IN THE CASE OF: BOARD DATE: 2 March 2022 DOCKET NUMBER: AR20210012645 APPLICANT REQUESTS: * physical disability retirement in lieu of physical disability separation with severance pay * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2648 (Preseparation Counseling Checklist), dated 21 September 1998 * Headquarters, U.S. Army Europe Orders 130-003, dated 10 May 1999 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period ending 26 June 1999 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 is requesting medical retirement in lieu of medical discharge. At the time of his Medical Evaluation Board (MEB), only one of his injuries was taken into account. His rating has changed and his other injuries have been rated [presumably by the Department of Veterans Affairs (VA)] at 100 percent disabling. He believes he would have been medically retired if all of his injuries had been accounted for. Please see his medical records at Durham Veterans Hospital. 3. The applicant enlisted in the Regular Army on 13 January 1990 and was awarded the military occupational specialty (MOS) 93P (Aviation Operations Specialist). 4. A Commander’s Evaluation memorandum for the MEB, dated 14 February 1998, shows it was the opinion of the applicant’s immediate commander that the applicant’s inability to perform very basic physical and mission required tasks, such as no running, no jumping, no load-bearing equipment (LBE), no Kevlar, no marching greater than 1 mile, no rifle bearing, no rucksack, and no Army Physical Fitness Test (APFT) events reduced his section’s ability to complete their wartime mission. The applicant’s MOS has many physically demanding needs and he was unable to complete many of these tasks efficiently. He believed the applicant’s limitations were so restrictive that they precluded his satisfactory physical performance in any MOS and that he required referral to the Army Physical Disability Evaluation System. 5. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant was treated as an outpatient at the Illesheim Troop Medical Clinic (TMC) on 16 January 1998, when he was involved in a motor vehicle accident (MVA), hitting an embankment, injuring his neck, left shoulder, and left hand. The injury did not require a formal line of duty (LOD) investigation and was considered to have been incurred in the LOD. 6. A Standard Form 93 (Report of Medical History), dated 30 September 1998, shows the applicant indicated he had left shoulder pain lifting it above his head or when in the push-up position due to an MVA. He also stated he had a cyst on his right knee and a hernia. The examining professional’s notes include reference to the applicant’s arthritis in his hands and knees, concussion from which he fully recovered, left shoulder dislocation, and cyst removal from his right knee. 7. A Standard Form 88 (Report of Medical Examination), undated, shows the applicant underwent medical examination where he was found qualified for MEB, with a permanent physical profile rating of 4 for upper body. The notes and summary of defects and diagnoses include reference to a MVA in January 1998, left deltoid spasm, lower back pain, cervical pain and radiculopathy due to MVA. 8. A MEB Narrative Summary (NARSUM), dated 6 January 1999, shows the following: a. The applicant was well until he was involved in a MVA in January 1998, where he sustained a flexion-extension injury to his neck with immediate pain in the neck radiating in the left upper extremity. The pain radiates from the neck down to the left scapular area and into the left shoulder. It also radiates down the left arm and there is an accompanying radicular type symptom characterized by pins and needles and numbness into the ulnar distribution to the hand and fingers. Because of this pain he became unable to perform his job in flight operations. In September 1998, he was issued a permanent physical profile rating of “4” for upper extremities, with limitations of no running, jumping, LBE, Kevlar or lifting over 15 pounds, no APFT, marching over 1 mile, no rifle or backpack, and no unit physical training. b. The orthopedic physical examination revealed abnormalities were confined to the upper spine, shoulder, and left upper extremity. There was a full active range of motion of the neck, shoulder, and elbow, with no muscle atrophy apparent. Three is focal tenderness in the cubital tunnel, but a negative elbow flexion sign. There is also tenderness in Guyon’s canal. The reflexes were normal throughout. There was a decrease in subjective sensation reported from C-7 to T-1, left (ulnar distribution). The limb was vascularly intact. c. Chest x-ray, C-Spine series with obliques, lumbar spine x-ray and magnetic resonance imaging (MRI) of cervical spine were normal. An EMG/Nerve conduction study showed normal nerve conduction EMG of left ulnar nerve, myofascial pain syndrome, paresthesia left fourth and fifth digits intermittent of uncertain etiology. d. The applicant’s diagnosis was myofascial pain syndrome (cervico-brachial) and his prognosis for continued military activities was poor. The recommendation was referral to a PEB for final adjudication based on unfitness. 9. A DA Form 3947 (MEB Proceedings), shows a MEB convened on 8 February 1999, finding the applicant had the condition of myofascial pain syndrome (cervico-brachial), date of origin January 1998, and recommended his referral to a PEB. The applicant agreed with the MEB’s findings and recommendation on 24 February 1999. 10. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows the following: a. A PEB convened on 22 March 1999, finding the applicant physically unfit for pain, left side of neck and left shoulder with normal EMG of left ulnar nerve, diagnosed as myofascial pain syndrome (cervico-brachial) with normal full range of motion. b. The PEB recommended a combined disability rating of 10 percent and that his disposition be separation with severance pay if otherwise qualified. c. After having been advised of the findings and recommendations of the PEB, the applicant concurred and waived a formal hearing of his case on 26 March 1999. 11. A disability separation message, dated 29 April 1999, shows the applicant would be honorably discharged no later than 26 June 1999 due to physical disability with severance pay, with a disability rating of 10 percent. 12. The applicant’s DD Form 214 shows he was honorably discharged on 26 June 1999, after 9 years, 5 months, and 14 days of net active service, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability with severance pay. 13. 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. 14. 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. 15. 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. 16. 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: “At the time of my medical board, only (1) one of my medical injuries was taken into account. My rating has changed and other injuries have been rated and I currently have 100%.” 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 13 January 1990 and was discharged with $26,735.40 of disability severance pay on 26 June 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. d. The applicant was in a single vehicle motor vehicle accident in January 1998 and went on to have persistent neck/left shoulder pain. He was placed on a duty limiting permanent profile for neck pain on 29 September 1998. On 16 February 1999, a medical evaluation board found his “Myofascial pain syndrome (cervico-brachial)” failed the medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. The applicant agreed with the board’s findings and recommendation on 24 February 1999 and the case was forwarded to a physical evaluation board (PEB) for adjudication. e. On 22 March 1999, the applicant’s informal PEB determined that this condition to be his sole unfitting condition for continued military service. Using the VA Schedule for Rating Disabilities (VASRD) diagnostic code 5003 – Arthritis, degenerative – as an analogous rating, they rated the condition at 10% and recommended that he be separated with severance pay. On 26 March 1999, the applicant concurred with the PEB’s recommendation and waived his right to a formal hearing. f. At the time of his DES processing, there was no diagnostic code for cervical strain and so an analogous rating was used. When there is no code for a given medical condition, an analogous rating is applied per § 4.20 of Part 4 of Title 38: “When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.” g. The ratings for VASRD diagnostic code 5003: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations ........... 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups .................................................................................... 10 h. Because his MEB examiner had documented a normal range of cervical motion, a normal range of motion for the left upper extremity, and a normal nerve conduction study, the condition was rated at 10%. Even had his symptoms and examination yielded a 20% disability rating, the applicant would still have been separated with disability severance pay. i. 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. j. 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System (DES) and increase of his military disability rating is not warranted. The Board determined 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. Based on this, the Board denied relief. 2. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army's rating. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. 3. 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. 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 Army Board for Correction of Military Records (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). 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. 3. Army Regulation 635-40 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. 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. 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. 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. 5. 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. 6. 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012645 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1