IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220002131 APPLICANT REQUESTS: in effect, amendment of her DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) to reflect the following conditions as incurred in the line of duty (LOD) and unfitting: * bilateral plantar fasciitis * heel spurs and multiple other foot conditions * cervical spondylitis status post (s/p) fusion * left thumb/wrist condition * post-traumatic stress disorder (PTSD) * anxiety * depression * bipolar disorder APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter, 15 January 2022 * Congressional email, 8 March 2022 * United States Army Human Resources Command (USAHRC), Orders A-01- 800313, 6 January 2006 * USAHRC, Orders A-01-800313A01, 4 April 2007 * Standard Form (SF) 600 (Chronological Record of Medical Care), 6 November 2006 * Joint Force Headquarters, Orders 116-001, 26 April 2007 * USAHRC, Orders A-04-206557, 9 April 2012 * SF 600, 4 July 2012 * SF 600, 21 May 2013 * SF 600, 8 December 2014 * DA Form 2900 (Post Deployment Health Re-Assessment), 8 December 2014 * Army National Guard (ARNG) Memorandum, Notification of Eligibility of Retired Pay for Non-Regular Service (20 Years), 4 October 2016 * DA Form 3024 (Annual Periodic Health Assessment), 2 February 2019 * two DA Forms 3349 (Physical Profile Record) * Army Regulation (AR) 40-501 (Standards of Medical Fitness) Extract, 27 June 2019 * DA Form 2823 (Sworn Statement), 30 October 2019 * emails 2019-2021 * Veteran Affairs (VA) Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire, 29 January 2021 * DA Form 7809 (Summary of Care for Non-Military Medical Provider), 12 February 2021 * Medical Evaluation Board (MEB) Narrative Summary, 27 February 2021 * DA Form 3947 (MEB Proceedings), 3 March 2021 * MEB Counsel Memorandum, Rebuttal to MEB Proceedings DA Form 3947 and Narrative Summary, 31 March 2021 * VA Right Foot 3 Views, 6 July 2021 * VA Radiology Report, 8 July 2021 * two Memorandums of Support, 13 and 15 July 2021 * VA Medical Record Progress Notes, 19 July 2021 * DA Form 7809, 19 July 2021 * Memorandum for PEB, Letter of Reconsideration, 24 July 2021 * MEB Counsel Memorandum, Rebuttal to Informal PEB (IPEB) Proceedings and Demand for a Formal Hearing in the matter of Applicant, 27 July 2021 * USAPEB Memorandum, Appeal Response of IPEB Proceedings, 12 August 2021 * MEB Counsel Memorandum, Appeal of Formal Board Decision in the matter of Applicant, 3 December 2021 * U.S. Army Physical Disability Agency (USAPDA) Memorandum to Applicant’s PEB Counsel, Rebuttal to PEB Findings, 7 December 2021 * VA Service-Connected Disability Statement, 18 February 2022 * USAPDA Advisory Opinion, 20 October 2022 * Command Management Division Letter to Applicant, 28 October 2022 * Response to USAPDA Advisory Opinion, 8 November 2022 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 it’s an injustice that her bilateral plantar fasciitis and heel spurs were found fit. She tried to get several conditions added at the beginning of her medical board process. However, the state physician assistant would only add her back condition, knowing she had other issues (Cervical Fusion, Ulnar Shortening) that her surgeons clearly stated that she could not wear gear, fire a weapon, or deploy. The applicant submitted all supporting documents from her podiatrist recommending that she not receive more injections or surgery as the podiatrist believed that it would make the applicant’s feet worse. The applicant appealed every board that came back denied through her attorney. She was told during the process that she would be able to add cervical fusion, bilateral feet issues and her left ulnar and hand, to learn this was not the case. AR 40-501 clearly states that her bilateral plantar fasciitis, heal spurs with arthritis and the podiatrist putting her in soft shoes and braces would be unfitting. a. At the formal board, the applicant testified that her feet were diagnosed during a period of active duty service within two different combat zones. There was medical treatment documentation during her deployment in 2012 that shows her bilateral plantar fasciitis and heel spurs were severely aggravated, and had been diagnosed during a previous deployment in 2007. She subsequently reported her feet issues at the Fort Benning out processing center and reported that she would obtain a line of duty (LOD) and get follow up care at her local VA Medical Center (see SF 600 dated 21 May 2013). b. Before being referred for an MEB, and while the ARNG was preparing to submit her profile to begin the process, she provided all documentation about her feet issues to the case manager (see 2019 emails). For some reason, the foot conditions were not given a P3 profile, which she attempted to resolve once she began the MEB process. She had multiple discussions with Major (MAJ) the physician assistant at the ARNG regarding her feet issues (along with other conditions) and asking about the profile for her feet (see 2020-2021 emails with MAJ). She was told that it would be resolved with the Integrated Disability Evaluation System (IDES) personnel at Fort Sill during the MEB process. She provided all evidence about how the foot conditions affected her daily life and performance of military duties, but Major refused to add it to the permanent profile until she threatened to make a Congressional complaint. At that point, he only provided a 90 day temporary profile despite the fact that her podiatrist filled out several DA Forms 7809 recommending a permanent soft shoe profile. c. However, despite an impartial medical review (IMR) and MEB rebuttal with appropriate medical documentation that stated she could not wear Army boots, her feet condition was not added as failing retention standards, only the plantar fasciitis was listed on the DA Form 3947 as not failing Army retention standards. d. When the case eventually went to a formal board, she testified that her podiatrist recommended a permanent soft shoe profile that would prevent her from being able to wear the combat boot or deploy with this condition (see DA Form 7809 dated 12 February and 19 July 2021). She has significant intense pain in both feet on a daily basis and this condition absolutely prevents evading direct and indirect fire, and carrying/wearing military gear. e. The VA previously rated her feet at 50 percent (%) because of the severity of the symptoms. Because she was advised not to add any existing claims to her IDES claim form, her feet did not get a C&P exam during her MEB process. Although it is clear that this condition should be unfitting, it is possible that the PEB was reluctant to add the condition because it would require more recent VA examinations. However, this delay due to no fault of her own, should not be the reason for not appropriately listing her bilateral foot conditions as unfitting. This condition has further caused deterioration of her overall health and her quality of life. This is evidenced in the arthritis from her cervical, down her spine to her lumbar. These issues will remain for the rest of her life, which will limit her financial ability to care for herself and her future needs. f. Due to the sacrifice, she has made over 25 years of her life to the U.S. Army, she believes after every appeal that the correction should be made. When she joined the Army, she was 100% fit for duty and has spent her whole career trying to ensure that she was always fit and passed the physical fitness test. All her health issues happened when she was at Fort Sill or on deployments and have been documented. Today, she lives with so many physical issues that cause her pain. When she talks with her psychologist she can't believe that the MEB stated that her issues stem from pain. Then during the appeal, the doctor stated her left hand was fit for duty although the doctor’s notes stated her left hand would never be the same nor could she fire a weapon or deploy. This is her last attempt to make this right, she believes this whole process failed her from the start and she wholeheartedly believes that this should be corrected. 3. On 5 November 1996 the applicant enlisted in the Regular Army for 3 years in an enlisted status in the rank of private two (PV2/E-2). 4. On 5 November 1999 she enlisted in the ARNG for 6 years in the rank of specialist (SPC/E-4). 5. On 2 November 2005 she extended her 5 November 1999 enlistment of 6 years for 2 additional years in the rank of staff sergeant (SSG/E-6)). 6. The applicant in support of her application provides: a. HRC, Orders A-01-800313 dated 6 January 2006 shows she was ordered to active duty in support of Operation Iraqi Freedom (OIF) on 15 January 2006 for a period of 545 days. b. HRC, Orders A-01-800313A01 dated 4 April 2007 amended HRC, Orders A-01- 800313 dated 6 January 2006, changing her period on active duty to 1 year, 5 months, and 29 days. c. SF 600 dated 6 November 2006 shows the applicant was seen for her right heel and foot pain that she had for 2 months. It was not from an injury, it gradually progressed, and aches in the morning. 7. On 6 November 2006 she extended her 5 November 1999 enlistment of 6 years for 6 additional years. 8. The applicant provides Joint Force Headquarters, Orders 116-001 dated 26 April 2007 that shows she was ordered to active duty in support of OIF on 13 July 2007 for a period not to exceed 79 days. 9. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty in support of OIF from 15 January 2006 - 13 July 2007 and 14 July - 21 August 2007. She was honorably released from active duty (REFRAD) on 21 August 2007. 10. A NGB Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged on 6 November 2008 from the ARNG and as a Reserve of the Army as an enlisted Soldier to enlist as a commissioned officer in the ARNG. 11. On 7 November 2008 the applicant was appointed as a Reserve warrant officer of the Army and executed an oath of office. 12. A DD Form 214 shows the applicant was ordered to active duty for full time National Guard duty for operational support to perform as a casualty assistance officer from 1 November 2011 - 31 May 2012. She was honorably REFRAD on 31 May 2012 under AR 600-8-24 (Officer Transfers and Discharges), paragraph 2-7, completion of required active service and transferred to the ARNG. 13. The applicant in support of her application provides: a. USAHRC, Orders A-04-206557 dated 9 April 2012 shows she was ordered to active duty in support of Operation Enduring Freedom on 2 June 2012 for a period of 400 days. b. SF 600 dated 4 July 2012 shows the applicant was seen at Camp Spann in Afghanistan for bilateral heel pain that she had for 2 weeks. She was diagnosed with plantar fasciitis during her last deployment in 2007. At that time, she was given a cortisone shot and gel insoles. The applicant rolls her fascia and ices her feet every evening, however it does not help the pain. Its uncomfortable pain and at its worse her pain is a 6 out 10 and sharp. She was also using orthotics. Her feet showed abnormalities, abnormal appearance and X-rays also showed bilat heel spurs. Palpation of the foot revealed abnormalities, tenderness on palpation of the feel of both feet, tenderness on palpation of the calcaneal tuberosities of both feet, and a plantar fasciitis test elicited pain in both feet. c. SF 600 dated 21 May 2013 shows the applicant visited the Martin Army Community Hospital, Fort Benning to fill out a DD Form 2796 (Post Deployment Health Assessment). The SF Form 600 also shows her past medical history states she had bilateral bone spurs and plantar fasciitis, her left is greater than the right, her pain worsens by walking on rocky terrain. Symptoms are controlled with ice and ibuprofen. The applicant wanted to seek follow up care at her home VA clinic for her back and bilat hip pain related to wearing interceptor multi-threat body armor system on rocky terrain. 14. A DD Form 214 dated 23 July 2013 shows she was honorably REFRAD on 23 July 2013 under AR 600-8-24, paragraph 2-7, completion of required active service and transferred to the ARNG. During this period the applicant served in Afghanistan from 8 June 2012 - 19 May 2013. 15. The applicant in support of her application provides: a. DA Form 2900 (Post Deployment Health Re-Assessment, dated 8 December 2014, section 5 (Post-deployment general symptoms/health concerns) shows the health care provider marked yes for the applicant having evidence of high generalized post- deployment physical symptoms (see SF 600 dated 8 December 2014). This SF 600 states the applicant has back pain, pain in the arms, legs, or joints (knees, hips, etc.), and numbness or tingling in the hands or feet. b. ARNG Memorandum, Notification of Eligibility of Retired Pay for Non-Regular Service (20 Years), dated 4 October 2016 states the applicant completed the required years of service and would be eligible for retired pay upon her application at age 60 unless she qualified for a reduced eligibility age. c. A DA Form 3024 (Annual Periodic Health Assessment) dated 2 February 2019, shows the applicant annotated that she received a 80% disability rating in April 2018 for her ears, hips, shoulder, wrist, back, and feet. The applicant recently had surgery on her left wrist and was being treatment for pain with Aleve and would be placed on a profile. d. A DA Form 3349 shows the applicant had a temporary profile for “Elbow Wrist/Hand Injury/Pain (Left)” that expired on 5 May 2019. e. A DA Form 2823 (Sworn Statement) dated 30 October 2019 shows MAJ (Retired) states he was the applicant’s company commander while they were deployed to Iraq between 2007 and 2008. He recalls discussing with her a neck injury she sustained during a physical fitness test. His administrative team failed to document the applicant’s injuries in the form of a LOD. Her neck and bilateral foot injuries (plantar fasciitis) occurred on active duty and continue to the present day. f. Emails in 2019 - The ARNG case manager provided the applicant a copy of her temporary profile. The case manager provided a blank civilian report of investigation to be completed for five specialty areas/facilities the applicant visited for her conditions which included her feet injections. He also gave her a DA Form 4700 (Medical Record - Supplemental Medical Data) to be completed for conditions they discussed which included her bilateral feet (plantar fasciitis/bone spurs, injections, and inserts). g. A DA Form 3349 shows the applicant received a permanent profile for “Lower Back/Tailbone Injury/Pain” on 15 September 2020 and a temporary profile for “Neck Injury/Pain” that would expire on 23 December 2020. h. Emails - (1) December 2020 - The applicant requested MAJ physician assistant to add her lower back permanent profile to her current P3 profile. He stated he would need the DA Form 7809 and supporting medical documents; however, he would add it as a permanent profile that states requires a non-duty PEB since there was no LOD or integrated disability referral memorandum for this issue. The sworn statement from MAJ was not enough and substantiating documentations was needed showing that the injury happened while on duty in this case during a deployment. (2) 2021 - (a) In January 2021 the applicant asked MAJ “Did this ever get added to my Perm Profile.” (She may have been referring to her lower back permanent profile from their previous emails in December 2020) MAJ stated per Dr. in the IDES clinic, it would be added later when she finished therapy and reached a medical detention determination point. (b) In March 2021 the applicant requested a profile for wearing soft shoes based on paperwork from her podiatrist. MAJ stated a permanent profile would be for the IDES provider to complete, however he could give her a temporary profile. (c) In June 2021 the applicant asked if the profile was found because she had not seen it. MAJ asked her if she had any follow up exams with her primary care manager. She had an upcoming appointment with her primary doctor on 14 June 2021 concerning her feet and hands. MAJ requested follow up notes from podiatry and an updated DA Form 7809 for her feet. i. A VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire dated 29 January 2021 states the VA reviewed her medical record from 3 August 1999 which showed she had abnormal upper extremities, feet, and right shoulder crepitus. j. A DA Form 7809 dated 12 February 2021 shows: (1) The applicant receives VA disability benefits and has VA ratings for feet - 50%, shoulder and back - 20%, PTSD – 70%, and hips and hearing - 10%, with a total combined rating of 100%. (2) The applicant was seen for chronic bilateral heel pain that has been present since 2006. (3) Clinical diagnosis is plantar fasciitis and a 2016 X-ray shows calcaneal heel spurs. (4) Additional diagnoses for arthritis/joint pain, diabetes/high blood sugar, high blood pressure, seizures, asthma/shortness of breath, and high cholesterol. (5) Additional medical history and/or past surgeries - right shoulder x 2, left ulnar, L4/L5 back fusion, and C5/C6/C7 cervical fusion. (6) The applicant is unable to: * physically and mentally carry and fire an individual assigned weapon (~8 pounds) that requires crouching, kneeling on one or both knees, lying prone or standing all while wearing a helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) * ride in a military vehicle wearing helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) without worsening condition * wear helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) without worsening condition * wear a protective mask and full protection outfit (HAZMAT) against chemical or biologic agents for at least 2 continuous hours per day * move greater than 40 pounds (backpack/duffel bag) while wearing a helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) up to 100 yards * live and function, without restrictions, in any geographical or climatic area (Desert, Jungle, Arctic, or Urban) without worsening condition * lifting/Carrying * perform two minute timed sit-ups and push-ups * perform timed 2-mile run (7) The applicant is able to: * stand for 10 minutes * walking limitations/restriction in all terrains with standard field gear (40 pounds) for 0 minutes (8) The treatment plan was to wear sturdy soled athletic shoes with orthotics at all times on a permanent basis. (9) Her functional limitations are permanent. k. An MEB Narrative Summary dated 27 February 2021 states the applicant’s plantar fasciitis, bilateral (left and right), meets retention standards per AR 40-501, Chapter 3-1, 22b(5) or 35b(1) since this condition has not been refractory to medical or surgical treatment, does not prevent the wearing of military footwear, does not interfere with the satisfactory performance in military duties or prevent the applicant from performing any of the functional activities listed on DA Form 3349. Medical records do not document objective evidence to substantiate pathology that would require any limitations or restrictions. No previous e-profiles noted and no current permanent profiles are required for this condition. l. A DA Form 3947 (MEB Proceedings), dated 3 March 2021 shows: (1) The applicant did not meet retention standards for lumbosacral strain status post spinal fusion (MEB Dx 1). (2) The applicant met retention standards for: * right rotator cuff tendinopathy sip surgery x 2 (MEB Dx 2) * cervical spondylosis s/p fusion, anterior cervical discectomy with fusion (ACDF) (MEB Dx 3) * cervical radiculopathy, right (MEB Dx 4) * left thumb/wrist pain (MEB Dx 5) * hip pain, bilateral (left and right) (MEB Dx 6) * left shoulder pain (MEB Dx 7) * plantar fasciitis, bilateral (left and right) (MEB Dx 8) m. Applicant's MEB Counsel Memorandum, Rebuttal to MEB Proceedings DA Form 3947 and Narrative Summary, dated 31 March 2021 states in reference to the applicant’s feet, only the condition of plantar fasciitis is listed as medically acceptable on the DA Form 3947, although she has heel spurs. She has been placed on a permanent soft shoe profile, meaning that she is unable to wear the combat boot or deploy with this condition. She has pain in both feet on a daily basis. This condition also prevents evading direct and indirect fire, and carrying/wearing her gear. It is also unclear, with a permanent shoe profile, why this condition was not listed as failing retention standards. The IMR response indicates that she can wear boots with inserts, but that is not accurate because she cannot wear the Army boot. After she attempted, through the NG, to get this added to her permanent profile, she was told that the "IDES doctor would take care of it." For these reasons, she requested that these conditions be reviewed and found to fail Army retention standards. n. Three VA right foot views dated 6 July 2021 shows she wears foot and ankle braces. o. A VA radiology report for three foot views dated 8 July 2021 states the applicant has mild diffuse soft tissue swelling, multifocal degenerative changes, minimal at the first metatarsophalangeal, as well as protuberant posterior calcaneal spurring superiorly and inferiorly. p. Two memorandums of support dated 13 and 15 July 2021 states they witnessed the applicant complain about her foot pain between 2006 - 2007 and 2012-2013. At times due to location while deployed her medical conditions were not documented, however she was able to be prescribed medicine. While in Afghanistan she had to walk roughly five miles every day on uneven surface areas, riddled with rocks and potholes, Monday through Saturday for the entire length of their deployment. This added to the pain she endured daily. p. VA medical record progress notes dated 19 July 2021 shows the podiatrist annotated that the applicant has chronic bilateral foot pain and has had it before 2006 but the applicant started to notice it in 2006. The decision to have the applicant limit physical fitness testing and place her in a sturdy athletic shoe with a functional orthotic permanently was rejected by the MEB. r. A DA Form 7809, dated 19 July 2021 (1) The applicant receives VA disability benefits and has VA ratings for bilateral plantar fasciitis with calcaneal spurs - 50%, back - 20%, left wrist ulnar shortening - 10%, tinnitus - 10%, and PTSD – 70%. (2) The applicant was seen for chronic bilateral foot pain in the bottom of the heel, “deep in the rear foot,” in 2006 new pain in bilateral first metatarsophalangeal. (3) Clinical diagnosis is bilateral plantar fasciitis, bilateral equinus, bilateral pes planus and bilateral subtalar joint arthritis. (4) Additional diagnoses are the same as DA Form 7809 dated 12 February 2021. (5) Additional medical history and/or past surgeries - right shoulder x 2, left ulnar, L4/L5 back fusion, and C5/C6/C7 cervical fusion. (6) The applicant is unable to: * Physically and mentally carry and fire an individual assigned weapon (~8 pounds) that requires crouching, kneeling on one or both knees, lying prone or standing all while wearing a helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) * Wear helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) without worsening condition * Move greater than 40 pounds (backpack/duffel bag) while wearing a helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) up to 100 yards * Live and function, without restrictions, in any geographical or climatic area (Desert, Jungle, Arctic, or Urban) without worsening condition * Lifting/Carrying over 20 pounds * Stand for 10 minutes * Walking Limitations/Restriction in all terrains with Standard Field Gear (40 pounds) * Perform timed 2-mile run (7) The applicant is able to: * Ride in a military vehicle wearing helmet (~3 pounds), body armor (~30 pounds), and load bearing equipment (~10 pounds) without worsening condition * Wear a protective mask and full protection outfit (HAZMAT) against chemical or biologic agents for at least 2 continuous hours per day * Perform two minute timed sit-ups and push-ups (8) The treatment plan was to wear ear sturdy pronation controlling running shoe/athletic shoe with orthotics on a permanent basis, continuing medications and cane as needed. (9) Her functional limitations are permanent and she cannot take the record Army Physical Fitness Test. s. Applicant's Memorandum for the PEB, Letter of Reconsideration, dated 24 July 2021, states she requested reconsideration for her neck and feet. The VA representative at the MEB advised her wrongly by stating to only claim her back condition, however her other conditions should have been on the claim form in order to have them evaluated during the MEB process and subsequent fitness finding since they do interfere with her ability to perform military duties. These two issues incurred while she was on active duty during deployments and she will have to live with these conditions for the rest of her life. (The IPEB proceedings are unavailable for review). t. Applicant's MEB Counsel Memorandum, Rebuttal to IPEB Proceedings and Demand for a Formal Hearing in the matter of Applicant, dated 27 July 2021, in reference to the applicant’s bilateral plantar fasciitis and heel spurs, counsel stated the same information from the Rebuttal to the MEB Proceedings DA Form 3947 and Narrative Summary, dated 31 March 2021, adding: Her podiatrist filled out the profile request form twice, which was also denied during the MEB process, where they alleged that the applicant could wear inserts in her boots. The applicant's treating podiatrist disagreed with this assessment and ordered custom foot and ankle support braces for both feet which would prohibit the wear of military boots and the soft shoe requirement would be permanent. u. The PEB Memorandum, Appeal Response of IPEB Proceedings, dated 12 August 2021, states the applicant’s DA Form 199 for an IPEB was received with her non-concurrence. The PEB found her unfit for continued military service, recommending a permanent disability retirement with a disability rating of 40%. The PEB acknowledged her demand for a formal hearing with personal appearance and regularly appointed counsel. (1) The PEB carefully reviewed her IPEB appeal with enclosures, MEB appeal, MEB appeal response, and IMR. In her appeal, she contended that the following conditions were unfitting: Cervical Spondylosis Status Post Anterior Cervical Discectomy and Fusion (MEB Dx 3), and Bilateral Plantar Fasciitis (MEB Dx 8). (2) The preponderance of evidence currently available for PEB review does not clearly indicate that her contended conditions are unfitting and compensable in accordance with Department of Defense Instruction (DODI) 1332.18 (DES), Enclosure three, Appendix three. Therefore, her request for a formal hearing was scheduled for 9 November 2021. 16. A DA Form 199-1 (Formal PEB Proceedings) shows a Formal PEB convened on 15 November 2021 and found her physically unfit with a recommended combined rating of 40% with a disposition of permanent disability retirement for a lumbosacral strain status post spinal fusion (MEB Dx 1). a. In full consideration of DODI 1332.18 (DES), Appendix 2, Enclosure 3, paragraph 4d (Change 1, 17 May 2018, Combined Effect) the PEB determined the applicant to be fit for MEB Dx 2 - 8. * right rotator cuff tendinopathy sip surgery x 2 (MEB Dx 2) * cervical spondylosis sip fusion (ACDF) (MEB Dx 3) * cervical radiculopathy, right (MEB Dx 4) * left thumb/wrist pain (MEB Dx 5) * hip pain, bilateral (left and right) (MEB Dx 6) * left shoulder pain (MEB Dx 7) * plantar fasciitis, bilateral (left and right) (MEB Dx 8) b. On 17 November 2021, the applicant did not concur with the findings and recommendations of the formal PEB and did not request reconsideration of her VA ratings. c. On 8 December 2021, the formal PEB proceedings were approved for the Secretary of the Army. 17. The applicant in support of her application provides: a. Applicant's MEB Counsel Memorandum, Appeal of Formal PEB Decision in the matter of Applicant, dated 3 December 2021 states to assert that her bilateral plantar fasciitis, heel spurs (and multiple other foot conditions) are unfitting for further military service. (1) The applicant testified that her feet were diagnosed during a period of active duty service. There is medical treatment documentation during her deployment in 2012 that shows her plantar fasciitis and heel spurs were severely aggravated, and had been diagnosed during a previous deployment in 2007. However, the unit failed to do an LOD for the condition prior to returning from deployment. (2) The applicant submitted medical documents showing her podiatrist recommended a permanent soft shoe profile, which meant she would be unable to wear the combat boot or deploy with this condition. She also provided pictures of the foot and ankle braces she wears on a daily basis, which do not fit into Army boots. This condition absolutely prevents evading direct and indirect fire, and carrying/wearing her gear. AR 40-501, 3-22(b)(5) states, that "Plantar fasciitis or heel spur syndrome that is refractory to medical or surgical treatment, or prevents the wearing of the military footwear, meets the definition of a disqualifying medical condition or physical defect as in paragraph 3- 1." b. A USAPDA Memorandum to applicant’s PEB Counsel, Rebuttal to PEB Findings, dated 7 December 2021 states the applicant’s heels spurs was not originally claimed at the time of the MEB. The condition of bilateral plantar fasciitis was evaluated by the MEB and was found to meet medical retention standards. c. The IMR reviewer did not concur with the applicant’s contention that these conditions failed to meet retention standards. The medical reviewer stated that the conditions of plantar fasciitis and heel spurs were causally related to each other and were not separate processes. It was further determined that the civilian podiatrist's recommendation of a soft-shoe profile, which was never implemented by a military profiling authority, does not constitute a permanent treatment approach for this condition. Rather, the more common military medical practice is to allow the wear of combat boots with appropriate insoles. d. The Integrated DES Clinical Director’s response to the applicant’s MEB rebuttal states the original narrative summary provider and the IMR provider were correct in determining that bilateral plantar fasciitis and heel spurs can be considered together. He further determined that there is insufficient medical evidence that the condition fails to meet retention standards and that there is insufficient evidence to determine if the condition has met a medical retention determination point. e. An evaluation in theater on 4 July 2012 resulted in a diagnosis of bilateral plantar fasciitis with x-ray evidence of "bone spurs 8 or more mm at insertion of plantar fascia bilaterally." A 2-week history of bilateral heel pain was noted, along with the comment that the Soldier was diagnosed with plantar fasciitis during her last deployment in 2007. Previous treatment with a cortisone shot and gel insoles was noted. At this visit, she was prescribed nonsteroidal anti-inflammatory agents for pain relief, and no duty restrictions were assigned. While the applicant contends that her condition was related to her deployment to Iraq in 2006-2007 and to Afghanistan in 2012-2013, records document that no duty restrictions were assigned during either deployment, including no restrictions against the wear of combat boots. A review of current e-Profile records reveals only one previous profile for a foot condition, namely, a 90-day temporary profile for bilateral "foot pain" from 25 August 2021 to 23 November 2021 that was not renewed. The Commander's Statement dated 17 August 2020 cites no limitations in her ability to perform her military duties that are related to a foot condition, and an affirmation of the accuracy of this statement was provided by the commander on 10 April 2021. f. The USAPDA concurs with the PEB finding that the condition of bilateral plantar fasciitis is not unfitting. Their conclusion is that this case was properly adjudicated by the formal PEB, which correctly applied the rules that govern the Physical DES in making its determination. The findings and recommendations of the formal PEB are supported by a preponderance of evidence and are therefore affirmed. 18. Orders dated 8 December 2021 shows the applicant was released from assignment because of physical disability incurred while entitled to basic pay and placed on the permanent disability retired list on 7 January 2022 under provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a 40% disability rating. 19. An NGB Form 22 shows the applicant was placed on the permanent disability retired list on 6 January 2022 and transferred to the U.S. Army Control Group (U.S. Army Retired). 20. The applicant in support of her application provides: a. A VA Service-Connected Disability Statement dated 18 February 2022 shows the applicant received 100 % combined disability rating, of this rating the applicant received a 50% rating for bilateral plantar fasciitis with calcaneal spurs. b. A USAPDA advisory opinion dated 20 October 2022 wherein a legal advisor states: (1) The mere presence of a condition does not make it unfitting. The applicant argues that her plantar fasciitis and heel spurs were diagnosed during a period of active duty (2006). She notes that, although she provided documentation to the ARNG physician assistant, the foot conditions were not given a P3 profile and that it was only after she threatened to make a Congressional complaint that the physician assistant assigned a temporary profile for the condition. The available record indicates that the physician assistant requested treatment records via email to support the profile, but it does not appear any were provided. She further argues that the treating podiatrist recommended a soft shoe profile. However, as noted repeatedly, the profile was never implemented by a military profiling authority and does not constitute a permanent treatment approach for the condition. As also noted repeatedly, there was insufficient evidence to substantiate permanent limitations or restrictions and the Commander's Statement does not refer to her feet condition as interfering with her military duties. (2) The applicant’s conditions, including her feet condition, were extensively reviewed and considered by the MEB and PEB. The PEB prepared a very well- reasoned explanation of why the conditions were not unfitting. A review of the case file did not find any administrative or legal error. Therefore, the USAPDA found her request to be legally insufficient. c. Applicant’s Response to USAPDA Advisory Opinion, dated 8 November 2022 states she submitted all documents from her spine, cervical and feet doctors to her attorney, Senator office, and the ARNG regarding her feet issues (along with all other conditions) asking about the profile for the feet and to review her email exchanges with MAJ. These conditions have further caused deterioration of her overall health and quality of life. The applicant continues to contend that her conditions should be added as unfitting. Lastly, she finds it an injustice that she has to continue to fight for this. 21. 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. 22. 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. 23. 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. 24. 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 an additional medical condition be determined unfitting for continued military service and an increase in her current military disability. She states: “Injustice the bilateral planter fasciitis & heal spurs were found fit during this whole process. I tried to get several this added at the beginning of my medical board process. However, the state PA {physician assistant} only would add my back, knowing I had other issues (Cervical Fusion, Ulnar Shortening) that my surgeons clearly stated that I could not wear gear, or fire a weapon nor deploy. I submitted all supporting documents from my podiatrist stating that she recommends not more shots nor does she recommend surgery as she believed that it would make my feet worse. I have appealed every board that came back denied through my attorney, and she too was shocked by the outcome. I was told during the process that I would be able to add Cervical Fusion, Bilateral Feet issues and my left ulnar and hand, to learn this was not the case. The AR 40-501 clearly states that my bilateral planter fasciitis and heal spurs along with arthritis and the podiatrist putting my in soft shoes and braces states they are unfitting.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. Orders published by the United States Army Physical Disability Agency (USA PDA) on 8 December 2021 show the former Army National Guard drilling Officer was permanently retired for physical disability with a 40% military disability rating effective 7 January 2022 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all other conditions they believe to be service-connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). d. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. f. On 25 November 2020, the applicant was referred to the IDES for “Lower Back Pain / Injury.” The applicant claimed no additional conditions on a separate Applications for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). A medical evaluation board (MEB) determined the applicant’s lumbosacral strain status post (s/p) fusion failed the medical retention standards of AR 40-501, Standards of Medical Fitness. The MEB determined seven other medical conditions met medical retention standards, including left thumb/wrist pain, bilateral plantar fasciitis, and cervical spondylosis s/p fusion. There is no mental condition listed on the Medical Evaluation Board Proceedings (DA Form 3947). g. On 8 March 2021, he requested an independent medical review (IMR) with it focused on her cervical spondylosis, left wrist/hand pain, bilateral plantar fasciitis with bilateral heal spurs, and PTSD. The IMR is a separate action from an MEB appeal. Paragraph 4-14a of AR 635-40: “The purpose of the IMR is to inform the Soldier whether (in the IMR reviewer’s opinion) the MEB findings adequately reflect the complete spectrum of the Soldier’s injuries and illnesses. Generally, a Soldier may request one IMR.” h. From the MEB narrative summary (NARSUM) for three of the conditions: Cervical spondylosis s/p fusion (ACDF) meets retention standards per AR 40- 501, Chapter 3-1, 20h or 35b(1) since condition has not failed to respond to adequate conservative treatment and does not necessitate significant limitation of physical activity, does not result in interference with satisfactory performance of duty or prevent the Soldier from performing any of the functional activities listed on DA Form 3349 (Physical Profile). Medical records do not document objective evidence to substantiate pathology that would require any limitations or restrictions. SM {Service Member} is s/p anterior cervical decompression and fusion (ACDF). Dr. treating network Orthopedic Surgeon, does not have any restrictions recommended for this condition at this time. A previous temporary U3 profile for cervical spine that expired on 23DEC2020 and did not require renewal. No current permanent profiles are required for this condition. Left thumb/wrist pain, meets retention standards per AR 40-501, Chapter 3-1, 21 or 35b(1) since this condition does not result in interference with satisfactory performance of duty or prevent the Soldier from performing any of the functional activities listed on DA Form 3349 (Physical Profile). Medical records do not document objective evidence to substantiate pathology that would require any limitations or restrictions. A previous temporary U3 for left thumb/wrist expired on 27OCT2019 and did not require renewal. No current permanent profiles are required for this condition. Plantar fasciitis, bilateral (left and right), meets retention standards per AR 40- 501, Chapter 3-1, 22b(5) or 35b(1) since this condition has not been refractory to medical or surgical treatment, does not prevent the wearing of military footwear, does not interfere with the satisfactory performance in the military duties or prevent the Soldier from performing any of the functional activities listed on DA Form 3349 (Physical Profile). Medical records do not document objective evidence to substantiate pathology that would require any limitations or restrictions. No previous e-profiles noted and no current permanent profiles are required for this condition.” i. In a separate behavioral health NARSUM addendum, the behavioral health provider found the applicant to be without significant mental health issues or conditions. j. The IMR physician concluded these three conditions met medical retention standards. He did not address a mental health condition. k. The applicant then appealed the MEB findings claiming that her PTSD, cervical spondylosis, wrist/thumb pain, and bilateral plantar fasciitis with heel spurs failed medical retention standards. The clinical director of IDES at Ft. Sill reviewed the applicant’s appeal, the IMR results, and the case. He concluded with “In summary, I recommend no changes to the MEB NARSUM, the IMR, DA Form 3947, or DA Form 3349 {Physical Profile} in this case.” l. Following her appeal, her case, including her MEB appeal, was forwarded to a physical evaluation board (PEB) for adjudication. m. On 12 July 2021, the applicant’s informal PEB with determined her “Lumbosacral strain status post spinal fusion” was her sole unfitting for continued military service. They found the seven remaining medical conditions not unfitting for continued military service. n. The PEB applied the Veterans Benefits Administration (VBA) derived ratings of 40% and recommended the applicant be permanently retired for physical disability. Review of the VA Rating Decision dated 2 March 2018 shows the PEB correctly applied the appropriate VBA derived rating. The applicant non-concurred with the PEB’s findings and demanded a formal hearing with the assistance of regularly appointed counsel but did not request a VBA reconsideration of the ratings (VARR). o. The applicant was present for and represented by regularly appointed counsel at her formal hearing on 15 November 2021. She contended that her bilateral plantar fasciitis with heel spurs should be found unfitting. The formal PEB confirmed the informal PEB’s findings: “Regarding the Officer’s contention that her Bilateral plantar fasciitis (MEB Dx 8) is unfitting: The Soldier is fit for Bilateral plantar fasciitis. In full consideration of DoDI 1332.18, Enc. 3, App. 2, to include combined, overall effect, the condition is not unfitting notwithstanding the MEB indicating this condition does not meet medical fitness standards. The evidence supports that this condition does not prevent reasonable duty performance. Continuing in the military does not pose a risk to the Soldier or to others. This condition does not impose unreasonable requirements on the military to maintain or protect the Soldier. Other than a recent temporary profile for the condition, initiated on 25 August 2021 and expiring on 23 November 2021, there are no historical or legacy profiles restricting the Officer from deployment or limiting her duties. The Officer testified that her feet pain began during her deployment to Iraq, 2006- 2007, where she was treated with ibuprofen, cortisol injections, and shoe inserts. The Officer sought treatment for feet pain on 4 July 2012 while deployed to Afghanistan, 2012-2013, and was released back to duty without limitations. She did not mention her feet pain when she completed her Post Deployment Health Assessment (PDHA), dated 21 May 2013. She testified that she had never been medically evacuated from any of her deployments; therefore, she was able to continue to wear her combat boots and successfully complete each of her deployments. Although the Officer testified to numerous cortisol injections, over-the-counter pain medications, physical therapy, acupuncture and using shoe inserts over a fifteen-year period and having received custom-made ankle/foot braces in October 2021, there is insufficient evidence to substantiate permanent limitations or restrictions. In addition, the Officer’s Commander does not refer to her feet condition interfering with her military duties. There is no objective medical evidence available for review to indicate the Officer’s plantar fasciitis affects the primary duties of her 920B AOC (Supply System Technician). Therefore, the Formal PEB finds the Officer’s bilateral plantar fasciitis not unfitting.” p. The applicant’s appeal of the formal PEB’s finding was denied and she then appealed to the United States Army Physical Distality Agency. Following a review of the case file, as documented in their 7 December 2021 response memorandum, the Agency denied her appeal: “Our conclusion is that this case was properly adjudicated by the FPEB, which correctly applied the rules that govern the Physical Disability Evaluation System in making its determination. The findings and recommendations of the FPEB are supported by a preponderance of evidence and are therefore affirmed. The issues raised in your 3 December 2021 appeal were adequately addressed by the FPEB in its Board proceedings and we concur with the findings. q. Review of her PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies or discrepancies. r. Paragraph 1-1b of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017) states a purpose of the DES is to: “Provide benefits for eligible Soldiers whose military Service is terminated because of a service-connected disability.” s. There is insufficient probative medical evidence the applicant had an additional medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that an additional medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. t. Review of her records in JLV shows she has been awarded multiple VA service- connected disability ratings, including one for plantar fasciitis. 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. u. Given no evidence of error or injustice, it is the opinion of the Agency Medical Advisor that neither an increase in her military disability rating nor a referral of her case back to the DES is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, military records, and regulatory guidance were carefully considered. The Board noted that the applicant was permanently retired because of physical disability in January 2022 with a 40% disability rating. The Board reviewed the medical advisor’s determination and agreed that the applicant has been awarded multiple VA service-connected disability ratings, including one for plantar fasciitis. However, the military’s disability evaluation system compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The VA on the other hand has the role and 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. The Board determined there is no evidence of error or injustice, and therefore, an increase in her military 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, 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 USAPDA is responsible for administering the Army physical disability evaluation system (DES) 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 AR 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 Military Occupational Specialty 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. AR 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 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. a. It states Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. b. Paragraph 3-22 (Lower extremities) states the causes for referral to the DES for feet are as follows (see also paragraph 3-23 (Miscellaneous conditions of extremities): (1) Hallux valgus when moderately severe, with exostosis or rigidity and pronounced symptoms, or severe with arthritic changes. (2) Pes planus, when symptomatic, moderately severe, with pronation on weight bearing which prevents the wearing of military footwear, or when associated with vascular changes. (3) Pes cavus when moderately severe, with moderately severe discomfort on prolonged standing and walking, metatarsalgia, and which prevents the wearing of military footwear. (4) Neuroma that is refractory to medical treatment, refractory to surgical treatment, and meet the definition of a dis-qualifying medical condition or physical defect as in paragraph 3-1. (5) Plantar fasciitis or heel spur syndrome that is refractory to medical or surgical treatment, or prevents the wearing of military footwear, meet the definition of a disqualifying medical condition or physical defect as in paragraph 3–1. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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. 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 LOD, or for aggravation of a preexisting injury suffered or disease contracted in LOD, in the active military, naval, or air service, during a period of war, the U.S. 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 LOD, or for aggravation of a preexisting injury suffered or disease contracted in LOD, in the active military, naval, or air service, during other than a period of war, the U.S. 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. Section 1556 of Title 10, U.S. 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) AR20220002131 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1