IN THE CASE OF: BOARD DATE: 4 February 2022 DOCKET NUMBER: AR20210011807 APPLICANT REQUESTS: a medical retirement in lieu of his medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 would like to have his discharge changed from medical to medically retired. He required additional surgeries following his discharge on both feet. He has had a total of six surgeries, including the original surgery. The original surgery is documented in his medical records. 3. The applicant did not provide supporting documentation. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 March 1999. b. A Standard Form (SF) 88 (Report of Medical Examination) shows the applicant received a medical examination on 19 May 1997 for the purpose of enlistment and a reexamination on 12 February 1999. The clinical evaluation was normal and Block 77 (Examinee) indicated the applicant was qualified for service. c. His DA Form 2-1 (Personnel Qualification Record) shows the applicant served in Korea from 29 November 1999 to 28 November 2000. d. Two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) show the applicant passed all diagnostic and record APFT with the last two tests showing the applicant was on profile: * 23 February 2000 * 4 October 2000 e. A DA Form 3349, dated 15 January 2002, shows the applicant was given a permanent physical profile rating of “3” for lower extremities due to heel spurs and calcifications in Achilles tendon, both feet Block 10 (Other) further noted the applicant was authorized soft shoes with his uniform and a medical evaluation board (MEB) would be initiated. f. His records contain a DD Form 2807-1 (Report of Medical History), dated 10 January 2002, completed by the applicant for the purpose of a medical board. The applicant marked “No” to most questions regarding challenges with his health with the exception of marking “yes” to trouble with his feet, knee or foot surgery, and plate(s), screw(s), rod(s) or pins in bones. He also marked “yes” to generally in good health. Additionally noted in Block 29 (Explanation of “Yes” Answers) he identified pain in his heels and feet, prior surgery, inserts for his shoes, anchors in his right heel, and heartburn with certain foods. g. A DD Form 2808 (Report of Medical Examination), dated 15 January 2002, shows the applicant underwent an examination for the purpose of a medical board. The applicant’s clinical evaluation was marked abnormal for his feet. Block 74a (Examinee/Applicant) was marked qualified for MEB. h. A memorandum from the applicant’s commander, dated 15 January 2002, outlined the applicant’s physical condition. The commander stated the applicant was physically incapable of performing his duties due to his chronic foot problems. Although the applicant was a good Soldier, his physical condition created a burden for others in his section and adversely impacted readiness. The command was considered a rapid response contingency and the applicant was non-deployable. i. A MEB Narrative Summary (NARSUM), dated 19 February 2002, indicated a physical examination was performed on 6 February 2002 due to the applicant’s pain in the posterior aspect of both heels. The applicant’s condition did not meet retention standards as designated in Army Regulation 40-501. Additionally, his ankle-joint dorsiflexion range of motion on both feet did not meet retention standards. The applicant was unable to wear boots secondary to the pain and had difficulty in field duty with uneven terrain as the condition worsened. His diagnoses included: * heel spur syndrome * Achilles tendinitis * Achilles tendon contracture j. A DA Form 3947 (MEB Proceedings), shows an MEB convened on 14 February 2002, to consider the conditions referenced in the NARSUM. The applicant was referred to a Physical Evaluation Board (PEB) and on 20 February 2002, he concurred with the MEB findings and recommendation. k. A DA Form 199 (Physical Evaluation Board Proceedings) showed on 27 February 2002, a PEB convened and found the applicant physically unfit. The PEB recommended a rating of 10% and the applicant’s disposition be separation with severance pay, if otherwise qualified. The disabling condition was listed as chronic bilateral heel pain, due to heel spur syndrome, Achilles tendinitis with contracture (VASRD Codes 5099 5003). On 4 March 2002, the applicant did not concur, demanded a formal hearing, and requested appointed to counsel to represent him. l. Progress Notes, dated 6 March 2002, showed the applicant was concerned that the MED did not consider ankle joint range of motion in rating. The ranges of motions were remeasured and the physician annotated his findings. m. A memorandum, dated 7 March 2002, informed the applicant the PEB had reviewed the additional medical information and after careful consideration, the PEB found that no change to the original findings was warranted. n. A DA Form 199 showed on 27 March 2002, a PEB convened to reconsider the applicant’s conditions and found the applicant physically unfit. The PEB recommended a rating of 20% and the applicant’s disposition be separation with severance pay, if otherwise qualified. The disabling condition was listed as bilateral heel spur syndrome with Achilles tendinitis with contracture, range of motion 40 degrees right, 41 degrees left (VASRD Codes 5271). The case was informally reconsidered based on Addendum 6 March 2002. On 29 March 2002, the applicant did concurred with the findings and waived a formal hearing. o. Orders 105-0035, dated 15 April 2002, discharged the applicant from active duty with a 20% disability rating effective 3 June 2002. p. He was honorably discharged from active duty on 3 June 2002. His DD Form 214 shows he completed 3 years, 2 months, and 5 days of active service. He was assigned separation code “JFL” and the narrative reason for his separation listed as “Disability, Severance Pay.” 5. By regulation (AR 40-501), once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating 6. 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. 7. 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. 8. 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. 9. 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. 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again 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: “Upon my discharge, I still required further surgeries on both my feet. In total since my discharge, I have need 6 more surgeries not to include the original.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 19 March 2002 and was discharged with $9,597.60 of disability severance pay on 3 June 2002 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). c. The applicant was placed on a duty limiting permanent profile for “Heel spurs / Calcification in the Achilles tendons, both feet” on 15 January 2002. From the medical evaluation board (MEB) 2002 narrative summary dated 2 February: (1) “This 24-year-old active duty E-4 complains of pain on the posterior aspect of both heels. This discomfort has been ongoing since basic training AIT … This pain had been worsening since basic training AIT. The pain has been worsened by wearing of boots, running, jumping, ruck marching, and walking on uneven terrain. Non-surgically, many modalities have been attempted to treat this discomfort ... On July 20, 2001, the patient had a retrocalcaneal exostectomy. The patient never had significant relief of the discomfort even after surgery ...” (2) The examination reveals continued tenderness to palpation on the posterior aspect of the right heel at the insertion of the Achilles tendon ... There is an increased tenderness especially around and over the scar on the posterior aspect of the heel. He has decreased ankle joint; dorsiflexion range of motion with the knee in a flexed position is 5 degrees for thee left foot and 0 degrees for the right foot. With the knee flexed, the ankle joint dorsiflexion range of motion should be approximately 15 degrees. (3) Present Condition and Current Functional Status: The pain in the soldier's heel is constant and interferes with a lot of his daily activities. In relation to his MOS, it does interfere with his ability to perform his duty especially in the field.” d. Though both the applicant’s heels were reported to have been subjectively symptomatic, it appears the right heel was the reason for the MEB as it was the only one examined for the MEB and the provider uses the singular “soldier’s heel” in Functional Status paragraph. e. A medical evaluation board (MEB) determined the conditions of “Heel spur syndrome”, Achilles tendonitis”, and “Achilles Tendon contracture” failed the medical retention standard in in chapter 3 AR 40-501, Standards of Medical Fitness. On 20 February 2002, the applicant concurred with the board’s findings and recommendation, and the case was then forwarded to a physical evaluation board (PEB) for adjudication. f. On 27 February 2002, the applicant’s informal (PEB) determined that his “Chronic bilateral heel pain due to heel spur syndrome, Achilles tendonitis with contracture” was his sole unfitting condition for continued service. Using the VA Schedule for Rating Disabilities (VASRD) diagnostic code 5003 - Arthritis, degenerative -, they rated the condition at 10% and recommended that he be separated with severance pay. On 4 March 2002, after being counseled on the PEB’s findings and recommendation by his PEB liaison officer, the applicant non-concurred with the PEB and requested a formal hearing. g. The PEB obtained a 6 March 2002 follow-up note from the applicant’s treating podiatrist: (1) “Pt {patient} returns to clinic for discussion about MEB. Concerned that MEB did not consider ankle joint range of motion in rating. (2) Ranges of motion were re-measured today. Pt has reduced right ankle joint dorsiflexion range of motion with knee extended (0 degrees) and only 5 degrees with knee flexed. This represents gastrocnemius equinus. The left foot presents with 3 degrees of dorsiflexion range of motion with knee extended and 8 degrees with knee flexed. (3) Pt has 33 degrees left and 35 degrees right plantarflexion range of motion of the ankles. Posterior right heel remains tender to touch. (4) Pt ambulates with a limp - favoring the right foot. Early heel lift bilaterally with gait. (5) Impression - Gastrocnemius equinus {Achilles tendon contracture) bilaterally, pain right heel {postop 20 July 2001 - retrocalcaneal exostectomy).” h. This evaluation again notes that only the right heel was significantly symptomatic. Using this clinical evaluation, the PEB responded to the applicant in a 7 March 2002 memorandum: The Physical Evaluation Board (PEB) has reviewed the additional medical information from WACH Podiatry Clinic dated 6 March 2002. After careful consideration, the PEB has found that no change to the original findings is warranted. The letter contained no new objective medical or performance evidence that would result in a change to your 27 February 2002 PEB findings and recommendations. i. When the formal PEB convened on 27 March 2002, they increased his disability rating to 20% using the more appropriate VASRD diagnostic code 5271 - Ankle, limited motion: 5271 Ankle, limited motion of: Marked .....................20 Moderate ..................10 j. Now with the maximum 20% rating, they again recommended the applicant be separated with severance pay. On 29 March 2002, after being counseled on the PEB’s findings and recommendation by his PEB liaison officer, the applicant concurred with the PEB. k. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings, several of which are related to his feet and ankles. 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. l. It is the opinion of the ARBA Medical Advisor that that neither an increase in his military disability rating nor a referral of his case 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 contested medical conditions require an increase to his disability percentage nor referral for DES consideration of a medical separation. 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. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 (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, 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 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) AR20210011807 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1