IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20210014401 APPLICANT REQUESTS: correction of her military records, DA Form 199 (Physical Evaluation Board), dated 25 February 2021 to show: * all of her medical conditions and, * a disability percentage increase APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 22 June 2021 * letter, Subject: Army Combat Related Special Compensation (CRSC) Decision letter, 7 June 2021 * Veteran Affairs letter, 11 February 2021 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 while undergoing the medical evaluation board (MEB) she was diagnosed with fibromyalgia. Prior to the MEB, which shows her disability for post- traumatic stress disorder (PTSD), she was on and off profile for four years, due to chronic pain. Her pain was due to various issues, so a permanent three profile was not awarded. During the MEB process she was diagnosed with fibromyalgia, which was the cause of her chronic pain. Due to her physical limitations, and inability to have a current Army physical fitness training test, she was flagged and unable to receive awards. 3. The applicant provides: a. A letter, subject: Army Combat Related Special Compensation (CRSC) Decision letter, 7 June 2021, which shows, in part, the [applicant] CRSC claim was approved. The letter also shows the following: * Fibromyalgia, with a 40% rating, CRSC effective date 21 May, verified disability as combat related due to an instrumentality of war * Total combat related disability 40%, effective 21 May * PTSD, with a 50% rating, unable to verify as combat related b. A Veteran Affairs letter, 11 February 2021, which shows, in part, the applicant received a combined service connected evaluation at 100%, effective 20 March 2020. Her rated disabilities include fibromyalgia at 40% service connected. 3. A review of the applicant's service record shows: a. Her records are void of an enlistment contract. However, her DA Form 2-1 (Personnel Qualification Record) shows, in part, she enlisted in the United States Army Reserve on 19 May 1999. b. Her DA Form 2-1– shows in item 5 (Oversea Service) service in Iraq from 17 March 2004 to 2 February 2005; service in Afghanistan from 6 May 2010 to 26 March 2011, and service in Afghanistan from 17 December 2012 to 29 June 2013. c. Her DA Form 199, dated 25 February 2021, shows, in part: * The board found the [applicant] physically unfit and recommended a rating of 50%, and that the [applicants] disposition be permanent disability retirement * Her medical condition was identified as PTSD, incurred or aggravated in the line of duty in a duty status authorized by 10 USC 1201 (c) or 10 USC 1204, permanent and stable, with a 50% rating * The [applicant] concurred, and waived a formal hearing of her case * The [applicant] did not request reconsideration of her VA ratings d. A memorandum, issued by the U.S. Army Physical Disability Agency, dated 16 March 2021 shows, in part, the applicant has been found to have a disability and will be permanently retired with a disability rating of 50%. e. Orders Number D 075-03, issued by the U.S. Army Physical Disability Agency, dated 16 March 2021 shows, in part, the applicant was released from the USAR, due to physical disability. The orders show the following: * Dated place on retired list: 20 April 2021 * Percentage of disability: 50% * Retirement type and allotment code: Permanent/12 * Authority: Army Regulation 635-40 (xxx) * Statue authorizing retirement: 1204 * Disability is based on injury or disease received in line of duty (LOD) as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: YES * Disability resulted from a combat related injury as defined in 26 USC 104: YES * Retirement is due to a disability incurred in the line of duty in a combat zone or as a result of performing combat related operations (as implemented by Section 020303b, DoD 7000.14-5, vol. 7a): YES 4. 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. 5. 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. 6. 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. 7. 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. 8. By regulation (AR 635-40), paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 9. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical retention standards and was used by Medical Evaluation Boards (MEB) to determine which medical conditions would be referred to a physical evaluation board (PEB). Chapter 3 identified various medical conditions and provided the standards by which a determination could be made as to passing or failing retention standards. 10. 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/or 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 her fibromyalgia be determined an additional unfitting for continued military service and a corresponding an increase in her current military disability. She states: “Prior to the MEB {medical evaluation board} for PTSD, I had been on and off temporary profile for 4 years for various chronic pain issues. Because it was not the same issue consecutively, a P3 {profile} was not a warded. During the MEB process, I was diagnosed with fibromyalgia which is what the chronic pain actually was.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. Orders published by the United States Army Physical Disability Agency (USA PDA) on 16 March 2021 show the former USAR drilling Soldier was permanently retired for physical disability with a 50% military disability rating effective 20 April 2021 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). They also show that her retirement is due to a disability incurred in the line of duty in a combat zone or as a result of performing combat related operations (as implemented by Section 020303b, DoD 7000.14-5, vol. 7a) c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers 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 other conditions they believe to be service-connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). 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. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her 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. f. On 22 July 2020, the applicant was referred to the IDES for PTSD and depressive disorder. The applicant declined to claim any additional conditions on a separate Statement is Support of Claim (VA Form 21-4138. Typed in the remarks section of this form: “I do not wish to file for VA compensation with the MSC/IDES Program. I am currently SC 80%. I have a 020 and 041 currently open/active. Please continue to process my currently open/active claims.” g. The medical evaluation board determined that her PTSD failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined three additional conditions – asthma, bilateral shoulder strain, and eczema – met medical retention standards. On 11 January 2021, she concurred with the MEB decision and her case was forwarded to the physical evaluation board (PEB) for adjudication. h. On 25 February 2021, the applicant’s informal PEB determined that her PTSD was the sole unfitting condition for continued military service. They found the three remaining medical conditions not unfitting for continued military service. i. The PEB applied the Veterans Benefits Administration (VBA) derived ratings of 50% and recommended the applicant be permanently retired for physical disability. On 6 March 2021, after being counseled on the PEB’s findings and recommendation by her PEB liaison officer, she concurred with the board’s findings, waived her right to a formal hearing, and declined to request a VA reconsideration of her disability rating. j. Review of her PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies or discrepancies. k. Though the applicant stated that she was diagnosed with fibromyalgia during her IDES processing, records in JLV show she was awarded a 40% service-connected disability rating for this condition effective 5 March 2019. While the MEB did identify three additional medical conditions during the IDES process, this was not one of them. It is clear she had fibromyalgia prior to her permanent retirement for physical disability, but there is no evidence this medical condition failed the medical retention standards of chapter 3, AR 40-501 prior to her discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that this medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to her discharge. l. The DES compensates an individual only for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. m. 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: The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the additional contested medical conditions failed to meet retention standards during her period of service. Therefore, the Board determined adding the additional conditions and increasing the disability percentage is not warranted. 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, United States Code, 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 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. Paragraph 3-1 of the PDES regulation contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of 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 their office, grade, rank, or rating. 3. Chapter 4 of the same regulation states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 4. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling. 5. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. a. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. b. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS//