IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230006306 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims (hereinafter referred to the as the Court). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Counsel's supplemental brief * Exhibit 1 - Applicant's affidavit * Exhibit 2 – Informal Physical Evaluation Board (IPEB) Proceedings and Department of Veterans Affairs (VA) proposed disability ratings * Exhibit 3 – medical records, dated 29 September 2007 * Exhibit 4 – medical records, dated 9 February 2011 * Exhibit 5 – medical records, dated 29 July 2011 * Exhibit 6 – DA Form 3349 (Physical Profiles) (3 forms) * Exhibit 7 – medical records, dated 5 May 2017 * Exhibit 8 – Medical Evaluation Board (MEB) Proceedings * Exhibits 9 and 10 – medical records, dated 30 May 2014 * Exhibit 11 – medical records, dated 18 April 2017 * Exhibit 12 – medical records, dated 12 January 2017 * Exhibit 13 – medical records, dated 6 January 2017 * Exhibit 14 – Physical Profile record * Exhibits 15 and 16 – medical records, dated 30 January 2017 * Exhibit 17 – medical records, dated 12 April 2017 * Exhibit 18 – DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement) * Exhibit 19 – medical records, dated 18 April 2017 * Exhibit 20 – VA Disability Benefits Questionnaires * Exhibit 21 – VA Disability Evaluation System Proposed Rating * Exhibits 22 and 23 – VA benefits decision letters * Exhibit 24 – Counsel's brief * Exhibit 25 – ABCMR Record of Proceedings Docket Number AR20210005005 * Exhibit 26 – Complaint Applicant v. USA * Exhibit 27 – Court Order * Exhibit 28 – medical records, dated 5 September 2017 * Exhibit 29 – medical records, dated 12 April 2017 FACTS: 1. On 5 May 2023, pursuant to Rule 52.2 of the Rules of the Court of Federal Claims (RCFC), the parties filed a joint motion for voluntary remand and stay of proceedings. In their Motion, the parties state: Without concession of error by the United States and without the United States' waiver of any defenses or objections to Plaintiffs (hereinafter refer to as the applicant) claims, the parties have agreed to request that the Court remand this case to the ABCMR pursuant to RCFC 52.2 and stay proceedings before this Court to allow the ABCMR to reevaluate the applicant's request for a permanent medical retirement." 2. The Court orders the ABCMR to reconsider fully all claims asserted by the applicant, including any claims for permanent disability retired pay pursuant to 10 U.S.C. § 1201, and any new arguments or evidence he presents regarding his existing claims, in accordance with the ABCMR's applicable procedures and powers, including the ABCMR's power to seek additional advisory opinions. 3. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20210005005 on 8 February 2022. 4. Counsel states: a. As described in his initial petition to the ABCMR, the applicant suffered from numerous unfitting combat and service-related injuries at separation that should have resulted in his medical retirement, and access to corresponding compensation and benefits, based on a disability rating of at least 60%. The ABCMR, however, issued a decision on 8 February 2022 upholding the IPEB finding that only his wrist injury was unfitting, for which it assigned a 10% disability rating. b. The ABCMR’s erroneous decision led the applicant to file a complaint in the U.S. Court of Federal Claims. In that complaint, he argues that the ABCMR’s decision was arbitrary, capricious, unsupported by substantial evidence, and contrary to law. As a result, he asks the Court to correct his military records to reflect the disability retirement status, pay, and benefits to which he is entitled. In mid-May 2023, the applicant and the United States agreed to remand the case, with the Court ordering the ABCMR to reevaluate the applicant's request for a permanent medical retirement. Pursuant to the Court’s order, the ABCMR must now reconsider fully all claims asserted by the applicant, including any claims for permanent disability retirement. c. Now, on remand, the applicant asks the ABCMR to correct his military records, pursuant to its authority to reflect his medical retirement for his unfitting hip, knee, and ankle injuries and, in conjunction with his wrist injury, assign a combined disability rating of 60% (10% for both the right and left hip trochanteric pain syndrome, 10% for impairment of the left knee, 10% for limitation of flexion of the left knee, 10% for impairment of the right knee, 10% for limitation of flexion of the right knee, 10% for right ankle strain, and 10% for left ankle strain). These numerous injuries, individually and in combination, rendered him unable to perform the basic duty requirements of his military occupational specialty (MOS) 11A (Infantry Officer). d. The applicant joined the Army on 5 February 2006. He enlisted with the goals of becoming a paratrooper and, later, an officer. He first deployed to Afghanistan from May 2007 to July 2008. In August 2007, he sustained his first major injury when falling over ten feet from a guard tower in full combat gear, landing on his left hip and wrist. Additionally, as a result of the fall, he dislocated the sacroiliac joint of his right hip and lower back, which had to be manipulated back into place. He attempted to recover through bed rest alone but was later medically evacuated from the base for treatment due to the severity of his injuries. He returned to combat after receiving treatment but was subject to work and duty limitations. e. The applicant redeployed to Afghanistan from December 2009 to October 2010, after which he attended Officer Candidate School. The physical demands of that training, and his career as an officer, led to the aggravation and progression of the injuries suffered during his earlier deployments, in addition to causing new injuries. For example, as early as February 2011, he began to experience severe shin splints, which contributed to the injuries he sustained to his knees and ankles. Beginning in July 2014, he served in the U.S. Army Airborne School, Airborne, and Ranger Training Brigade. His proficiency as a Jump Master led to his designation as a Wind Tester, meaning he bore responsibility to be the first to jump on training runs so as to ensure conditions were safe for airborne students. These jumps exacerbated his knee and ankle injuries, and he required physical therapy and a knee brace to cope with the resultant pain and discomfort in his knees. He was also repeatedly placed on limited work and duty status due to those injuries, which included prohibitions on running, squatting, and jumping. f. Relatedly, from December 2015 to February 2016, the applicant's bilateral ankle conditions required his placement on various temporary profiles that restricted his ability to march, jump, complete military movement drills, bear weight, and complete unit physical fitness training. In addition to being placed on profile, his bilateral ankle conditions were treated with orthotics, braces, physical therapy, and cortisone shots. However, none of the treatments fully alleviated his ankle pain or allowed his return to full duty. g. In addition to his hips, knees, and ankles, the applicant also began to suffer persistent pain and deteriorating performance around May 2014 due to his left wrist injury. He sought treatment, with an X-ray revealing: (1) a deformity of the ulnar styloid process; (2) degenerative joint disease of the distal radius and ulna; (3) bony densities between the radius and ulna; and (4) a faint calcification superior to the distal radius consistent with chondrocalcinosis. A magnetic resonance imaging (MRI) performed days later further revealed: (1) a triangular fibrocartilage tear; and (2) fluid ossific bodies within the distal radial ulnar joint, with a small joint effusion. This, too, led to his return to duty subject to work and duty limitations. He tried to treat his left wrist injuries through a non-invasive injection and physical therapy, but they proved ineffective. As a result, he was put under strict duty limitations, which included prohibiting his lifting, lowering, or carrying more than 25 pounds, as well as any climbing or crawling. By December 2016, he required surgery to address his wrist injuries. h. On 6 January 2017, the applicant reported to the medical clinic at Fort Moore, GA (formerly Fort Benning), complaining about "lower back pain on the left, midline, radiating to the left buttock" that "worsened when going from sitting to standing, with lifting, and with turning." Also in January 2017, he reported continuing right ankle and right knee pain, as well as back and hip pain. Because of his various injuries, he was unable to complete his Army Physical Fitness Test (APFT) that month. In light of his numerous physical ailments, he was referred into the Disability Evaluation System (DES), and he reported to the medical clinic to start the referral process. At this appointment, his medical record was updated to reflect that he suffered from "wrist joint pain on left, elbow joint pain bilaterally, lower back pain, hip joint pain bilaterally, and knee pain on the right. Concurrent with his referral into the MEB, he presented to physical therapy to address his "inability to grip with his left hand… bilateral knee pain," back, and ankle conditions. i. In March 2017, following his referral into the DES, the applicant's treating physician ordered MRIs of both ankles due to his history of chronic pain and trauma from multiple airborne jumps. The MRI revealed: (1) tears of the anterior talofibular ligaments; (2) osteochondral lesions on lateral talar domes, suggesting damage to the cartilage; and (3) tenosynovitis of the flexor hallucis longus, indicating inflammation of the protective sheath surrounding the tendon. j. In February 2017, upon referral into the DES, the applicant's commander issued a Commander’s Performance and Functional Statement indicating the applicant was unable to effectively execute the tasks and missions required of an Infantry Officer or even a basic Soldier… due to his limitations caused by his injuries. The commander noted that his medical conditions were acquired during multiple deployments to Afghanistan and from over 10 years on airborne status with 74 airborne jumps, which severely degraded his ability to function as a basic Soldier. Further, his commander explained that the applicant was unable to maintain physical readiness or conduct weapons training which are required for all Soldiers to be effective, and that “deploying this Soldier would put his life and other lives in danger.” For those reasons, he explicitly recommended not retaining him. k. Beginning on 5 March 2017, the applicant underwent a series of VA examinations as part of his DES process. These exams recorded numerous physical limitations including: (1) Left Wrist: (a) abnormal or outside of normal range of motion; (b) pain with palmar flexion, dorsiflexion, ulnar deviation, radial deviation; (c) evidence of pain with weight bearing; and (d) reduction in muscle strength of the left wrist. (2) Right Hip: (a) pain with flexion, extension, abduction, adduction, external rotation, internal rotation40; and (b) evidence of pain with weight bearing. (3) Left Hip: (a) abnormal or outside of normal range of motion; (b) pain with flexion, extension, abduction, adduction, external rotation, internal rotation; (c) evidence of pain with weight bearing; and (d) objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue including mark guarding and pain with palpation at groin and medial hip. (4) Right Knee: (a) abnormal or outside of normal range of motion; (b) evidence of pain with weight bearing; (c) joint instability of 0-5 millimeters48; (d) shin splints limiting knee range of motion (e) tenderness with palpation of shins; and (f) inability to “ruck or do full physical training (PT), APFT, and cannot perform his required physical training and duties.” (5) Left Knee: (a) abnormal or outside of normal range of motion; (b) evidence of pain with weight bearing; (c) joint instability; (d) shin splints limiting knee range of motion; (e) tenderness with palpation of shins; and (f) inability to “ruck or do full PT, APFT, and (g) cannot perform his required physical training and duties.” (6) Right Ankle: shin splints limiting ankle range of motion. (7) Left Ankle: shin splints limiting ankle range of motion. l. On 18 April 2017, the applicant was evaluated by the MEB. The MEB found that eight of his medical conditions failed to meet medical retention standards. Those relevant here include: (1) osteoarthritis in the left wrist; (2) a triangular fibrocartilage complex tear in the left wrist; (3) arthralgia in the left hip; (4) arthralgia in the right hip; (5) arthralgia in the left knee; (6) arthralgia in the right knee; (7) arthralgia in the left ankle; and (8) arthralgia in the right ankle. The MEB found that he was “no longer able to perform all the physical requirements of his 11A MOS.” This was because: (1) Osteoarthritis and Triangular Fibrocartilage Complex Tear in His Left Wrist: The MEB found that his wrist condition failed the retention standards found in Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-14c and 3-14g (1) because his range of motion was decreased in all planes, he experienced pain with weight bearing, and demonstrated reduced strength. Ultimately, the MEB concluded that his left wrist condition left him “no longer able to perform all the physical requirements of the 11A MOS,” such as being able to “run, jump, lift more than 25 pounds, climb, crawl, do push-up, do pull-ups, evade direct or indirect fire, or live in an austere environment without worsening his medical condition,” and that “[t]he rigors of soldiering would most likely worsen [the applicant's ] condition.” Further, the MEB stated that he “has been unable to return to duty and is not anticipated to be able to return to duty as an 11A after more than nine years of treatments with medication, occupational therapy, surgical intervention and profiling.” (2) Bilateral Hip Arthralgia: The MEB found that his bilateral hip arthralgia failed the retention standards set forth in AR 40-501, paragraph 3-14g (1) because he had decreased range of motion “in all planes in the left hip” and pain with weight bearing in both hips. The MEB concluded that his bilateral hip arthralgia made him “no longer able to perform the duties of the 11A MOS,” including being able to “run, jump, bend, twist, push, pull, lift more than 25 pounds, participate in airborne operations or combatives, wear interceptor body armor (IBA)/improved outer tactical vest (IOTV)/load bearing equipment (LBE)/ruck sack, climb, crawl, crouch, kneel, stand for longer than 20 minutes, evade direct or indirect fire, or live in an austere environment without worsening his medical condition.” In addition, the MEB provided that the “rigors of soldiering would most likely worsen” his hip condition. (3) Bilateral Knee Arthralgia: The MEB found that his bilateral knee condition failed the retention standards set forth in AR 40-501, paragraph 3-14g (1) because he experienced pain and limited range of motion in both knees, including pain with weight bearing. Ultimately, the MEB concluded that as a result of his knee conditions, he “cannot perform the following physical requirements of MOS: run, jump, bend, twist, push, pull, lift more than 25 pounds, participate in airborne operations or combatives, wear IBA/IOTV/LBE/ruck sack, climb, crawl, crouch, kneel, stand for longer than 20 minutes, evade direct or indirect fire, or live in an austere environment without worsening his medical condition.” In addition, the MEB found that his knee injuries “would most likely worsen” under the “rigors of soldiering.” (4) Bilateral Ankle Arthralgia: Although the MEB originally found that his ankle conditions met medical retention standards, after he appealed, the MEB subsequently concluded that the conditions failed the retention standards set forth in AR 40-501, paragraph 3-14.b.n because he had “bilateral ankle instability with left ankle osteochondral lesion talar dome and bilateral anterior talo- fibular ligament tenosynovitis and laxity.” The MEB further concluded that the conditions “would be considered disqualifying for service” and “fail retention standards for both ankles.” In addition, the MEB concluded that he was “unable to run, jump or sustain impact,” nor “tolerate wear of combat gear” or “perform the required APFT or physical duties for his MOS.” The MEB also concluded that the “rigors of soldiering would most likely worsen his condition. Based on the foregoing, the MEB recommended that his case be referred to the IPEB for a fitness evaluation. m. In October 2017, the VA issued proposed disability ratings for each of the applicant's conditions as part of the DES process “for use by [the Department of Defense] in determining a final disposition for unfit conditions.” The proposed ratings for each of his conditions relevant here include: (1) 10% for left wrist complex triangular fibrocartilage tear with osteoarthritis; (2) 10% for each of the right and left hip trochanteric pain syndrome; (3) 10% for impairment of the left knee; (4) 10% for limitation of flexion of the left knee; (5) 10% for impairment of the right knee; (6) 10% for limitation of flexion of the right knee; (7) 10% for right ankle strain; and (8) 10% for left ankle strain. VA disability ratings are “entitled to great weight” and considered “strong evidence” of fitness. n. On 7 November 2017, despite the MEB’s finding that the applicant's wrist, hip, knee, and ankle injuries all rendered him unable to perform numerous basic requirements of his MOS, his commander’s assessment, and the VA’s rating decisions, the IPEB determined that only his left wrist injuries rendered him unfit to serve, assigning a 10% disability rating for those injuries. The IPEB found that the other non- wrist injuries were “medically unacceptable,” but refused to find that they rendered him unfit to serve. While it purportedly considered each condition individually, the IPEB offered no meaningful assessment pursuant to Department of Defense Instruction (“DoDI”) 1332.18.80. Instead, it stated over-and-over in conclusory fashion that each condition did “not prevent reasonable duty performance… does not pose a risk to the Officer or to others… [and] does not impose unreasonable requirements on the military to maintain or protect the Officer.” As a result of the IPEB’s determination, the applicant was honorably discharged from the Army on 23 February 2018 with a medical separation and one-time lump sum severance payment. He was not medically retired and, therefore, was denied the associated disability payments and benefits. o. On 14 March 2018, less than one month after his medical separation from the Army, and less than four months after the IPEB’s decision, the VA again evaluated the applicant and assigned each of his conditions a disability rating, which combined to 100%. These ratings were identical to those proposed five months earlier, prior to the IPEB’s evaluation. Specifically, the ratings relevant to the conditions that should have been found unfitting by the IPEB were: (1) 10% for left wrist complex triangular fibrocartilage tear with osteoarthritis; (2) 10% for both the right and left hip trochanteric pain syndrome; (3) 10% for impairment of the left knee; (4) 10% for limitation of flexion of the left knee; (5) 10% for impairment of the right knee; (6) 10% for limitation of flexion of the right knee; (7) 10% for right ankle strain; and (8) 10% for left ankle strain. p. On 4 January 2021, the applicant petitioned the ABCMR to correct his records to reflect his medical retirement. More specifically, he asked that the ABCMR correct his military records to properly reflect that his wrist, hips, knee, and ankle injuries were individually and in combination unfitting, with a disability rating of at least 60% in accordance with his post-discharge VA rating decision. On 25 October 2021, the ABCMR obtained an advisory opinion from the U.S. Army Physical Disability Agency (USAPDA). That advisory opinion concluded that the applicant's request for medical retirement was “legally insufficient” and that none of the wrist, hip, knee, or ankle injuries raised in his request were unfitting, purportedly because “[t]he mere presence of a chronic condition does not make it unfitting.” q. On 1 December 2021, the applicant, through counsel, responded to the advisory opinion, asserting, in part, that the opinion failed to apply the correct standards of fitness, mischaracterized the facts about his treatment history, and generally failed to address the central arguments raised in his application. On 8 February 2022, the ABCMR issued a decision upholding the IPEB’s fitness determinations. This decision wrongly claimed that his medical record showed “relatively few clinical encounters” for those injuries. The ABCMR’s decision also improperly relied on his outdated Officer Evaluation Reports (OER)—from March 2015 and 2016—when affirming the IPEB’s conclusion that his hip, knee, and ankle injuries were not unfitting conditions. r. The applicant subsequently filed an action before the U.S. Court of Federal Claims arguing that the ABCMR’s decision was arbitrary, capricious, unsupported by substantial evidence, and contrary to law. In his complaint, he pointed to extensive evidence of his seeking medical treatment for his wrist, hip, knee, and ankle injuries (among others). also argued that the ABCMR’s reliance on outdated OERs was flawed because those evaluations ignore the predictable progression of his disabilities after March 2016, as well as the fact that he was unable to perform an APFT in January 2017 due to those disabilities. As explained above, the Court of Federal Claims has remanded the matter for further consideration by the ABCMR. s. The ABCMR’s prior decision failed to apply the required statutory and regulatory standards of fitness to each of the applicant's conditions. When properly evaluated, these standards show that his hip, knee, and ankle injuries also rendered him unable to perform the basic duty requirements of his office, grade, rank, and rating. As a result, each was an unfitting condition, and a disability rating should have been assigned accordingly. A service member is unfit for duty if, “due to physical disability,” they are “unable to reasonably perform duties of his or her office, grade, rank, or rating.” DoDI 1332.18, Section 6.2. t. Determining whether a service member can reasonably perform their duties requires consideration of whether the service member’s disability prevents them from: (1) performing the common military tasks required for their office, grade, rank or rating, such as firing a weapon, performing field duty or wearing load-bearing equipment or protective gear; (2) taking a required physical fitness test; (3) deploying individually or as part of a unit to any vessel or location specified by the military; and (4) performing any specialized duties. Making this determination also requires the PEB to consider whether the disability: (1) represents a decided medical risk to the health of the member or to the welfare and safety of other members; or (2) imposes unreasonable requirements on the military to maintain or protect the service member. u. As an MOS 11A Infantry Officer, the applicant's basic duties required a high level of physical fitness, falling under the highest physical demand category among military occupational specialties The Infantry Branch has “the mission to close with and destroy the enemy by means of fire and movement to defeat or capture him, or repel his assault by fire, close combat and counterattack,” and is “designed to engage the enemy in direct ground combat.” Further, “Infantry officers are prepared to train, lead, and employ all types of Infantry and other maneuver and fire assets on the battlefield” and “arrive on the battlefield by parachute assault, air assault, mechanized vehicle, wheeled vehicle or on foot.” v. As part of the DES process, it was revealed that the applicant's hip conditions caused abnormal range of motion, pain with flexion, extension, abduction, adduction, external rotation, and internal rotation, evidence of pain with weight bearing, tenderness or pain on palpation of the joint or soft tissue. It also demonstrated that his knee conditions caused abnormal range of motion—limited to 110 degrees flexion and extension on his right knee and 120 degrees on his left knee, considerably below full flexion and extension levels—as well as pain with weightbearing, joint instability, shin splints further limiting range of motion, tenderness with palpation of shins, and an inability to ruck or do full PT, APFT, or perform required physical training and duties. Additionally, it found that his shin splints caused limiting ankle range of motion. In light of these limitations and his reduced range of motion, it is inconceivable that he, at the time of his discharge, could perform common military tasks of his MOS, such as evading fire, arriving on the battlefield by parachute assault, engaging in close combat, or carrying heavy weaponry and supplies, among other critical tasks. w. Moreover, in the applicant's case, they do not need to guess whether his noted physical limitations rendered him unable to perform the duties of his office, grade, rank or rating. This is because the MEB found that his wrist, hip, and knee injuries rendered him unable to complete common military tasks, including the ability to “run, jump, bend, twist, push, pull, lift more than 25 pounds… [,] wear [the] IBA/IOTV/LBE/ruck sack…[,] stand for longer than 20 minutes, evade direct or indirect fire, or live in an austere environment without worsening his condition.” His hip and knee conditions should have also been determined permanently unfitting because the MEB explicitly indicated those injuries would present a decided medical risk to his health, when it found that “[t]he rigors of soldiering would most likely worsen [the applicant's] condition[s].” His commanding officer similarly concluded that he was unable to “perform[] duties in [his] MOS” and recommended he not be retained for further service. x. The MEB similarly concluded that the applicant's ankle conditions rendered him unable to perform the duties of his office, grade, rank or rating because they made him “unable to run, jump or sustain impact,” and unable to “tolerate wear of combat gear.” These conditions should have also been determined permanently unfitting because the MEB explicitly indicated these injuries would present a medical risk to his health when it found that “the “rigors of soldiering would most likely worsen [the applicant's] condition.” The MEB also determined that he could not “perform the required APFT or physical duties for his MOS.” Support for his bilateral ankle condition being unfitting also can be found in his follow-up medical notes. In April 2017, the orthopedist treating him determined that he “would be considered service disqualified in both ankles” and recommended “adding bilateral ankle instability laterally and left ankle OLT to MEB.” This conclusion was confirmed again in September 2017, when his treating orthopedist noted in his medical record that he should “continue moving through the MEB process including (for) his bilateral ankle pain and instability.” y. Furthermore, and at a minimum, the IPEB should have found that the applicant's hip, knees, and ankles were unfitting under a combined effect. Army regulations require the IPEB to consider “the overall effect of disabilities” which may include “physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.” AR 625-40 3-1(b). The Department of Defense follows an identical requirement for the consideration of conditions in combination. See DoDI 1332.18 Appendix 2 to Enclosure 3, Section 4(d), “Combined Effect.” The Army’s failure to evaluate his overlapping symptoms likewise violates federal statute 10 U.S.C. § 1216(b), which requires the Army to “take into account all medical conditions, whether individually or collectively, that render the member unfit.” At a minimum, his hip, knee, and ankles injuries were unfitting under a combined effect. The cumulative effects of these injuries made it impossible for him to perform even basic tasks without experiencing pain or mobility issues and are fundamentally inconsistent with performing the physically demanding duties of his MOS without compromising his well-being or prejudicing the best interests of the government. z. Had the IPEB properly evaluated the applicant's hip, knee, and ankle conditions, it would have found them unfitting. Once deemed unfitting, 10 U.S.C. § 1216(a) requires that the Army adhere to the VA Schedule for Rating Disabilities (VASRD). Using the evidence of limitations provided by the applicant's MEB and VA examinations, and the ratings assigned to those limitations at the time of his discharge, there is no question that he should have been medically retired with at least a 60% disability rating. Specifically, once deemed unfitting, he should have received disability ratings of: (1) 10% for left wrist complex triangular fibrocartilage tear with osteoarthritis; (2) 10% for both the right and left hip trochanteric pain syndrome; (3) 10% for impairment of the left knee; (4) 10% for limitation of flexion of the left knee; (5) 10% for impairment of the right knee; (6) 10% for limitation of flexion of the right knee; (7) 10% for right ankle strain; and (8) 10% for left ankle strain. aa. Conclusion: The applicant's hip, knee, and ankle conditions (as well as his wrist condition) were each unfitting at separation, whether considered individually or collectively. The ABCMR must evaluate the fitness of these conditions under the standards required by 10 U.S.C. § 1201 and DoDI 1332.18. In light of the evidence demonstrating that his conditions prevented him from reasonably performing the duties of his office, grade, rank, or rating, the ABCMR should find those conditions unfitting and assign a disability rating of at least 60%, entitling him to medical retirement and the corresponding payment and benefits. 5. The applicant states: a. He joined the United States Army on 14 February 2006 because he wished to serve his country. He enlisted as a private first class/E-3 with the goal of serving as a paratrooper in the War on Terror and working his way to becoming an officer. During his first term of enlistment, he completed his schooling and earned a Bachelor of Science in Electrical Engineering from The Pennsylvania State University in August 2008. b. He served two deployments in Afghanistan as part of Operation Enduring Freedom. His first deployment lasted from May 2007 to July 2008. During this first deployment, his unit was engaged in frequent deadly firefights. On one occasion, while on a joint patrol, a vehicle in his unit triggered an improvised explosive device, which exploded and caused a firefight between his unit and insurgents. After securing the area, his unit was tasked with recovering and removing the body parts of the five service members killed during the engagement. On another occasion, he witnessed one of his best friends killed during a firefight. He would estimate that during this deployment, his unit participated in more than a dozen firefights per month. c. He also suffered the first of many serious service-related injuries during his first deployment when he fell off a guard tower during guard duty in August of 2007. He fell more than ten feet in full combat gear, landing on his left hip and left wrist. He attempted to recover from this fall with bed rest, but he ultimately needed to be medically evacuated from the base to receive treatment. His sacroiliac joint had been dislocated and needed to be “popped” back in. Additionally, he had chipped a bone in his left wrist. At the time, he believed that he had only sprained his wrist, but later examination would reveal the fracture. He eventually underwent corrective surgery on his wrist in December of 2016, but by that point the loose bodies in that joint had caused the joint to deteriorate beyond repair. d. During his second deployment, he suffered the first of his severe shin injuries. He was working out in the base gym when he heard incoming artillery. He attempted to run to the bunker but inadvertently struck a box with his left shin, tearing the skin and fascia off his shin. He required field surgery which was performed by their brigade surgeon. He eventually re-injured his shins during a jump while stationed at Fort Johnson, LA (formerly Fort Polk) in fall 2012. e. His second deployment to Afghanistan lasted from December 2009 until October 2010, when he returned with the advance party to prepare for Officer Candidate School (OCS). During this second deployment, his unit experienced even more frequent firefights. At times, it seemed that they took enemy fire or artillery on an almost daily basis. By this point, he was serving as his unit’s Senior Radio Telephone Operator, meaning he wore a mobile communications platform on his back that his commanding officer used to communicate. As a result, he was alongside his commanding officer for every firefight they encountered. In total, he spent 25 months of his life in Afghanistan on the front lines. f. Prior to his second deployment, he attended the Warrior Leaders Course in January 2009 and earned the Commandant’s List for having a GPA above 90%. After this, they deployed in December 2009. When he returned, he attended OCS at Fort Moore where he was named to the Commandant’s List, an honor reserved for the 20% of his graduating class. He graduated in July 2011 as a second lieutenant and returned to his duty station and reassigned back to Fort Moore for Infantry Basic Officer Leadership Course. Here again he was an honor graduate and was assigned to his first duty station as a platoon leader and company executive officer (XO). g. His record shows he was a standout officer, reference his OERs, and contributed greatly to his profession. After Fort Johnson, he returned to Fort Moore in July 2014 to the U.S. Army Airborne School, Airborne and Ranger Training Brigade, where he was a company XO and then battalion S4, becoming the first non-civilian to hold that position in more than 20 years. As part of his duties, he oversaw a $12.4 million annual budget. He also led the initiative to move from the T-10D parachute system to the T-11 parachute system. He attended Pathfinder School in November 2014 where he was the Distinguished Honor Graduate. As a Jump Master, he constantly jumped as one of the cadre of “Wind Testers” – or first pass jumpers, who jump first on training runs to ensure that conditions are safe for airborne students. This role is reserved for highly experienced jumpers. For his efforts and contributions, to Airborne School, he was awarded the Order of St. Maurice, April 2016 for contributions to the infantry. His OERs once again show that he was a standout officer no matter the job. h. The combined effect of his many service-related injuries began to hinder him in the performance of his duties. Though it was always his goal to reach 100 jumps and earn his Centurion Wings, he had to stop after 68 jumps because his chronic ankle, shin, knee, hip, and shoulder injuries simply would not permit him to withstanding the physical toll of parachuting and the associated impact. As a result, he had to give up his role as a “Wind Tester” for trainee paratrooper classes. Additionally, his ankle conditions worsened to a point where he was not able to run without serious pain. On multiple occasions, he rolled his ankle, causing him to herniate a disk in his back. He finally determined to seek treatment and visited a podiatrist, but they were unwilling to do anything about it. Along with his other injuries, the most impactful at the time was his left wrist which he eventually had surgery in December 2016. i. Although he always attempted to fight through his injuries to set a good example for his Soldiers, he eventually required and sought treatment. Due to his injuries, he was referred to the Army DES in February 2017. As part of the DES process, he was first evaluated by the MEB. The MEB examined him for 26 physical and mental conditions and found that 7 of these conditions failed medical retention standards. Specifically, the MEB found that his injuries to both knees, both shins, both hips, and to his left wrist rendered him unable to “run, jump, bend, twist, push, pull, lift more than 25 pounds…[or] stand for longer than 20 minutes.” He believes that the MEB evaluated these physical conditions correctly. j. On 7 November 2017, the PEB examined his service-related injuries and found that his injured left wrist rendered him unfit for service and assigned a disability rating of 10%. He believes that the PEB failed to give due weight to evidence showing that his other conditions, including left hip arthralgia, right hip arthralgia, left shin splints, right shin splints, left knee arthralgia, right knee arthralgia, left ankle arthralgia, right ankle arthralgia, left shoulder injuries and left elbow injuries were also unfitting. Accordingly, he believes the PEB should have assigned a disability rating of at least 60%. k. He was separated from service on 23 February 2018. Since then, he has continued to struggle to manage the pain of his many service-related injuries. For example, he continues to experience frequent pain in both shoulders, and lost significant range of motion in those joints. He receives chiropractic treatment once a week for his spine and other joint injuries and he receives epidural injections/facet blocks for his spine several times per year. In addition to the physical toll his injuries have taken, the constant pain has caused him to lose sleep and struggle to focus. He now has to keep notes in front of him when he is working on a task so that he can remember what he is supposed to be doing. l. If the PEB had properly rated his numerous service-related conditions, he would have been entitled to the benefits of full medical retirement. Additionally, it would entitle his wife and son to TRICARE insurance through the Department of Defense. 6. The applicant enlisted in the Regular Army on 15 February 2006. On 6 July 2011, he was discharged for the purpose of accepting a commission in the Army. On 7 July 2011, he was appointed as a commissioned officer in the Regular Army. 7. On 18 April 2017, an MEB, after consideration of the case file (including all available clinical records, laboratory findings, and physical examinations), found the applicant's following diagnosed medical conditions did not meet medical retention standards in accordance with AR 40-501: * osteoarthritis left wrist status post arthroscopy * triangular fibrocartilage complex tear left wrist * hip arthralgia, bilateral * knee arthralgia, bilateral * shin splints, bilateral 8. The MEB recommended the applicant's referral to a PEB. The MEB also determined the applicant's following diagnosed medical conditions met medical retention standards in accordance with AR 40-501: * traumatic brain injury (TBI) with cognitive disorder * migraine headaches * obstructive sleep apnea on continuous positive airway pressure * restless leg syndrome * cervicalgia * lumbar spondylosis with Degenerative Disk Disease (DDD) L2-L3 * arthralgia left and right ankles * post-traumatic stress disorder (PTSD) * gastroesophageal reflux disease * deviated nasal septum * bilateral axillary hyperhidrosis * bilateral gynecomastia * orchialgia right testicle * scars * pneumonia, resolved * temporomandibular joint syndrome * arthralgia left and right shoulders * arthralgia left and right elbows * arthralgia left and right hands * plantar fasciitis bilateral * sensorineural hearing loss both ears * tinnitus both ears * astigmatism 9. The applicant's OER covering the period 4 November 2016 through 4 November 2017, his last OER on record, shows he passed the APFT on 10 November 2016 and contains the entry "Met all physical standards and upholds the guidelines within ADRP [Army Doctrine Reference Publication] 6-22 [Army Leadership]." 10. On 7 November 2017, a IPEB found the applicant unfit for further military service due to left wrist complex triangular fibrocartilage tear with osteoarthritis status post arthroscopy. The IPEB recommended a 10% disability rating and the applicant's separation with entitlement to severance pay. 11. The IPEB found the applicant's diagnoses of bilateral hip arthralgia, bilateral knee arthralgia, bilateral shin splints, bilateral ankle arthralgia not unfitting and stated the following: a. The officer is fit for bilateral hip arthralgia. (1) In full consideration of DoDI 1332.18, Enclosure 3, Appendix. 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 officer or to others. This condition does not impose unreasonable requirements on the military to maintain or protect the officer. The officer reports onset of this condition in September 2007 while deployed to Afghanistan after falling on some steps during guard duty and was treated with pain medication and physical therapy. (2) In October 2007 he was sent out to Forward Operating Base FOB Salerno for further evaluation and treated with manipulation. He was not evaluated again for this condition until he entered the MEB process. VA Compensation and Pension (C&P) Examination documents for the right hip normal range of motion with minimal decreased range of motion of the left hip. Bilaterally no decreased functionality with repetition was noted as well as normal strength without muscle atrophy. The officer has never required profiling or duty limitations secondary to this condition. There is no documentation of further exacerbations from 2007 and no recurrent evaluation or treatment for this condition. The officer's OERs continuously document the officer's superb physical fitness. OER dated through 30 March 2016 shows an APFT score of 292 and Senior Rater addresses his fitness. His OER dated through 31 March 2015 shows a score over 290, states "a true example of a self-driven and highly physically fit Soldier," and "inspired leadership by running the APFT two mile run with each Airborne class." b. The officer is fit for bilateral knee arthralgia. (1) In full consideration of DoDI 1332.18, Enclosure 3, Appendix. 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 officer or to others. This condition does not impose unreasonable requirements on the military to maintain or protect the officer. The officer reports onset of right sided knee pain in September 2011 while stationed at Vicenza, Italy. He was evaluated and treated for a healing tibial stress fracture at that time. (2) He reports he re-injured his knees and shins while stationed at Fort Polk, Louisiana without any documentation for evaluation or treatment. There is documentation of temporary profiling for right knee pain for one month from July-August 2011 and treatment with pain medication and physical therapy while in Germany. VA C&P Examination documents bilateral minimal decrease in range of motion, normal strength testing, stable exam on the left, and only 1 + positive on the Lachman test on the right knee. The officer's OERs continuously document the officer's superb physical fitness. OER dated through 30 March 2016 shows an APFT score of 292 and Senior Rater addresses his fitness. His OER dated through 31 March 2015 shows a score over 290, states "a true example of a self-driven and highly physically fit Soldier," and "inspired leadership by running the APFT two mile run with each Airborne class." c. The officer is fit for bilateral shin splints. (1) In full consideration of DoDI 1332.18, Enclosure 3, Appendix 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 officer or to others. This condition does not impose unreasonable requirements on the military to maintain or protect the officer. Per the VA C&P Examination, the officer reports onset of this condition in 2009 from multiple bad jumps. The officer reports onset of this condition in September 2011 while stationed at Vicenza, Italy per the MEB Narrative Summary (NARSUM). He was evaluated and treated for a healing tibial stress fracture at that time. (2) Review of the officer's profiles indicate he was profiled for only a right tibial stress fracture from 28 September 2011 to 12 November 2011 and then recurred from 26 April 2012 until18 July 2012. There is no documentation for left tibial stress fracture during that lime. The NARSUM indicates a bone scan performed 3 February 2017 "revealed subtle stress related uptakes of both medial tibial plateaus and both medial femoral condyles." The officer's OERs continuously document the officer's superb physical fitness. OER dated through 30 March 2016 shows an APFT score of 292 and Senior Rater addresses his fitness. His OER dated through 31 March 2015 shows a score over 290, states "a true example of a self-driven and highly physically fit Soldier," and "inspired leadership by running the APFT two mile run with each Airborne class." d. The officer is fit for bilateral ankle arthralgia. (1) In full consideration of DoDI 1332.18, Enclosure 3, Appendix 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 officer or to others. This condition does not impose unreasonable requirements on the military to maintain or protect the officer. The officer reports onset of intermittent ankle pain in 2006 since he joined the Army without specific onset. The officer's OERs continuously document the officer's superb physical fitness, without documentation of further re-injury of his ankles. OER dated through 30 March 2016 shows an APFT score of 292 and Senior Rater addresses his fitness. His OER dated through 31 March 2015 shows a score over 290, states "a true example of a self-driven and highly physically fit Soldier," and "inspired leadership by running the APFT two mile run with each Airborne class." (2) He was initially seen for right ankle and lower leg pain on 29 December 2016 and treated conservatively. He was referred to physical therapy 12 January 2017 and referred to podiatry 6 March 2017 after entry into the MEB process. While the MEB Appeal Response notes podiatry stated in April 2017 that the bilateral ankle conditions should fail retention standards, there is no indication that the conditions have limited the officer's performance or required prolonged duty limitations. The Soldier was profiled from 2 December 2015 through 25 February 2016 for an ankle condition with no further indication of difficulty performing due to these conditions. 12. The IPEB found the applicant fit for his additional diagnosed conditions because the MEB indicated the conditions met medical fitness standards, the conditions were not listed on the physical profile as preventing him from performing one or more functional activities, and there is no evidence indicating that performance issues, if any, were due to these conditions. 13. The applicant's DA Form 199 (Informal PEB Proceedings) contains the following statements in Section VI: a. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). b. As documented in the VA memorandum dated 31 October 2017, the VA determined the specific VASRD codes to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed VA disability rating(s) and in accord with applicable statutes and regulations. 14. On 21 November 2017, the applicant indicated he concurred with the IPEB's findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 15. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 February 2018 under the authority of AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, severance pay, combat related (enhanced). He received $146,980.80 in disability severance pay. 16. During the processing of the applicant's previous ABCMR case, an advisory opinion was obtained from the USAPDA Legal Advisor. It states: a. Background: On or about 3 May 2017, the applicant's MEB case was completed and he was found to fail medical retention standards in accordance with AR 40-501, Chapter 3 for the following conditions: (1) osteoarthritis of the left wrist; (2) triangular fibrocartilage complex tear left wrist; (3 and 4) bilateral hip arthralgia; (5 and 6) bilateral knee arthralgia; (7 and 8) bilateral shin splints; and (9-10) bilateral ankle arthralgia. b. During the MEB, the applicant availed himself of his right to file an Impartial Medical Review and an MEB Rebuttal. On 7November 2017, his case proceeded forward to the IPEB. He was found unfit for the above conditions 1 and 2. The VA rated the conditions together to avoid pyramiding. The rating was 10%. Thus, his disposition was separation with severance pay. The IPEB found the other conditions to be fitting. The PEB did an extensive review of his entire ePEB case file as well as his medical records. On 21 November 2017, the applicant was able to review those extensive rationales. He then concurred with the findings of the PEB and waived his formal board and his right to a one-time VA ratings reconsideration. c. Analysis: Meeting or failing to meet retention standards and being medically fit or unfit are not the same. Retention standards are found in AR 40-501, Chapter 3 and fitness standards are found in AR 635-40. For instance, diabetes mellitus, type II will fail retention standards, even if well controlled, if the Soldier is on medications for glycemic lowering. If the same Soldier’s blood glucose A1c is 7.0% or below the PEB will likely find the condition to be fitting. Here, while the MEB found the other conditions to fail retention standards, the PEB did not find them unfitting. The MEB cited the conditions, detailed their onset, and listed out the various treatments for the conditions. In the PEB’s detailed rationale as to why the various conditions (3-10) were not unfitting, the PEB noted that while the conditions did exist, they did not necessarily require treatment as evidenced by the fact that the applicant did not seek medical treatment for almost 10 years for the various conditions. d. In the meantime, the applicant's career progressed as he was successfully able to take on ever increasingly challenging assignments and duties. He was even promoted twice during that 10-year span. Interestingly, sustained treatment for his conditions 3-10 did not begin until after he entered into the IDES. This further evidences that had he been able to continue on with his truly unfitting wrist injury, then he would have been able to continue his career. e. Conclusion: The mere presence of a chronic condition does not make it unfitting. The applicant's conditions listed 3-10 above were extensively reviewed and considered by the IPEB. The IPEB prepared a very well-reasoned explanation of why the conditions listed as 3-10 above were not unfitting. A review of the case file did not find any administrative or legal error. As such, the applicant's request is legally insufficient. 17. The USAPDA advisory opinion was provided to the applicant and given the opportunity to provided additional comments. His counsel responded and stated the following: a. As discussed below, the opinion suffers from analytical and other defects that negate any persuasive value: (1) The opinion fails to address the central arguments raised in the application: that each of the applicant's service-connected injuries rendered him unfit for duty within the meaning of DoDI 1332.1 8, and the combined effect of his disabilities should have resulted in these injuries being found unfit for a total combined disability rating of at least 60%. (2) The opinion mischaracterizes the facts and miscasts irrelevant considerations as dispositive factors. (3) The opinion misapplies the standard for determinations of fitness. A service member should be considered unfit when he or she is "is unable to reasonably perform duties of his or her office, grade, rank, or rating" or where the service member's "disability represents a decided medical risk to the health of the member or to the welfare or safety of other members." (4) The opinion offers the unwarranted and unexplained conclusion that the applicant's application is "legally insufficient." However, the opinion fails to identify any legal standards or principles that compel this conclusion. (5) Because the opinion is unsigned, the Board has no basis to evaluate the credentials or the credibility of the author. (6) These defects render the opinion unpersuasive for consideration by the Board. Accordingly, the applicant respectfully requests that in evaluating his application, the Board disregard the opinion in its entirety. b. The opinion fails to address the evidence presented in the application. The application provides ample evidence to show that at the time of his discharge, the applicant was unable to "reasonably perform" the duties of his office, grade, rank, or rating due to his unfitting bilateral hip, knee, shin, and ankle injuries. For example, the MEB determined that he could not "run, jump, bend, twist, push, pull, lift more than 25 pounds, participate in airborne operations or combatives, wear IBA/IOTV /LBE/ruck sack, climb, crawl, crouch, kneel, stand for longer than 20 minutes, evade direct or indirect fire, or live in an austere environment without worsening his medical condition."' These limitations are attributed not only to his wrist disability, but to his hips, knees, shins, and ankles as well. He could not reasonably perform the rigorous duties of an infantry officer or perform common military tasks like wearing combat gear, taking or passing a physical fitness test, or performing 3-5 second rushes due to his bilateral hip, knee, shin, and ankle injuries. c. Further, in March 2018, the VA determined that the applicant suffered from 51 separate conditions and granted him a total combined disability rating of 100%. The 100% total disability rating from the VA included his left shoulder strain at 20%, limitation of flexion of the right knee at 10%, limitation of flex ion of the left knee at 10%, impairment of the right knee at 10%, impairment of the left knee at 10%, left wrist triangular fibrocartilage complex tear at 10%, and right hip trochanteric pain syndrome at 10%. His total combined disability rating from these and other conditions was 100%. The VA specified that these ratings were effective as of 24 February 2018, one day after his separation from the military. d. The opinion fails to address this and other evidence, and instead concludes that the applicant's application is "legally insufficient" by crediting the PEB's initial conclusions with respect to the applicant's fitness, which are refuted by the evidence presented in the application. The Board's authority under 10 U.S.C. 1552 is to correct errors or remove an injustice from a veteran's military records based on the preponderance of the evidence. Because it completely ignores the evidence cited by the applicant that weighs in favor of granting his application, the opinion should be disregarded in the exercise by the Board of such authority. e. The opinion mischaracterizes the facts and miscasts irrelevant considerations as dispositive factors. In addition to omitting any discussion of evidence helpful to the applicant, the opinion mischaracterizes the factual record to undermine his unfitness claims. In determining that his bilateral hip arthralgia, knee arthralgia, ankle arthralgia, and shin splints are not unfitting, the opinion erroneously states that he "did not seek medical treatment for almost 10 years for the various conditions." The evidence cited in the application directly contradicts this conclusion. For example, the application shows that he sought treatment for right hip arthralgia as early as 2007, and for shin splints as early as 2011. Indeed, his more than 1,400 pages of medical records demonstrate that he frequently sought treatment for his injuries throughout his tenure. To represent otherwise is simply incorrect. f. Additionally, the opinion observes that the applicant "was able to take on ever increasingly challenging assignments and duties" and was promoted twice during his tenure. It is unclear why the author of the opinion believes this is a relevant consideration; it is not. Promotions and performance evaluations are not meant to consider medical issues. See Army Regulation 600-8-29 (Officer Promotions), Department of Army Pamphlet 623-3 (Evaluation Reporting System). Moreover, the focus of the Disability Evaluation System is on a service member's symptoms and duty limitations, and not the number of encounters with a doctor or the service member's relative "success" throughout his or her career. The only relevant consideration is the service member's physical condition at the time of discharge. A service member must be considered unfit when the evidence establishes that they cannot reasonably perform the duties of their office, grade, or rank. See 10 U.S.C. 1201; DoDI 1332.18. g. The opinion misapplies the standards for determination of fitness. The opinion fails to consider that a service member may be considered unfit when their disability "represents a decided medical risk to the health of the member." DoDI 1332.18. As discussed in the application, the MEB found that "the rigors of soldiering would most likely worsen the [Service member's] condition." This finding supports the conclusion that his bilateral hip arthralgia, knee arthralgia, ankle arthralgia, and shin splints are unfitting because it would be a medical risk to his health to stay in the military. Although the applicant raised this argument in his application, the opinion fails to address it. As a result, the opinion should not inform the Board's analysis under this standard. h. The opinion also fails to recognize that a service member can be found unfit for service based on the theory of "combined effect" of multiple injuries. See DoDI 1332.18. A service member may be found unfit "as a result of the combined effect of two or more conditions even though each of them, standing alone, would not cause the service member… to be found unfit because of disability." The applicant asserted that the combined effect of his bilateral hip, knee, ankle, and shin injuries was independently unfitting and should have received its own disability rating. Again, the opinion completely fails to address this argument. i. The opinion offers an unwarranted and unexplained legal conclusion. The opinion, which takes up less than two pages, concludes by stating that the applicant's application is "legally insufficient," but fails entirely to explain what legal standards or principles compel that conclusion. The undersigned counsel has no basis to understand what "legally insufficient" means in this context and submits that this conclusion is unwarranted and not relevant to assist the Board in its evaluation of the evidence. Again, the Board's authority under 10 U.S.C. 1552 is to correct errors or remove an injustice from a veteran's military records based on the preponderance of the evidence, not on some undefined notion of "legal sufficiency." j. The unsigned opinion provides no opportunity to evaluate the author's credentials or credibility. The opinion purports to offer a legal conclusion based on an evaluation of the applicant's medical records, yet there is nothing to indicate that the author is qualified to opine on legal or medical matters. The unsigned opinion provides no opportunity for the undersigned-or indeed, the Board-to evaluate the credentials and credibility of the author. Absent some indicia of the author's professional competency, the Board must disregard the opinion in its entirety. k. For the foregoing reasons, the applicant respectfully requests that in evaluating his application, the Board disregard the findings and conclusions presented in the opinion in their entirety. 18. During the processing of the applicant's previous ABCMR case, the Army Review Boards Agency (ARBA) medical staff provided a medical advisory opinion. It states: a. 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 PEB (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and 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 that addition medical conditions be determined unfitting for continued military service, a corresponding increase in his military disability rating, and that his disability discharge disposition be changed from separated with disability severance pay to permanent retirement for physical disability. He requests: The Army PEB evaluated [the applicant's] in November 2017. Despite the Army Medical Evaluation Board's finding that [the applicant] suffered from eight separate duty-limiting conditions that failed to meet Army medical retention standards, the PEB found only that one of these conditions was unfitting, and assigned [the applicant] a disability rating of only 10%. The PEB's finding was in error and [the applicant] now requests that his medical records are corrected to reflect at least a 60% disability rating. c. A Soldier is referred to the 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 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 PEB for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VASRD. The 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 2 February 2017, the applicant was referred to the IDES for “left wrist traumatic arthropathy, S/P 5th metacarpal open reduction with internal fixation (ORIF) and loose bodies wrist, S/P surgery.” The applicant claimed thirty-two additional conditions on a separate Statement in Support of Claim (VA Form 21-4138). g. An MEB determined the referred condition, and an additional nine condition failed the medical retention standards of AR 40-501: triangular fibrocartilage complex tear left wrist; arthralgia left hip; arthralgia right hip; arthralgia left knee; arthralgia right knee; shin splints, right lower extremity with stress changes, tibia; shin splints, left lower extremity with stress changes, tibia; arthralgia left ankle; arthralgia left ankle. they determined twenty-four other medical conditions met medical retention standards. arthralgia is a general term which means pain in a joint. h. The applicant had appealed the MEB’s findings requesting that his TBI with cognitive disorder and PTSD also be found to fail medical retention standards. In his three-page reply to the applicant’s appeal, the reviewing psychologist’s reviewed and discussed the applicant’s conditions, going on to conclude that they both met medical retention standards. The MEB, including his appeal and appeal response, was forwarded to the PEB for adjudication i. On 7 November 2017, the applicant’s informal PEB found his “left wrist complex triangular fibrocartilage tear with osteoarthritis status post arthroscopy” to be the sole unfitting for continued military service. They found the thirty-two remaining medical conditions not unfitting for continued service. j. While the MEB is tasked with determining whether a condition fails or meets medical retention standards in accordance with chapter 3 of AR 40-501, the PEB is tasked with determining whether a condition is or is not unfitting for continued military service in accordance with chapter 5 of AR 635-40. Thus, a PEB may determine a condition not unfitting for continued military service after an MEB has found it to fail medical retention standards; or they may determine a condition unfitting for continued military service despite it having been determined by the MEB to meet medical retention standards. The criteria for these findings are different. k. The overarching principal for fitness determinations is in paragraph 5-1 (Standard for unfitness due to disability) of AR 635-40 which states a Soldier will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating (hereafter call duties) to include duties during a remaining period of Reserve obligation. PEB’s are required to explain their rationale for determining a condition the MEB found to fail medical retention standards as not unfitting for continued military service. This PEB did that for each condition. As each rationale is rather lengthy, the board is referred to the Informal Physical Evaluation (PEB) Proceedings (DA Form 199) in the supporting documentation. l. In general, the PEB noted relatively few clinical encounters for these conditions, few if any issues identified on the applicant’s IDES VA Compensation and Pension Examinations, and that “The evidence supports that this condition does not prevent reasonable duty performance.” They conclude their rationales with: OER dated through 30 March 2016 shows an APFT score of 292 and Senior Rater addresses his fitness. His OER dated through 31 March 2015 shows a score over 290, states "a true example of a self-driven and highly physically fit Soldier," and "inspired leadership by running the APFT two mile run with each Airborne class. m. The PEB applied the Veterans Benefits Administration derived rating of 10% and recommended the applicant be separated with disability severance pay. On 21 November 2017, after being counseled by his PEB Liaison Officer (PEBLO) on the PEB’s findings and recommendations, the applicant concurred with the PEB’s finding and waived a VA reconsideration of the rating for viral hepatitis. n. Review of his PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies in or material discrepancies. o. His records in JLV show he has been awarded multiple service-connected disability ratings. However, the DES compensates an individual only for service incurred 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 during or permanently aggravated by their military service. These roles and authority are granted by Congress to the VA and executed under a different set of laws. p. Given no evidence of error or injustice, it is the opinion of the Agency Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the IDES is warranted. 19. In the applicant's previous ABCMR case, the Board determined that based upon the available documentation and the findings of the medical advisor, there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. 20. The applicant's VA rating decisions show he was granted service-connected disability compensation for various medical conditions with a combined rating of 100%. 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, Code of Federal Regulations, Part IV is the VASRD. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. A majority of the Board concurred with counsel’s conclusion that the applicant should have been found unfit for each of the following conditions at the percentages indicated: * 10% for left wrist complex triangular fibrocartilage tear with osteoarthritis * 10% for both the right and left hip trochanteric pain syndrome * 10% for impairment of the left knee * 10% for limitation of flexion of the left knee * 10% for impairment of the right knee * 10% for limitation of flexion of the right knee * 10% for right ankle strain * 10% for left ankle strain 3. A majority of the Board determined the applicant’s record should be corrected to reflect findings of unfitting for each of the above-listed diagnoses not previously found unfitting, to reflect that his combined disability rating is 60%, and to reflect that he was retired for permanent disability. 4. The member in the minority found insufficient evidence to support a combined disability rating of 60%, determining the evidence only supports a combined disability rating of 30%. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X GRANT FULL RELIEF :X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was found unfit for each of the following conditions at the percentages indicated, received a combined disability rating of 60%, and was retired for permanent disability: * 10% for left wrist complex triangular fibrocartilage tear with osteoarthritis * 10% for both the right and left hip trochanteric pain syndrome * 10% for impairment of the left knee * 10% for limitation of flexion of the left knee * 10% for impairment of the right knee * 10% for limitation of flexion of the right knee * 10% for right ankle strain * 10% for left ankle strain 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, United States 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 DES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of DODI 1332.18 and AR 635-40. 2. AR 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination or directed by medical providers. 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 or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. c. Service members whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. e. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition, which is not in itself, considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 3. Directive-type Memorandum (DTM) 1-015, dated 19 December 2011, explains the IDES. It states: a. The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Boards for Correction of Military Records (BCMR) procedures of the Military Department concerned, the former service member may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006306 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1