IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210008489 APPLICANT REQUESTS: as follows, a. in effect correcting her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by: * adding the medical condition fibromyalgia * rating fibromyalgia with a percentage higher than 30 percent and finding it unfitting * rating her back condition (degenerative disc and joint disease-chronic low back pain) at 10 percent instead of 0 percent * rating endometriosis at 40 percent and finding it unfitting * adding adenomyosis to her service treatment records and PEB * rating adenomyosis as an unfitting condition b. correcting her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 October 2012 to show she was medically retired; and c. in effect, paying her retired pay from the first date after her date of separation or 16 October 2012. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders 04-321-0037 dated 16 November 2004 * DA Form 199 dated 29 June 2012 * Memorandum for Record, Medical Disability Counseling dated 6 August 2012 * DD Form 214 Service treatment records including her medical evaluation board physical examination * Department of Veterans Affairs (VA) medical treatment records * VA Rating Decision dated 13 December 2019 * Army Regulation 40-501 (Standards of Medical Fitness) excepts including paragraphs 2-24 and 3-17 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, 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 within three on-line applications that the PEB, in effect, did not properly rate or include all her medical conditions. Her two medical conditions, fibromyalgia and endometriosis, are presumptive from serving in the Gulf War. The PEB should have included these two conditions with a combined rating of greater than 30 percent which would have entitled her to medical retirement. She asks the board to correct her record to show she was medically retired instead of separated with severance pay. a. She states her medical condition, fibromyalgia, should be added to her disability record or DA Form 199 (PEB). The U.S. Army Human Resources Command (AHRC) website shows fibromyalgia is presumptive for Gulf War service. Also the VA connected her fibromyalgia and endometriosis to her service in Operation Iraqi Freedom. She received the diagnosis of fibromyalgia from the VA within 1 year of her discharge. b. For her medical condition, endometriosis, Army medical providers through the PEB assigned her a rating of 0 percent. She knows she should have been rated 40 percent by the PEB for her endometriosis at the time of her separation because the VA gave her that rating within 1 year of her discharge. She underwent a hysterectomy post-service. She claims when she was on active duty, medical providers should have explored options concerning her treatment for endometriosis. Now she receives benefits for the loss of a creative organ from the VA. c. She provides excerpts from Army Regulation 40-501. [Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) identifies all the medical conditions that would preclude a person from enlistment or appointment in the U.S. Army. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides a list of medical conditions warranting referral into the disability evaluation system for a determination of fitness or unfitness for retention in the U.S. Army, separation or medical retirement.] (1) Per the regulation in paragraph 2-14 (Genitalia), subparagraph 2-14a (4) (Female genitialia) it states having a current or history of endometriosis does not meet the standard [for enlistment]. She states she was diagnosed with endometriosis in August 2009 [during a period of active service]. (2) She states the regulation provides instructions showing she should have been referred to a medical evaluation board (MEB) for her endometriosis. In paragraph 3-17c it states a referral to an MEB is warranted for endometriosis, symptomatic and incapacitating to a degree that necessitates recurrent absences of more than 1 day. Paragraph 3-17h states that chronic pelvic pain with or without demonstrative pathology that has not responded to medical or surgical treatment and of such severity to necessitate recurrent absences from duty. During her medical treatment for endometriosis she had periods of medical leave for 2 weeks. She reports she went to sick call for pelvic pain and uncontrolled bleeding 21 times during a 3-year period. When she went to sick call or other medical appointments, she missed at least a day of work. Medical providers accused her of malingering instead of trying to find a reason for her pain and discomfort. d. Post-service in 2020, she received a diagnosis of adenomyosis which is similar to endometriosis. She eventually had a hysterectomy because of these two medical conditions. She states in effect that during her period of active service, her medical providers did not consider this diagnosis as unfitting despite her many absences from duty. She now asks the ABCMR to correct her PEB to show her endometriosis is an unfitting medical condition and assigning it a disabling rating of 30 percent. With this correction to her PEB, she would be entitled to a correction to her discharge orders and DD Form 214 to show she was medically retired due to medical unfitness with a disabling rating greater than 30 percent. e. With the ABCMR correction to her separation orders and DD Form 214, she would be entitled to military retired pay. In effect, she requests military retired pay effective 16 October 2012, the first day after her current date of separation. 3. With prior service in the U.S. Army Reserve which included mobilization and deployment in support of Operation Iraqi Freedom, she enlisted in the Regular Army on 16 October 2007. During her active service she served in the Engineer Corps as a carpentry and mason specialist. 4. In support of her application she provides excerpts of her service treatment records. On 11 July 2011, a medical doctor requested she undergo a MEB physical examination for the medical condition, intervertebral disc degeneration- lumbosacral. [This is considered a physician directed MEB.] On 15 July 2011 she underwent a physical examination. The narrative summary states in September 2010 she experienced low back pain while doing sit-ups. She felt a sharp pain in her lower back. She went to physical therapy and it did not provide her with relief. From on or about October 2010 she received treatment through the Pain Management Clinic receiving injections in her lower back. Her pain was reduced but not for an extended period of time. Her pain was related to mechanical stress. After examination, the medical doctor stated the applicant’s chronic low back pain severely affected her ability to perform her military duties: she could not sprint or jog for a reasonable distance; she could not tolerate wearing heavy combat gear; her ability to perform the Army Physical Fitness Test was limited; and, she had difficulty riding in a military vehicle for a reasonable duration. Also her ability to use a firearm was severely compromised. The medical doctor concluded by stating it was his medical opinion that she did not meet the medical retention standards of Army Regulation 40-501, paragraph 3-41e (1). 5. The applicant’s electronic military personnel record does not contain her MEB, DA Forms 3349 (Physical Profile) or similar documents and she did not provide her MEB documents. 6. On 29 June 2012 a PEB met in Arlington, Virginia to consider the MEB referred disabilities of degenerative disc and joint disease of the lumbar spine, endometriosis, allergic rhinitis, right ankle pain (per her VA Compensation and Pension Examination), depression, and insomnia. The PEB determined her degenerative disc and joint disease of the lumbar spine was unfitting because this condition limited her ability to perform her soldierly duties required of her rank, grade and military occupational specialty. a. She could not lift, lower or carry more than 20 pounds precluding her from moving 40 pounds while wearing her combat gear and environmental protective clothing. Her physical profile limited her abilities to carry out her duties. Therefore, the PEB found her unfit for this condition assigning her a rating of 0 (zero) percent. Her DA Form 199 does show the PEB did have her VA Proposed Rating Decision as part of the Integrated Disability Evaluation System when it assigned her its rating percentage. b. The PEB determined her endometriosis, allergic rhinitis, right ankle pain, depression and insomnia did not impact her ability to perform the functions of her rank, grade or military occupational specialty. Her DA Form 199 shows these conditions met medical retention standards and did not represent a decided medical risk to her. The PEB concluded these aforementioned conditions independently or in combination did not render her unable to perform her required soldierly duties. c. The PEB concluded she was physically unfit and recommended a combined rating of 0 percent and if qualified, she could receive separation pay. Her disability did not result from a combat related injury as defined in Title 26, USC, section 104. Her disability 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. 7. On 6 July 2012 the applicant was counseled regarding the outcome of her PEB and the options available to her. With her initials she concurred with the PEB findings. She waived her right to a formal hearing of her case and she did not request reconsideration of her VA ratings. 8. On 17 July 2012 a representative for the Secretary of the Army approved her PEB findings and recommendation to separate her due to disability with separation pay. At the time she had more than 6 years and 7 months of active service. 9. In accordance with the instructions from the Secretarial authority, personnel at Fort Bragg, North Carolina issued her Orders Number 227-0253 on 14 August 2012. The discharge order shows her date of discharge from the Regular Army was 15 October 2012. Her assigned percentage of disability is shown as 0 percent and she was authorized disability severance pay in pay grade E04 based on 6 years, 7 months, and 25 days of active service. 10. Accordingly, on 15 October 2012 she was honorably discharged from the Regular Army. She received a DD Form 214 documenting her period of active service showing she was discharged because of disability with entitlement to severance pay. Her DD Form 214 shows her disability severance pay totaled $33,053,40. It also shows among her awards and service ribbons including she is the recipient of the Iraq Campaign Medal with one campaign star (bronze service star). 11. She provides evidence in support of her application. Her medical evidence including her VA treatment records will undergo a review by the Army Review Boards Agency medical officers. See "Medical Review." Notwithstanding the medical review, here are excerpts for the Board’s consideration which have not been previously discussed within this record of proceedings. a. On 14 August 2009 she underwent a diagnostic laparoscopy for bilateral lower quadrant pelvic pain. The preoperative and postoperative diagnoses were endometriosis and pelvic adhesive disease (extensive lysis of adhesions). The operative report states her uterus was densely adhered to the anterior aspect of her anterior abdominal wall. The medical doctor felt this condition was the result of her previous cesarean section. Her left ovary was gently torted upon itself and she had several areas of endometriosis adjacent to her right ovary. b. A summary of medical visits from on or about 4 June 2009 through her discharge in October 2012 shows she had 21 outpatient appointments as follows: * for dysfunctional uterine bleeding, two gynecological appointments * for endometriosis, eight appointments with gynecology, pain management and clinic encounters * for female pelvic pain, five appointments with gynecology and a separate clinic * for metrorrhagia (bleeding from the uterus between menstrual periods), four appointments within gynecology and a separate clinic * for pelvic pain (general), two appointments with gynecology and a separate clinic c. There are numerous service treatment records showing she sought medical treatment for birth control. She often reported during those appointments she had lower abdominal pain and uterine bleeding between periods. She stated she could not take the pain medication prescribed for her because it interfered with her ability to drive and to perform her military duties. Medical encounter notes show on 11 February 2011 she was told her lower pelvic pain may not be from endometriosis and that evaluation of her back pain was warranted. She was told that endometriosis pain, if not response to medication, is difficult to treat. After each encounter with a medical provider, she was released to duty without limitations. d. On 18 October 2011 (after her MEB physical examination) a medical provider indicated concern the applicant was malingering because she had been asked multiple times to provide a civilian operative report from an abdominal scope that would show evidence of endometriosis. The abdominal scope was diagnostic criteria for endometriosis. She acknowledged she was not compliant with pain medication management. For her back pain she did acknowledge using Lidoderm patches, but had not refilled her prescription. The medical provider stated, “Her history of endometriosis is muddled by her different responses to the same treatment which is contradictory to the known physiology of endometriosis. This [her pain] is most likely NOT gyn[ecology]. e. On 21 November 2011 she saw the same medical provider as shown on her service treatment records for her encounter on 18 October 2011. Again, this provider asked for her operative report which after the appointment she printed and provided to the medical doctor. Upon review, the medical provider confirmed her diagnosis of endometriosis with significant adhesions. The medical provider surmised the applicant’s body had (naturally) created adhesions which would account for her abdominal pain that is outside the menstrual cycle. Her treatment options were 6 months of Depo Lupron shots or consultation with a civilian medical center for pelvic pain. She was released from this appointment with no limitations. f. An encounter on 10 January 2012 shows she wanted to maintain her fertility. Therefore, she agreed to continue with Depo Lupron for another 6 months. Again, she was released without limitations. g. On 13 December 2019 she received a written VA rating decision based upon her request for reevaluation. Her rating decision shows: * unspecified depressive disorder with insomnia continued at 50 percent disabling * fibromyalgia continued at 40 percent disabling with a note that this is the maximum allowed by law for this condition * degenerative disc disease of the lumbar spine was 20 percent and a rating increase was deferred for further evaluation * her claim for a rating increase for endometriosis was deferred; at the time her rating was 30 percent disabling h. She provides 70 pages from her eVeterans records maintained by the VA. On or about 14 October 2020 she underwent a hysterectomy, bilateral salpingectomy, cystoscopy removing her uterus, cervix and both fallopian tubes. Her surgical and pathology reports show her uterus was consistent with adenomyosis. 12. In the processing of her application, the staff of the Board requested an advisory from the U.S. Army Physical Disability Agency (USAPDA). A legal advisor for that agency provided a narrative advisory on 15 November 2021. After reviewing her application, arguments and evidence the lawyer found her request to correct her PEB to be legally insufficient. He states the PEB considered six medical conditions during its deliberations. The only unfitting medical condition was her low back pain. The PEB did consider her medical condition endometriosis. However, the MEB found her endometriosis did not limit her ability to perform her soldierly or occupational duties. [She provided no DA Form 3349 showing she received a physical profile showing a profile rating for this condition of three or four.] Considering her request to add fibromyalgia, the lawyer acknowledges the VA considers it service connected for service in Southwest Asia theater of operations. Notwithstanding that fact, her diagnosis of fibromyalgia occurred after her discharge from active service. The VA diagnosed her with fibromyalgia on or about 9 July 2015 nearly 3 years after her discharge date. This diagnosis was made by the VA based on her service in Iraq. He opines she did not provide evidence that she had a diagnosis of fibromyalgia during her period of active service and that because of this condition she could not perform her soldierly duties. The lawyer concludes stating, "Finally, just because a condition is presumptively service connected by the VA does not equate that it is an unfitting condition [by Department of the Army] or that it retroactively causes another condition to be unfitting." 13. On 16 November 2021 by letter the applicant was sent the USAPDA legal advisory as required by law. She responded by email resubmitting evidence she had previously submitted with her three online applications. Of note a piece of new evidence from the VA shows four medical conditions were referred to the VA as part of the Integrated Disability Evaluation System in late 2011 or early 2012. The four medical conditions were endometriosis and adenomyosis (shown as one medical condition), unspecified depressive disorder with insomnia, allergic rhinitis and degenerative disc disease of the lumbar spine with intervertebral disc syndrome. There are two medical conditions shown as environmental hazards based on her service in the Gulf War (Iraq). The medical conditions are fibromyalgia which is shown as service connected and a right thyroid nodule which is shown as not service connected. Her current combined VA rating is 100 percent. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes 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/her office, grade, rank, or rating. Effective 19 January 2017, the DES legacy process will be used for Army Veterans referred to the DES by the ABCMR. The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DoD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the MEB findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 15. Title 10, USC, 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, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent. 16. 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. 17. 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, laws and rules, may award a disability rating where the Army did not find the member to be unfit for a specific medical condition 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. 18. 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 that her Veterans Benefits Administration (VBA) service connected conditions of endometriosis with subsequent hysterectomy and fibromyalgia be determined unfitting conditions for continued military service. These changes would increase in her military disability rating with a subsequent change in her disability discharge disposition from separated with severance pay to permanent retirement for physical disability. 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 16 October 2007 and was separated with $33,053.40 of disability severance pay on 15 October 2012 under provisions in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). c. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s 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 conditions they believe to be service connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). 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. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their 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. e. The MEB was not available for review. f. On 29 June 2012, the applicant’s informal PEB determined her “Degenerative disc and joint disease of the lumbar spine” to be the sole unfitting for continued Service. They determined the five remaining conditions were not unfitting for continued service; endometriosis, allergic rhinitis, right ankle pain, depression, and insomnia. The PEB then applied the VA derived rating of 0% to his disability and recommended she be separated with disability severance pay. On 7 July 2012, after being counseled on the board’s findings by her PEB liaison officer (PEBLO), she concurred with the PEB’s findings. g. A review of her records in AHLTA found no material errors or discrepancies. There are no encounters for fibromyalgia and the condition is not listed on her medical problem list. There are numerous evaluation and treatment encounters related to her endometriosis, but there is no documented/probative evidence the condition failed the medical retention standard in paragraph 3 of AR 40-501, Standards of Medical Fitness (4 August 2011). This paragraph states that endometriosis fails medical retention standards when “symptomatic and incapacitating to a degree that necessitates recurrent absences of more than 1 day.” h. Submitted medical documentation shows the applicant underwent a hysterectomy at the VA Medical Center on 13 October 2020. i. The applicant states and documents confirm that she has been awarded multiple VA service connected disability ratings, including ratings for fibromyalgia and hysterectomy. However, the DES compensates an individual only for service incurred 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. j. Given no evidence of error or injustice, it is the opinion of the Agency Medical Advisor that neither an increase in her military disability rating nor a referral of her case back 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 applicant’s contentions, military record, regulatory guidance and medical advisory were carefully considered. The Board concurred with the opinion of the Agency Medical Advisor. 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 was credible information that an offense was committed. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code (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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes 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. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The Surgeon General of the Army will establish and interpret medical standards for retaining Soldiers on active duty. b. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501 (Medical Services – Standards of Medical Fitness). c. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. d. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation or by a physician/medical doctor. e. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40- 501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. f. The physical evaluation board (PEB) determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, USC, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, USC, chapter 61. The PEB also makes certain administrative determinations that may benefit implications under other provisions of law. The PEB is not a statutory board. It is a fact finding board evaluating the physical condition of the Soldier against the physical requirement of the Soldier’s office, grade, rank or rating. g. The PEB may permanently retire a Regular Army Soldier if he has at least 20 years of service as defined in section 1208, Title 10, U.S. Code. h. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separating or retiring for physical disability. i. The DES legacy process will be used for Army Veterans referred to the DES by the ABCMR). The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DOD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the MEB findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s) or medical review of records. The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides information and policies on medical fitness standards for induction, enlistment, appointment, retention, special training programs and retirement. There are two classifications under this regulation: medically acceptable and medically unacceptable. A medical examiner will report all individuals as medically acceptable who meet the medical fitness standards for their specific duties and grade. A medical examiner will report as medically unacceptable by reason of medical unfitness all individuals who possess one or more of the medical conditions or physical defects found in this regulation. Medical fitness standards cannot be waived by the medical examiners or by the examinee. a. Chapter 2 implements DODD 6130.3 (Physical Standards for Appointment, Enlistment and Induction, dated 15 December 2000, and DODI 6130.4 (Medical Standards for Appointment, Enlistment, or Induction in the Armed Forces, dated 18 January 2005. Medical examinations are conducted to ensure individuals are medically qualified and free of contagious diseases, medical conditions or physical defects that would require excessive time lost from duty for necessary treatment or hospitalization or would likely result in separation from the Army for medical unfitness. Paragraph 2-14 (Genitalia), subparagraph 2-14a (4) states a female with current or a history of endometriosis does not meet medical fitness standards for entry into the U.S. Army. b. Chapter 3 describes the various medical conditions and physical defects which may render a Soldier unfit for further military services. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of duty; may compromise or aggravate the Soldier’s health or well-being, if they were to remain in the military Service such as frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and may prejudice the best interest of the Government if the individual were to remain in the military Service. Soldiers who do not meet the required medical standards will be evaluated by a medical evaluation board. The general policy states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions in this chapter to a medical evaluation board. Paragraph 3-17c (Endometriosis) can be referred to an MEB when the Soldier is symptomatic and incapacitating to a degree that necessitates recurrent absences of more than 1 day. 4. Title 38, USC, Section 4.71a (Schedule of rating for musculoskeletal system) provides the general rating formula for diseases and injuries of the spine. For VA Schedule of Rating (VASRD) Code lumbosacral or cervical strain it states for a rating of 10 percent the forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 5. Title 38, USC, Section 4.116.4 (Schedule of rating for gynecological conditions and disorders of the breast) shows for VASRD 7629 (Endometriosis) a diagnosis of endometriosis must be substantiated by laparoscopy. The VASRD uses the following ratings specifically for endometriosis: * 10 percent for pelvic pain or heavy or irregular bleedings requiring continuous treatment for control * 30 percent for pelvic pain or heavy or irregular bleeding not controlled by treatment * 50 percent (maximum) lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not control by treatment and bowel or bladder symptoms 6. Title 38, USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38, USC, 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. 8. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it direct or recommend correction of military record(s) to remove an error or an injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. It begins its consideration of each case with the presumption of administrative regularity meaning what Army personnel did at the time of the Soldier’s or Veteran’s area of service was administratively correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008489 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1