IN THE CASE OF: BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220005435 APPLICANT REQUESTS: •physical disability retirement in lieu of separation with severance pay •personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •personal letter to the board •DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 14 March 1994 •DD Form 214, effective 3 February 2002 •DD Form 214, effective 3 September 2005 •medical records (48 pages) •ARBA response to Congressional Representative, 11 July 2018 •Congressional Inquiry, 22 June 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 theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states: a.He requests his separation from the Army be re-characterized as a medicalretirement. He was separated from the Army with a 10% disability. In 2017, the DoD established a Physical Disability Board of Review (PDBR) to review records for accuracy. His disability rating was recommended to be 20% by the PDBR. The PDBR only reviewed conditions that were reviewed at the time of discharge (no new conditions were reviewed). However he has recently received counselling by the Disabled American Veterans (DAV), and he was told that the Army did not consider all the conditions that it should have when he was discharged. b.He was discharged for conditions related to a surgery that was incorrectly performed while on active duty. The Army only considered his arthritis during his discharge, but should have considered all conditions associated with the injury. He has documented nerve damage to his right great toe (medical records prior to discharge) that is still persistent today as well as deep tissue scars, one of which is unstable (draining abscess is noted in his active duty records). The Army did not consider either of these conditions as they should have. This would have put his disability rating at around 40% which should have been characterizes as a medical retirement. c.He was separated for injuries/conditions associated with a surgery that wasincorrectly performed by a Panamanian doctor in a Panamanian hospital (Army sponsored) after serving 12 years on active duty. When he reported to his next duty station, the orthopedic surgeon (Dr. L__) told him that there were issues with the surgery and the outcome. He even underlined certain things in his medical records. He is just asking for what is due to him under the rules and regulations, and to have this mistake corrected. d.In his letter to the Board, he states in 1999 he suffered an injury to his right footthat required surgery a few days later in Panama. Upon return to Fort Rucker, AL he continued to have complications from the surgery including arthritis, scar tenderness/abscess, numbness in right great toe, and loss of range of motion. During the MEB only his arthritis was considered even thought the other related conditions were documented in his records and were part of the reason for separations. He would like his deep tissue scars, unstable scars, and nerve damaged added to his disability rating. He has three deep tissue scars (code 7801), with one unstable (code 7804). The scars measure approximately 7 square inches when combined. The deep tissue scars should be rated at 10 percent and the unstable scar at 20 percent. On 4 March 2005, he told the provided he had still had loss of sensation in his great toe. It has been 17 years and he still have loss of sensation in his great toe which is indicative of moderate neuralgia of the posterior tibial nerve (code 8725) and be rated at 10 percent. His loss of range of motion was not considered. He was separated with 10 percent for moderate to severe arthritis and the Department of Veterans Affairs (VA) mirrored it. In 2018, the PDBR recommended his rating be increased to 20 percent, however the additional conditions have yet to be considered in his disability rating. 3.The applicant underwent a medical examination on 18 March 1993 for the purposeof enlisting in the Army. His Standard Form (SF) 88 (Report of Medical Examination)shows he was qualified for service and assigned a physical profile of 111111. 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 Regular Army for a period of 3 years on 26 October1993. 5.A SF 88, dated 28 January 1994 shows the applicant underwent a medicalexamination for the purpose of appointment as a Warrant Officer 1 (WO1). He wasfound qualified; however, a physical profile was not recorded. 6.The applicant was honorably discharge on 14 March 1994 to accept commission orwarrant in the Army. On 15 March 1994, he was commissioned as a Reserve WarrantOfficer. He was ordered to active duty in conjunction with his commission for a period of6 years. He was commissioned as a Reserve Commissioned Officer in the grade ofWarrant Officer 2 (W-2) on 29 May 1997. He accepted Voluntary Indefinite (VI)Extension of Active Duty on 27 May 1998 and was again commissioned as a ReserveCommissioned Officer in the grade of W-2. 7.A SF 88, dated 6 November 2000 shows the applicant underwent a commissioningphysical. It shows no record of an injury to the applicant’s feet, lower extremities, or anyother defect. The examination was deemed normal. Notes show no signification intervalchange since last exam of September 1999. He was found qualified for appointment asa commissioned officer; however, a physical profile was not recorded. 8.A memorandum issued 14 December 2001, subjected: Appointment as a ReserveCommissioned Officer of the Army, shows the applicant commissioned as a ReserveOfficer as a Second Lieutenant. 9.The applicant was honorably discharge on 3 February 2002. Orders A-12-004270show he was ordered to active duty effective 30 April 2002 with a 3 year serviceobligation. 10.The applicant’s separation package and associated MEB/PEB documents are notresident in his official military personnel record. He was honorably discharged on 3September 2005 for disability, severance pay. 11.The applicant applied to the (PDBR) on 8 September 2015 requesting review of allhis conditions including: •foot numbness •limited range of motion •bone loss/cysts •shoulder injury •knee injuries 12.On 14 July 2017, the PDBR convened to review the applicant’s disability ratingaccompanying his medical separation from the Army. The PDBR Record ofProceedings shows the following: a.The PDBR clarified the scope of its review was limited to review of disabilityratings assigned to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the applicant, those conditions identified by the PEB, but determined to be not unfitting or non-compensable. Any conditions or contention not requested in this application or otherwise outside the PDBR’s defined scope of review remain eligible for future consideration by the ABCMR. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. b.The PDBR considered the applicant’s posttraumatic arthritis, right foot which had been found unfitting by the PEB and rated at 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommended a disability rating of 20% for the post traumatic, right foot condition. There were no other conditions within the panel’s scope of review for consideration. 13.A memorandum from the Deputy Assistant Secretary (Army Review Boards), dated13 March 2018, informed the applicant that she had referred the applicant’s case forindependent external review. Based upon that review, she decided to accept themajority recommendation of the PDBR to modify the applicant’s disability rating to 20%without recharacterizing the character of separation. The accepted PDBRrecommendation had been forwarded to the Army Physical Disability Agency forrequired corrections of his records. 14.The applicant provided 48 paged of treatment records. 15.As a result of the finality of the PDBR’s decision, the scope of the current Board’sreview is limited to those conditions which were not considered by the PDBR 16.Based on the applicant's contention the Army Review Boards Agency (ARBA)medical staff provided a medical review for the Board members. See "MEDICALREVIEW" section. 17.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating 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. 18.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor 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 ofthe Army. 19.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge. As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties. Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinationsand findings. 20.MEDICAL REVIEW: a.The Army Review Boards Agency (ARBA) Medical Advisor was asked to reviewthis 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: b.The applicant is applying to the ABCMR requesting an increase in his militarydisability rating with a subsequent change in his disability discharge disposition from separated with disability severance pay to permanent retirement for physical disability. He states: “I was separated from the Army with a 10% disability. In 2017, the DoD established a Physical Disability Board of Review (PDBR) to review records for accuracy. My disability rating was recommended to be 20% by the PDBR. The PDBR only reviewed conditions that were reviewed at the time of discharge (no new conditions were reviewed). However, I have recently received counselling by the Disabled American Veterans (DAV) and I was told that the Army did not consider all the conditions that it should have when I was discharged. I was discharged for conditions related to a surgery that was incorrectly performed while on active duty. The Army only considered my arthritis during my discharge but should have considered all conditions associated with the injury. I have documented nerve damage to my right great toe (medical records prior to discharge) that is still persistent today as well as deep tissue scars, one of which is unstable (draining abscess is noted in my active-duty records). The Army did not consider either of these conditions as they should have.” c.The Record of Proceedings and prior denial detail the applicant’s military serviceand the circumstances of the case. His DD 214 for the period of Service under consideration shows the former USAR Officer entered active duty on 4 February 2002 and was discharged with $104,0291.20 of disability severance pay on 10 March 2007 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). d.On 19 May 2005, the applicant’s informal physical evaluation board (PEB) foundhis “Posttraumatic Arthritis, Right Foot” to be his sole unfitting condition for continued military service. The PEB derived and applied a 10% disability rating to this condition and recommended the applicant be separated with disability severance pay. On 23 May 2005, after being counseled on the Board’s findings and recommendation by his PEB liaison officer, the applicant concurred with the PEB and waived his right to a formal hearing. e.The applicant’s case was reviewed by the Physical Disability Board of Review(PDBR) in July 2017. The issue addressed was the applicant’s military disability of “Posttraumatic Arthritis, Right Foot” (10%) with the VA classifying it as “Status Post Fracture at 2nd and 3rd Metatarsal Cuneiform Joint with Traumatic Arthritis” (10%). PDBR’s findings dated 14 July 2017: “BOARD FINDINGS: In the matter of the post traumatic, right foot condition, the panel majority recommends a disability rating of 20%, coded 5284 IAW VASRD §4.71a.” f.Their recommendation was initially disapproved by the Deputy Assistant Secretaryof the Army Review Boards (DASA-RB) on 6 September 2017 because “your percent of disability be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.” Upon reconsideration, the DASA-RB approved the recommendation on 13 March 2018. Because his new combined military disability rating of 20% remained below the 30% threshold for permanent retirement for physical disability, the applicant’s disability discharge disposition remained separated with disability severance pay and so there was no material change in his military benefits. g.Review of the PDBR decision shows the history of a post-operative abscess, hisright great toe condition, and right foot scaring were part of their analysis which stated in part: “According to service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI {covered individual} underwent open reduction internal fixation (ORIF) surgery for a Lisfranc fracture in April 1999 and subsequently underwent incision and drainage of a postoperative abscess. Subsequently, the internal fixation devices were removed surgically. Radiographic (X-ray) studies in 2000 showed early arthritic changes ... Physical examination showed normal ROMs (range of motion) of both ankles and both feet. Scars were present on the top of his right foot, on the lateral foot, and below the right great toe. There was a 1-inch deformity at the base of his right great toe, and he had decreased dorsiflexion and pain in his right great toe. He had 10 degrees of additional limitation with repetitive push-off and toe rise with his right great toe due to pain ... The panel discussed the severity of the CI’s condition at the time of separation. A moderately severe rating with a 20% is not unreasonable since the CI had an antalgic gait; ROM was partial at the metatarsal joints in the right foot with tenderness and pain with ongoing motion or at the extreme range; and there was a 1-inch deformity at his great toe and decreased dorsiflexion and pain as well as 10 degrees of addition limitation of motion with repetitive push-off.” h.DoD PDBR decisions are final and the issues considered by the PDBR cannotafterwards be considered by the Army Board for Correction of Military Records. i.The only issue presented by the applicant which was not addressed by the PDBRis the complaint of right great toe numbness. The applicant underwent his right foot surgery in April 1999 and a decrease in sensation over the dorsal (upper) surface of his right great toe was noted in an encounter at the Fort Rucker Aviation Medicine Clinic on 16 September 1999. j.Such a small area of decreased sensation would not fail the medical retentionstandards in paragraph 3-30j of AR 40-501, Standards of Medical Fitness (29 August 2003). This paragraph states a cause for referral to an MEB is: “Any other neurologic conditions, regardless of etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty. k.In addition, paragraph 3-1 of AR 635-40, Physical Evaluation for Retention,Retirement, or Separation (1 September 1990) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.” l.Review of the applicant’s PEB case file, to include the physical examinationcompleted as part of his MEB, revealed no additional medical conditions. m.Review of his records in JLV shows he does not receive care through theVeterans Hospital Administration and has the single 10% service-connected disability rating for “Residuals of Foot Injury.” n.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. o.It is the opinion of the ARBA Medical Advisor that neither an increase in hismilitary disability rating nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: 1.The Board determined the evidence of record was sufficient to render a fair andequitable decision. As a result, a personal appearance hearing is not necessary toserve the interest of equity and justice in this case. 2.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The applicant’scontentions, the military record, and regulatory guidance were carefully considered. TheBoard noted that as a result of the finality of the PDBR’s decision, the scope of thecurrent Board’s review is limited to those conditions which were not considered by thePDBR. The only issue presented by the applicant which was not addressed by thePDBR is the complaint of right great toe numbness. The applicant underwent his rightfoot surgery in April 1999 and a decrease in sensation over the dorsal (upper) surface ofhis right great toe was noted in an encounter at the Fort Rucker Aviation Medicine Clinicon 16 September 1999. However, by regulation, a small area of decreased sensationwould not fail the medical retention standards in paragraph 3-30j of AR 40-501,Standards of Medical Fitness in effect at the time. Based on this finding, the Boarddetermine the requested relief is not warranted in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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. Microsoft Office Signature Line... 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 DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Title 38 U.S. Code, Section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38 U.S. Code, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 6. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. Department of Defense Instruction (DODI) 6040.44 (Physical Disability Board of Review (PDBR)) designates the Secretary of the Air Force as the lead agent for the establishment, operation and management of the PDBR for the DOD. a. The PDBR reassesses the accuracy and fairness of the combined disability ratings assigned former service members who were separated, with a combined disability rating of 20% or less during the period beginning on 11 September 2001 and ending on 31 December 2009, due to unfitness for continued military service, resulting from a physical disability. b. The PDBR may, at the request of an eligible member, review conditions identified but not determined to be unfitting by the PEB of the Military Department concerned. c. As a result of a request for PDBR review, the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary of the Military Department concerned. 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. 9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//