IN THE CASE OF: BOARD DATE: 11 June 2021 DOCKET NUMBER: AR20200001529 APPLICANT REQUESTS: in effect amendment of her records to show the inclusion of additional conditions to her physical disability rating APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * medical records (10 pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 requests correction to her medical evaluation board to add conditions that were not placed in her medical board record. She states she suffered from migraines and depression while on active duty and was not separated with those conditions. 3. The applicant enlisted in the Regular Army on 9 April 2009 for a term of 4 years. She entered active service on 19 August 2009 at Fort Jackson, South Carolina. She was awarded the Military Occupational Specialty (MOS) of 92A (Automated Logistics Specialist). 4. Her records contain a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) which shows the following: a. A PEB convened at Fort Sam Houston on 14 December 2012 and the case was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the 19 December 2011 Policy and Procedure Directive–type Memorandum 11-015. The specific VA Schedule of Rating Disabilities (VASRD) codes to describe the Soldier’s condition and the disability was determined by the VA and is documented in a VA memorandum dated 26 November 2012. b. The PEB found the applicant physically unfit and recommended a rating of 10 percent and that her disposition be separated with severance pay. c. The following conditions were found to be unfitting: * microcytic anemia (MEB diagnosis 1); this condition was unfitting because the symptoms of weakness, shortness of breath, and headaches prevented the applicant from performing the physical requirements of her MOS; rated at 10 percent * scar of the anterior trunk (result of treatment for anemia) (MEB diagnosis 1); this condition was unfitting because the symptoms of weakness, shortness of breath, and headaches prevent the applicant from performing the physical requirements of her MOS; rated at 0 percent d. The following conditions (MEB diagnoses 2 – 8) were not found to be unfitting both individually and in combination with other conditions and they were not associated with physical profile limitations nor did they impact the applicant’s ability to perform and of the ten functional areas: * mild intermittent asthma * chronic shoulder strain right * chronic shoulder strain, left * chronic hip strain * HPV * allergic rhinitis * dermatitis e. The PEB found the applicant’s disability disposition was not based on disease or injury incurred in the LOD in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war. It also found the disability did not result from a combat-related injury. f. The applicant concurred and waived a formal hearing of her case and did not request reconsideration of her VA ratings on 23 January 2013. 5. The applicant was issued separation orders on 31 January 2013. Her DD Form 214 shows: * the applicant was discharged on 29 March 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 4 * she was credited with 3 years, 7 months, and 11 days of net active service * her service was characterized as honorable * her separation code was JEB, and her reentry code was 3 * item 18 (Remarks) shows she received disability severance pay and completed her first full term of service 7. The applicant provided 10 pages of service medical records, all of which have been provided to the Board for review. Among those records the following are of note: * 20 July 2012, the applicant reported frequent migraines * 6 November 2012 from Fort Benning Community Mental Health, indicates she was experiencing depression * 28 November 2012 from Fort Benning Community Mental Health, indicates she was experiencing anxiety and depression * 12 March 2013 from Fort Benning Community Mental Health, indicates her anxiety and depression had subsided with her discharge from the Army * 11 June 2013, that states she can no longer be seen on post at psychiatry for depression since med board completed * 01 July 2013 from Fort Benning Labor and Delivery Outpatient, states she had a history of anxiety, depression, asthma, and migraines * 14 January 2013, prescription (expired) of Butalb/Acetaminophen/Caffeine for migraines * 1 October 2014, prescription (expired) of Sertraline for depression 8. On 10 November 2020, the U.S. Army Physical Disability Agency (USAPDA) reviewed the applicant’s records and provided an advisory opinion in her case. A USAPDA legal advisor opined the applicant’s request is legally insufficient due to the conditions deemed as meeting medical retention standards at MEB. Furthermore, on 1 November 2012, the applicant concurred with the findings of her MEB, declined to file an impartial medical review, and accepted the MEB recommended findings. A copy of the advisory is available for the Board’s Consideration. 9. The applicant was provided with a copy of this advisory opinion and given an opportunity to respond and/or submit a rebuttal. The applicant provided a rebuttal and states she was still being seen by mental health up until she was medically discharged from the Army. She addresses a reference in the advisory opinion concerning her expired prescriptions. She states she was still taking the prescriptions at the time she was in the Army and they are expired because she hasn’t been seen at Martin Army for mental health in over 7 years. The applicant provided and additional10 pages of service medical records, all of which have been provided to the Board for review. Among those records the following are of note: * 26 October 2012 from Fort Benning Community Mental Health, indicates she was experiencing anxiety * 20 December 2012 from Fort Benning Community Mental Health, indicates she was experiencing anxiety and depression * 9 January 2013 from Fort Benning Community Mental Health, indicates she was experiencing anxiety and depression * 6 February 2013 from Fort Benning Community Mental Health, indicates she was experiencing anxiety and depression 10. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 11. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 12. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 13. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant indicated that her MEB did not include migraines and depression which she suffered from while on active duty. b. The applicant was treated for migraines and depression conditions while in service and ordinarily these conditions would have been included in the MEB Proceedings (DA Form 3947); but they were not, as stated by the applicant. It should be noted that the conditions were not listed on VA Form 21-0819 (VA Joint Disability Evaluation Board Claim) as ‘referred’ medical conditions by the physician that were to be considered as the basis of fitness for duty determination. The ‘referred’ condition was Asthma. The headaches and depression were also not listed as ‘claimed’ medical conditions or conditions the applicant felt were incurred in or aggravated by active military service. The VA Form 21-0819 was signed by the applicant and should have involved counseling with her PEBLO (Physical Evaluation Board Liaison Officer). It should also be noted that although Asthma was the referred condition, pulmonary function tests (PFTs) were normal, and the condition had not required regular use of medication. The MEB provider noted that the Asthma prescriptions were not refilled regularly; she did not have frequent exacerbations; and the most recent episode was Mar2012 (more than 6 months prior to the NARSUM completion on16Oct2012). The Asthma condition was given a permanent P2 physical profile, and it was listed as meeting retention standards on DA Form 3947. Records showed the migraines and depression history: (1) Migraines. On 20Jul2012, the applicant was already in the MEB process and was seen as a referral for behavioral health evaluation. She was frustrated because she hadn’t been able to see her family. She was also in school. She reported insomnia and frequent migraines. The headaches were mild in intensity (2 out of 10). Later, during her second trimester of pregnancy (14Jan2013 and 01Jul2013) the headache pain increased (rated 6 out of 10). She was also suspected of losing fluid (related to pregnancy). The headache was not responsive to Tylenol and increasing fluid intake. She was given prescription strength pain medication. The diagnosis was Migraines. After military discharge, it was documented during the 01Nov2017 Headaches C&P exam, that the applicant had never been evaluated by neurology and had never used medication to prevent headaches, she had only been prescribed abortive meds. (2) Depression. The applicant did not deploy. While in service she was initially seen for occupational stress (she felt Command was not supportive of her medical concerns); interpersonal relationship issues; and stress related to treatments for her severe anemia. She was not initially given a mental health diagnosis. She became pregnant and began reporting issues with her boyfriend (the father of her unborn child). She began counseling. Her diagnosis was Adjustment Disorder with Anxiety and Depressed Mood. Testing showed a moderate level of anxiety. During the 22Oct2012 visit, she reported that her relationship and family problems had mostly resolved; however, she chose to continue with mental health counseling to address her “attitude” and anger issues. At the time of discharge, testing showed mild anxiety and no depression (06Feb2013). The 12Mar2013 Community Mental Health note reads “we mutually agreed to terminate mental health services at this time”. The diagnosis on that day was Adjustment Disorder-Resolved. She reported that she was “back to normal”. She stated that she had been discharged from the army; had moved into her own apartment; was feeling good about herself; and was excited about this new phase of her life. The applicant submitted VA records that indicated she was taking psychotropic medication 1.5 years after discharge (October 2014). In the 12Sep2017 Mental Disorders C&P exam, the applicant disclosed a somewhat tumultuous childhood/teen history that included mental health counseling because of running away with her boyfriend during middle school; and fights with her mother. The VA examiner opined that the applicant’s depression existed prior to service but it was more than 50% likely that her depression was aggravated beyond what would be expected due to her military service. c. The PEB convened 14Dec2012 determined the following conditions were unfitting: Microcytic Anemia at 10%, and Scar of the Anterior Trunk (result of treatment for the anemia) at 0%. The total combined rating was 10% with recommended disposition separated with severance pay. She was separated from service 29Mar2013. d. The applicant’s permanent level 3 profile did not include Migraines or a mental health condition. The Commander’s Performance Statement (dated 20120523) does not indicate any headaches issues; behavioral issues; or problems relating with other Soldiers. Based on records available for review, evidence is insufficient to support that either the Migraine Headache condition or Adjustment Disorder with Anxiety and Depressed Mood condition failed medical retention standards in accordance with AR 40-501 warranting separation through medical channels. The Migraines and Adjustment Disorder with Anxiety and Depressed Mood conditions were not listed on DA Form 3947; however, there is no evidence that these conditions significantly impacted military performance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s disability rating. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. 4. 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). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the rating using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 6. Title 38 U.S. Code, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001529 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1