IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010736 APPLICANT REQUESTS: correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding additional medical conditions as unfitting resulting in his retirement for physical disability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 199 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * Department of Veterans Affairs (VA)/Department of Defense (DOD) Joint Disability Evaluation Board Claim) * VA Disability Evaluation System (DES) Proposed Rating, 9 November 2011 * VA Rating Decision, 8 August 2012 * VA Rating Decision, 24 April 2015 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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: a. He is requesting that his VA disabilities ratings (lumbar strain, cervical strain, right knee tendonitis, and right shoulder and rotator cuff tendonitis), identified at the time of separation, be deemed unfit conditions for his military occupational specialty (MOS) of 15B (Aircraft Power Plant Repairer). His discharge paperwork was pursued his podiatrist at the time, so his feet condition was the only condition listed as unfit for the duty. However, there are other conditions that should have been considered as unfit. b. Three conditions (lumbar strain, cervical strain, and right knee tendonitis) directly impacted his ability to perform the duties of MOS 15B. One condition (right shoulder and rotator cuff tendonitis) directly impacted his ability to perform the duties as well, but this condition was omitted from the MEB packet as the condition was identified after the MEB packet was submitted. c. His condition was later rated at 50% by the VA and the entire amount he received as severance pay was recouped. He participated in a military discharge related briefing on 12 April 2022 and found out that the unfit conditions are the conditions rated under the VA Schedule for Rating Disabilities (VASRD) as preventing from performing the MOS duties. At the time of his discharge from the Army, he had other conditions (10% lumbar strain, 10% cervical strain, and 10% right knee tendonitis), as shown in VA ratings, which were omitted from the list of unfit conditions. d. He also had a shoulder condition (20% right shoulder and rotator cuff tendonitis) that was identified after his MEB packet was processed, so the condition was omitted from the list of unfit conditions. He believes the conditions he listed above directly impacted the ability to perform his MOS duties and it was an erroneous omission from the list of conditions that prevented him from performing his MOS at the time. As an aircraft powerplant repairer, the conditions he mentioned above impacted his ability to perform tremendously. He was on his feet all day, crawled and kneeled to access confined spaces, stayed in awkward positions to reach the small engine parts, and constantly reached higher positions to wrench and safety-wire hundreds of bolts and nuts. e. He believes the additional conditions mentioned above warrant a 30% or more rating and his medical retirement instead of a 0% rating and a medical discharge. He believes the conditions he listed were already rated by the VA and directly impacted his ability to performs his duties. He also believes the Board will find his request to be adequate to warrant a medical retirement. 3. The applicant enlisted in the Regular Army on 3 August 2009. 4. On or around 23 September 2011, an MEB diagnosed the applicant with plantar fasciitis, bilaterally, which failed medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The MEB diagnosed the applicant with the following nine additional conditions which met retention standards in accordance with Army Regulation 40-501. * lumbar strain * cervical strain * right knee tendonitis * ankle tendonitis bilaterally * gout of the right foot * acne * gastroesophageal reflux disease * onychomycosis * Bilateral persistent tinnitus. 5. The MEB recommended the applicant's referral to a PEB. 6. On 17 November 2011, a PEB found the applicant unfit for further military service due to bilateral plantar fasciitis. The PEB recommended a 0% disability rating and the applicant's separation with severance pay. The PEB also determined the applicant's nine additional conditions were not unfitting and therefore, not ratable, because the medical treatment facility determined the conditions met retention standards, were not listed on the physical profile as limiting any of the functional activities, the commander did not consider the conditions to hinder his performance, and the case file did not contain evidence indicating the conditions independently, or combined, rendered him unfit for assigned duties. 7. The applicant's DA Form 199 also shows the specific VASRD code to describe his condition and the disability percentage awarded were determined by the VA. His separation with severance pay was determined by the PEB after receipt of the VA disability decision. The DA Form 199 further shows his case was adjudicated in accordance with DOD memorandum, subject: Policy and Procedure Directive-Type Memorandum for the DES Pilot Program, dated 21 November 2007. 8. The applicant's DD Form 214 shows he was discharged on 14 February 2012 under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, severance pay. 9. The applicant provided: a. VA Disability Evaluation System (DES) Proposed Rating, dated 9 November 2011, showing that for DES purposes the VA proposed a 0% rating for bilateral plantar fasciitis. For the purpose of VA benefits, the VA proposed service connection for the following conditions: * cervical strain (claimed as neck pain) * lumbar strain (claimed as back pain) * right knee tendonitis * tinnitus * acne * onychomycosis left big toe * gout b. VA Rating Decision, dated 8 August 2012, showing he was granted service connection for right shoulder tendonitis effective 15 February 2012. c. VA Rating Decision, dated 8 August 2012, showing his rating for bilateral plantar fasciitis was increased to 50% effective 1 October 2014 and his rating for GERD was increased to 10% effective 1 October 2014. 10. 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. 11. 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. 12. Title 38, Code of Federal Regulations, Part IV is the VASRD. 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. 13. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) the VA's Joint Legacy Viewer (JLV) and the electronic Physical Evaluation Board (ePEB). The applicant underwent medical discharge through the DES process. His bilateral foot condition was found unfitting for continued service. He believes that the following conditions should also have been found to be unfitting for continued service for his MOS 15B Aircraft Power Plant Repairer: Lumbar Strain, Cervical Strain, and Right Knee Tendonitis. He also stated that a Right Shoulder Rotator Cuff Tenonitis was identified after the MEB packet was submitted. b. A summary of the applicant’s available military record was prepared in the ABCMR ROP. Of note, the applicant entered active duty 03Aug2009 and was honorably discharged through the DES process on 14Feb2012. No foreign deployment was listed on DD Form 214. c. Review of the applicant’s entrance physical exam indicated that he was initially deemed not qualified for service due to hypertension. A waiver was completed for this condition. There were no other ongoing medical conditions. d. The PEB convened 17Nov2011 found the applicant’s Bilateral Plantar Fasciitis unfitting for continued military service. The condition was rated at 0% under DC 5099 5020. The case was adjudicated under the Disability Evaluation System Pilot Program, a joint initiative between the Department of Defense and the Department of Veterans Affairs, and as such, the rating was determined by the VA. The recommended disposition was separation with severance pay. The applicant concurred with the PEB findings on 30Nov2011. The VA increased the rating for the unfitting Bilateral Plantar Fasciitis effective 01Oct2014, two and a half years after discharge from service (24Apr2015 VA Rating Decision). e. The MEB listed Lumbar Strain, Cervical Strain, and Right Knee Tendonitis conditions as meeting medical retention standards of AR 40-501 chapter 3. As stated by the petitioner in his application, the right shoulder condition was not listed on DA Form 3947. It should be stated that the applicant did not claim the condition on VA compensation evaluation paperwork—it was a new condition. * Lumbar Strain. The applicant was seen for initial evaluation of mild low back pain (2/10) in the 9th week of basic training (08Oct2009 Fort Jackson). He denied recent trauma. There was no follow up visit. Two years later he was seen for severe mid to upper back pain (7/10) after his wife fell on his back when he was sitting on the floor (19Sep2011 Fort Jackson). He had full active/passive ROM. There was minimal discomfort with back abduction/adduction at approximately 145 degrees (normal ROM is 180 degrees). * Cervical Strain. The applicant was seen for mild neck pain (3/10) following a motor vehicle accident when his car was t-boned on the passenger side while traveling on a surface street. The pain was in his cervical vertebrae area (22Nov2011 Winder Family Clinic-JBLM). The cervical spine films were unremarkable. There was no follow up visit while the applicant was in service. * Right Knee Tendonitis. The 10% VA rating for the right knee condition was noted in the 09Nov2011 Disability Evaluation System Proposed Rating). However, the ARBA Medical Reviewer was unable to find any service treatment records to include films for the right knee condition in AHLTA or JLV. * Right Shoulder Tendonitis. On 28Sep2011, the applicant was seen for report of progressive right shoulder pain after scraping paint off a floor with a putty knife. The pain was initially dull then it became more of a piercing type pain located around his acromial clavicular joint. He was not seen again for this issue until seven months after discharge from service (19Apr2012 Primary Care Consult VAMC). There was no weakness or numbness. There was a mild decrease in active ROM. Muscle strength and reflexes were normal. During the 10Jul2012 Shoulder Conditions DBQ, the applicant stated that he was working fulltime with Pratt and Whitney as an aerospace engineer, and he had difficulty with reaching and pulling on engine parts on airplane due to right shoulder pain. The right shoulder film was unremarkable. The examiner opined that there was mild impact on his occupation due to right shoulder pain. The condition is currently rated at 20% by the VA. f. There was a permanent level 3 physical profile with multiple functional activity restrictions for the Bilateral Foot Pain/Plantar Fasciitis only. There was no profile information for the other conditions. The Lumbar Strain, Cervical Strain, Right Knee Tendonitis, and Right Shoulder Tendonitis had not required evaluation by orthopedics, physical therapy, pain services or other specialty while in service—the conditions were not shown to have failed conservative treatment. Based on review of available records, there was insufficient evidence to support that the applicant’s Lumbar Strain, Cervical Strain, and Right Knee Tendonitis or Right Shoulder Tendonitis failed retention standards of AR 40-501 chapter 3. Referral for further medical discharge processing is not warranted at this time. 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 the applicant's request, the former service members record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicants petition, available military records and medical review, the Board concurred with the advisory official finding based on the review of available records, there was insufficient evidence to support that the applicant’s Lumbar Strain, Cervical Strain, and Right Knee Tendonitis or Right Shoulder Tendonitis failed retention standards of AR 40- 501 chapter 3. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to his disability rating and/or a change to his narrative reason for separation. 2. The Board agreed that the VA provides post-service support and benefits for service- connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. Variance in ratings does not indicate an error on the part of either entity. ? 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, U.S. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40. 3. The DES Pilot Program commenced on 26 November 2007. The DES Pilot was testing a new DoD and VA disability system. The DES Pilot was a Service member centric initiative designed to eliminate the duplicative, time-consuming, and often confusing elements of the two current disability processes of the Departments. A key feature of the DES Pilot is a single disability medical examination appropriate for determining both fitness and disability as well as a single-sourced disability rating. All members in the DES had a VA general medical examination worksheet completed plus any other applicable examination worksheets based on Service specific medically disqualifying conditions and the member's claimed condition(s). This exam provided information the Military Department PEBs could use in determining a Service member's fitness for continued military service and meets the needs of the VA disability evaluation system rating activity site in determining the appropriate disability rating to be awarded a service member for military unfitting and member-claimed medical conditions incurred or aggravated as the result of military service. 4. Army Regulation 635-40 establishes the Army DES 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. a. 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 or 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 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. b. Service members whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. 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 percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. d. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 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%. 5. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010736 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1