ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20190008623 APPLICANT REQUESTS: through his Member of Congress, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions promulgated in Docket Numbers AR20070000629, AR20140019156, and AR20170019188 on 18 September 2007, 9 June 2015, and 18 December 2018, respectively. Specifically, he requests an increase in his disability based on his back injuries. He further requests removal of malingering from his permanent record. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Letters to Congressman * Letter from Twin Cities Orthopedics * Department of Veteran Affairs (VA) Rating Decisions (2014, 2017) * Letter to Case Management Division * Letter from U.S. Army Reserve Components Personnel and Administrative Center * Previous ABCMR Decision Documents * Medical documents * Letter from VA * Letter to President Trump * Life expectancy letter from Dr. B 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 Numbers AR20070000629, AR20140019156, and AR20170019188 on 18 September 2007, 9 June 2015, and 18 December 2018, respectively. 2. The applicant states in a 5-page letter to his Congressman, in effect, he disagrees with the previous ABCMR decisions. He states, in part: a. He does not believe the ABCMR took into consideration his Lumbar stenosis, L2, L3, and L4 with Pseudoclaudication. Code 5238 was only put into effect on 21 June 2012, after other medical records that had been missing were introduced back into his medical record. Two orthopedic doctors stated the original test of Lumbar Myelogram is a crude method to determine the diagnosis. Since his original diagnosis had been changed to reflect the herniated disk, he would like the original diagnosis to reflect that, as well as having the malingerer removed from his record. The original VA disability rating didn't reflect his back disability, which would have brought his rating up to 100%. He believes he is entitled to retroactive disability pay based on the records missing from his original records. b. He is an American Indian Combat Disabled Infantry Veteran with wounds sustained in ground-combat in 1968 and 1969 in South Vietnam. For his service in South Vietnam, he received the Combat Infantryman Badge, 2 Air Medals (for over 50 combat assaults from helicopters), the Vietnam Cross of Gallantry (for over 13 enemy killed by body count), and the Bronze Star Medal for 18 months of distinguished service from May 1968 to November 1968 (sic), while serving as Squad Leader, Platoon Sergeant, First Sergeant (and later as Platoon Leader), with Company C 1st Battalion 12th Infantry 4th Infantry Division. He also served as the United States Army Senior Enlisted Advisor Heavy Weapons MAT Team 71 and Senior Light Weapons Advisor Team IV 71 Delta Assistance Command. c. The wounds he suffered were from ground combat in the Tou Mrong Valley, Dakto, South Vietnam from a mortar round or a black powder booby trap. He was medically evacuated to the 4th Infantry Division Aid Station by helicopter located in old Dakto, he was then transferred by helicopter to the 71st Evacuation Hospital, APO, S.F. 96318, Pleiku South Vietnam. On 27 December 1968, his diagnosis was "will need prolonged convalescence." (It was noted he had been hospitalized with "Bell's Palsy" in the Republic of South Vietnam. He had weakness of right side of his body in September and October 1968.) He was then medically evacuated from 71st Evacuation Hospital Pleiku Vietnam. d. He goes on to give a timeline of events concerning his injuries. He believes he is entitled to his claim for retroactive back pay on his initial disability pay and the difference it would have been if all of his medical records were available and taken onto consideration. The applicant's complete statement is available for the Board's review and consideration. 3. A consultation dated 13 January 1969, shows the applicant was seen for continuous back pain. The attending physician stated malingering must be considered as a cause of the back pain; however, malingering was not a diagnosis. On 24 June 1969, the attending physician stated he did not get the impression the applicant was malingering. 4. A Medical Evaluation Board (MEB) Narrative Summary, dictated on 14 May 1974, shows: a. The applicant was admitted to the hospital on 4 February 1974, for reevaluation of the right hemiparesis. His problems were: thrombosis of left middle cerebral artery, manifested by right hemiparesis and speech difficulty and hypertension. b. His final diagnosis was thrombosis, left middle cerebral artery, undetermined etiology, with resulting right hemiparesis, in line of duty, unfitting; and hypertension, essential, mild, in line of duty, not unfitting. He continues to have right-sided weakness, his dominant side, and some difficulty with speech and thought process. It was opined this will not completely resolve and the applicant was unfit for further military service. It was recommended the applicant's case be referred to a physical evaluation board (PEB). 5. An informal PEB convened on 31 July 1974, at San Francisco, CA, to consider the applicant's medical conditions and his fitness for further service. A DA Form 199 (PEB Proceedings), dated 31 July 1974, shows the PEB found the following conditions unfitting and rated him for each condition accordingly, under the VA Schedule of Rating Disabilities (VASRD): a. Code 8008, brain vessel, thrombosis of left middle cerebral artery, residuals: * Code 8008-8513, all radicular groups, paralysis of right, major, incomplete, moderate, rated at 40% * Code 8008-6516, expressive aphasia, equals laryngitis, chronic, severe, rated at 30% * Code 8008-8520, sciatic nerve, paralysis of the right, incomplete, moderate, rated at 20% * Code 8008-8526, femoral nerve paralysis of right, incomplete, moderate, rated at 20% b. Code 7101, hypertension, essential, mild, below VA minimum, rated at 0% 6. The PEB found him physically unfit and recommended his placement on the temporary disability retired list (TDRL) with a combined disability rating of 70%. 7. Orders D8-477, issued by U.S. Army Military Personnel Center (MILPERCEN), Alexandria, VA on 28 August 1974, ordered the applicant's placement on the TDRL in his retired rank/grade of SSG/E-6, effective 12 September 1974, with a combined disability rating of 70%. 9. Orders D45-18, issued by MILPERCEN, Alexandria, VA on 2 September 1976, removed the applicant from the TDRL and permanently retired him effective 30 September 1976, with a combined disability rating of 70%. 10. The applicant provides: a. A physician letter from Twin Cities Orthopedics, dated 25 August 2016, wherein the physician states that there are two contradictory statements in docket number AR20140019156. Specifically, the applicant's chief complaint at that time clearly was pain in his leg and not back pain. The fact that he could not maintain an upright posture is further evidence of a herniated disk and nerve root impingement. Furthermore, his grossly positive straight leg raise is almost absolutely diagnostic of a herniated disk and of a herniated disk and nerve root impingement. It is clear the applicant had a herniated disc that was unappreciated on the crude antiquated radiologic tests available at the time. b. A VA Rating Decision letter, dated 21 June 2017, that shows he was granted service-connected disability at a combined rating of 100%, for the following conditions: * right upper extremity weakness (previously rated as residuals of brain vessel thrombosis with history of seizures and incomplete paralysis right upper extremity secondary to brain vessel thrombosis) at 70% * obstructive coronary artery disease, status post coronary artery bypass graft, myocardial infarction, and stent placement (Nehmer granted) at 60% * right lower extremity weakness at 60% * residuals of brain vessel thrombosis with history of seizures (previously incomplete paralysis right upper extremity secondary to brain vessel thrombosis under 8008-8513) at 60% * incomplete paralysis right lower extremity secondary to brain vessel thrombosis at 40% * post-traumatic stress disorder and memory loss at 30% * spinal stenosis with degenerative arthritis (previously rated as lumbar stenosis, L2, L3, and L4 with pseudoclaudication) at 20% * speech difficulty at 10% * hypertension at 10% * history of seizures at 0% * bilateral hearing loss at 0% * residual scar, status post coronary bypass surgery at 0% * traumatic amputation, tip of right fourth finger at 0% * neurodermatitis, lower extremities at 0% 11. In the processing of case AR20170019188, the Army Review Boards Agency (ARBA) Senior Medical Advisor provided an advisory opinion on 4 June 2018. The medical advisor concluded there is no medical documentation of any significant low back pain symptoms or problems (separate from the residuals of his stroke) between July 1973 and September 1974. No significant back pain problems were noted or recorded in the July 1974 narrative summary while the applicant was a patient in the medical holding company at FAMC. He clearly met medical retention standards for history of low back pain at the time of MEB/PEB processing. The complete medical advisory is available for the Board's review and consideration. 12. The applicant was provided a copy of the advisory opinion, to allow him the opportunity to submit comments or a rebuttal. He responded and stated his records were lost and not found until 1982, long after his retirement from the Army in 1974. Pursuant to the Army Disability Rating Review Board, he is requesting that his medical file be reviewed and that he be granted retroactive 80% to 100% disability pay and allowances from that date. 13. In the processing of this case advisory opinions were obtained from the Office of the Surgeon General (OTSG). A memorandum from Dr. FM, MEB Approval Authority, dated 8 August 2019, states the applicant's back condition was previously determined by the MEB to meet retention standards and was previously determined by the PEB to be fit for duty. These determinations were correctly made. The MEB is not involved with the Veteran's disability rating retirement percentage. The MEB is also not involved with the VA's disability rating for the Veteran's Back condition. The MEB concurs with the 4 June 2018 Medical Advisory Opinion from ARBA Senior Medical Advisor. 14. On 9 August 2019, Chief, Disability Evaluation System, OTSG, endorsed the opinion provided by Dr. FM regarding concerns presented by the applicant. Medical evidence shows the veteran's back condition was accurately found to have met retention standards and criteria for fitness for duty. No further action was recommended. 15. In response to the advisory opinion from OTSG, the applicant provides a Procedure Report from Nura Surgical Center Maple Grave, dated 9 September 2019 which states the applicant is an 81 year old male with the chief complaint of back pain. It further states the applicant underwent a lumbar facet denervation procedure. 16. Title 10, USC, 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%. 17. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 18. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from zero percent to one 100 percent, rising in increments of 10 percent. 19. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board concluded that the evidence does not support changing the applicant's disability rating. The Board found no evidence indicating that, prior to his retirement, the applicant had a back condition of such severity that it prevented him from performing his duties. The Board agreed with the medical advisors' conclusions that, in effect, his back condition, as it had manifested prior to his retirement, met retention standards and criteria for fitness for duty. The Board agreed that the fact that he later received a service-connected disability rating from the VA for lumbar stenosis is not evidence of error or injustice in the disability rating he received from the Army. 2. The Board agreed that the evidence supports correction of his service medical records (specifically the Consultation Sheet dated 13 January 1969) by redacting any references to malingering. 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 redacting references to malingering on the Consultation Sheet dated 13 January 1969. 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 increasing his disability rating based on a back condition. 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, USC, 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%. 2. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from zero percent to one 100 percent, rising in increments of 10 percent. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190008623 7 1