IN THE CASE OF: BOARD DATE: 3 September 2020 DOCKET NUMBER: AR20190004145 APPLICANT REQUESTS: correction to his DD Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding the following disabilities identified by their Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) codes and associated VA disability ratings: * VASRD Code 8100 migraine headaches rating 50 percent * VASRD Code 5003-5201 left shoulder tear rating 20 percent * VASRD Code 7804 scar to right shoulder rating 10 percent * VASRD Code 7804 tender scar to right anterior shoulder rating 10 percent * VASRD Code 7804 scar to the right inguinal fold rating 10 percent * VASRD Codes 7399-7346 esophagitis associated with residual of anterior labral tear to right shoulder, status post arthroscopic reconstruction rating 30 percent APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) dated 28 July 2006 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 15 August 2006 * Orders 296-0001 dated 31 October 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 December 2006 * VA Rating Decision dated 31 July 2018 * VA Letter to Applicant dated 13 February 2019 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, 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 states his DA Form 199 only reflects his two most grievous injuries that were believed to have the most impact on his duty performance as a fully capable deployable Soldier. He states it was the total combined injuries and illnesses that compromised his duty performance. Therefore, he requests correction to his PEB by adding the aforementioned codes with stated percentages resulting in an increase to his permanent disability rating to 100 percent. For him the injuries he suffered during service were greater than those entered on his MEB. He received advice from his VA representative who informed him he could apply to this Board to correct his MEB and subsequently his PEB. He believes it is an injustice that all his VA recognized disabilities were not included in his MEB and PEB. 3. On 28 January 1998 the applicant enlisted in the Regular Army receiving preventative medicine specialist training with award of a primary military occupational specialty (MOS). He also is a trained parachutist. 4. On 1 June 2001 he was promoted to sergeant/pay grade E-5. 5. On 18 July 2005 he was a passenger in a military vehicle when it was involved in an accident at or near Pforzhein, Germany. His injuries noted in the German hospital notes were to his cervical spine and right shoulder. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows his injuries were incurred in the line of duty. 6. On 5 June 2006 the applicant’s unit commander prepared a written statement concerning his duty performance. At the time he was assigned to Headquarters, U.S. Army Medical Department Activity, Heidelberg, Germany. His military duties involved traveling to various military installations requiring physical stamina and strength. He is not current with his Army Physical Fitness Test or individual weapons qualification training requirements. His medical conditions limit his ability to lift, walk, carry a weapon, wear the required field uniform (helmet and flak vest) or participate in a forced road march. She further noted he did not meet the height and weight standards of Army Regulation 600-9 (The Army Weight Control Program). 7. The applicant’s MEB Narrative Summary is filed within his official military personnel file under his application for combat related special compensation. The MEB referral was directed by a physician. Upon examination his medical conditions were stable and he was not able to perform essential tasks of his military occupational specialty. The medical doctor concluded the applicant failed to meet retention standards and he should be referred to a PEB. (His DA Form 3349 (Physical Profile) is not filed in his official military personnel record.) a. Notes show he injured his right hip in August 1998 during a parachute accident when he made a hard landing. He received physical therapy treatment for this injury. In 2001 an arthrogram of his right hip was abnormal and suggestive of a labral tear. In January 2002 he underwent a right hip arthroscopy which identified the labral tear. He had surgery to debride the area but the labral tear could not be repaired. He continued with physical therapy treatments. However, activities exacerbated his right hip pain including sitting or standing for prolonged periods, lifting, running and when experiencing a change in weather. The medical examination showed his range of motion was reduced for his right hip and he was unresponsive to conservative medical treatment. This condition was identified in Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41e (1) in effect at the time. b. In July 2005 he was a passenger in a military motor vehicle when it was reared ended by another vehicle. His injuries included dislocating his right shoulder which was relocated at a German hospital. In turn a magnetic resonance image (MRI) revealed a biceps tendon tear, a bursa rupture, and a dislocated ligament. In August 2005 he underwent surgery for repair of the right anterior capsulolabral injury and the superior labral anterior lesion. After this surgery he received physical therapy with stretching and strengthening exercises. In November 2005 he received a second surgery for this same injury wherein a debridement of the biceps anchor and right shoulder open biceps tenodesis. He continued to have pain and reduced range of motion. A neurologist determined after nerve conduction studies that he also had a right upper brachial plexus injury. He was advised by an orthopedic surgeon his reduced range of motion was secondary to (surgery) scar tissue. The surgeon recommended a third surgical procedure to remove the scar tissue. After consideration of the surgeon’s recommendation, the applicant declined because the surgery may reduce some of his pain but not increase his range of motion. The activities exacerbating his pain included prolonged walking or driving, any significant movement of the shoulder, lifting or performing keyboard work. During his examination range of motion measurements were performed by a medical doctor and are recorded in the summary. The active range of motion was reduced by 30 degrees of abduction, 30 degrees of flexion, and 10 degrees of external rotation. He exhibited mild to moderate pain during this examination. This condition was identified in Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-12b (1) in effect at the time. c. Additional notes show he relied on Naproxen, Tylenol and Percocet regularly for pain management and he had a history of migraine headaches. 8. On 28 July 2006 the MEB met and considered his clinical records, laboratory findings, his physical examinations including the MEB narrative summary. The applicant did not present information on his own behalf and indicated he did not desire to remain on active duty. The MEB noted two medical conditions that did not meet medical fitness standards for retention: * Right shoulder injury with shoulder dislocation requiring two surgical procedures, complicated by severe right shoulder pain; right brachial plexopathy, and severe reduction in motion; unresponsive to normal conservative treatment and manipulation under anesthesia (frozen shoulder) * Right hip labral tear with continued pain and reduced range of motion; unresponsive to conservation treatment 9. On 9 July 2006 the MEB findings and recommendations were approved. The applicant also agreed with the MEB’s findings and recommendations by signing his DA Form 3927. There is a continuation statement wherein he agreed with the following statements: * he reviewed the MEB packet, read the DA Form 3947, narrative summary and his physical profile acknowledging the PEB would only consider the two medical conditions noted as unfitting on his DA Form 3947 * his DA Form 3947 includes all his current medical conditions and whether or not they meet medical retention standards * his medical conditions not meeting medical retention standards are recorded on his DA Form 3927, his narrative summary and his physical profile * he provided all military medical documentation in his possession for his MEB * he agreed the MEB accurately covers all his current medical conditions * if he did not agree with these statements or his MEB, he provided his notice of disagreement in a written appeal (There is no evidence he appealed his MEB.) 10. The applicant provided his copy of his DA Form 199 for the Board to review. (The copy he provides is incomplete for it ends at block 12 (Typed Name, Grade, Branch of President). It does not include block 13 which lists the election options made by the applicant.) The PEB convened on 15 August 2006 in Washington, District of Columbia. The PEB using the VASRD assigned code 5201 to his right shoulder injury (frozen shoulder) and restated his medical condition as noted in the MEB narrative summary to include he could not do overhead work, could not wear his combat or load bearing equipment nor carry a fighting load for 2 miles. Based on the findings of the MEB range of motion and neurological studies, the PEB assigned a 30 percent disabling rating. For his right hip labral tear the VASRD Codes 5099 and 5033 were assigned with a 10 percent disabling rating due to range of motion limitations because of pain. His recommended combined disability rating was 40 percent based on the instructions of VASRD paragraph 4.25. The PEB recommended permanent disability retirement. He was advised to contact the VA for benefit assistance. His DA Form 199 contains the statement he was injured by an instrumentality of war when injured during parachute training and his disability did result from a combat related injury as defined in Title 26, U.S. Code, section 104. 11. On 25 September 2006 his PEB was approved by a representative of the Secretary of the Army at the U.S. Army Physical Disability Agency. 12. Accordingly on 23 October 2006, personnel issued the applicant Orders 296-0001 at the Heidelberg Transition Center, Heidelberg, Germany. These orders state he was released from assignment and duty because of physical disability effective 24 December 2006 in the rank and grade of sergeant/E-5. Effective 25 December 2006 he was placed on the permanent disability retired list with a 40 percent disability rating. He was issued a DD Form 214 documenting his service and recording his type of separation and retirement. 13. In support of his application he provided a current VA Rating Decision dated 31 July 2018 showing the following pertinent medical conditions identified during his pre-discharge medical examination which are subject to compensation by the VA. Prior to the publication of this rating decision, the applicant had a combined evaluation for compensation of 60 percent as of 25 December 2006, the date he was placed on the permanent disability retired list. As of 5 April 2017 his combined evaluation for compensation increased to 100 percent. * VASRD Code 8100 migraine headaches rating 0 percent on 25 December 2006 now rated 50 percent as of 5 April 2017 * VASRD Code 5299-5201 residuals of anterior labral tear to the right shoulder status post arthroscopic reconstruction (major) rating 40 percent from 25 December 2006 * VASRD Code 7399-7346 esophagitis associated with residuals of anterior labral tear to the right shoulder, status post arthroscopic reconstruction (major) 30 percent from 5 April 2017 * VASRD Code 5003-5201 left shoulder labral tear including superior labral anterior-posterior lesion rating 20 percent from 5 April 2017 * VASRD Code 5253 residuals of right hip arthroscopic labral debridement (thigh impairment) 10 percent rating from 25 December 2006 * VASRD Code 7804 scar to right shoulder rating 10 percent from 25 December 2006 * VASRD Code 7804 tender scar to right anterior shoulder rating 10 percent from 25 December 2006 * VASRD Code 7804 scar to the right inguinal fold rating 10 percent from 25 December 2006 14. He provided a second letter from the VA dated 13 February 2019 in which the VA stated his combined service-connected evaluation is 100 percent. The VA stated this letter was for his use in applying for benefits through his State or local governments. 15. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations. 2. In July 2006, a MEB found the applicant to fail medical retention standards in accordance with chapter 3 of AR 40-501, Standards of Medical Fitness (29 August 2003), for “Right Shoulder Injury from Motor Vehicle Accident with Shoulder Dislocation” and “Right Hip Labral Tears Secondary to parachute accident.in 1998.” There were no other conditions listed on his Medical Evaluation Board Proceedings (DA 3947). The applicant concurred with the MEB’s findings and recommendations on 24 July 2006 and was referred to a PEB. 3. The applicant states that the MEB did not list all of his diagnoses, which is correct. However, they are not required to do so in accordance with paragraph E4.1.3 of enclosure 4 of Department of Defense Instruction 1332.38, SUBJECT: Physical Disability Evaluation, dated 14 November 1996. When the PEB convened on 16 August 2006, they found the applicant unfit for the two conditions the MEB had determined to fail medical retention standards: “Right Shoulder Injury from Motor Vehicle Accident with Shoulder Dislocation” and “Right Hip Labral Tears Secondary to parachute accident.in 1998.” They rated the former at 30% disabling and the later at 10% disabling. His combined rating was 40% and it was recommended that he be permanently retired for physical disability. The service connected disabilities the applicant is requesting the DES to reevaluate: a. 8100 Migraine Headaches at 0% from 12/25/2006 thru 4/04/2017. He was seen by neurology in December 2003. At that time, he reported “approximately seven” migraine headaches so far that year. Based on this criterion, the condition met the medical retention standards in paragraph 3-30g of AR 40-501, Standards of Medical Fitness (29 August 2003). “Migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks” fail medical retention standards. Less than one migraine a month does not fail retention standards. This is consistent with his VA headache evaluation. His migraine headaches were rated at 0% the day after he was discharged. This rating is for a Veteran with fewer than one prostrating headache every two months. While the frequency and / or severity of his migraine headaches appear to have increased over time, they did not fail retention standards prior to his discharge. b. 5201 Left Shoulder Tear, Including SLAP at 20% from 4/05/17. He was seen for this condition on 13 April 2005. He stated he was having pain with a decreased range of motion for one month, and that he injured the shoulder while working on a car. He was treated conservatively with Indocin and a referral to physical therapy, and he was released without limitations. Physical therapy exam revealed a full range of motion with some discomfort at the extremes. He was referred to orthopedics, but the consult was administratively closed after 90 days because no appointment was scheduled by the applicant. There was no evidence this condition significantly interfered with military duties or failed medical retention standards requiring referral to a physical evaluation board. It is also noted that this condition was not found to be partially disabling until April 2017. c. 7346 Esophagitis at 30% from 04/05/2017. The applicant was not seen for this condition prior to his discharge. There was no evidence this condition significantly interfered with military duties or failed medical retention standards requiring referral to a physical evaluation board. It is also noted that this condition was not found to be partially disabling until April 2017. e. 7804 Scar to the Right Shoulder at 10% from 12/25/2006, 7804 Tender Scar to the Right Anterior Shoulder at 10% from 12/25/2006, and 7804 Scar to the Right Inguinal Fold at 10% from 12/25/2006. Scars themselves may be unfitting when they are painful to the extent that they limit activity, adherent to underlying structures, prevent the wearing of military equipment or clothing, or are susceptible to break down because of location or quality or the scar. There is no evidence that these scars significantly interfered with military duties or failed medical retention standards requiring referral to a physical evaluation board. 4. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states, “The mere presence of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.” It is the Agency Medical Advisor’s opinion that referral of the applicant’s case to the DES is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board concurred with the conclusion of the ARBA Medical Advisor that referral of the applicant's case to the DES to add conditions for which he received ratings from the VA after his retirement is not warranted. Based on a preponderance of evidence, the Board determined the applicant's processing through the DES and the results of that process were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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 Department of Defense (DOD) Directive 1332.18 (Disability Evaluation System) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability evaluation 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 or by a physican. 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. 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. a. The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments. 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. b. Paragraph 3-5 of the regulation in effect at the time 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. Under the provisions of Title 10, U.S. Code, chapter 61 these ratings are assigned from the VASRD. (1) 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 their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. (2) The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. These percentages are applied based on the severity of the condition. (3) 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 condition(s) or defect(s) and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any non-ratable defects or conditions will be listed in item 8 of DA Form 199, but will be annotated as non-ratable. c. The MEB is 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 qualification for retention based on the criteria in Army Regulation 40–501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral to a PEB. (1) The narrative summary is the heart of the disability evaluation system. Physicians who prepare cases for the MEB and PEB should be familiar with the VA physical examination worksheets to describe physical defects. This helps to ensure consistency in reporting similar conditions and assists the boards of the disability system in their review and evaluation process. (2) In describing a Soldier’s conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. The history of the Soldier’s illness, objective findings on examination, results of x-ray and laboratory tests, reports of consultations, response to therapy, and subjective conclusions with rationale must be addressed. A correlation must be established between the Soldier’s medical defects and physical capabilities. d. After the PEB establishes the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability. Percentage ratings reflect the severity of the Soldier’s medical condition at time of raring. The VASRD, as modified by appendix B of this regulation, is used in deriving percentage ratings. Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These determinations include concurrence with the findings and recommendation and waiver of a formal hearing; nonoccurrence with the findings and recommendations allowing submission of a rebuttal by the Soldier explaining his/her reason for nonoccurrence; or demand for a formal hearing with or without personal appearance. The Soldier’s elections must be received within 10 days of the Soldier’s receipt of the informal findings. e. A Soldier is entitled to a formal hearing if requested after informal consideration by a PEB. The Soldier may wave this right. If a Soldier demands a formal hearing, he or she is entitled to counsel. The Soldier may testify as a witness under oath in his or her own behalf, in which case the Soldier may be cross-examined as any other witness. After the hearing is concluded the DA Form 199 will immediately be prepared. The Soldier’s response after a formal hearing is recorded on DA Form 199-1 (Election to Formal Physical Evaluation Board Proceedings). f. The PEB is then sent to the U.S. Army Physical Disability Agency charged with reviewing the PEB proceedings to ensure that Soldiers are given uniform and fair consideration under applicable law, policies, and directives. This Agency makes the final decision of unfitness because of physical disability on behalf of the Secretary of the Army to include determining percentage rating and disposition. 4. Army Regulation 40-501 effective 19 March 2004 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. This publication implements DOD Directive 6130.3 (Physical Standards for Appointment, Enlistment and Induction) dated 15 December 2000, and DOD Instruction 6130.4 (Criteria and Procedure Requirements for Physical Standards for Appointment, Enlistment, or Induction into the Armed Forces) dated 14 December 2000. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) describes the various medical conditions and physical defects which render a Soldier unfit for further military service and which fall below the standards for retention. a. Paragraph 3-12 (Upper extremities) provides numerous causes for referral to an MEB include in subparagraph 3-12b (1) joint ranges of motion which do not equal or exceed the measurements for the shoulder forward elevation to 90 degrees, or abduction to 90 degrees. Measurements must be made with a goniometer and conform to established methods. b. Paragraph 3-29 (Mouth, esophagus, nose, pharynx, larynx, and trachea) subparagraph 3-29a (2) states esophagitis which is persistent and severe is a cause for referral to an MEB. c. Paragraph 3-30 (Neurological disorders) subparagraph 3-30 states migraine, tension, or cluster headaches when manifested by frequent incapacitating attacks are cause for referral to an MEB. d. Paragraph 3-38 (Skin and cellular tissues) subparagraph 3-38y states scars and keloids to extensive or adherent that they seriously interfere with the function of an extremity or interfere with the performance of duty. e. Paragraph 3-41 (General and miscellaneous conditions and defects) provides numerous causes for referral to an MEB include miscellaneous conditions and defects. Subparagraph 3-41e (1) provides for conditions and defects not mentioned elsewhere in chapter 3 are causes for referral to an MEB if the condition(s) (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the Soldier’s commander or supervisor. 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. The purpose of the Department of Veterans Affairs is to administer the law providing benefits and other services to Veterans and the dependents and the beneficiaries of Veterans. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004145 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1