IN THE CASE OF: BOARD DATE: 30 November 2021 DOCKET NUMBER: AR20210005349 APPLICANT REQUESTS: in effect, * physical disability retirement in lieu of physical disability separation with severance pay * personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum: Appeal of Medical Evaluation Board (MEB) Proceedings DA Form 3947 and Narrative Summary (NARSUM) * Memorandum: MEB Appeal Response * VA Form 21-0819 (DoD Referral to Integrated Disability Evaluation System (IDES)) * VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) * Medical Evaluation Board (MEB) Narrative Summary (NARSUM) * Department of Veterans Affairs (VA) General Medical - Separation Health Assessment Disability Benefits Questionnaire * VA Esophageal Conditions (Disability Benefits Questionnaire (DBQ)) * VA Diabetes Mellitus DBQ * VA Headaches (Including Migraine Headaches) DBQ * VA Back (Thoracolumbar Spine) Conditions DBQ * VA Shoulder and Arm Conditions DBQ * VA Knee and Lower Leg Conditions DBQ * VA Foot Conditions, including Flatfoot (Pes Planus) DBQ * VA Sinusitis/Rhinitis and other Conditions of the Nose, Throat, Larynx and Pharynx DBQ * QTC Medical Group Records (4 Pages) * Quest Diagnostics Report * VA DBQ Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI) * VA Initial PTSD DBQ * VA Hearing Loss and Tinnitus DBQ * Medical Records (51 Pages) * DA Form 3349 (Physical Profile Record) * DA Form 7652 (Disability Evaluation System (DES) Commander's Performance and Functional Statement) * Enlisted Record Brief (ERB) * DA Form 2166-9-2 (NCO Evaluation Report (NCOER)), 23 October 2018 – 6 September 2019 * DA Form 2166-9-2 NCOER, 1 September 2017 - 22 October 2018 * DA Form 2166-9-2 NCOER, 1 September 2016 – 31 August 2017 * DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement), 1-31 December 2019 * DA Form 5889 (PEB Referral Transmittal Document) FACTS: 1. The applicant states his disability for separation should be changed from 20 percent to at least 30 percent for retirement benefits for his Type 1 Diabetes. He has served honorably and is also indefinite to serve his country to at least 20 years’ retirement. Everyone that he has talked to feels he should be getting his medical retirement and not separated for his medical condition. 2. The applicant underwent a medical examination on 13 January 2005 for the purpose of enlisting. His DD Form 2808 (Report of Medical Examination) does not show any significant defects and was found qualified for service. He enlisted in the United States Army Reserve on 27 January 2005 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years and 19 weeks on 8 February 2005. 3. The applicant reenlisted in the Regular Army on the following occasions: * 21 December 2007 for a period of 4 years * 7 January 2010 for a period of 3 years * 1 October 2012 for a period of 3 years * 4 August 2014 for a period of 4 years * 22 September 2017 for an indefinite period 4. A DA Form 3349 (Physical Profile Record), dated 21 January 2020, shows the applicant was placed on a permanent profile for diabetes (uncontrolled/episodes of low blood sugar) with a PULHES of 311111. His profile indicates he cannot live and function, without restrictions in any geographic or climatic area without worsening the condition. Item 27 shows he was referred for an MEB. He should be assigned to within 30 minutes transport time to a facility capable of providing intensive care services. He should not deploy OCONUS. Due to enhanced risk of heat injury, he should not work in an environment where access to water is rationed, restricted or the working environment temperature exceeds 90F. Low blood sugar reactions impair judgment and result in a loss of coordination. Those who experience frequent episodes of low blood sugar or is aware that their blood sugar is currently low should not handle loaded weapons or explosives or be required to perform duties where loss of consciousness would pose a threat to self or others. Examples of duties that would have increased risk include guard duty, work on scaffolding, operating vehicles or heavy equipment, working on moving machinery. He must have a duty schedule that permits regularly scheduled meals, self-monitoring of blood glucose (SMBG), and the taking of snacks for low blood sugar reactions. Separate rations are authorized for routine consumption. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 5. A DA Form 7652 (Disability Evaluation System (DES) Commander's Performance and Functional Statement), dated 21 January 2020, shows the impact of the applicant’s medical impairment on his ability to perform his duties. The Commander indicated he was able to perform tasks and/or duties to standards and that he believes his condition will prevent the applicant from serving in his primary military occupational specialty (MOS) in future assignments. He states, the [applicant] is considered non-deployable due to his medical condition. His condition is under control, however, without proper medical support for his medication and proper storage the [applicant] is restricted from some field exercises. Due to these reasons, the [applicant] is no longer able to fulfill his duties in a field environment and is unable to deploy. The Command and First Sergeant (1SG) are aware of the [applicant]'s medical condition. He continually maintains standards, however, his blood sugar levels must be continually monitored. The [applicant] has fulfilled all his duties and exceeded the standards. However, his medical condition is a permanent profile that restricts him from being deployable and restricts field environments without adequate resourcing for medical support on a daily basis. 6. A VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), dated 10 February 2020, shows the type of claim program/process as Integrated Disability Evaluation System (IDES). Section IV (Claim Information) shows the following disabilities claimed related to the applicant’s military service: * diabetes mellitus, insulin dependent * headaches * acid reflux * bi-lateral shoulder condition * lower back condition * bi-lateral knee condition * bi-lateral foot condition * anxiety * nightmares * attention deficit hyperactivity disorder(ADHD) * post-traumatic stress disorder (PTSD) (no etiology) * ringing in ears * traumatic brain injury (TBI) (no etiology) 7. The applicant provides the following VA examinations: * General Medical - Separation Health Assessment DBQ * Esophageal Conditions DBQ * Diabetes Mellitus DBQ * Headaches (Including Migraine Headaches) DBQ * Back (Thoracolumbar Spine) Conditions DBQ * Shoulder and Arm Conditions DBQ * Knee and Lower Leg Conditions DBQ * Foot Conditions, including Flatfoot (Pes Planus) Disability Benefits Questionnaire * Sinusitis/Rhinitis and other Conditions of the Nose, Throat, Larynx and Pharynx DBQ * DBQ Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI) * Hearing Loss and Tinnitus DBQ 8. A QTC Medical Group Waiver Option Form shows the applicant declined a rectal and genital exam on 24 February 2020 as he had no current issues. The same medical group advised the applicant they use the Goniometer to measure range of motion. 9. The applicant was examined by the Columbus Diagnostic Center on 24 February 2020. The evaluation of his left shoulder shows no acute fracture or dislocation identified. There is mild acromioclavicular narrowing and osseous hypertrophy noted. There is moderate narrowing of the glenohumeral joint space. Left shoulder degenerative changes without acute abnormality. The evaluation of his right shoulder shows no acute fracture or dislocation identified. There is no obvious aggressive lesion or significant erosive/productive arthritic change. Included portions of right hemithorax are clear. No acute or concerning right shoulder abnormality identified. 10. A Quest Diagnostics Report, dated 25 February 2020, shows the applicant’s glucose was out of range. His glucose level indicates that he may have diabetes and this should be confirmed with a follow-up test. 11. A MEB Narrative Summary (NARSUM), dated 16 March 2020, states the applicant was referred to the IDES for disposition because of limitations from the diagnosis of Diabetes Mellitus, Type I Insulin Dependent. The NARSUM shows the following: a. Diagnosis not meeting medical retention standards: Diabetes Mellitus, Type I, Insulin Dependent. (1) Medical Basis for Diagnosis: [The applicant] requires ongoing care and follow up with Internal Medicine for his Diabetes. His most recent Glucose on point of care testing was 190 at Ft Benning, GA on 17 Jan 2020. [The applicant] has not had a follow up A1C since his admission on 7 Dec 2019. (2) Onset: [The applicant] was evaluated in the Emergency Department at Ft Benning, GA on 7 December 2019 with reports of frequent urination, fatigue, and blurred vision. (3) Treatment Summary: He was diagnosed with Type I, Insulin Dependent Diabetes. [The applicant] was noted to be in diabetic ketoacidosis (DKA) and was admitted to the ICU with an initial Glucose of 321 and A1C 12.8. He is currently followed on an outpatient basis and is prescribed short acting Insulin prior to meals and long acting Insulin eat bedtime. (4) Prognosis Statement: [The applicant]'s Diabetes is poorly controlled and at this time requires continued follow up and management. Over the next 3 years with aggressive management and [the applicant]'s compliance with treatment his Diabetes should stabilize. However, if [the applicant] is non-compliant with plan of care he could have progression of the disease with end organ complications. (5) Impact on Duty Performance: [The applicant] must take medications on a regular basis. [The applicant] must have a duty schedule that permits regularly scheduled meals, self-monitoring of blood glucose (SMBG), and the taking of snacks for low blood sugar reactions. Separate rations are authorized for routine consumption. No continuous MRE consumption. [The applicant] requires proper diet for diabetes and must have regular meals and exercise. Running and marching at own pace and tolerance. [The applicant] should be assigned to within 30 minutes transport time to a facility capable of providing intensive care services. Due to increased risk of heat injury, the [applicant] should not work in an environment where access to water is rationed, restricted or the working environment temperature exceeds 90 degrees F. He requires insulin injections, i.e. sterile condition for injection, and refrigeration storage of Insulin. Episodes of low blood sugar impairs judgment and result in a loss of coordination. Soldiers who experience frequent episodes of low blood sugar or is aware that their blood sugar is currently low should not handle loaded weapons or explosives or be required to perform duties where loss of consciousness would pose a threat to self or others. Examples of duties that would have increased risk include guard duty, working on scaffolding, operating vehicles or heavy equipment, working on moving machinery. b. Diagnoses meeting medical retention standards: * Hallux Valgus, Right Foot * Hallux Valgus, Left Foot * Hammer Toes, Right Foot * Hammer Toes, Left Foot * Calcaneal Spurring, Right Foot * Synovitis of the 2nd Flexor Sheath, Left Foot * Personal History of Military Deployment * ADHD * Traumatic Brain Injury- No Diagnosis * Tension Headaches * Sensorineural Hearing Loss * Tinnitus * Degenerative Arthritis, Left Shoulder * Strain, Right Shoulder * Strain, Lumbosacral * Strain, Right Knee * Strain, Left Knee * GERD c. Medical Retention Determination Point (MRDP) has been met for Diabetes Mellitus, Type I, Insulin Dependent as the [applicant] is not expected to return to duty within the next 12 months. [The applicant] has had treatment as noted in 7c "Treatment Summary", but continues to have symptoms that interfere with the performance of MOS duties and the duties of a Soldier; further treatment is not likely to return [the applicant] to full duty. d. [The applicant] cannot perform functional activities: Live and function, without restriction in any geographic or climatic area without worsening condition. e. The [applicant] is deemed mentally competent for pay purposes, is capable of understanding the nature of, and cooperating in, PEB proceedings, and is not considered dangerous to self or others. 12. A DA Form 3947 (MEB Proceedings), dated 17 March 2020, shows the applicant was referred to a PEB for his condition of Diabetes Mellitus, Type I, Insulin Dependent. It further shows: a. The following applicant was diagnosed with the following conditions which meet retention standards: * Hallux Valgus, Right Foot * Hallux Valgus, Left Foot * Hammer Toes, Right Foot * Hammer Toes, Left Foot * Calcaneal Spurring, Right Foot * Synovitis of the 2nd Flexor Sheath, Left Foot * Personal History of Military Deployment * ADHD * Traumatic Brain Injury- No Diagnosis * Tension Headaches * Sensorineural Hearing Loss * Tinnitus * Degenerative Arthritis, Left Shoulder * Strain, Right Shoulder * Strain, Lumbosacral * Strain, Right Knee * Strain, Left Knee * GERD b. The applicant did not concur with the Board’s findings and elected to submit a rebuttal. His rebuttal, dated 20 March 2020, states: (1) He disagrees with the findings of his MEB and requested his profile be updated to show less limitations. (2) MEB Diagnosis 1, Diabetes Mellitus Type I: While he understands that this condition must fail retention standards in accordance with AR 40-501, he does not believe that this condition is as limiting as his profile DA Form 3349 suggests. He has over 15 years of active federal service and would like to continue his career. With his extensive training and experience, he could be utilized in any number of TRADOC positions. His profile indicates that he cannot perform any APFT. His feet currently prevent him from comfortably running. There is no reason he could not complete the APFT bike event. He requests that his profile be amended to show as few restrictions as necessary. c. A memorandum in response to the applicant’s rebuttal letter states: (1) [The applicant] agrees that his Diabetes fails retention standards but contends that his profile is too restrictive and requests that it be updated. Although, this may be a reasonable consideration in the future, his Diabetes is newly diagnosed and currently considered to be poorly controlled, and therefore it would not be in the best interest of the [the applicant] or the military to change the profile at this time. However, in the future if he is able to prove that his Diabetes is well controlled, based on his history, physical exam, labs and downloaded glucometer readings, this might be a consideration. (2) [The applicant]'s appeal has been considered and the original findings and recommendations are confirmed. No changes are recommended as no additional evidence was found in the records review or the [applicant]'s appeal to support any changes to the NARSUM. d. The MEB decision was approved on 26 March 2020. 13. A DA Form 199-1 (Formal PEB) shows: a. A Formal PEB convened on 6 October 2020, and found the applicant unfit for Diabetes mellitus, type I, insulin dependent. The PEB states [the applicant] was first seen on 7 December 2019 at Ft Benning, Georgia, due to frequent urination, fatigue, and blurred vision. Despite treatment with insulin the [applicant]'s condition has failed to improve enough to allow a return to full duty. This condition is medically unacceptable and prevents worldwide deployment in a field or austere environment. b. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). As documented in the Department of Veterans Affairs (DVA) memorandum dated 21 April 2020, DVA determined the specific VASRD code(s) to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed DVA disability rating(s) and in accord with applicable statutes and regulations. The PEB adopted the VA rating of 20 percent and that his disposition be separated with severance pay. c. The disability disposition is not based on disease or injury incurred in the line of duty 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 line of duty during a period of war. He was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. The disability did not result from a combat-related injury. The disability severance pay was not awarded for disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense. d. The disability was found to have been incurred or aggravated in the line of duty in a duty status. The disability was not incurred due to intentional misconduct, willful neglect, or unauthorized absence. The disability was found to be permanent and stable. e. The PEB considered and determined the following conditions are not unfitting: * Right foot hallux valgus * Left foot hallux valgus * Right foot hammer toes * Left foot hammer toes * Right foot calcaneal spurring * Left foot synovitis of the 2nd flexor sheath * Personal history of military deployment * Attention deficit hyperactivity disorder * Traumatic brain injury * Tension headaches * Sensorineural hearing loss * Tinnitus * Left shoulder degenerative arthritis * Right shoulder strain * Lumbosacral strain * Right knee strain * Left knee strain * Gastroesophageal reflux disease f. The applicant elected to appear and did appear for the formal proceedings. He was represented by regularly appointed counsel. g. The Formal Board determined, based on a review of the objective evidence of record, to include the testimony and exhibits provided during formal board proceedings, in full consideration of DoDI 1332.18, Enc. 3, App. 2, and considering the requirements for reasonable performance of duties required by rank and military specialty, the PEB does not find the [applicant] unfit for bilateral hallux valgus and bilateral hammer toes. The [applicant] testified onset of this condition in 2019 when he was training cadets at the United States Military Academy in West Point, New York when the condition began to interfere with performance of military duties. However, the board determined there is insufficient medical evidence that his foot issues have prevented reasonable performance of military duties. An MRI of the feet in December 2019 is mostly unremarkable. According to the [applicant]'s C&P exam on 24 February 2020, the [applicant] does not have symptoms due to hallux valgus. The [applicant] was able to take an Army Physical Fitness Test and pass all three events, with no alternate events, as recently as October 2019. The [applicant] does not have a current DA 3349 physical profile for these foot conditions and there are no functional activity restrictions placed on him. Current treatment is limited to customized orthopedic inserts. In the DA 7652, the unit commander states the [applicant] fulfills all of his duties and exceeds the standard. Having reviewed sworn testimony and exhibits provided by the [applicant] and counsel during formal proceedings, the PEB finds the Soldier fit for hallux valgus and bilateral hammer toes. h. The applicant did not concur with the findings of the formal PEB and elected to submit an appeal. He also requested the VA reconsider his disability ratings on 13 October 2020. i. The findings of the Formal PEB were approved on 2 December 2020. 14. Orders 3xx-2xxx, dated 9 December 20xx, shows the applicant was reassigned for transition processing with an effective separation date of 2 March 2021 with 20 percentage disability with authorization of severance pay. It also states his disability was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law, is not a combat related injury as defined in 26 USC 104, and was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense. 15. The applicant was honorably discharged on 2 March 2021 under the provisions of Army Regulation (AR) 635-40, paragraph 4-27c(3) for disability, severance pay, non- combat related. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited 16 years 25 days net active service. Block 18 (Remarks) shows disability severance pay - $156,643.20. 16. The applicant provides: a. A copy of 51 pages of medical records from 2015 through 2020 showing his military treatment record. b. A copy of his Enlisted Record Brief (ERB), dated 21 January 2020. It shows his PULHES as 312112. c. Copies of three (3) DA Forms 2166-9-2 NCOER for the periods proceeding his separation covering the periods: 1 September 2016 – 31 August 2017, 1 September 2017 - 22 October 2018, and 23 October 2018 – 6 September 2019. They show the applicant either met or exceeded in performance of his duties. d. A copy of DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement), for the period covering 1-31 December 2019. e. A copy of DA Form 5889 (PEB Referral Transmittal Document), dated 26 March 2020, that shows the applicant was referred to the PEB. 17. Army Regulation (AR) 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 18. 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. 19. Title 38, USC, 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. 20. Title 38, CFR, 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. 21. MEDICAL REVIEW: The Army Review Boards Agency (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: a. The applicant is applying to the ABCMR requesting an increase in his military disability rating and that his disability discharge disposition be changed from separated with severance pay to permanent retirement for physical disability. He requests “Disability for separation changed from 20% to at least 30% for retirement benefits for my TYPE I Diabetes.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. His DD 214 shows he entered the regular Army on 8 February 2005 and was honorably discharged with disability severance pay on 2 March 2021 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all other conditions they believe to be service connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). d. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. f. On 29 January 2020, the applicant was referred to the IDES for “Diabetes Mellitus, Insulin Dependent.” The applicant claimed ten additional conditions on a separate Applications for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). A medical evaluation board (MEB) determined the referred diabetes failed the medical retention standards of AR 40-501, Standards of Medical Fitness. The MEB determined eighteen other medical conditions met medical retention standards. g. On 23 June 2017, he non-concurred with the MEB’s decision. While he conceded that his diabetes did fail medical retention standards, he thought the physical profile was overly restricted and requested that my profile be updated to show less limitations.” h. The physician addressing the appeal recommended against modifying his profile at that time. He opined: “Although, this may be a reasonable consideration in the future, his Diabetes is newly diagnosed and currently considered to be poorly controlled, and therefore it would not be in the best interest of the SM {service member} or the military to change the profile at this time. However, in the future if he is able to prove that his Diabetes is well controlled, based on his history, physical exam, labs and downloaded glucometer readings, this might be a consideration.” i. Following his appeal, his case was forwarded to a physical evaluation board (PEB) for adjudication. j. The applicant’s informal PEB found his “Diabetes mellitus, type I, insulin dependent.” to be the sole unfitting for continued military service. They found the eighteen remaining medical conditions not unfitting for continued service. The PEB applied the Veterans Benefits Administration (VBA) derived rating of 20% and recommended the applicant be separated with disability severance pay. The applicant non-concurred with the PEB’s findings and demanded a formal hearing with the assistance of regularly appointed counsel, and requested a VA reconsideration of the rating (VARR) for his diabetes. k. At his formal hearing on 6 October 2020, the applicant contended that his hallux valgus (bunion) and hammertoes where additional unfitting conditions for continued service. The formal PEB correctly maintained the informal PEB’s finding that these were not unfitting conditions for continues service: “The Soldier testified onset of this condition in 2019 when he was training cadets at the United States Military Academy in West Point, New York when the condition began to interfere with performance of military duties. However, the board determined there is insufficient medical evidence that his foot issues have prevented reasonable performance of military duties. An MRI of the feet in December 2019 is mostly unremarkable. According to the Soldier's C&P exam on 24 February 2020, the Soldier does not have symptoms due to hallux valgus. The Soldier was able to take an Army Physical Fitness Test and pass all three events, with no alternate events, as recently as October 2019. The Soldier does not have a current DA 3349 physical profile for these foot conditions and there are no functional activity restrictions placed on him. Current treatment is limited to customized orthopedic inserts. In the DA 7652, the unit commander states the Soldier fulfills all of his duties and exceeds the standard.” l. The applicant’s diabetes had been rated by the VBA at 20% as seen in their 21 May 2020 ratings decision. (1) We have assigned a 20 percent evaluation for your diabetes mellitus type 1, insulin dependent based on: Insulin required (2) Additional symptom(s) include: Restricted diet (3) A higher evaluation of 40 percent is not warranted for diabetes mellitus unless the evidence shows: Diabetes requiring insulin, restricted diet, and regulation of activities. (38 CFR 4.119) m. In his VARR, the applicant had essentially requested the VA increase his rating to 40% due to restricted activities. Diabetes (VASRD diagnostic code 7913) is rated at as follows: * Requiring insulin, restricted diet, and regulation of activities ........................40 * Requiring insulin and restricted diet, or; oral hypoglycemic agent * and restricted diet .........................................................................................20 * Manageable by restricted diet only.................................................................10 n. The higher ratings of 60% and 100% require complications and hospitalizations secondary to diabetes. o. The VBA Decision Review Officer Memorandum, dated 6 November 2020 showed the applicant’s 20% disability rating for his diabetes was confirmed: (1) The term regulation of activities is defined parenthetically in 38 CFR 4.119, Diagnostic Code 7913 to mean the requirement of “avoidance of strenuous occupational and recreational activities.” In turn, this must be understood as meaning that the avoidance is required to help control blood sugar. Evidence must document that the avoidance of strenuous activities is required/prescribed as part of the medical management of the individual’s diabetes. (2) The VA examination does not show regulation of activities as prescribed above. The exercise at own pace is merely a caution not to undertake anything for which the individual is not prepared for. The checking of blood sugars before and after exercise is likewise a caution to make sure that blood sugars are within acceptable limits and not a prohibition on activity. As for the no field activities, evidence received from the PEB previously shows this is part of ensuring access to medical care when needed. The caution on eating MREs has more to do with diet and is necessary because those meals do not meet guidelines for proper diabetic diet. (3) The one treatment record offered shows the service member was seen September 8 of this year. The only possible symptom or side effect that might be related to diabetes is some fatigue. There is no claim or showing of hypoglycemia or reports of any recent hypoglycemic episodes. As for the elevated A1c and increase in insulin, this appears to be related to voluntary discontinuance of Metformin and Jardiance due to medication side effects. The service member was reported to be exercising four times weekly and no special restrictions of ill effects were reported. (4) There does not appear to be regulation of activities within the intended meaning of the term in the Schedule for Rating Disabilities. The 20 percent evaluation is confirmed.” p. Review of the his PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies or discrepancies. q. Given no evidence of error or injustice, it is the opinion of the Agency Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. After reviewing the application and all supporting documents, the Board determined that they could make a fair and equitable decision in the case without a personal appearance from the applicant. Additional, based upon the medical advisory’s finding that there were no medical basis or rational for the submitted increase in disability claim. Review of the PEB case file along with other supporting documents revealed no substantial inaccuracies or discrepancies. Given no evidence of error or injustice, the Board concluded that there was insufficient evidence to support granting him the requesting relief. 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, 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 (Disability 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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. 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). The Department of Veterans Affairs Schedule for Rating Disabilities. 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. 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 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. 6. Title 38 U.S. Code 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. 7. Army Regulation (AR) 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005349 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1