applicant that the magnetic resonance imaging (MRI) of his back was not located in his medical treatment records at the time of his board. Although the applicant believes that the MRI was in his file, it was not considered by COL M. COL M also told the applicant that he did not have a herniated disc. In fact, the applicant's record contained ample evidence of a herniated disc. b. The applicant was medically retired at 40% disability following 32 years of military service and three combat deployments. The PEB assigned disability ratings provided by the VA under the Integrated Disability Evaluation System: 30% for Adjustment Disorder and 10% for Left Knee. At the time of the PEB, the VA rated the applicant’s back pain at 20%, his neck pain at 10% and his right knee at 10%, the same rating as his left knee. The MEB listed lower back, cervical strain, and right knee as diagnoses, but stated that these conditions met retention standards. The PEB found that the applicant’s neck and lower back pain, along with his right knee, did not make him unfit for a Soldier of his rank and position. The PEB' s failure to consider the applicant’s spine conditions as unfitting was error. Their selection of his left knee as unfitting, when his right knee had the identical condition (according to the VA, "degenerative joint disease with chondrocalcinosis") was error. The applicant respectfully requests that this honorable Board find that his neck and lower back pain was, in fact, unfitting, as was his right knee condition, and adjust his disability rating accordingly. c. On November 28, 2011, the applicant had an x-ray of his lumbar spine following his demobilization from Iraq with complaints of chronic lower back pain. The x- rays showed moderate degenerative disc disease at L5-S1 and other mild multilevel degenerative findings involving the endplates throughout the imaged portions of the thoracolumbar spine. The applicant had additional radiographic findings of a herniated disc. A 2012 MRI shows degenerative disc disease with a right paracentral disc protrusion at L4-5, resulting in bilateral moderate foraminal narrowing. The protrusion is causing narrowing of the right lateral recess and mild mass affect on the descending portion of the right L5 nerve root...X-ray of Lumbar spine shows compression of the nerve root. Corresponds to clinical reports of pain. d. The applicant received a disability rating of 20% for "degenerative disc disease, lumbosacral spine "from the VA effective February 1, 2012, which was reviewed in late 2013 and continued. This VA rating should have been applied to the applicant’s back and increased his disability rating. e. The PEB found that the applicant's degenerative joint disease in his lumbar and cervical spine were not unfitting, even in their overall effect because, "the MEB indicates these condition' s meet retention standards; does not indicate that any of these conditions cause profile limitations (functional activities a-h); and does not indicate that performance issues, if any are due to these conditions." The PEB and this statement is incorrect. The applicant had a profile with his PULHES listed as U3 and L3 dated March 8, 2013. The "U" stands for "Upper Extremities". This factor concerns the hands, arms, shoulder girdle, and upper spine (cervical, thoracic, and upper lumbar) in regard to strength, range of motion, and general efficiency. The "L" stands for "Lower Extremities". This factor concerns the feet, legs, pelvic girdle, lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. A Profile which is assigned a "3" is considered a defect "causing moderate interference with function, yet capable of strong effort for short periods." None of the Field Artillery Military Occupational Specialties can have a PULHES (profile) higher than a 2. The applicant’s commander wrote a letter indicating his profile prevented him from doing all but administrative duties. This letter, combined with his profile and the documentation in his medical records indicate that the applicant's back and neck conditions were part of the reason he was on profile. The commander' s letter indicates that the profile prevented the applicant from doing the functional requirements of a Targeting Officer. It was therefore inaccurate for the PEB to state that neither his neck or back caused profile limitations or limited his performance. f. It is not logical, based on a scientific principle, or anything other than speculation for the MEB to separate the applicant’s back problems from his knee problems when considering his fitness for duty. As his commander stated, he was unable to perform any of the functional activities of a Soldier, other than his administrative duties. The serious nature of his neck and back pain, even following treatment with powerful painkillers, was improperly discounted when determining the cause of his unfitness for duty. g. The applicant's back impacted his ability to work. It was improper of the MEB to state his cervical and lumbar spine conditions had no impact on his fitness for duty and met retention standards. This error probably led to the error of the PEB in failing to consider the applicant’s back as unfitting when they considered his disability rating. The applicant has a VA rating effective prior to his discharge of 20% for his lumbar spine. The applicant's spine condition contributed to his inability to perform all but administrative aspects of the duties of his rank and position. h. At the time of his MEB, the applicant had a profile for his upper extremities of U3. The physician reviewing his records for the MEB arbitrarily changed the applicant’s profile, which had been written by his treating physician - someone who actually examined him. At the time of his Compensation & Pension exam, just prior to his PEB, the applicant was advised to have injections in his neck due to tingling and pain. The VA awarded him a 10% disability for "Cervical strain (claimed as degenerative neck)." This 10% VA rating is awarded when a veteran has a reduced range of motion (According to the VA Schedule of Rating Disabilities, Flexion measures more than 30° but less than 45°or Combined Range of Motion measurement is between 175° and 340°). Furthermore, the rating of 3 in the applicant's U3 profile considers the neck as well as the upper lumbar spine, so the U3 was not based solely on the applicant's neck issues as the physician states. The applicant's lumbar spine issues are described above, and should have been combined with the neck issues in determining the PULHES/profile rating. The physician improperly changed the profile to U2. This may be why the PEB found that the cervical spine condition was not unfitting. i. According to Army Medical Standards for Retention, the applicant's back condition should have been found unfitting. The regulation states that anything other than mild symptoms following appropriate treatment of herniated disc are unfitting, when combined with interference with duty performance. The applicant has MRIs taken prior to his PEB, demonstrating a herniated disk. He had a profile for his upper and lower back - his profile was U3 and an L3. His commander said that his profile prevented him from performing standard Soldier functions. Even with oxycodone and non-steroidal anti-inflammatories, the applicant was unable to perform the duties of his rank and position. At the time of his PEB, he had a VA rating of 20% for his lumbar spine. The applicant also experienced tingling of his upper extremities, which was being treated with steroid injections at the time of his PEB, without complete alleviation of his symptoms. j. The applicant’s neck condition was also unfitting according to regulation. His VA rating, effective January 24, 2012 includes a rating of 10% service-connected for "Cervical strain (claimed as neck pain)". This rating decision was dated September 19, 2013, well before his discharge in 2014. The applicant has a well-documented history of his lumbar and cervical conditions. At the time of his PEB, they were rated by the VA at 20% and 10% respectively. He had a U3 and an L3 profile, which according to his commander, prevented him from doing anything other than administrative duties. All Field Artillery MOS require a PULHES 2 or higher, and he had U3 and L3. The applicant’s spine conditions were unfitting and their combined effect should have been considered when the board determined his disability rating. k. The applicant’s VA disability rating was 10% for each knee for the same condition, degenerative joint disease with chondrocalcinosis. The MEB listed degenerative joint disease for both knees. He had an "in the line of duty" finding for bilateral knees pain proving that the injuries occurred during Operation New Dawn. The left knee had a meniscal tear. The right knee apparently did not. AR 40-501 does not require a meniscal tear to fail retention standards. Chondromalacia of the lower extremities that interferes with function is a cause for an MEB. There is no regulatory basis for the MEB to pick out the right knee as failing retention standards, when the left knee had the same condition and the same disability rating from the VA, indicating that the impairment for both knees was the same. l. The MEB decision to consider his right knee and spine conditions as meeting retention standards, and the subsequent PEB decision to consider his left knee as unfitting but not to consider his spine conditions or his right knee unfitting is unreasonable and illogical, and therefore unjust. If the applicant had his right knee replaced and he had no pain or restrictions due to his right knee, he would still be unable to do a road march carrying 40 pounds of gear due to his other knee and his spine conditions. If his neck and back were cured and his range of motion was restored, his knees would prevent him from wearing load-bearing equipment while conducting the duties of a Targeting Technician in a tactical environment. m. It was highly improper and completely illogical for the PEB to separate the applicant's lower back and neck pain from his right knee condition. Both caused him pain when ruck marching, when running and eventually, at all times. Both the back pain and knee pain contributed to his inability to perform the duties of his rank and position as Targeting Officer. His unfitness for duty cannot be attributed to only one of these conditions. But because the MEB improperly drew a conclusion that the applicant’s back pain "meets retention," the PEB did not evaluate the upper and lower back pain as contributing to his disability. n. Pursuant to Army Regulations, in making the determination of fitness or unfitness, the PEB is to consider the "overall effect of all disabilities." (Army Reg. 635- 40, Part 3-1 (b )). "A soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness." Moreover, Army Regulations provide that "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." (Army Reg. 635-40, Part 3-5(d)). The Department of Defense Instruction implementing the Integrated Disability Evaluation System requires that the Board consider the combined effect of two or more impairments: * Combined Effect. A Service member may be determined unfit as a result of the combined effect of two or more impairments even though each of them, standing alone, would not cause the Service member to be referred into the DES or be found unfit because of disability (DODI 1332.18, Appendix 2 to Enclosure 3, para d.) 4. In a sworn declaration, the applicant states: COL M conducted my fitness for duty board on 8 August 2013. I was called to his office and his assistant told that my left knee was found ''unfit for duty'', (i.e. possible multiple torn ligaments verified by MRI that I paid for, and personally placed in my medical files) and that I still had to be seen by the behavioral health official upstairs for screening regarding my PTSD. I saw COL M and asked him about my back. I inquired as to how and why my chronic lower back pain was not being found "unfit for duty'', COL M's exact words were, "well, it's not like you have any protruding disc rubbing up against the nerve(s) of which I cannot do anything about". I could not believe my ears, because I have those exact words on a MRI, and the MRl is in my files. I related this fact to COL M. COL M then got mad, and he related that "it was not in your files and I didn't see it." I understood his meaning that he wasn't going to look at my five inches 'Worth of medical files again. Although I was attempting to pull this MRI out of my file, and somehow I couldn't find it immediately by his standards of immediacy, COL M screamed at me to 'just go upstairs to be seen by the BH [behavioral health] official, and then wait out front again!" I complied. I don't believe COL M properly reviewed my medical records for evidence concerning my herniated disc. However, at some point he had to have reviewed my MRI and the orthopedic notes from my doctor because he quoted the exact treatment in his report. However, he mistakenly switched the suggested permanent and semi-permanent nerve block treatment for my upper and lower back. I was very meticulous and I know that all my medical records regarding my upper and lower back were in my medical files. I believe he erroneously and fraudulently ignored my back problem because he didn't want to wade through my extensive file. My 40% disability rating, which does not include my back, is improper. I request that you consider my herniated discs and increase my disability rating to 60%. 5. The applicant, a member of the Army National serving in the rank of chief warrant officer three, was issued temporary physical profile on 8 March 2013 based on the following conditions: * sleep apnea * neck pain * low back pain * knee pain * ankle pain * adjustment disorder * anxiety * sleep disorder 6. An IDES NARSUM, dated 9 January 2014, shows the evaluating physician indicated that after a thorough review of VA C&P examinations dated 20 August 2013, 18 December 2013, 26 December 2013, 30 December 2013, and 6 January 2014, the following conditions were identified, which failed retention standards: * degenerative joint disease (DJD) left knee with medial meniscal tear * adjustment disorder with mixed anxiety and depressed mood 7. The evaluating physician also identified 15 additional conditions, including DJD/degenerative disc disease (DDD) lumbar spine, DJD right knee, and cervical strain which were deemed to meet retention standards. 8. On 15 January 2014, an MEB diagnosed the applicant with DJD left knee with medial meniscal tear and adjustment disorder with mixed anxiety and depressed mood, which did not meet retention standards. The MEB diagnosed the applicant 15 additional conditions, including DJD/DDD lumbar spine, DJD right knee, and cervical strain which were deemed to meet retention standards. The MEB recommended the applicant's referral to a PEB. 9. On 19 September 2014, an Informal PEB found the applicant physically unfit for adjustment disorder with mixed anxiety and depressed mood, rated at 30%, and left knee DJD with medial meniscal tear, rated at 10%. The PEB recommended a combined rating of 40% and the applicant's permanent disability retirement. 10. The DA Form 199 contains the following statements in section VI (Instructions and Advisory Statements): a. This case was adjudicated as part of the IDES under the 19 December 2011 Policy and Procedure Directive-type Memorandum (DTM) 11-015. b. The specific VA Schedule for Ratings Disabilities (VASRD) codes to describe the Soldier's condition and the disability percentage was determined by the VA and is documented in a VA memorandum dated 12 September 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). 11. On 3 October 2014, the applicant concured with the PEB findings and recommendations and waived a formal hearing of his case. 12. The DA Form 199 provided by the applicant shows that the section of the form providing the opportunity to request or decline reconsideration of his VA disability ratings was left blank. However, the DA Form 199 filed in the applicant's official military personnel file (OMPF) shows he did not request reconsideration of his VA disability ratings. 13. The DA Form 199 filed in the applicant's OMPF shows the PEB findings and recommendations were approved for the Secretary of the Army on 21 October 2014. 14. Orders issued by the U.S. Army Physical Disability Agency directed the applicant's released from assignment and duty because of physical disability and his placement on the retired list effective 21 November 2014. This order show a percentage of disability of 40%. 15. The VA rating decisions provided show the applicant was granted service- connected disability compensation, effective January 2012, for DDD lumbosacral spine, rated at 20%, and DJD with chondrocalcinosis right and left knees, rated at 10% for each knee, and cervical strain (claimed as neck pain) rated at 10%. 16. On 20 June 2019, the Army Review Boards Agency medical advisor provided an advisory opinion. The advisory found the applicant's medical conditions were duly considered during medical separation processing, with the exception of the lumbar spine degenerative joint/disc disease. The applicant did not meet medical retention standards for his herniated disc in the lumbar spine in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39h. The advisory also found the applicant met medical retention standards for his right knee chondromalacia and degenerative joint disease. The medical advisor recommended the applicant's referral to the IDES for reconsideration of the previous MEB decision to find his lumbar degenerative joint disease/disc disease met the standard for continued service. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant and his counsel were provided a copy of the advisory opinion on 22 June 2019 and given an opportunity to submit comments. The applicant's counsel responded on behalf of the applicant and stated the applicant does not wish to submit additional comments and requests that the ABCMR make a determination based on the available facts and documents. 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 service record, the proceedings related to his disability processing and the reason for his separation (retirement). The Board considered the conclusions of the advising official and the response from the applicant. The Board concurs with the advisory and determined, based on a preponderance of evidence, that the applicant’s records should be referred for reconsideration of the previous MEB decision. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be entitled to additional disability, these proceedings serve as the authority to issue him the appropriate amended separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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 ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. The version dated 20 March 2012 states in: a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the 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. c. Paragraph 4-17 provides guidance for PEBs. It states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 3. DTM 11-015 explains the IDES. It states: a. The 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 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. 4. Title 38, USC, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. ABCMR Record of Proceedings (cont) AR20180013251 4 1