IN THE CASE OF: BOARD DATE: 16 February 2022 DOCKET NUMBER: AR20210008399 APPLICANT REQUESTS: Correction of her records to show she was retired by reason of physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 4 March 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 June 1989 * Department of Veterans Affairs (VA) benefits letter, dated 23 February 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 she was medically discharged with 10 percent (%) disability. She is currently rated as 80% disabled for the same conditions she was discharged for; her condition is affecting her daily activities. She would like Item 23 (Type of Separation) of her DD Form 214 amended from "Discharge" to "Retired." 3. The applicant enlisted in the Regular Army on 9 April 2014. 4. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows that the applicant was found physically unfit on 29 June 2015, due to Left Hip Tendinopathy, impairment of the thigh, in accordance with the VA Schedule for Rating Disabilities (VASRD) and it was recommended that she be separated with severance pay, with a combined disability rating of 10%. The applicant concurred with the PEB findings and recommendation on 30 June 2015 and waived a formal hearing of her case. She did not request reconsideration of her VA rating. 5. The applicant was honorably discharged on 14 September 2015, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 4, by reason of disability, severance pay, non-combat (enhanced). 6. The applicant provides a letter of benefits from the VA, date 23 February 2021 which shows that she’s receiving 80% benefits for her service-connected disability. 7. 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. 8. 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. 9. Title 38, Code of Federal Regulations (CFR), Part IV establishes the 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. 10. MEDICAL REVIEW: 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); the VA's Joint Legacy Viewer (JLV); and the electronic Physical Evaluation Board (ePEB) records. Per ROP, the applicant requests correction of her records to show she was retired by reason of physical disability. a. 08Aug2013 Report of Medical History (for enlistment). The applicant endorsed good health. She denied any serious illness. The Report of Medical History showed no abnormalities in the physical exam. However, albumin (protein) was elevated in her urine and her blood pressure was elevated. At recheck, both the urine albumin and blood pressure were normal. The PULHES was 111111. She was deemed qualified for service. The applicant did not disclose that she was found to have a kidney mass in 2006. She had a history of proteinuria and was followed by nephrology. She had also been diagnosed with hypertension 01Oct2010 (pre military AHLTA notes dating from 2006 until entrance into service). b. The 31Mar2015 permanent L3 physical profile for Left Hip Pain showed multiple functional activity limitations and all APFT events were prohibited. No other conditions were listed on the profile. The applicant underwent a MEB 15Jun2015. The 14May2015 Hip and Thigh Conditions C&P exam showed left hip flexion: 0 to 90 degrees (normal 0-125); and extension to 30 degrees (normal 0 to 30). There was painful motion, but no evidence of pain with weight bearing. The Left Hip Pain condition was determined to not meet retention standards. The following conditions were determined to have met retention standards: Headaches Syndrome; Hypertension; Bilateral Feet Arthralgia and Plantar Warts; Vitamin D Deficiency; Left Eye Pterygium and Pinguecula; Gastroenteritis; and Fibroadenosis Right Breast. The applicant concurred with the Board findings and was referred for a PEB. c. The PEB convened 29Jun2015 found the following conditions unfit for continued service: Left Hip Tendinopathy, Impairment of the Thigh at 10% (VASRD code 5024- 5253); and Left Hip Tendinopathy, Limitation of Flexion at 0% (VASRD code 5024- 5252). The applicant was recommended separation with severance pay with total rating at 10%. This case was adjudicated as part of the Integrated Disability Evaluation System and the ratings came from evaluations by the Department of Veterans Affairs memorandum dated 26Jun2015. The applicant concurred with the Board findings and waived a formal hearing of her case. She did not request for the VA to reconsider her ratings. d. The record provided, showed total VA rating for serviced connected disabilities at 80% (VA letter dated 23Feb2021). The 26Jun2015 DVA memorandum showed the following VA ratings for one other condition that was service connected: Headaches Syndrome at 0% (VASRD code 8100). The following conditions were also evaluated during the C&P exam but they were NOT service connected by the VA: Right Foot Big Toe Fracture; Left Foot Big Toe Fracture; Left Eye Pterygium; Left Eye Pinguecula; Vitamin D Deficiency; Systemic Hypertension; Gastroenteritis; and Breast Lump Mass. Service treatment records as well as 2015 VA C&P exams were reviewed. Based on review of all available records, evidence was insufficient to support that there were other conditions (in addition to the left hip conditions), which failed medical retentions standards at the time of discharge, in accordance with AR 40-501 chapter 3. It appeared that the applicant’s medical conditions were duly considered during medical separation processing. Recommend: No change to the current disability rating is warranted. e. Note for the Board: Usually a hip has 3 ratings (thigh impairment, flexion and extension). The 26Jun2015 DVA memorandum did not include the rating for extension- -Left Hip Tendinopathy, Limitation of Extension. The rating that corresponds to the left hip extension at the time was 0%. The total rating for Army disability purposes is unchanged. Of note, the condition is currently rated by the VA at 0%. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding insufficient to support that there were other conditions (in addition to the left hip conditions), which failed medical retentions standards at the time of discharge. The Board determined the applicant was recommended separation with severance pay with total rating at 10%. This case was adjudicated as part of the Integrated Disability Evaluation System and the ratings came from evaluations by the Department of Veterans Affairs memorandum dated 26Jun2015. The applicant concurred with the Board findings and waived a formal hearing of her case. Based on this, the Board denied 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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, USC, Section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 3. 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%. 4. Title 38, USC, Section 1110 (General - Basic Entitlement) provides 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. 5. Title 38, USC, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) provides 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. 6. 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. 7. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) 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. It states, in part: a. Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension. 8. Directive-Type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES). It states, the IDES is the joint Department of Defense (DoD)/VA process by which the 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. //NOTHING FOLLOWS//