IN THE CASE OF: BOARD DATE: 22 March 2022 DOCKET NUMBER: AR20210008477 APPLICANT REQUESTS: in effect, addition of condition to his Physical Evaluation Board (PEB) proceedings and an increase in disability rating. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * physician Letter of support * Department of Veterans Affairs (VA) service connected disabilities letter 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 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 in 1995, while on active duty, he contracted the genital herpes simplex 2 virus. At the time of his medical retirement board hearing, he wasn’t aware that this condition could have been added to his medical retirement with his sarcoidosis stage 2 diagnosis, which has worsened. The genital herpes diagnosis is in his military medical records and has already [been] acknowledged and compensated by the VA. he is asking for this condition to be added to his medical retirement percentage rating, back dated to his separation. 3. The applicant enlisted in the United States Army Reserve for a period of 8 years on 20 August 1996 in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 30 November 1992. He was awarded the military occupational specialty (MOS) 13B (cannon crewmember). He was assigned to Germany on 30 March 1993. 4. The applicant reenlisted in the Regular Army for a period of 4 years on 6 July 1995. A DA Form 1695 (Oath of Extension of Enlistment), dated 24 May 1999, shows he extended his enlistment for 3 months to allow for pending determination by the Physical Performance Evaluation System. 5. Orders D109-2, dated 9 June 1999, shows the applicant was placed on the Temporary Disability Retired List (TDRL) effective 19 August 1999 with a 60 percent disability rating. 6. The applicant was honorably retired under the provisions of AR 635-40, paragraph 4- 24b(2) for disability, temporary. He was credited with 6 years, 8 months, 20 days net active service. 7. Orders D69-8 shows the applicant was removed from the TDRL and permanently retired with a rating of 10 percent effective 10 April 2001. 8. The applicant’s PEB proceedings are not resident in his available official military personnel record. 9. The applicant provides a letter of support from his treating physician, Dr. J_ B_. It states, in part, the applicant has advanced pulmonary sarcoidosis and has had complications from pulmonary fungal infections that led to massive bleeding from the lung. He is now required to take lifelong antifungal therapy to suppress the growth of fungus in his lungs and to take immune suppressive therapy. The applicant has had progressively declining lung function and is more short of breath with activities of daily life and is, in his opinion, completely medically disabled due to his pulmonary diseases. Dr. J_ B_ has advised him to pursue medical disability benefits to the fullest extent possible. The letter is available in its entirety for the Board’s review. 10. The applicant also provides the first page of his VA Service Connected Disabilities letter. It shows the applicant has a 70 percent combined rating for the following conditions: * stage II sarcoidosis, chronic with multiple exacerbations to include asthma and mycotic lung disease (aspergillus) s/p lumpectomy, rated 60 percent * painful scars, status post lumpectomy, rated 20 percent * genital herpes, rated 10 percent * scars, status post lumpectomy, rated 0 percent * scar, status post lumpectomy, underlying tissue damage, rated 0 percent 11. 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. 12. 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. 13. 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. 14. 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 they find her genital herpes an unfitting condition for military service and add it to her current 60% military disability rating. She states: “In 1995 while on active duty, I contracted genital herpes simplex 2 virus. At the time of my medical retirement hearing, I wasn’t aware that this condition could have been added to my medical retirement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 shows she entered the regular Army on 30 November 1992 and was placed on the temporary disability retirement list (TDRL) 19 August 1999 with a 30% disability rating under provision in paragraph 4-24b(2) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). Following her TDRL re-evaluation, she was removed from the TDRL and permanently retired for physical disability on 10 April 2001 with a 60% military disability rating. c. Neither the results of her initial physical evaluation board (PEB) nor her TDRL re- evaluation were submitted with the application or uploaded into iPERMS. No probative medical documentation was submitted with the application and there are no encounters in AHLTA. d. It is highly unlikely that this condition would have been considered unfitting for military service. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) states: The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. e. Review of her records shows she has been awarded multiple VA service connected disabilities, including a 10% rating for genital herpes. However, the DES compensates an individual only for condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. f. It is the opinion of the ARBA medical advisor that neither an increase in her military disability rating nor a referral of her case to the DES is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board reviewed and concurred with the Agency (ARBA) Medical Advisor opinion finding that a referral to the Disability Evaluation System is not warranted. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for 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, USC, 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 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. 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. 6. 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) AR20210008477 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1