IN THE CASE OF: BOARD DATE: 4 February 2022 DOCKET NUMBER: AR20210008801 APPLICANT REQUESTS: * an increase in his disability rating * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Benefits Summary Letter dated 6 April 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 he believes his discharge percentage was lowballed and his PTSD was not considered. a. He was discharged from the Army in March 1999 and recently became aware that the Department of Defense (DoD) authorized a review board of military members that separated after 11 September 2001. His separation was due to lower back issues and he was rated at 0% with no mention of the trauma to his head. He feels that he was unjustly discharged and his rating was lowballed due to the simple fact that the Army did not want to pay him for life. He has severe PTSD and is rated at 100%, permanent and total, by the VA. He received an injury to his head; however, there is no mention of PTSD in his Physical Evaluation Board (PEB). b. He believes that since the injury to his head occurred while he was stationed in South Korea in 1994, at the hands of the Korean Nationals, he should be receiving Combat Related Special Compensation. It is his understanding that Korea at the time (1994) was considered a combat zone. An armistice (cease fire) between military forces and the Korean government was not implemented, there was no peace treaty signed; and therefore, the Korean War had not ended. He was injured by a group of Korean nationals that he was sent there to protect, from the enemy to the North. He considered it a combat zone; however, the VA has classified it as “non-combat related.” He is reaching out in hopes of getting the benefits and back pay that he rightfully deserves. 3. The applicant provides a VA summary of benefits letter, dated 6 April 2021, which states he is 100% totally and permanently disabled due to service-connected disabilities with an effective date of 5 September 2017. 4. A review of the applicant’s service record shows: a. Having had prior service in the U.S. Army Reserve (USAR), he enlisted in the Regular Army on 2 November 1994. b. His records contain a Standard Form 88 (Report of Medical Examination) which shows he underwent a medical examination for the purpose of enlistment on 11 December 1992. The clinical evaluation was normal with the exception of his feet which the physician documented as moderate pes planus. Block 77 (Examinee) indicated the applicant was qualified for service. c. A DA Form 199 (Physical Evaluation Board Proceedings) showed on 28 January 1999, a PEB convened and found the applicant physically unfit. The PEB recommended a rating of 0% and the applicant’s disposition be separation with severance pay, if otherwise qualified. The disabling condition was listed as chronic lower back pain, musculoskeletal type, dating to spinal anesthetic for arthroscopy in 1996 (VASRD Code 5295). The following page of the DA Form 199 is incomplete and does not reflect elections made by the applicant. d. The service record is void of the DA Form 2-1 (Personnel Qualification Record), and any additional information regarding the applicant’s condition or physical profiles. e. He was honorably discharged on 24 March 1999. His DD Form 214 shows he completed 4 years, 4 months and 3 days of active service. He was assigned separation code JFL and the narrative reason for separation listed as “Disability, Severance Pay.” 5. On 3 November 2021, the Army Review Boards Agency (ARBA) notified the applicant that he had to provide medical documents in support of his claims for PTSD and/or medical conditions related to his head trauma. The applicant has not responded to date. 6. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. 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. 8. 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. 9. Title 38, United States 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. 10. 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/her 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. 11. 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 an increase in his military disability rating with a subsequent change in his disability discharge disposition from separated with severance pay to permanent retirement for physical disability. He states: “My separation was due to lower back issues at 0%, no mention of trauma to my head. I feel that I was unjustly discharged and my rating was lowballed for the simple fact the Army did not want to pay me for life. I have severe PTSD and am rated 100% Permanent and Total by the VA. I was injured during my service to my head, however there is no mention of PTSD in my Physical Evaluation Board report.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 2 November 1994 and was discharged with $14, 853 of disability severance pay on 24 March 1999 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). The DD 214 does not show a deployment. c. No contemporaneous medical documentation was submitted with the application. There are no contemporaneous encounters in AHLTA. No contemporaneous documentation for either a traumatic brain injury or PTSD was identified. d. On 28 January 1999, the applicant’s informal (PEB) determined that his “Chronic low back pain, musculoskeletal type, dating to spinal anesthetic for arthroscopy in 1996” was his sole unfitting condition for continued service. Using the VA Schedule for Rating Disabilities (VASRD) diagnostic code 5295 - Lumbosacral strain -, they rated the condition at 0% and recommended that he be separated with severance pay. The elections section on page 2 of the Physical Evaluation Board (PEB) Proceedings (DA Form 199) is blank. e. The ratings for VASRD diagnostic code 5295 – Lumbosacral strain: Severe; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion ................................. 40 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position ...............................20 With characteristic pain on motion ....................... 10 With slight subjective symptoms only .................... 0 f. Given that the initiating injury for his low back pain was the lumbar puncture with administration of spinal anesthesia, and the absence of other documentation, it is concluded the applicant’s condition did not warrant a 40% disability rating. Even had his symptoms and examination yielded a 20% disability rating, the applicant would still have been separated with disability severance pay. g. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings. However, 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. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. h. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case to the DES is warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 contested disability rating should have been higher by including PTSD as an unfitting condition. Therefore, the Board determined an increase to his disability rating 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 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 begins its consideration of each case with the presumption of dministrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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) AR20210008801 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1