IN THE CASE OF: BOARD DATE: 14 October 2021 DOCKET NUMBER: AR20210006675 APPLICANT REQUESTS: * retirement due to physical disability * personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Regular Army discharge orders * Honorable Discharge Certificate * Department of Veterans Affairs (VA) rating decision and summary of benefits * Birth Certificate * social security card FACTS: 1. The applicant did not file within the three-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: a. He is requesting retirement because his career came to an end in 2015 due to injuries he sustained during deployments and training. After his surgery in 2015, he asked for a medical reclassification but his request was denied and he was sent into the medical separation process. The military took great care of him and he tried his best to take care of it, but he believes the process was rushed and he was not given the proper procedures when it comes to consideration for retirement. He is now receiving full benefits from the VA rated 100%. b. His injuries place him in the category for retirement. He was not given a fair chance to be considered for retirement due to his age and personnel offices being put under pressure to get the job done. He was heartbroken about the situation and he believes his mental state at the time was in a dark place due to post-traumatic stress disorder (PTSD). He could not make the right decision to stand up for himself and request retirement. 3. The applicant served on active duty in the Regular Army from 25 May 2005 to 4 May 2009. He again enlisted in the Regular Army 31 March 2010. 4. The applicant's Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings are not available. 5. Orders issued on 30 November 2015 directed the applicant's discharge under the authority of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), by reason of disability with severance pay, with a 20% disability rating. 6. The applicant's DD Form 214 confirms he was discharged on 15 December 2015 by reason of disability, severance pay, non-combat (enhanced). 7. The applicant provided a VA rating decision showing he was granted service- connected disability compensation, with a combined disability rating of 100%, for several medical conditions that include PTSD. 8. 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. 9. 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. 10. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities (VASRD). 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. 11. MEDICAL REVIEW: a. The Army Review Boards 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 requests Army medical retirement. He stated that his status should be upgraded to retirement because his injuries were sustained on duty. He further stated that after his surgery, he asked to be reclassed to another job but was denied due to downsizing of the force. He was ultimately discharged through the Integrated Disability Evaluation System (IDES), instead. He stated that he receives 100% disability from the VA. b. The applicant underwent multiple surgical procedures on his feet. After surgical intervention, he continued to report significant bilateral toe (MTP) pain of 7-8/10 severity, and difficulty flexing his toes. He was concerned about meeting demands as a truck driver for the military and maintaining his physical fitness. In 2013, he was referred for a MEB for the Bilateral Foot Pain/Status Post Right and Left Hallux Valgus Osteotomy. The PEB convened on 30 October 2015, found the Right Hallux Valgus Post-Surgical Bilateral Great Toe Hallux Valgus Osteotomy, and Left Hallux Valgus Post-Surgical Bilateral Great Toe Hallux Valgus Osteotomy conditions, unfitting. The PEB applied 10% ratings for both conditions as specified in the 28 October 2015 VA Rating Decision as per regulation for cases adjudicated as part of the IDES. c. When observing that the applicant was separated from the Army with severance pay at 20%, and the 100% rating granted by the VA shortly after discharge from service; it is important to note that during the VA Compensation and Pension (C&P) exams, the applicant endorsed a high number of symptoms which resulted in higher ratings; however, frequently he had less than 3 associated visits; or he did not endorse the same symptoms during Army clinic visits. For example, he was seen once for sinusitis, but during the Sinusitis C&P exam, he endorsed ‘near constant sinusitis’, ‘headaches’, ‘7 or more non incapacitating episode’, and ‘purulent discharge or crusting’ which resulted in the highest rating for that schedule. The following notes are from AHLTA (electronic records start on 14Jul2006); VA C&P exams; MEB NARSUM notes; and outside private records as noted. (1) Eczema 60%. Per AHLTA notes, the applicant was treated on 11 August 2008 for Chronic Actinic Dermatitis (a type of eczema); and he was given a 30-day profile to avoid the sun. He was seen on one other occasion for eczema (9 November 2015). He also had a few other different skin diseases; but he received the highest rating for the eczema diagnosis. (2) Bilateral Pes Planus 50%. The applicant was treated for Bilateral Pes Planovalgus with orthotics (29 October 2012 Parkwood Podiatry Associates note). This foot condition was not related to his unfitting condition. (3) Sinusitis 50%. The record showed that the applicant was treated for one episode of sinusitis on 27 June 2013 (Weed ACH) which apparently responded to treatment. (4) PTSD 50%. 28 September 2015 AMC Madigan Lewis MEB Evaluation Board showed that the applicant’s behavioral health (BH) condition met retention standards. AHLTA notes indicated he had been seen in BH since February 2014 for feelings of anxiety, depression and deployment related stress. There was no evidence of negative impact of BH symptoms on duty performance. During his 8 August 2015 Initial PTSDDBQ C&P exam, the examiner opined the condition caused occupational and social impairment due to mild or transient symptoms. Diagnosis: PTSD. The 28 July 2015 Commander's Performance and Functional Statement did not indicate any difficulties performing duties related to BH issues. (5) Migraine Headaches with Vertigo 50%. He had 3 to 5 visits for headaches since 2011. He used abortive medication only (Sumatriptan). The condition had not needed referral to Neurology nor had it failed prophylactic therapy. (6) Lumbosacral Strain 40%. There was no history of back injury/trauma. He was seen twice in 2013 for back flares. He had 1 consultation with orthopedics in March 2014, the specialist assessment was “Chronic Back Pain with an essentially normal MRI and non organic findings”. He was seen 1 year later in the emergency room (25 February 2015) reporting occasional back pain flairs. On 19 May 2015 he requested a profile for the back condition. He stated that his back pain increased with sit-ups, running, and prolonged walking. The record showed a permanent L2 profile for the back condition in October 2015. On 9 November 2015, he presented requesting clarification of the profile for his back condition. He was given a 3 week T3 profile to prohibit APFT participation. The record did not show physical therapy for the back condition, nor consultation with pain specialty. (7) Right Shoulder Acromioclavicular Joint Strain, Rotator Cuff Tendonitis, and Bicipital Tendonitis 20%. Per Shoulder Conditions C&P exam, the applicant stated the condition began when he was in Airborne school, when he was strapped into the tower and dropped at a high speed. The reviewer did not find this diagnosis or treatment for such in the AHLTA record. (8) Painful Scars of the Bilateral Feet 20%. The ARBA reviewer did not find any visits in AHLTA related to scar care. (9) Right Arm Peripheral Neuropathy 20%. He was seen in the emergency room for sutures (above the elbow) and disclosed that he sustained the arm lacerations during an altercation with another Soldier at Fort Stewart (21 April 2012 and 23 April 2012 notes). No right arm muscle or nerve impairment was diagnosed. There was one temporary profile for his upper arm for the period of 8 May to 22 May 2012 which corresponded to his stab wound from a fight with another Soldier. There were no identified restrictions after that profile expire. d. Records for the following VA service connected disabilities were also reviewed: Left Shoulder Acromioclavicular Joint Strain, Rotator Cuff Tendonitis, and Bicipital Tendonitis 10%; Limitation of Flexion, Left Elbow Lateral and Medial Epicondylitis (Non- Dominant) 10%; Limitation of Extension, Right Elbow Lateral and Medial Epicondylitis (Dominant) 10%; Impairment of Supination, Right Elbow Lateral and Medial Epicondylitis (Dominant) 10%; Impairment of Supination, Left Elbow Lateral and Medial Epicondylitis (Non-Dominant) 10%; Left Wrist Sprain (Non-Dominant) 10%; Right Wrist Sprain (Dominant) 10%; Right Hand and Index and Long Finger Strain, and DeQuervain Tenosynovitis (Dominant) 10%; Left Hip Strain, Limitation of Extension 10%; Right Hip Strain, Limitation of Extension 10%; Left Hip Strain, Impairment of 10%; Limitation of Extension, Left Knee Patellofemoral Pain Syndrome with Shin Splints 10%; Limitation of Extension, Right Knee Patellofemoral Pain Syndrome with Shin Splints 10%; Right Ankle Strain 10%; Left Ankle Strain 10%; Bilateral Metatarsalgia 10%; Right Hallux Valgus Osteotomy 10%; Left Hallux Valgus Osteotomy and First Metatarsophallangeal Joint Degenerative Disease 10%; Tinnitus 10%; Gastroesophageal Reflux Disease with Dysphagia 10%; Pseudofolliculitis Barbae 10%; Speech Disorder 10%; Sciatic Nerve, Left Leg Peripheral Radiculopathy 10%; Sciatic Nerve, Right Leg Peripheral Neuropathy 10%; Femoral Nerve, Left Leg Peripheral Radiculopathy 10%; Femoral Nerve, Right Leg Peripheral Radiculopathy 10%; Temporomandibular Joint Disorder 10%; Limitation of Flexion, Right Elbow Lateral and Medial Epicondylitis (Dominant) 0%; Left Hand and Thumb Strain (Non-Dominant) 0%; Right Hand and Thumb Strain, and De Quervain Tenosynovitis (Dominant) 0%; Left Hand and Index and Long Finger Strain (Non- Dominant 0%; Left Hand and Ring and Little Finger Strain (Non-Dominant) 0%; Right Hand and Ring and Little Finger Strain, and De Quervain Tenosynovitis (Dominant) 0%; Left Hip Strain, Limitation of Flexion 0%; Right Hip Strain, Limitation of Flexion 0%; Right Hip Strain, Impairment of 0%; Limitation of Flexion, Left Knee Patellofemoral Pain Syndrome with Shin Splints 0%; Limitation of Flexion, Right Knee Patellofemoral Pain Syndrome with Shin Splints 0%; Costochondritis 0%; Hypogeusia 0%; Deviated Nasal Septum 0%; Allergic Rhinitis 0%; Bronchitis 0%; Erectile Dysfunction 0%; Surgical Scar, Left Foot 0%; Right Arm Scar 0%; Surgical Scar Right Foot 0%; Tinea Pedis 0%; and Herpes Simplex I 0%. e. Based on records available for review, evidence was insufficient to support that the applicant had conditions which failed medical retention standards in accordance with AR 40-501 chapter 3, with the exception of the Right Hallux Valgus Post-Surgical Bilateral Great Toe Hallux Valgus Osteotomy, and Left Hallux Valgus Post-Surgical Bilateral Great Toe Hallux Valgus Osteotomy conditions. The applicant’s medical conditions were duly considered during medical separation processing. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant's medical conditions were duly considered during medical separation processing and he did not have any conditions that failed retention standards other than those identified by the PEB as unfitting. Based on a preponderance of evidence, the Board determined the applicant's discharge due to disability was not in error or unjust. 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, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the 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 Department of Defense Directive 1332.18 and Army Regulation 635-40. 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. 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 physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination or directed by medical providers. 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 or 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 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 whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. Ratings are assigned from the VASRD. 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 his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. 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%. 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%. 5. Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the IDES. It states: a. The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and 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 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 requirements promulgated in DODI 1332.18 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 standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member may request correction of his or her military records through his or her respective Military Department Boar for Correction of Military Records (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 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. e. If, after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 6. Title 38 U.S. Code, section 1110 (General - Basic Entitlement) states that 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 that 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. 8. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006675 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1