BOARD DATE: 28 May 2020 DOCKET NUMBER: AR20190000159 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to disability that existed prior to service (EPTS) and correction to her net active service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * self-authored statement * numerous pages of service medical records * DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members, dated 9 March 2006 * Enlisted Record Brief, dated 24 May 2006 * Headquarters, Walter Reed Army Medical Center (WRAMC) Orders 145-0001, dated 25 May 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty), with a through date of 20 June 2006 * Department of Veterans Affairs (VA) Decision Review Officer Decision, dated 16 April 2007 * VA Rating Decision, dated 26 June 2018 * VA letter, dated 29 June 2018 * VA Rating Decision, dated 14 July 2018 * VA letter, dated 18 July 2018 * VA Rating Decision, dated 21 September 2018 * VA letter, dated 12 October 2018 * multiple pages of VA medical records 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: a. She was honorably discharged from the Army but believes she should have been medically retired. Since her discharge she has been dealing with other on-going health issues and waited until time permitted to file an application with the ABCMR. She pulled up her information online and read the paperwork, but in 2006 she was still under doctors’ care and just signed the paperwork without reading it. b. Her discharge orders, dated 25 May 2006, stated that her disability is based on an injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period, as defined by law. c. She served from 2001 through 2006. Her years of service are shown to be 3 years, 10 months, but they should reflect 4 years and 10 months of service. 3. A DD Form 2808 (Report of Medical Examination) shows the applicant underwent medical examination for the purpose of enlistment on 17 July 2001. It shows: * she was not qualified for service and was given a physical profile rating of “3” in the category of physical capacity or stamina * her significant disqualifying defect is listed as dysplasia (the presence of abnormal cell growth in a tissue which may signify a stage preceding the development of cancer), identified in a past PAP smear with infection * she previously had a cyst removed from under her tongue * her medical records were requested to make a determination about medical waiver for enlistment 4. Included among her civilian medical documents that were reviewed and considered by the Army medical examiner on 17 July 2001 are the following: a. A Penn State, Milton S. Hershey Medical Center, Department of Pathology and Laboratory Medicine Surgical Pathology Report, dated 13 June 2001. It shows the applicant’s final pathologic diagnosis after cervix biopsy resulting from abnormal PAP, was hyperplastic cervical epithelium (enlargement of cervical epithelium due to increased cell reproduction rate, often an initial stage in the development of cancer) with severe acute and chronic inflammation. b. A Johns Hopkins Medical Institutions, Oral Pathology Report, dated 27 March 1997, shows the applicant underwent surgery to remove a cyst from the floor of her mouth. There was no evidence of malignancy in the removed material. 5. The applicant was granted a medical waiver for enlistment on 25 July 2001. 6. The applicant enlisted in the Regular Army on 27 September 2001. 7. A Bio Imaging of Huntsville, Inc, Magnetic Resonance Imaging (MRI) Report, dated 15 March 2002, shows: a. The applicant was referred for an MRI of the brain with contrast due to a history of headaches and syncope. b. Her ventricular system showed fairly normal size and configuration. There was a mass in the body of the left lateral ventricle and the mass looked to be ovoid in shape, measuring 16 millimeters in diameter. 8. A partial Narrative Summary and Patient Discharge Instructions shows: a. The applicant was admitted to the hospital on 28 March 2002 for surgical removal of left ventricular mass. b. She had a 1 year history of syncopal episodes with the most recent one being on 12 March 2002 and a 6-month history of left sided daily headaches worse in the morning. The headaches were associated with dizziness, nausea, but no vomiting and at times numbness and tingling sensation of her tongue and both hands. She had blurry vision of the left eye only, but denied any gait, bladder, or bowel disturbance. She was recently treated for a urinary tract infection. c. Her past surgical history included the removal of a cyst from under the tongue. She was discharged on 29 March 2002. Pages 2-3 of the document are not available for review. 9. The applicant’s available records do not contain copies of her Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) proceedings or associated documents, therefore the complete facts and circumstances surrounding her discharge are unknown. 10. Headquarters, Walter Reed Army Medical Center Orders 145-0001, dated 25 May 2006, reassigned the applicant to the U.S. Army transition point for transition processing. The orders show the following: a. Her date of discharge was 20 June 2006. b. Her disability was not based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law. c. Her disability did not result from a combat-related injury as defined in Title 26 U.S. Code section 104. 11. Her DD Form 214 shows she was honorably discharged on 20 June 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (4), due to disability, EPTS, PEB. It also shows her net active service this period to be 4 years, 8 months, and 24 days, which is the difference between the date she entered active service on 27 September 2001 and the date of her discharge. 12. A VA Decision Review Officer Decision, dated 16 April 2007, shows she was granted a service-connected disability effective 22 June 2006, for the following conditions at the following percentages: * postoperative and post irradiation brain tumor ependymoma (tumor arising from the ependymal), 10 percent * right hip replacement, 100 percent, then 30 percent effective 1 September 2006 * left hip replacement, 30 percent * avascular necrosis (death of bone tissue due to lack of blood supply), right shoulder, 20 percent * avascular necrosis, left shoulder, 20 percent * bilateral knee avascular necrosis, 10 percent * microcytic anemia (presence of small red blood cells in a peripheral blood smear, often caused by iron deficiency), 10 percent * onychomycosis, right foot fungus, 0 percent * squamous cell dysplasia (increased likelihood for progression to squamous cell carcinoma) in cervix/ condyloma (genital warts) of cervix, 10 percent * alopecia left facial scalp (claimed as hair loss on left side of head due to radiation treatment) and surgical scars, 0 percent 13. The applicant provided two subsequent VA Rating Decisions, on dated 14 July 2018, and one dated 21September 2018, each showing additional service-connected conditions and ratings, including: * sciatic radiculopathy secondary to bilateral hip replacement, 10 percent effective 28 March 2016 * tinnitus, 10 percent effective 31 January 2018 * lumbar spine surgical scar, 10 percent effective 28 March 2016 * dysthymic disorder, 70 percent effective 31 January 2018 * intervertebral disc syndrome with lumbar spondylosis, degenerative disc disease and spinal fusion, 20 percent effective 28 March 2016 14. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant entered the Army in 2001 after being granted a waiver to enlist due to an abnormal PAP test. There is no mention in the entrance history and physical exam of headaches, dizziness, or fainting spells. The applicant specifically checked “no” for each of these responses. Medical documentation indicates that after serving in the Army for approximately 6 months she was evaluated for chronic headaches. She admitted to one Physician that she had been having headaches for some time, and in fact had been experiencing syncopal episodes associated with the headaches for “years”. Another provider’s note indicated that the applicant had been experiencing headaches and syncopal episodes for over a year. Since her time in the Army was well under a year, this establishes that her symptoms existed prior to service. After a MRI of the brain was performed, the applicant was found to have a small mass in a ventricle in her brain. The mass was removed at WRAMC in March 2002, and the applicant was returned to duty where she remained on active duty until 20 June 2006 at which time she received an honorable discharge IAW AR 635-40, Paragraph 4-24B(4) for reason of disability, existed prior to service, PEB. Although her DD 214 indicates that a PEB was associated with her discharge, there is no documentation from the DES in any of the applicant’s records. AHLTA does not contain any medical records related to her reason for separation. However, AHLTA does contain a note dated 24 October 2005 indicating the applicant had developed avascular necrosis of the femoral head presumably related to radiation treatments she underwent following her brain surgery. This note also indicates that the applicant was in the MEB process at that time, but there are no other notes related to the IDES process in AHLTA or JLV. There is a note in JLV dated 27 April 2006 stating that the applicant was continuing to have headaches which have increased in frequency since the benign tumor had been resected from her brain. The applicant is currently rated by the VA as 100% service connected. Therefore, based on the available information, it is the opinion of the Agency Medical Advisor that the character of service, separation authority, and narrative reason for separation are accurate, and a referral to the DES for consideration for military medical retirement is not indicated at this time. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement, the Board determined there is insufficient evidence to grant relief. 1. The Board carefully considered the applicant’s request for a medical retirement and reviewed the associated evidence and Medical Advisory Opinion. The Board agreed with the Medical Advisory Opinion and found that the preponderance of evidence indicates that the applicant’s medical conditions existed prior to service. a. Per regulation, the character of service and narrative reason for separation on the applicant’s DD Form 214 are reflective of the applicant’s preexisting medical conditions and not meeting retention standards due to those medical conditions. Therefore the Board found no basis to correct the record to reflect medical retirement or to refer her to the DES for evaluation of eligibility for medical retirement. b. The Board further found that the VA properly provided her support and benefits for service connected medical concerns after discharge. A VA finding of service connection does not necessarily result in a military medical disability rating or indicate a servicemember’s eligibility for medical retirement. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. 2. Regarding the applicant’s request to correct her net active service, the Board found no evidence of error. The DD Form 214 effective 20 June 2006 properly shows 4 years 8 months 24 days of net active service, based on her active service dates of 27 September 2001 to 20 June 2006. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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, United States 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. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS 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 PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 or not 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 either are 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 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. 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. b. 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. c. Paragraph 4-24b specifies based on the final disposition of the US. Army Physical Disability Agency, the U.S. Army Human Resources Command will issue retirement orders or other disposition instructions as follows: (1) Permanent retirement for physical disability (2) Placement on the Temporary Disability Retired List (TDRL) (3) Separation for physical disability with severance pay (4) Separation for physical disability without severance pay (5) Transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer, to the Inactive Reserve on the Soldier’s request (6) Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence (7) Release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit (8) Return of the Soldier to duty when he or she is determined physically fit 4. 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. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000159 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1