IN THE CASE OF: BOARD DATE: 13 September 2021 DOCKET NUMBER: AR20210008569 APPLICANT REQUESTS: in effect, a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) * PEB Appeal, dated 10 February 2020 * PEB Decision, dated 12 February 2020 * Temporary Disability Retirement List (TDRL) Removal Memorandum * U.S. Army Physical Disability Agency (USAPDA) Decision, dated 20 February 2020 * Order D051-05 dated, 20 February 2020 * Rehabilitation Center Chart Notes, dated 3 February 2020 FACTS: 1. The applicant state since he got out of the Army, the Army pulled his retirement status and “placed him on permanent disabled status.” The applicant requests his status be updated to reflect, in effect, a medical retirement. 2. The applicant provides: a. The below listed documents to be referenced in the service record: * DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) * PEB Appeal, dated 10 February 2020 * PEB Decision, dated 12 February 2020 * U.S. Army Physical Disability Agency (USAPDA) Decision, dated 20 February 2020 * Order D051-05, dated 20 February 2020 b. A memorandum from USAPDA, Chief Operations Officer, dated 20 February 2020, informing the applicant he was removed from the TDRL and would no longer be receiving retired payments. c. OC and Rehabilitation Center, Chart Notes (4 pages) shows the applicant was treated for back pain on 3 February 2020. The applicant was diagnosed with facet syndrome – lumbar region, spondylosis without myelopathy or radiculopathy – lumbar region, and muscle spasms of back. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 June 2009. b. His records contain a DD Form 2807-1 (Report of Medical History), completed by the applicant on 4 April 2009 for the purpose of enlistment. The applicant responded “No” to most questions regarding challenges with his health, with the exception of “Yes” to wearing contact lenses or glasses, and “Yes” to “currently in good health.” c. A DD Form 2808 (Report of Medical Examination), dated 4 April 2009, indicated the purpose of the examination was for enlistment. Block 74a (Examinee/Applicant) designated the applicant was qualified for service. d. He served in Afghanistan from 11 February 2012 to 11 February 2013. e. The service record was void of the facts and circumstances that led to the medical evaluation board (MEB) proceedings; however, the Enlisted Record Brief indicated the applicant was on a permanent physical profile with a rating of “2” for physical capacity/stamina and a rating of “3” for lower extremities. f. A DA Form 199, shows the applicant’s conditions were evaluated by an informal PEB on 4 November 2016. The PEB found the applicant unfit, recommended a rating of 40 percent, and that his disposition be placement on the TDRL with a reexamination in May 2018. The sole medical condition determined to be unfitting was lumbar degenerative arthritis with intervertebral disc syndrome (VASRD Codes 5243). The disability disposition was not based on disease or injury incurred in the line of duty in combat with the enemy and did not result from a combat-related injury. On 16 November 2016, the applicant concurred with the findings of the PEB and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. Section IV (Medical Conditions Determined Not to be Unfitting) of the DA Form 199 listed the following medical conditions determined to meet medical retention standards: * bilateral knee chondromalacia and osteoarthritic * obstructive sleep apnea * gout, bilateral ankles and bilateral feet * left sensorineural hearing loss * adjustment disorder with depressed mood, acute, mild/moderate g. Orders 354-1315, dated 19 December 2016, released the applicant from assignment because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the TDRL with a 40 percent disability rating effective 20 February 2017. h. He was honorably retired on 20 February 2020. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 6 months, and 3 days of active service. He was assigned separation code SEK and the narrative reason for his separation listed as “Disability, Temporary (Enhanced).” i. A DA Form 199-1, shows the applicant’s conditions were reevaluated by a formal PEB on 15 January 2020. The PEB found the applicant unfit, recommended a rating of 10 percent, and that his disposition be separated with severance pay. He worked at Lowe’s driving a forklift for approximately 2 years and left for another job opportunity that did not come through. He continued to work at Cracker Barrel 2 to 3 nights a week which he had done for several years. The PEB concluded that the measured range of motion reported on the TDRL Disabilities Benefits Questionnaire (DBQ) was not consistent with that observed by both the TDRL examiner and the physical therapist and was therefore not a valid representation of the applicant’s impairment. Based upon the preponderance of the evidence, the PEB found that a rating of 10 percent for lumbar degenerative arthritis with intervertebral disc syndrome and not unfitting radiculopathy, was appropriate for his impairment. The board’s observation during the formal PEB was annotated and available for review by the Board. k. On 10 February 2020, MH, Solder’s MEB Counsel, appealed the PEB decision on behalf of the applicant. She requested the applicant’s disability rating be increased to 40 percent, but no less than 20 percent, and to add his lumbar radiculopathy as unfitting. OC and Rehab Center treatment records, dated 3 February 2020, were included as new evidence. The diagnostic and clinical findings support the applicant’s assertion that his lumbar flexion ROM should be rated at 40 percent and at a minimum no less than 20 percent. Significant detail is provided in the appeal detailing the applicant’s condition. l. On 12 February 2020, the PEB notified the applicant they considered his case and adhered to the original findings and recommendations of the formal hearing. The measurements of his 14 January 2020 exam by Mr. L were not found to be credible by the Board. The exam was done just one day before his formal hearing and it is likely he was aware of rating criteria. Additionally, Mr. L, like Mr. B noted, that he was observed to have greater range of motion than that which was measured and that measurements were not consistent with previous measurements. The Board did not place great weight on the new exam conducted by the chiropractor because he was also aware of the rating criteria. As noted, two previous examiners indicated that his measured ranges of motion were invalid. Civilian chiropractors are not generally trained in evaluating to Department of Veterans Affairs (VA) standards. Additionally, he did not provide actual measurements of range of motion and using his exam for rating purposes would be problematic, even if valid. His case, including the rebuttal would be forwarded to the USAPDA for further review and processing. m. The USAPDA notified the applicant’s MEB counsel on 20 February 2020 that they completed a thorough review of the applicant’s entire case file. The USAPDA concluded the applicant’s case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination. The findings and recommendations of the PEB were supported by substantial evidence, and are, therefore, affirmed. If the applicant felt the PEB and PDA were in error, he could file an appeal with the U.S. Army Board for Correction of Military Records. n. Orders D051-05, dated 20 February 2020, removed the applicant from the TDRL and discharged him from service because of permanent physical disability with a disability rating of 10 percent effective 20 February 2020. He was entitled to severance pay. 4. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 5. By regulation (AR 635-40), the Army disability system 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 or her office, grade, rank, or rating. The regulation 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. 6. 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. 7. 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. 8. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 9. 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 change the military separation code on his DD 214 from SEK (Disability Temporary (Enhanced)) to SEJ (Disability Temporary (Enhanced)). He states: “I would like to have block 26 separation code “SEK” be updated to reflect my current discharge. Since I have gotten out, the Army has pulled my retirement status and placed me on permanent disable status.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 shows he entered the regular Army on 18 August 2009 and was placed on the Temporary Disability Retirement List (TDRL) on 20 February 2017 (Lumbar condition, 40%). Discharge orders published by the United States Army Physical Disability Agency show that following a TDRL reevaluation, he was discharged from the Army on 20 February 2020 with a 10% disability rating and entitlement to disability severance pay. c. On 4 November 2016, a physical evaluation board (PEB) found the applicant’s “Lumbar degenerative arthritis with intervertebral disc syndrome (without unfitting radiculopathy)” his sole unfitting condition for continued military service. The VA derived a rating 40% based on the applicant’s forward flexion of his thoracolumbar spine being 30 degrees or less. d. After applying this rating, the PEB recommended he be placed on the TDRL because the condition had been determined to be unstable. On 16 November 2016, after being informed of the board’s findings and recommendation by his PEB liaison officer (PEBLO), the applicant concurred with the board and declined to request a VA reconsideration of his disability rating. e. The applicant underwent his TDRL reevaluation on 27 August 2019. At that time, the applicant reported “flare ups occur approximately 2-3 times a month, caused by prolonged sitting.” His Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (aka VA C&P) showed a forward flexion of 40 degrees. However, the examiner went on to opine: “SM was observed with unrestricted ROM with flexion, left and right lateral flexion and rotation. Decreased ROM noted with lumbar extension.” f. He noted that the applicant had radicular symptoms with “prolonged traveling/sitting, described as sharp stabbing.” g. The examiner then stated: (1) SM reports pain with lifting over 45 lbs., but he is able to receive materials and stock materials at current job. SM indicates increased back pain and radicular symptoms are mostly associated with prolonged travel/sitting. SM had difficulty expressing symptoms associated with back pain and radiculopathy. (2) He reported back pain when sitting in office during TDRL interview, SM did not appear to be uncomfortable (i.e. shifting in chair, facial expressions, moved easily from sitting to standing and from sitting to lying on exam table and then standing upright). SM was able to flexion to 90 degrees, noted limited extension, able to perform lateral left and right flexion and left and right rotation. He was able to heel/toe walk and perform deep knee bend. Straight leg raise was positive with active ROM and negative with passive ROM. (3) Exam did not reflect and did not support reported symptoms. h. Based on the reevaluation, the PEB found the applicant’s condition continued to be unfitting for service but was now rated at 10% disabling based on the VA Schedule for Rating Disabilities (VASRD): “Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 .........10% i. The applicant non-concurred and requested a formal hearing. The formal PEB convened on 15 January 2020 after which they confirmed the TDRL PEB’s findings. He appealed the formal PEB’s findings to the U.S. Army Physical Disability Agency (USAPDA). The agency confirmed the formal PEB’s findings on 20 February 2020. “We have completed a thorough review of your entire case file, and the PEB response, dated 12 February 2020. We concluded is that your case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination. The findings and recommendations of the PEB are supported by substantial evidence, and are, therefore, affirmed. As such, it is the finding of the PDA that you are unfit for continued service and that you will be separated with severance pay at a disability rating of 10%. Should you feel that the PEB and PDA are in error, you may file an appeal with the U.S. Army Board for Correction of Military Records.” j. Soldiers receive a complete DD 214 at the time they are temporarily retired for physical disability. They remain in a retired status between the date of placement on the TDRL and the date of retirement or separation for physical disability, at which time they are permanently discharged from the Army. Hence, a new DD 214 is not generated at the time of their permanent discharge because they are not being discharged from active service. Soldiers being removed from the TDRL are given a set of TDRL removal/retirement orders and a copy of the documentation forwarded to the Defense Finance Accounting Service (DFAS) for pay purposes. k. Given no evidence of error or injustice, it is the opinion of the ARBA medical advisor that neither a change the USAPDA’s findings and recommendation nor the publishing of a modified DD 214 is warranted. BOARD DISCUSSION: 1. 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 the opinion of the Agency Medical Advisor and concurred that that neither a change in USAPSA findings warrant modify the DD 214. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient 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. Army Regulation 635-8 (Separation Processing and Documents), states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 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, 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 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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 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 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008569 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1