IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230000429 APPLICANT REQUESTS: in effect, physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period ending 28 August 2006 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), covering the period ending 23 March 2010 * Department of Veterans Affairs (VA) letter, 28 September 2022 * email correspondence with the Army Review Boards Agency (ARBA), 12 April 2023 * 345 pages of service and VA medical records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His discharge from the Army National Guard (ARNG) was coded as medical, but he was not allowed to go to the Department of Defense rating board [Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) of the Disability Evaluation System (DES)]. He was discharged under his VA Rating from when he got out of the Army at his expiration term of service (ETS). He wants to go through the DES process so he can be considered for medical retirement as his disabilities are service-related. b. He was coded correctly as medical, but somehow the ARNG never offered for him to go through DES process. He was given a Medical Board at Camp Shelby, MS, but they dismissed him from the ARNG simply based on his VA rating which was 40 percent at the time and is now 100 percent. He never received his NGB 22 and nothing was explained to him at the time of his separation about being processed through the DES. He was never told this was an option or even given his discharge paperwork. It was through a friend who is medically retired that he learned he should have been eligible for DES processing. After some calls, to the U.S. Army Physical Disability Agency (USAPDA), Defense Finance and Accounting Service (DFAS), and various other agencies, it was confirmed that his discharge was coded as medical, but he was not given the opportunity to go through DES processing. c. He was also not sent to an MEB/PEB at the time of his release from active duty because his ETS date was within 6 months or so of the injury. Additionally, they misdiagnosed him at the Army hospital Landstuhl Regional Medical Center (LRMC). If they would have correctly diagnosed his heart issues when he went in for chest pain, he is positive he would have been given a medical discharge instead. His heart alone, which puts him at 100 percent disabled, would have easily caused him to be medically retired. 3. The applicant enlisted in the Regular Army on 31 January 2003. 4. Medical records show the applicant was seen at LRMC, Primary Care Clinic for acute back pain on 27 September 2005, following combat physical training (PT) involving numerous buddy carries. He was assessed with lower back sprain, given Motrin, and quarters for 48 hours. 5. The applicant provided numerous medical records dating between February and March 2006, all of which have been provided in full to the Board for review, showing in pertinent part the following: a. He was seen on 17 February 2006 at the LRMC Neurology Clinic for memory dysfunction as well as neck and head pain as the result of a motor vehicle accident (MVA) on 4 February 2006, when the vehicle in which he was a passenger was struck by another vehicle and the applicant was struck on the right side of the head, neck, and body by the side impact of the colliding vehicle. He is amnestic for events covering the first 7 days after the accident. He was admitted to a German hospital for approximately 4-5 days, but none of these records are available. The obvious gashes to his right forehead attest to the severity of the impact. His overriding concern is a faulty memory, headaches, head, and neck injuries since the MVA. He was assessed with concussion, loss of consciousness of unspecified duration, probably brain contusion, post- concussion syndrome, amnesia post-traumatic, headache syndromes, cervicalgia. He was prescribed pain medication, given a referral for a magnetic resonance imaging (MRI) of the C-Spine, and released with work/duty limitations with follow-up at Neurology in 1 month. b. A Radiology Report of Sinus, Waters View (Only), dated 16 March 2006, shows an impression of negative paranasal sinuses; no radiopaque foreign body in the eyes. c. A Radiology Report of MRI, C-Spine, dated 16 March 2006, shows an impression of no significant canal stenosis, with mild neural foraminal narrowing limited to C3-4 on the right. d. A Radiology Report of MRI, Head, dated 16 March 2006, shows an impression of unremarkable brain MRI. e. A Radiology Report of Sinus Series, dated 16 March 2006, shows an impression of negative paranasal sinuses; no radiopaque foreign body in the eyes. f. A Radiology Report of Chest, (PA and LAT) shows an impression of normal chest. g. A Consult Report shows the applicant was again seen at LRMC Neurology Clinic on 21 March 2006, where an electroencephalogram (EEG) (a test measuring electrical activity in the brain) was performed. The EEG was ordered because of the severe head injury with memory dysfunction and staring spells, post-traumatic amnesia, and post- concussion syndrome. The result was a normal waking and sleep EEG and he was released without limitation. h. A Consult Report shows the applicant was seen at the LRMC Cardiology Clinic on 27 March 2006, due to atypical chest pain for 3 weeks both at rest and exertional and abnormal endocrine laboratory findings. The echocardiogram procedure performed resulted in a normal study other than moderate left ventricular dilation and borderline left atrial dilation. 6. The applicant s Enlisted Record Brief (ERB) dated 6 April 2006, shows his physical profile rating was 1 in all PULHES (acronym used in the Military Physical Profile Serial System to classify physical abilities) factors. 7. The applicant was seen at LRMC Primary Care Clinic for his Phase II ETS Physical, on 14 July 2006. The Physical Findings section of the medical document states to refer to DD Form 2808 (Report of Medical Examination) for the applicant s complete physical. The DD Form 2808 is not in his available records for review or further detailed in this medical record. The applicant was assessed as a healthy male without limitations and was to follow-up as needed with primary care. 8. The applicant s DD Form 214 shows he was honorably released from active duty after 3 years, 6 months, and 28 days due to completion of required active service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 28 August 2006. 9. An NGB Form 60 (Request for Clearance from USAR for Enlistment/Appointment in ARNG, shows the Adjutant General of Tennessee requested clearance from the USAR on 29 August 2006, for the applicant s enlistment in the ARNG 10. The applicant s available service records do not contain a DD Form 88 (Report of Medical Examination), DD Form 2808, or any other comparable medical examination document detailing his physical profile rating with a medical provider documenting his medical qualification for enlistment in the ARNG. 11. A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant enlisted in the TNARNG for a period of 6 years on 29 August 2006, after a prior period of active service amounting to 3 years, 6 months, and 28 days. 12. A DA Form 7349-R (Initial Medical Review Annual Certificate) shows the following: * on 29 August 2006, the applicant indicated on the form he had no current medical or dental problems, was not taking any medication, and did not have a VA disability * on 30 August 2006, the initial reviewer, Sergeant (SGT) E____ (Combat Medic) signed the form indicating the applicant was fully fit * Part III (Completed by Physician) does not contain a physician s notes, indication of fitness/unfitness, or physician s signature, but does reflect a PULHES of 1 in all factors * the form is unsigned by the approving authority 13. A second DA Form 7349-R shows the following: * on 4 March 2007, the applicant indicated on the form he had no current medical or dental problems, was not taking any medication, and did not have a VA disability * the initial reviewer notes show the applicant had a physical profile for no Kevlar because of glass in forehead; the profile had expired and the applicant may need to be seen again * on 4 March 2007, the initial reviewer signed the form indicating the applicant required further evaluation 14. The applicant provided multiple medical records dated between March 2007 and February 2008, all of which have been provided in full to the Board for review, showing in pertinent part the following: * 18 May 2007, elevated blood pressure, entry into MOVE program for weight loss, and referral to physical therapy for back pain * 20 June 2007, physical therapy consult, demonstration of exercises to help with low back pain * 9 July 2007, physical therapy consult * 2 February 2008, primary care note showing desire for smoking cessation, weight loss, low back pain resolution; impression of slightly narrowed posterior disc space at L5-S1 with mild facet arthropathy; minor abnormality * 13 February 2008, primary care not showing applicant was seen for paperwork to be completed to obtain a special chair at work due to DDD and chronic low back pain 15. A third DA Form 7349-R shows the following: * on 13 July 2008, the applicant indicated on the form he did have current medical or dental problems, was taking medication, and did have a VA disability * the applicant stated he had back problems and short term memory and a VA disability rating of 40 percent * on an unspecified date, the initial reviewer signed the form indicating the applicant required further evaluation 16. A DD Form 2766 (Periodic Health Assessment), dated 10 August 2008, shows the applicant was not deployable to an austere environment within the next 6 months due to a temporary physical profile rating of 2 in factor L (Lower extremities. The provider s comments show the applicant had elevated blood pressure and needed a Fitness for Duty Evaluation (FFDE) for degenerative disc disease (DDD) (lumbar) for which he had a 40 percent VA disability rating and was never medically boarded or profiled. 17. A DA Form 3349 (Physical Profile) shows on 10 August 2008, the applicant was given a temporary physical profile rating of 2 in factor L for back pain, with a rating of 1 in all other factors. He was restricted from participating in the Army Physical Fitness Test (APFT), multiple functional activities, and needed an FFDE. 18. A self-authored letter from the applicant, dated 13 August 2008, shows the following: a. The applicant stated he had been a member of the TNARNG for 2 years and was previously a member of the Regular Army. While on active duty he sustained some injuries in an automobile accident. The VA determined he had DDD, due to his complaints of back pain and declared him disabled to the DDD as well as facial scars and short term memory problems. b. He recently worked very hard to improved his health by both working out and eating better. He attended some physical therapy sessions and used a tens unit to help with his back, as well as took Ibuprofen daily. This regimen helped him from feeling most pain and enable him to push to new levels of fitness. c. He had been training hard in recent months to become a Reserve Officer Training Corps (ROTC) cadet in the upcoming semester at Middle Tennessee State University and asked that he be declared physically fit for duty so he could accomplish this task. He felt he had been upfront and honest in this request and was hopeful for a favorable outcome. 19. A VA letter, dated 13 August 2008, verified the applicant s combined service- connected disability rating as 40 percent for the following conditions: * residual facial scar from MVA, 30 percent * DDD of the lumbar spine, 10 percent * short-term memory loss as the result of head trauma with concussion, 10 percent 20. A TNARNG memorandum regarding State FFDE findings pertaining to the applicant, dated 14 August 2008, shows the following: * the applicant s diagnoses were back pain, facial scars, and shot term memory loss * there were insufficient documents to render a finding * medical clearance was needed specifically determining the applicant s ability to perform the APFT, mobilize to a combat area, as well as specific comment on impact of short term memory loss 21. A memorandum from the applicant s immediate commander, dated 14 August 2008, shows he requested a FFDE for the applicant in order to clear him for duty. a. It was his professional opinion that the applicant was a fully capable Soldier and it was his observation during rigorous training exercises on several occasions that he had no physical limitations. He conducted road marches, raids, ground assault convoys, and PT without any signs of degraded physical performance other than being marginally overweight. b. It was his opinion the applicant should be cleared of his temporary profile and returned to duty so he could pursue his career path with the ROTC. 22. A letter from Dr. N____ M____, TN Valley Healthcare System, VA Medical Center (VAMC), dated 14 August 2008, provided a synopsis of the applicant s health. a. It states he had a history of obesity and low back pain. He also had a history of MVW with retained glass fragments from the accident which were removed by plastic surgery in 2007. b. His low back pain was evaluated with x-ray of his lumbar spine, which showed slightly narrowed posterior disc space at L5-S1 with mild facet arthropathy. His last documented physical exam was benign with non-focal neurologic exam, 5/5 strength, and full range of motion. 23. A TNARNG Questionnaire-Lower Back, shows a medical provider completed the questionnaire on 25 August 2008, indicating the applicant had significant weakness or pain of the lumbar or sacral spine for longer than 6 months, limiting his ability to carry a heavy load, dig, and run. It was the provider s opinion that strength training and weight loss could correct this in the future. The applicant s lifting capacity should be limited to 20 pounds or less, no frequent bending or squatting, and he should participate in the walk or bicycle in lieu of running. 24. A letter from a VA Advanced Practice Registered Nurse (APRN), dated 25 August 2008, shows the applicant had chronic pain issues due to an MVA while on active duty. Because of his injured state, he is unable to perform certain tasks, including bending, lifting, carrying more than 20 pounds, and no running, push-ups, or sit-ups. The applicant has been examined by multiple other providers, which makes it difficult to assess his improvement with his short-term memory loss over time; however, from his medical records his functional capacity is limited. 25. A memorandum from the applicant s immediate commander, dated 1 November 2008, provided his evaluation of the applicant, stating the applicant s disability does not impact on the performance of his duties in his primary Military Occupational Specialty (MOS). His duty performance was excellent and it was not expected that his physical impairment or injury would prevent his unit from using him in a productive manner. He requested the applicant be cleared by the board and be retained by the ARNG. 26. A memorandum for record from the applicant s immediate commander, dated 20 November 2008, states the applicant s medical records do not contain a DD Form 2808 or DD Form 2807-1 (Report of Medical History). 27. A DA Form 3349 shows the applicant was given a temporary physical profile rating of 3 in factor L for low back pain and factor S (Psychiatric) for short-term memory loss on 10 January 2009 with an expiration date of 10 April 2009. The profile prevented him from most functional activities to include deployment and the APFT. 28. A TNARNG memorandum regarding State FFDE findings pertaining to the applicant, dated 10 January 2009, shows the following: * the applicant s diagnoses were back pain and short-term memory loss * there were insufficient documents to render a finding * a neuropsychological evaluation was needed regarding short-term memory loss * there was conflicting information regarding the degree of disability/limitations with low back pain * a comprehensive back exam and delineation of limitations with prognosis was needed * reboarding would transpire after physical profile expiration on 1 April 2009 29. A DA Form 3349 shows the applicant was given a permanent physical profile rating of 3 on 25 September 2009 in factor L due to low back pain/facet arthropathy that limited most functional activities, prevented deployment, and the participation in the APFT. 30. A TNARNG memorandum regarding State FFDE findings pertaining to the applicant, dated 25 September 2009, shows the applicant was found not fit for duty with a permanent physical profile. 31. Joint Force Headquarters, TNARNG Orders 102-812 dated 12 April 2010, honorably discharged the applicant from the ARNG effective 23 March 2010, under the provisions of National Guard Regulation 600-200, paragraph 6-35, with assignment/loss code MG (medical unfitness for retention). 32. The applicant s NGB Form 22 shows he was honorably discharged from the ARNG on 23 March 2010, under the provisions of National Guard Regulation 600-200, paragraph 6-35, due to medical unfitness for retention. He was credited with 3 years, 6 months, and 25 days of net ARNG service this period and 3 years, 6 months, and 28 days of net prior active Federal service. 33. The applicant provided numerous VA medical records, all of which have been provided to the Board for review, reflecting post-service cardiology consults with diagnoses including cardiomyopathy, essential hypertension, hypercholesterolemia, congestive heart failure. 34. A VA letter, dated 28 September 2022, shows the applicant has one or more service-connected disabilities rated at 100 percent and is considered to be totally and permanently disabled due to his service-connected disabilities effective 13 February 2020. 35. 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. 36. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 37. 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. 38. In the adjudication of this case, an advisory opinion was obtained from the NGB on 28 July 2023, wherein the NGB provided the following documents, all of which have been provided in full to the Board for review: * medical records, 17 February 2006 * medical records, 21 March 2006 * medical records, 23 March 2006 * discharge packet, April/May 2006 * DD Form 214, covering the period ending 28 August 2006 * DA Form 7349-R, 29 August 2006 * DA Form 7349, 7 March 2007 * DA Form 7349, 13 July 2008 * DA Form 3349, 10 August 2008 * Commander s Memorandum of Evaluation, 1 November 2008 * State Fitness for Duty Evaluation Findings, 25 September 2009 * NGB form 22, 23 March 2010 * NGB advisory opinion, 28 July 2023 39. The NGB advisory opinion, dated 28 July 2023, shows the following: a. The applicant requests his medical disqualification that led to his discharge from the TNARNG to be examined by the ABCMR in order to have his records forwarded to the MEB and PEB in order to obtain a medical retirement. b. The NGB recommends disapproval. c. The applicant was found not fit for duty by the Tennessee Medical Review Board on 25 September 2009, and later discharged from the TNARNG on 23 March 2010 under the authority of National Guard Regulation 600-200, para 6-35 (l)(8). The applicant claims he was never given the opportunity to appeal his State medical board, and therefore did not make an election to have his Medical Evaluation to be reviewed by the PEB. d. While serving in the Regular Army on 4 February 2006, the applicant was in an MVA, where he was the passenger, and the vehicle was struck by another vehicle. Soldier suffered injuries to his head, neck, and additional bodily injury as well. At the time the soldier showed signs of concussion, memory loss, lack of concentration, and headaches. e. The applicant continued his service in the Regular Army while receiving medical care, until his completion of service from the Regular Army, per his DD Form 214. He later enlisted in the TNARNG on 29 August 2006. Per the applicant s record of military processing, no medical waivers were required for his enlistment into the TNARNG. f. On 14 August 2008, the applicant was medically boarded for reasons due to back pain, facial scars, and short-term memory loss. The outcome of the board was undetermined due to medical documents not on file. A second medical board was conducted on 10 January 2009, which again the board was unable to provide a finding due to lack of medical documents and request specific medical documents pertaining to the medical issues at hand. A third medical board was conducted on 9 September 2009, which eventually found the applicant unfit for duty due to back pain. The back pain was not in the line of duty. g. During the applicant s first medical board, he presented statements from his commander showing his ability to do his job without any difficulties, and that he was in good health. The board could not find any medical evidence that the applicant was unfit for retention. h. During the applicant s second medical board, the State could still not find any evidence finding the applicant unfit for retention, but did specifically ask that he get a Neuropsychic evaluation, and a comprehensive back exam. The applicant s commander s evaluation stated that the applicant should be cleared by the board, and retained by the ARNG, due to his excellent performance of his duties. i. The applicant claims that the State medical board found him unfit for retention due to his lumbar spine condition, which no records could be found. He additionally claims that the State used his VA compensation and benefit record of medical service to find him unfit for retention. The applicant claims that his current VA rating of 100 percent for service -connected disabilities should provide him the ability to get into the IDES process, and possibly provide him the ability to acquire a medical retirement. j. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, by law, cannot determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. k. This office finds that the TNARNG did violate the applicant s right to the appeal the State medical board findings that found him unfit for retention. The applicant was never given the chance to have his medical evaluation reviewed by the PEB; however, his evaluation would have only been reviewed by the PEB as a non-duty case per Army Regulation 635-40. This review of the case would not have afforded the applicant the ability to achieve a medical retirement, as neither the applicant nor the State could provide any medical documentation showing progression or aggravation of his current medical issues with the MVA during his time in the Regular Army, and therefore recommend disapproval of the applicant s request. l. The opinion of this office was coordinated with the TNARNG. 40. On 8 August 2023, the applicant was provided a copy of the NGB advisory opinion and given an opportunity to submit comments. The applicant s response on 15 August 2023, shows the following: a. It is not the ARNG records that need to be fixed, but rather the Regular Army. When he was in the Regular Army they misdiagnosed his cardiomyopathy. Yes, he did complain about chest pain and they ran tests. The doctors in Germany stated that his test results were irregular, but due to his young age it was unlikely that he had a heart problem. Years later, the VA found the exact same test results and put him in heart failure status. This changed his disability from 40 precent, where he was when he left the ARNG, to 100 percent disabled. By those test results, I should have been given a medical retirement while on active duty. b. He has shared both tests along with all other heart related medical records from both active duty and the VA. He was misdiagnosed and due to that was not given the proper separation or the medical care that he should have been given. He was on a medical profile due to his neck and back injury until his ETS. He was told this was a faster route since a medical board took time and his ETS was not far away. He also did not know that his heart problem was serious or that he even had a heart problem. This is what I m asking to be fixed. I thinks he might have stated the wrong organization when he originally stated the ARNG, because that was his last duty. He hopes this helps. There is no doubt that this should be changed. 41. MEDICAL REVIEW: a. 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 (EMR) (AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), 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 referral to the Disability Evaluation System (DES). He requests: My discharge was coded as Medical from the National Guard, but I was not allowed to go to the DOD rating board. I was discharged under my VA disability rating from when I ETS from active-duty Army. I would like to go the DOD rating board so that I can be considered for medical retirement as my disabilities are service related ... I was given a medical board at Camp Shelby MS, but they dismissed me from service simply based on the VA rating which was 40% at the time and now is 100%. I never received my NGB 22 nor was anything explained to me at my separation about going to a rating board. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. A DD 214 shows the applicant entered the regular Army on 31 January 2003 and was honorably discharged at the competition of his required active service on 28 August 2004 under the authority provided in chapter 4 of AR 635-200, Personnel Separations Enlisted Personnel (1 November 2000). d. His Report of Separation and Record of Service (NGB 22) shows the drilling Guardsman entered the Army National Guard on 29 August 2006 and was honorably discharged from the Tennessee Army National Guard (TNARNG) on 23 March 2010 under the provisions of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Medically unfit for retention per AR 40-501 [Standards of Medical Fitness]. It shows he had 7 years, 1 month, and 23 days of total service for retired pay. e. Orders published by the Joint Force Headquarters of the Tennessee National Guard on 12 April 2010 show the applicant was to be discharged effective 23 March 2010 under the provisions of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Medically unfit for retention per AR 40-501. f. A request for a fitness for duty evaluation is dated 14 August 2008 and requested attention be directed at the applicant s Back Pain, Facial Scars, and Short-Term Memory Loss. The applicant had written a letter to the State Medical Review Board the previous day requesting to be found fit on for duty: Before I joined the National Guard, I was a member of the United States Army as an active-duty soldier. While I was on active duty, I sustained some injuries in an automobile accident. The Veterans Administration noticed that I had Degenerative Disc Disease due to my complaints of back pain and also declared me as disabled not only due to that, but also because of facial scars as well as short term memory problems. I have worked hard recently to make my health better by both working out and eating right. I have attended some physical therapy classes and used a tens unit to help my back or at least stop it from getting worse. I also take 2 to 4 500mg Ibuprofen pills each day. This regiment stops me from feeling most pain and lets me push myself to new levels of fitness. I have been training hard in recent months to be a ROTC cadet in the upcoming semester at Middle Tennessee State University and I am asking that I be declared physically fit for duty so that I can accomplish this task. g. The applicant s company commander wrote a letter of support on 14 August 2008, requesting he be cleared for full duty: It is my professional opinion, as SPC [Applicant] s commander, that he is a fully capable soldier. In my observations of SPC [Applicant] during rigorous training exercises on several occasions that he has no physical limitations. The Soldier has conducted road marches, raids, ground assault convoys and PT without any signs of degraded physical performance other than being marginally overweight. I believe this soldier should be cleared of his temporary profile and returned to duty so he can pursue his career path with the ROTC. h. A VA Ratings Decision dated 13 August 2008 shows the applicant has been granted three service-connected disability ratings: Residual facial scar form MVA [motor vehicle accident] (30%), Degenerative disc disease of the lumbar spine (10%), and Short- term memory loss as the result of head trauma with concussion (10%). i. Three months later, in November 2008, the board replied stating there was insufficient medical documentation provided upon which to make such a determination. j. However, on 29 September 2009 the Board declared the applicant permanently not fit for duty citing paragraphs 39h, 41e(1) and 3-41e(2) of AR 40-501 (14 December 2007): 3-39h: Non-radicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine, whether idiopathic or secondary to degenerative disc or joint disease, that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity. 3-41e(1) and (2): e. Miscellaneous conditions and defects. Conditions and defects not mentioned elsewhere in this chapter are causes for referral to an MEB, if (1) The conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual s commander or supervisor. (2) The individual s health or well-being would be compromised if he or she were to remain in the military service. k. The applicant was placed on a permanent duty limiting physical profile for Low Back Pain / Facet Arthropathy on 25 September 2009. l. The applicant would have been eligible for referral into the duty related DES if his lumbar spine condition was incurred in the line of duty. m. There is just one back pain associated record in the EMR. The applicant was seen on 27 September 2005 for a one-day history of low back pain incurred while performing combat carries for physical training earlier that morning. He was diagnosed with a lower back strain , provided with Motrin and a muscle relaxant (cyclobenzaprine), placed on 48 hours quarters, and directed to follow-up as needed. There were no further encounters. From a 17 February 2006 neurology consult at the Landstuhl Regional Medical Center: The Chief Complaint is: Memory dysfunction, as well as neck and head pain as the result of a motor vehicle accident on 4 FEB 2006 History of Present Illness: The patient is a 25-year-old male. The history is provided by the patient who is a reasonably good historian. Current constellation of problems began on 4 FEB 06 when the vehicle in which Pt [patient] was a passenger was struck by another vehicle. Ppt was struck in the right side of the head by the side impact of the colliding vehicle. There was also neck and bodily injury as well. The driver of the vehicle in which pt was riding is reported to have been intoxicated and is alleged to have run a red light. Pt is amnestic for events covering the first 7 days after the accident. The patient's overriding concern is a faulty memory since the MVA. He also reports head and neck injuries as sequelae of the MVA. The obvious gashes to the right forehead attest to the severity of the impact. Pt was admitted to a German hospital for approx. 4 or 5 days, but none of these records are available at this time. Pt has a written summary in German which conveys relatively little information, and there is no mention of neurodiagnostic testing. No MRI, CT, or EEG reports are available. Pt gives multiple examples of short-term memory dysfunction, poor concentration and a tendency to space out... Headaches are a particular problem ... Review of Systems Eye symptoms: No diplopia and no photopsia. No photophobia. Neck symptoms: Neck pain associated with neck movement and producing ....a grinding ....a popping ; this began after the MVA. Gastrointestinal symptoms: No dysphagia. Genitourinary symptoms: No urinary incontinence. Musculoskeletal symptoms: No lower back pain. Neurological symptoms: Lightheadedness and dizziness. n. The applicant followed up with neurology on 23 March 2006 and was noted to be improving: Encounter Background Information: This is a follow up visit for review of the EEG and brain MRI: both are normal. PT reports doing considerably better since the last visit. o. He was not seen again for this condition. p. He completed a periodic health assessment on 14 July 2009 as part of his separation processing. The provider wrote Healthy male without limitations. q. There is insufficient probative evidence to support a finding that lumbar spine condition was related to the MVA in 2006 or otherwise incurred during his period of active duty or while in a qualified duty status as a member of the ARNG. The applicant is therefore not eligible for referral into the DES for a duty related condition. r. Review of his records in JLV shows he maintains the same VA service-connected disability ratings received in 2006. He was awarded a 100% disability rating for cardiomyopathy on 10 January 2014. However, the DES only compensates an individual 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. s. It is the opinion of the Agency Medical Advisor that a referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant s contentions, the military record, and regulatory guidance. The Board noted that while serving on active duty in February 2006, the vehicle in which he was riding was struck by another vehicle. Although he received medical care as a result of accident, his DD214 shows that he continued on active duty until completion of his period of service on 28 June 2006. Evidence of record shows that he was afforded review by three the medical boards, the last of which found him unfit for duty due to back pain which was not in the line of duty. The Board found insufficient evidence that the applicant s lumbar spine condition was related to the motor vehicle accident in which he was involved or incurred during his period of active duty. As such, he is not eligible for referral into the DES for a duty related condition. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief and referral of his case Disability Evaluation System is not warranted. 2. In reviewing the request, the Board noted that the applicant references the variance in ratings from Veterans Affairs and that of the Department of Defense. Veterans Affairs and DoD operate under separate laws, policies and guidance. VA primarily assesses the degree of disabling conditions to determine compensation and employment potential and the Army for fitness for duty; therefore, there is not necessarily a correlation between VA disability ratings and those of the Army. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :CBW :AMI :RB DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 3. 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. 4. 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 (Disability 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. 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 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635 40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140 10 (USAR Assignments, Attachments, Details, and Transfers) or discharged from the Reserve Component per Army Regulation 135 175 (Separation of Officers), Army Regulation 135 178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9 12. 7. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign utilize, transfer within and between States, provides special duty assignment pay, separate and appoint to and from Command Sergeant Major ARNG and Army National Guard of the Unites States enlisted Soldiers. Paragraph 6-35 provides for the separation of Soldier found medically unfit for retention per Army Regulation 40-501. 8. 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. 9. 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. 10. 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. 11. Title 10, U.S. Code, section 1556 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) AR20230000429 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1