IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230009006 APPLICANT REQUESTS: in effect, physical disability retirement in lieu of separation with severance pay. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * My HealtheVet - Personal Information Report (Department of Veterans Affairs (VA) health record), 839 pages 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 indicates in a personal statement that he was awarded a 10% disability evaluation for chronic abdominal pain, cholecystectomy, but he believes this should have been rated as at least 30% disabling. He was not fully/properly rated for Gastroesophageal Reflux Disease (GERD) even though he was placed on several GERD medications while on active duty. He was placed on Esomeprazole 40mg and Omeprazole 40mg. Additionally, he was diagnosed with gastritis while on active duty and this was not evaluated during his discharge. He was also not rated for acute or chronic pancreatitis although it turned into chronic pancreatitis soon after he was discharged and is rated 30% disabling by the VA. a. While in service, he was taking Motrin, Oxycodone, Zanaflex, Nortriptyline, Tramadol, and Cholestyramine for his symptoms for mostly pain, without substantial improvement. He was also seen by the pain management clinic. b. He also had other symptoms such as diarrhea and nausea and he was prescribed several different medications. Shortly after he was discharged, he was diagnosed with diabetes mellitus type 2 and high cholesterol as a sequela of the chronic pancreatitis. He was consequently placed on antidiabetics and anti-cholesterol medications which he has been taking since he was in the military. Since he was discharged his cholesterol and blood glucose has been persistently high despite being on medication. c. He also suffers from chronic diarrhea since his surgery. His medical problems contributed to his chronic major depression which he battles every day. d. His request to upgrade his narrative reason for separation from disability, severance pay, non-combat related to medical retirement is based on his award of a 30% evaluation for gall bladder removal with severe symptoms, due to being on so many pain medications, antinausea, and antidepressants. Pancreatitis with 30% (Moderately severe; with at least 4-7 typical attacks of abdominal pain per year with good remission between attacks). He had several attacks while in the military. 3. The applicant provided his My HealtheVet - Personal Information Report (VA health record), consisting of 839 pages of medical records. His VA Rating Decision is not included in the available evidence. 4. On 19 March 2013, the applicant enlisted in the Regular Army (RA) for 4 years. He was not awarded a military occupational specialty. His DA Form 199 (Informal PEB Proceedings) are not available for review with this case. 5. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows an Informal PEB convened on 25 October 2013 and found the applicant physically unfit and recommended a rating of 10% and that his disposition be separated with severance pay. a. The applicant s sole unfitting condition was chronic abdominal pain, status post cholecystectomy. The PEB noted: The Soldier began having abdominal pain in the 5th week of Basic Combat Training (BCT). Despite treatment including surgery (3 June 2013, cholecystectomy), his impairment continues. He reports generalized abdominal pain. This condition is unfitting because this Soldier is restricted from moving 40 pounds (e.g. duffle bag) for at least 100 yards while wearing the usual protective gear, which precludes the performance of his military duties in an austere environment; IAW DODI 1332.38, E3.P3.2.2, the PEB determined that continued exposure to the rigors of military service would create an unreasonable risk to the Soldier's health and would also impose unreasonable requirements on the Army to maintain the Soldier's health. His examination revealed an abdomen normal on visual inspection, well healed Iapar d. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier s 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 conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21- 4138). e. 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. All conditions are then rated by the VA prior to the Soldier s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier s unfitting condition(s), thereby determining their 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. The applicant was referred to the IDES for Chronic abdominal pain status post cholecystectomy. His VA form 21-0819 is not available for review, but it appears he claimed two additional medical conditions. A medical evaluation board (MEB) determined the referred condition failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined two additional medical conditions met medical retention standards, including Chronic cholecystitis and Acute pancreatitis (resolved). From the MEB narrative summary for these two conditions: a. Acute pancreatitis: In April 2013, possibly secondary to gallbladder disease and now resolved, not duty limiting. b. Chronic cholecystitis: This is a pathologic diagnosis based on examination of the specimen removed at the time of cholecystectomy, which was done 3 June 2013. This is not a duty limiting problem. g. On 24 September 2013, the applicant agreed with the board s findings and recommendation, declined an independent medical review, and his case was forwarded to a physical evaluation board (PEB) for adjudication. h. On 25 October 2013, the applicant s informal PEB found his Chronic abdominal pain, status post cholecystectomy to be the sole unfitting medical condition for continued service. They determined the remaining two medical conditions were not unfitting for continued military service. The PEB applied the VBA derived rating of 10%, and because the applicant s combined military disability rating was less than 30%, the PEB recommended the applicant be separated with disability severance pay. i. On 29 October 2013, after being counseled on the informal PEB s findings and recommendation by his PEB Liaison Officer (PEBLO), he concurred with the informal PEB s findings and waived his right to a formal hearing. j. Review of the DES case file in ePEB and his records in the EMR show the findings throughout his DES process are consistent with the medical evidence in the case file. No material errors, discrepancies, or omissions were identified. k. There is no significant probative evidence the applicant had any additional medical condition(s) which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge; or which prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. l. Review of his records in JLV shows he has been awarded multiple VA service-connected disability ratings, including ratings for major depressive disorder (70%) and inflammation of the pancreas (60%). 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; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. m. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. b. The PEB found the following conditions not to be unfitting both individually and in combination with other conditions. These conditions (individually and in combination) were not associated with profile limitations and did not impact the Soldier s ability to perform any one of the ten functional activities. The MEB had indicated these conditions met medical retention standards. * chronic cholecystitis * acute pancreatitis, resolved 6. Orders 308-1107 from Headquarters, United States Army North (Fifth Army) Joint Base San Antonio, Military Personnel Division assigned him to the U.S. Army Transition Point with a 10% disability rating and a discharge date of 4 November 2013. 7. A DD Form 214 confirms on 4 November 2013, the applicant was discharged, he completed 7 months and 16 days of net active service during this period. His DD Form 214 shows in: * Type of Separation, Discharge * Character of Service, Honorable * Separation Authority, AR 635-40, chapter 4 * Separation Code, JFO * Reentry Code, 3 * Narrative Reason for Separation, Disability, Severance Pay, Non-Combat Related 8. AR 635-40, states 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. 9. 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. 10. 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. An award of a VA rating does not establish an error or injustice on the part of the Army. 11. Title 38, Code of Federal Regulations, 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 their 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. 12. 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, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting an increase in his military disability rating and change in his current disability separation disposition from separated with disability severance pay to permanent retirement for physical disability. The applicant states in part: I was awarded 10% for chronic abdominal pain, S/P cholecystectomy but I believe this should have been rated at least 30%. I was not fully diagnosed/properly diagnosed with GERD and hence not rated for it although I was placed on several GERD medications while active duty (Esomeprazole 40mg, omeprazole 40mg). I was also diagnosed with gastritis while in service and this was not considered during discharge. I was not rated for acute or chronic pancreatitis although it turned into chronic pancreatitis soon after discharge and was rated 30% by the VA on November 2013 soon after army discharge. c. The Record of Proceedings details the applicant s service and the circumstances of the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 19 March 2013 and was separated with $10,724.40 of disability severance pay on 11 December 2013 under provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). d. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier s 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 conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). e. 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. All conditions are then rated by the VA prior to the Soldier s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier s unfitting condition(s), thereby determining their 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. The applicant was referred to the IDES for Chronic abdominal pain status post cholecystectomy. His VA form 21-0819 is not available for review, but it appears he claimed two additional medical conditions. A medical evaluation board (MEB) determined the referred condition failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined two additional medical conditions met medical retention standards, including Chronic cholecystitis and Acute pancreatitis (resolved). From the MEB narrative summary for these two conditions: a. Acute pancreatitis: In April 2013, possibly secondary to gallbladder disease and now resolved, not duty limiting. b. Chronic cholecystitis: This is a pathologic diagnosis based on examination of the specimen removed at the time of cholecystectomy, which was done 3 June 2013. This is not a duty limiting problem. g. On 24 September 2013, the applicant agreed with the board s findings and recommendation, declined an independent medical review, and his case was forwarded to a physical evaluation board (PEB) for adjudication. h. On 25 October 2013, the applicant s informal PEB found his Chronic abdominal pain, status post cholecystectomy to be the sole unfitting medical condition for continued service. They determined the remaining two medical conditions were not unfitting for continued military service. The PEB applied the VBA derived rating of 10%, and because the applicant s combined military disability rating was less than 30%, the PEB recommended the applicant be separated with disability severance pay. i. On 29 October 2013, after being counseled on the informal PEB s findings and recommendation by his PEB Liaison Officer (PEBLO), he concurred with the informal PEB s findings and waived his right to a formal hearing. j. Review of the DES case file in ePEB and his records in the EMR show the findings throughout his DES process are consistent with the medical evidence in the case file. No material errors, discrepancies, or omissions were identified. k. There is no significant probative evidence the applicant had any additional medical condition(s) which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge; or which prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. l. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including ratings for major depressive disorder (70%) and inflammation of the pancreas (60%). 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; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. m. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant s contentions, military record, regulatory guidance and other supporting documentation as provided. 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. Evidence of record shows that the applicant was counseled on the PEB findings and recommendation of the PEB Liaison Officer, concurred with the informal PEB findings and waived his right to a formal hearing. Further, documentation shows that the DES process findings are consistent with the medical evidence in the applicant s file. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The 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. Title 10, USC, 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 IAW DOD Directive 1332.18 and AR 635-40. a. Soldiers are referred to the disability system when they no longer meet medical retention standards IAW AR 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by a military occupational specialty medical retention board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set 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. 4. Title 38, USC, 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 U.S. will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, USC, 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 U.S. will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 7. 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230009006 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1