IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210015530 APPLICANT REQUESTS: a physical disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Summary of Benefits letter * ARBA online application * VA Rated Disabilities * VA Medical Record (92 pages) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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, upon discharge from the US Army the narrative on his DD Form 214 (Certificate of Release or Discharge from Active Duty) reads condition not a disability. He has been considered a 100 percent service-connected disable veteran. He is seeking to be medically discharged from the U.S. Army. 3. The applicant underwent a medical examination on 25 March 2011 for the purpose of enlistment. His DD Form 2807-1 (Report of Medical History) shows the applicant reported no significant defects. The corresponding DD Form 2808 (Report of Medical Examination) shows the applicant was found qualified for service and airborne training. He was assigned a physical profile of 111121. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 20 June 2011 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years and 26 weeks on 9 January 2012. 5. The applicant completed basic combat training (BCT) and advanced individual training (AIT), and was awarded the military occupational specialty (MOS) of 92F (Combat Engineer). He completed airborne training and was transferred to Fort Bragg, NC for duty effective 15 August 2012. 6. A DA Form 4187 (Personnel Action), dated 13 May 2013, shows the applicant was absent without leave (AWOL) from 22 - 24 April 2013. 7. A letter of intent, dated 12 April 2013, shows the applicant was recommended for separation under AR 635-200 chapter 5-17 (other designated mental condition). A commander’s report, dated 17 April 2013, shows the applicant was diagnosed with adjustment disorder with anxiety. 8. The applicant was notified of his proposed separation under AR 635-200, chapter 5-17, other designated physical or mental conditions on 17 April 2013, for adjustment disorder with anxiety. He was advised: * his service be characterized as Honorable * his right to consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time * he may submit written statements on his own behalf * he may obtain copies of documents that will be sent to the separation authority supporting the proposed separation 9. He acknowledged receipt and submitted his election of rights on 17 April 2013. He elected not to submit statements on his own behalf and waived his right to consult with consulting counsel. The applicant’s separation was approved on 18 April 2013. 10. The applicant was honorably discharged on 9 May 2013 under the provisions of AR 635-200 paragraph 5-17 for condition, not a disability. He was credited 1 year 4 months 1 day of net active service this period. 11. The applicant provided: a. A VA summary of benefits letter showing he has a combined service-connected rating of 100 percent effective 30 November 2020. b. A printout of his VA rated disabilities showing service-connected ratings as follows: * 20 percent - radiculopathy, left upper extremity, C5/C6 nerve roots (upper radicular group) * 20 percent - radiculopathy, right lower extremity sciatic nerve * 20 percent - radiculopathy, left lower extremity sciatic nerve * 10 percent - radiculopathy, right lower extremity, femoral nerve * 70 percent - posttraumatic stress disorder * 20 percent - radiculopathy, right upper extremity, C5/C6 nerve roots (upper radicular group) * 10 percent - radiculopathy, left lower extremity, femoral nerve * 20 percent - right hip strain, Limitation of abduction * 10 percent - right hip strain, Limited extension of the thigh * 10 percent - left hip strain, Limited extension of the thigh * 20 percent - Patellofemoral pain syndrome, left knee * 0 percent - Irritable bowel syndrome * 20 percent - Patellofemoral pain syndrome, right knee * 40 percent - left hip strain, Limited, flexion of the thigh * 30 percent - migraines including migraine variants * 40 percent - lumbosacral strain * 60 percent - chronic fatigue syndrome (CFS) * 30 percent - cervical strain * 20 percent - left hip strain, Limitation of abduction * 40 percent - right hip strain, Limited, flexion of the thigh * 20 percent - left ankle strain c. 92 pages of his VA medical records 12. 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. 13. 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. 14. 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. 15. 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, in essence, a referral to the Disability Evaluation System (DES). He simply states “100% T&P {total and permanent} for service-related connections.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 he entered the regular Army on 9 January 2012 and received an honorable discharge on 9 May 2013 under the separation authority provided by paragraph 15-17 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Other designated physical or mental conditions. c. Paragraph 5-17 of AR 635 200 authorizes discharges for conditions which interfere with military service but are not service incurred disabilities. From paragraph 5-17a: “Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) Other disorders manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.” d. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show he was in good health, and without significant medical history or medical conditions. e. AHLTA shows the applicant was first seen for a mental health concern on 3 February 2013 when he was seen in the emergency department for anxiety. Following evaluation, he was diagnosed with adjustment disorder, rule conversion disorder. “Conversion disorder and somatic symptom disorder are both categorized as somatic symptom and related disorders (previously termed somatoform disorders). Somatic symptom and related disorders are psychiatric conditions where patients experience distressing physical symptoms associated with abnormal thoughts, feelings, and behaviors in response to these symptoms. They may result from psychological stress that is unconsciously (without awareness) expressed somatically, though the underlying cause is not fully understood.” (https://bestpractice.bmj.com/topics/en-us/989) f. The applicant continued to be seen for adjustment disorder, and went on to develop headaches in February and a stutter in March 2013 for which he was referred to neurology. g. When seen by neurology on 4 March 2013, the applicant had a number of physical complaints in addition to the new onset stutter: “Pain in head is constant pressure ache; Pain in both arms is intermittent and numbness, tingling; Pain in lower back is constant stabbing; Pain in both legs and feet is constant numbness and tingling feels like they are sleep.” h. Following the evaluation, the neurologist opined: “STUTTERING: Patient with recent onset stuttering in setting of multiple other somatic complaints of undetermined etiology and also in setting of strong psycho-social stressor (divorce). I am concerned for a functional etiology for this (and, indeed the one finding other than tremor on his physical was strongly suggestive of a functional etiology-sensory impairment.” i. An MRI was ordered and the applicant was referred for neuropsychological testing. The results of the MRI were not uploaded into AHLTA. Following his completion of the neuropsychological, the provider opined on 11 March 2013: “The service member’s self-report, inadequate effort, response bias, and exaggeration in the context of current circumstances, his diagnoses to rule out are malingering of neurocognitive dysfunction vs. factitious disorder.” j. The applicant was seen in follow-up by neurology on 5 April 2013 at which time the neurologist also diagnosed the applicant with adjustment disorder: “Adjustment disorder with anxious mood: Patient's stutter has completely remitted. He understands that it was likely psychogenic in origin and will continue to follow-up with behavioral. Neuropsych findings and diagnosis noted. Follow-up with neurology as needed. No further interventions needed at this time.” k. On 17 April 2013, his company commander recommended he be separated for “Mental Health has diagnosed you with adjustment disorder with anxiety and has directed you to be separated under AR 635-200 Para 5-17.” His recommendation was approved by the brigade commander on 18 April 2013. l. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. m. Review of his records in JLV shows he has been awarded twenty-five VA service connected disability ratings, which would be consistent with a diagnosis of Somatic Symptom Disorder. However, 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. n. It is the opinion of the ARBA Medical Advisor that referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered through counsel 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) is not warranted. The Board agreed there is no evidence the applicant had any medical condition which would have failed the medical retention standards prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The Board noted, the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. 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. Based on this, the Board denied 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. Title 10, USC, 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 38, USC, 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. 3. Title, 38 USC, 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. 4. Title 10, USC, 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. 5. 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. 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. 6. Title 10, USC, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. Chapter 5, Paragraph 5-17 states: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional. control or behavior sufficiently severe that the soldier's ability to effectively perform military duties is significantly impaired 8. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015530 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1