ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20180015818 COUNSEL REQUESTS: reconsideration of the applicant’s request for a permanent disability retirement. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s Brief * Medical documents * Previous ABCMR Cases * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlistment Documents * 3 DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * DA Form 2173 (Statement of Medical Examination and Duty Status) * Orders * Rating Decisions from Department of Veterans Affairs (VA) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999028762 on 16 December 1999 and AR2000041918 on 12 September 2000, and AR2002070226 on 31 October 2002. 2. The applicant states he was discharged based on a stale PEB evaluation that did not reflect all of his injuries sustained in the line of duty (LOD). Per Army regulations in place at the time, when he was injured in a motor vehicle accident, while in LOD, prior to final disposition, he should have been recommended for another PEB at the direction of the medical treatment facility (MTF) commander because he sustained several severe injuries while awaiting final disposition, each of which should have been considered prior to his separation. 3. Counsel provides a 15-page brief which outlines the applicant military career, cites governing regulations and states in part: a. On 6 April 1998, before the applicant’s final disposition and separation from the U.S. Army, the applicant was involved in a serious rollover motor vehicle accident while on Active Duty. The applicant was the restrained driver of a truck and was pinned under the truck for 90 minutes. It took thirty minutes to extricate his head from underneath the truck. He was given blood and stabilized in the field, before being transported to the hospital, where he was hospitalized for three days. He sustained several, severe injuries, including an L1 vertebra compression fracture, a skull fracture with neuropathy, several severe lacerations on the face and skull, which were surgically repaired by the plastic surgery unit, serious burns on the buttocks, and a serious fracture to the right scapula. These injuries were found to be in LOD. b. During the applicant’s convalescence over a period of several weeks, U.S. Army PEB officials and members of the Patient Affairs Division at the Womack Army Medical Center (WAMC) advised him he could later appeal to ABCMR to add his L1 vertebra fracture with disc space narrowing and skull fracture with neuropathy. He was advised that his injuries would result in a higher disability rating from the U.S. Army. At the instruction of his superiors, the applicant proceeded with his medical separation believing his additional permanent injuries would be added to his current disability rating. c. The applicant appealed to VA for a Rating Decision on his permanent injuries sustained in the line of duty. On 29 October 1998, VA issued a Rating Decision for his various injuries. VA granted the applicant a combined disability rating of 40 percent as of April 24, 1998. After receiving his initial VA Rating Decision, he appealed to ABCMR, requesting his additional injuries be added as unfitting conditions such that he would merit a medical retirement; however, ABCMR denied this request on the ground that no evidence of his back and head injuries had been presented. d. The applicant appealed again to ABCMR in 2000, asking for his disability rating to be increased based on the injuries sustained in the motor vehicle accident, ABCMR again denied this request, but on the grounds that there was no LOD determination and the medical records alone did not indicate the skull and back conditions were unfitting. In 2002, he once again appealed to ABCMR requesting his disability be increased to 40 percent based on the injuries sustained prior to his final disposition, arguing the U.S. Army should logically reach the same determination as VA and award him the same 40 percent disability rating, which VA determined was in effect from 24 April 1998 due to the injuries sustained from his parachute accident and the motor vehicle accident; however, ABCMR again denied his request for reconsideration, stating the applicant did not show he was not evaluated for the injuries he received on 6 April 1998 while on active duty and prior to his separation and his commander and WAMC officials knew the details of his injuries, and his pending discharge, and did not change his rating. e. The applicant respectfully requests an opportunity for full medical disability processing to properly evaluate his L1 vertebra compression fracture with disc narrowing and skull fracture with neuropathy and deformative scars based on the information presented in VA findings effective 24 April 1998. If ABCMR rejects his request for medical disability processing, he alternatively requests that his L1 vertebra compression fracture with disc narrowing and his skull fracture with neuropathy and deformative scars each be added as unfitting conditions. If ABCMR determines his case should be reconsidered by PEB, and PEB thereafter finds he should be medically retired, he requests that his records be corrected to show he was medically retired due to physical disability and awarded at least a 40 percent disability rating. f. The U.S. Army has promulgated extensive guidelines specifying procedures that the U.S. Army must follow when discharging active duty service members. In the applicant's case, the U.S. Army failed to adhere to several of these guidelines, depriving the applicant of a meaningful evaluation of his correct discharge status and eligibility for future benefits. Had the U.S. Army properly followed U.S. Army Regulations-specifically the applicant would have been medically retired with a combined disability rating of 30 percent or higher based on the combination of his left leg injury, vertebra injury, and skull injury, entitling him to monthly military disability retirement and Tricare. This injustice should be corrected. g. The Army erred by disregarding internal Army Regulations and prematurely discharging the applicant with a 10 percent disability rating based solely on his left leg injury. If the U.S. Army had followed the procedures established by the Secretary of Army and resubmitted the applicant’s case to PEB prior to his discharge, a determination would have been made that Retirement was appropriate. 4. On 6 February 1998, a MEB referred the applicant to a PEB due to chronic knee pain secondary to degenerative joint disease. On 24 February 1998, after being informed of the approved findings and recommendations of the Board, the applicant agreed with the findings and recommendation. 5. On 3 September 1998, a PEB found the applicant physically unfit due to chronic left knee pain with degenerative joint disease post left femur fracture which occurred in 1991, during an airborne operation. The PEB recommended a combined disability rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified. 6. On 18 March 1998, after being advised of the findings and recommendations of the PEB and receiving a full explanation of the results of the findings and recommendations and legal rights, the applicant concurred and waived a formal hearing of his case. 7. The applicant was injured in an accident on 6 April 1998, while he was driving a fire/water truck as a volunteer firefighter and the truck rolled over. He was hospitalized at the Duke University Medical Center (DUMC) and treated for his injuries, and discharged to the WAMC on 8 April 1998. 8. On 23 April 1998, the applicant was discharged due to disability with severance pay. 9. On 11 May 1998, a DA Form 2173 was completed showing his injuries received were considered to have been incurred in LOD. On 1 May 1998, a physician from the DUMC noted his injuries and that permanent partial disability may result. The applicant's commander noted the details of the accident, that the applicant was on leave, that no formal LOD investigation was required, and that the injury is considered to have been incurred in LOD. 10. On 29 October 1998, the applicant was evaluated by the VA and awarded a combined service connected disability rating of 40 percent. He was awarded 20 percent for L 1 Vertebra compression fracture with T12-L 1 disc space narrowing; 10 percent for degloving injury of the scalp with right skull fracture; 10 percent for left femur fracture with arthritis of the knee; and 0 percent for residuals of buttock burns and right scapula fracture (major). 11. On 24 June 2019, the Army Review Boards Agency (ARBA), medical advisor provided an advisory opinion. The ARBA medical advisor states, in part, it is unknown if the applicant did or did not meet medical retention standards for the injuries he sustained on 6 April 1998. If Army Regulations had been followed, the applicant should have been extended on active duty until he reached the Medical Decision Retention Point, and a new MEB (and likely a PEB) should haven convened. Per Army Regulation 635-40, 4-16, the injuries sustained in the MVA should have been evaluated by a new MEB and PEB to determine if they would have changed the findings of the previous MEB and the PEB. In fact, this regulation requires the medical treatment facility commander to notify the PEB that adjudicated the case, per Army Regulation 635-40, E-9e; there is no evidence that this action was taken. The PEB office was incorrect in instructing the applicant to appeal the findings after his discharge. Per Army Regulation 635-40 E-9e, the applicant’s commander was required to refer the applicant to the US Army Physical Disability Agency (USAPDA) for re-adjudication of his injuries. The commander failed to follow this regulation. Contrary to previous ABCMR evaluations’ reports, the onus to ensure re-evaluation does not lie with the service member. ABCMR assumed regularity of administrative processes which were clearly not followed in the applicant’s case. Referral to the integrated disability evaluation system (IDES) for re-evaluation of the injuries sustained by the applicant on 6 April 1998 is strongly recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. In response to the medical advisory, counsel concurs and states in part, if a PEB determines the applicant should have been retired by reason of physical disability, the applicant requests that the Defense Finance and Accounting Service audit his financial record and issue back-pay to compensate him on the basis of his correct percentage disability rating as if it had been awarded on April 23, 1998, offset by the lump sum severance payment he received as a result of his medical separation on April 23, 1998. 13. 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. 14. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for 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 15. 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. 16. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 17. 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 on the records and a medical advisory opinion. The Board considered the applicant’s statement, the record of his service, his medical documents, the evidence of a motor vehicle accident, the reason for his separation and his discharge for medical disability with severance pay. The Board considered the review and conclusion of the medical advising official and concurred with the assessment that the applicant’s medical conditions were not duly considered during his separation processing. Based on a preponderance of evidence, the Board determined that the applicant should be afforded the opportunity for disability evaluation processing. 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 her 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. a. If a review by the Office of The Surgeon General determines the evidence supports it, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional 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 retired for disability, these proceedings serve as the authority to issue him the appropriate 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, 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. 2. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for 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 3. 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. 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. ABCMR Record of Proceedings (cont) AR20180015818 7 1