ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20180016163 APPLICANT REQUESTS: physical disability retirement in lieu of existed prior to service (EPTS) disability separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .184 pages of service medical records .157 pages of service records .93 pages of civilian medical records .365 pages of Department of Veterans Affairs (VA) medical records FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states: a.His medical discharge subsequent to a Medical Evaluation Board (MEB) shouldbe changed to a medical retirement and he is willing to attend any requisite exams or evaluations for this purpose. b.He was medically separated for an EPTS disability, yet no record or symptoms ofthis condition existed prior to service and he was never granted a Physical Evaluation Board (PEB). Additionally, his mid-back and neck pain was never evaluated by an MEB or PEB and was even more of an issue than the condition for which he was discharged. 3.On his entrance DD Form 2807-1 (Report of Medical History), dated 21 June 2011,he annotated undergoing outpatient laparoscopic hernia repair in 2009 with nocomplications, and affirmed the absence of significant medical history. The applicantsubsequently enlisted in the Regular Army on 3 January 2012. 4.A DD Form 2808 (Report of Medical Examination), dated 5 November 2012, shows: .he was examined for the purpose of an MEB .he was given a physical profile rating of “3” for the lower extremities .he was deemed not qualified for service for lumbar spondylolysis (a degenerativecondition of the lower spine) .myofascial neck and thoracic pain was not disqualifying .a prior history of migraine headaches was asymptomatic and not disqualifying .he was referred to an MEB for congenital lumbar pain/EPTS lumbarspondylolysis 5.A DA Form 7652 (Physical Disability Evaluation System (PDES) - Commander’sPerformance and Functional Statement), dated 7 November 2012, shows: .his immediate commander recommended his retention .the applicant’s medical conditions/limitations did not affect unit accomplishing it’smission .the applicant was still in training, had not completed his military occupationalspecialty (MOS) training, was not MOS qualified, and was not performing dutiesin his MOS 6.A DA Form 3349 (Physical Profile), dated 8 November 2012, shows: .he was given a permanent physical profile rating of “3” for lumbar back pain andEPTS congenital lumbar spondylolysis .the condition did not meet retention standards and required an MEB 7.An undated MEB Narrative Summary (NARSUM) shows: .his diagnosis of congenital lumbar spondylolysis was found to have been EPTS,not permanently service aggravated and was deemed to have met the medicalretention determination point (MRDP) .the applicant did not meet the retention standards of Army Regulation 40-501(Standards of Medical Fitness) .he was within 1 year of being diagnosed, failed conservative treatment withextended profiling, physical therapy and management with analgesics and non-steroidal anti-inflammatory drugs .he was unable to perform the functional duties and training required forcompletion of his MOS qualification .he could not perform the Army Physical Fitness Test events to the standard andcould not live in an austere environment without worsening his medical condition .he was evaluated and diagnosed by Orthopedics and x-ray findings confirm acongenital abnormality of lumbar spondylolysis, predisposing him to lumbarsacral pain .the applicant’s condition was not likely to improve while subjected to the stressesof military duty and it was unlikely he would be able to resume active duty militarytraining or service without recurrence or progression of his symptoms within thenext 5 years .MEB was recommended for the diagnosis of congenital lumbar spondylolysis .the diagnosis of migraine headaches met medical retention standards and wasnot cause for MEB referral because the condition did not materially affect hisability to function as a Soldier based on the medical record .the diagnoses of cervical and thoracic pain met medical retention standards andwere not cause for MEB referral .x-rays of the thoracic and cervical spine were normal and the condition did notprohibit performance of the duties and responsibilities of the applicant’s rank,grade, and station enough to warrant a permanent physical profile rating of “3” 8.A DA Form 3947 (MEB Proceedings), dated 19 November 2012 shows: .a MEB convened on the date of the form .congenital lumbar spondylolysis was deemed medically unacceptable, EPTS,and not permanently aggravated by service .migraine headache and cervical and thoracic pain were deemed medicallyacceptable .the applicant was recommended for referral to a PEB .the findings and recommendation of the MEB were approved on 26 November2012 .the applicant agreed with the MEB findings and recommendation on 4 December 2012 and acknowledged the DA form 3947 included all his currentmedical conditions and accurately covered all his medical conditions 9.Included with the DA Form 3947 is a hand-written statement made by the applicant,dated 27 November 2012, which states: a.He was requesting his case not go forward to a PEB and requested his dischargebe processed at the Kenner Army Health Clinic level for the EPTS conditions he had. b.He spoke with a legal advisor and was informed of all possible alternativesavailable to him and he determined this “worked best” for him and was what he wanted to do. 10.On 4 December 2012, he requested discharge from the Army for physical disabilitybased upon the findings and recommendation of a MEB. a.The MEB considered him unqualified for retention due to a physical disability thatwas found to have EPTS. He was fully informed and understood he was entitled to the same consideration and processing as any other member separated for physical disability, which he understood included consideration of his case by a PEB; however, he elected not to exercise that right and elected for him MEB packet to not go before the PEB. b.He understood the VA would determine entitlements to VA benefits and as part ofhis out-processing he would complete VA Form 21-526 (Veterans Application for Compensation and Pension). He acknowledged he understood he would be separated by reason of an EPTSD physical disability. 11.On 7 December 2012, his expeditious discharge under the provisions of ArmyRegulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation),chapter 5, was approved with a Separation Program Designator code of KFN (Releasedfor Physical Disability Existing Prior to Service). 12.His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows hewas honorably discharged on 12 December 2012 under the provisions of ArmyRegulation 635-40, chapter 5, due to disability ETPS. He was credited with 11 monthsand 10 days of net active service. 13.The applicant provided copies of numerous post-service civilian medical records,which show treatment beginning in May 2014 for spondylolysis, lower back pain, andlumbar disc herniation. Treatment consisted of physical therapy and epidural steroidinjections. 14.On 7 June 2019, the Army Review Boards Agency (ARBA) medical advisorprovided an advisory opinion, which states: a.The applicant’s medical records show a spine x-ray series on 28 September 2012revealed normal thoracic spine radiographs, and L5 spondylolysis with normal alignment of the lumbar spine. He was referred to orthopedics. An Orthopedic note, dated 1 October 2012, states the L5 spondylolysis was a normal variant. On 2 October 2012 an MRI showed no abnormality of the cervical spine. The Orthopedic physician reviewed his MRI and noted it was apparent the applicant had a pre-existing spondylolysis of L5 and S1 and a pars defect and he noted the applicant had thoracic paravertebral area pain out of proportion to the findings. A physical profile to limit his activities was written. b.A view of his VA records shows along with migraine headaches andspondylolysis, he was also diagnosed with hypertension and bipolar disorder. c.Records show the applicant did not meet medical retention standards for EPTScongenital lumbar spondylolysis. He met medical retention standards for migraine headaches and cervical/thoracic pain. The applicant’s spondylolysis is a congenital problem and EPTS. The lack of documentation prior to his service does not prevent this determination. His cervical and thoracic pain were examined and addressed during the MEB, but these conditions were deemed to meet the medical retention standards. The applicant waived a PEB evaluation after the MEB, in light of the MEB findings. All of his medical conditions were duly considered during his separation processing. d.The ARBA senior medical advisor concluded there is insufficient cause torecommend a change in the discharge characterization or narrative reason for separation. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15.The applicant was provided a copy of the advisory opinion and given an opportunityto submit comments, which he did along with submission of a VA Radiology Report,dated 4 August 2017. In the applicant’s undated rebuttal, he states: a.He takes issue with the medical advisor’s statement that the records show theorthopedic doctor remarked “He had a thoracic paravertebral area pain out of proportion to his findings.” The Orthopedic Physician’s Assistant (PA) he was seeing (not an orthopedic surgeon or doctor) states his mid back pain was “out of proportion to his findings.” This was conjecture and demonstrated a lack of care as only ex-ray imaging and physical evaluation were completed. No MRI scan was ordered for his mid-back. b.After his discharge from the Army, the VA demonstrated substantial defects in theT8-9 area, which is exactly where he had pain in the Army. Had the Orthopedic PA ordered an MRI while he was in the Army, these mid-back defects would have likely been elucidated and properly treated. He has included a radiology report from the VA regarding this imaging. c.The advisor also states the applicant’s cervical/thoracic pain were found to bemedically acceptable. But at the time of his service, he experienced bad pain, soreness, and discomfort in the thoracic region that made it very difficult to complete his military duties. This occurred concurrently with the lumbar spine issues. The pain in his thoracic region was worse and more limiting than the lumbar issues, yet only the lumbar issues were considered medically not acceptable. d.He knows that given his thoracic injuries and pain while in the Army, the Armyshould give credibility to his claims and evaluate his situation for a change in his discharge to a medical retirement. 16.Army Regulation 635-40 establishes the Army Disability Evaluation System andsets forth policies, responsibilities, and procedures that apply in determining whether aSoldier is unfit because of physical disability to reasonably perform the duties of hisoffice, grade, rank, or rating. Only the unfitting conditions or defects and those whichcontribute to unfitness will be considered in arriving at the rated degree of incapacitywarranting retirement or separation for disability. a.Soldiers are referred to the disability system when they no longer meet medicalretention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (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. b.The mere presence of medical impairment does not in and of itself justify afinding 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. c.Paragraph 3-2 states disability compensation is not an entitlement acquired byreason 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. d.Paragraph 3-4 states Soldiers who sustain or aggravate physically unfittingdisabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1)The disability must have been incurred or aggravated while the Soldier wasentitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2)The disability must not have resulted from the Soldier's intentionalmisconduct or willful neglect and must not have been incurred during a period of unauthorized absence. e.Chapter 5 provides guidance on non-service aggravated EPTS conditions when aSoldier requests waiver of referral to a PEB. The criteria for discharge per this chapter are as follows: .the Soldier is eligible for referral into the disability system .the Soldier does not meet medical retention standards as determined by theMEB .the disqualifying defect or condition existed prior to entry on current period ofduty and has not been aggravated by such duty .the Soldier is mentally competent .knowledge of information about his/her medical condition would not be harmful tothe Soldier’s well-being .further hospitalization or institutional care is not required .after being advised of the right to a full and fair hearing, the Soldier still desires towaive PEB action .the Soldier has been advised that a PEB evaluation is required for receipt ofArmy disability benefits, but waiver of the PEB will not prevent applying for VAbenefits 17.Title 10, U.S. Code, section 1201, provides for the physical disability retirement of amember 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 amember who has less than 20 years of service and a disability rating of less than 30percent. 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 theapplicant’s statement, his record of service, his medical condition and the reason for hisseparation. The Board considered the outcome of the MEB and the determination thathis condition that failed medical retention standards was EPTS as well as the applicant’selection following the MEB to waive consideration by a PEB. The Board considered thereview and conclusions of the medical advising official as well as the applicant’s rebuttal.The Board agreed with the finding of the advising official regarding the conditions thatfailed medical retention standards and those that did not. Based on the preponderanceof evidence, the Board determined that the reason for the applicant’s separation was notin error or unjust.2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. 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. X 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 militaryrecords must be filed within three years after discovery of the alleged error or injustice.This provision of law also allows the Army Board for Correction of Military Records(ABCMR) to excuse an applicant's failure to timely file within the three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability. The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 61 and in accordance with Department of Defense Directive 1332.18 and ArmyRegulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3.Army Regulation 635-40 establishes the Army Disability Evaluation System and setsforth policies, responsibilities, and procedures that apply in determining whether aSoldier is unfit because of physical disability to reasonably perform the duties of hisoffice, grade, rank, or rating. Only the unfitting conditions or defects and those whichcontribute to unfitness will be considered in arriving at the rated degree of incapacitywarranting retirement or separation for disability. a.Soldiers are referred to the disability system when they no longer meet medicalretention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (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. b.The disability evaluation assessment process involves two distinct stages:the MEB and physical evaluation board (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 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. 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. e. Paragraph 3-4 states Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. f. Chapter 5 provides guidance on non-service aggravated EPTS conditions when a Soldier requests waiver of referral to a PEB. The criteria for discharge per this chapter are as follows: . the Soldier is eligible for referral into the disability system . the Soldier does not meet medical retention standards as determined by the MEB . the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty . the Soldier is mentally competent . knowledge of information about his/her medical condition would not be harmful to the Soldier’s well-being . further hospitalization or institutional care is not required . after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action . the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits 5. 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. 6. 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.