IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100028635 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his Army disability retirement rating be increased from 40 percent (%) to 80% based on the increase in his disability rating by the Department of Veterans Affairs (VA).

2.  The applicant states he was processed under the new joint Disability Evaluation System (DES) Program where both the Army and the VA jointly determined his disability rating.  His injuries were his neck, which caused nerve damage that directly affects both of his arms.  He was specifically told that all of his injuries were due to his neck injury including pain in both of his arms.  He states his condition has not changed since his injury and the original rating of 
40% is in error.  He states the VA agrees his condition should have been rated at 80%.

3.  The applicant provides:

* a DES Proposed Rating, dated 22 June 2009
* two pages from his Physical Evaluation Board (PEB) Proceedings, dated 
24 June 2009
* a memorandum from the U.S. Army Physical Disability Agency (USAPDA), dated 10 July 2009
* Orders D191-04, issued by the USAPDA, dated 10 July 2009
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 14 August 2009
* 
a VA Rating Decision, dated 1 December 2009
* his request to the State Adjutant, Pennsylvania Army National Guard (PAARNG), dated 23 August 2010
* a letter from the Chief, Medical Branch, PAARNG, dated 9 September 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the PAARNG on 31 May 2002.  He had previously served 2 years of active service, and 11 years and 11 months of inactive service. He was awarded military occupational specialty 11B (Infantryman).

2.  As part of a joint Pilot Program between the VA and the Department of Defense, his disability ratings were provided by the VA.

3.  A DES Proposed Rating from the VA, dated 22 June 2009, provided the following proposed disability ratings for the PEB referred proposed DES service-connected disabilities:

* cervical spine degenerative disc disease with history of herniated disc - 
30% disabling
* cervical radiculopathy of the left arm (also claimed as bilateral shoulder and arm, tricep area) non-dominant - 20% disabling

The proposed service-connected combined evaluation for DES purposes was 40%.

4.  On 24 June 2009, an informal PEB found the applicant physically unfit for the following conditions:

* cervical spine degenerative disc disease with history of herniated disc - 
30% disabling
* cervical radiculopathy of the left arm (also claimed as bilateral shoulder and arm, tricep area) non-dominant - 20% disabling

5.  The informal PEB recommended a combined rating of 40% and that the applicant be placed on the Retired List due to disability.  The PEB also found his disability was not based on an injury or disease received as a direct result of armed conflict or caused by an instrumentality of war, incurred during a period of war as defined by law.

6.  On 25 June 2009, he acknowledged he had been advised of the findings and recommendation of the PEB and he had received a full explanation of the results of the findings and recommendation and his legal rights pertaining thereto.  He concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  He did not request reconsideration of his VA disability ratings.

7.  Orders D191-04, issued by the USAPDA, dated 10 July 2009, released him from his assignment and duty and placed him on the Retired List effective 
14 August 2009 due to disability.  His percentage of disability was 40%.

8.  A VA Rating Decision, dated 1 December 2009, increased his disability ratings.

	a.  The evaluation of cervical radiculopathy, right arm was increased to 40% disabling effective 8 October 2009, the original date of claim for this condition.  This evaluation was based on medical evidence dated 17 October 2009 from his doctor and outpatient treatment records from 3-24 November 2009.

	b.  The evaluation of cervical radiculopathy of the left arm (also claimed as bilateral shoulder and arm, tricep area) non-dominant was increased to 
30% disabling effective 8 October 2009.  This evaluation was based on medical evidence dated 17 October 2009 from his doctor and outpatient treatment records from 3-24 November 2009.

	c.  The evaluation of cervical spine degenerative disc disease with history of herniated disc was continued at 30% disabling.

9.  On 25 May 2011, an advisory opinion was received from the USAPDA.  The advisory official stated the applicant has not provided any evidence of any error in the PEB's findings or the VA's ratings of 22 June 2009.

	a.  Under the Pilot Program Operations Manual he was authorized the normal election and appeal process for the PEB's findings of unfitness, but he was only authorized to request reconsideration of the VA's rating decisions.  After retirement he was entitled to appeal the VA's rating findings of 22 June 2009.  On 25 June 2009, he concurred with the PEB's findings and did not request reconsideration of the VA's ratings.

	b.  Because he did not request reconsideration or file an appeal of his VA Pilot Program ratings of 22 June 2009, the subsequent VA increases of 
1 December 2009 was not an acknowledgement by the VA that the 22 June 2009 findings were incorrect.
	c.  The 1 December 2009 VA findings were reflective of new evidence that had come to light as a result of changes to his conditions after his retirement and were not indicative of any error in the rating of his unfitting conditions at the time of his retirement.

	d.  The addition of a new rating for his right arm would not be included in any ratings change to his military retirement because it was not found to be unfitting at the time of his retirement.

	e.  His VA ratings increases were not the result of any appeal or reconsideration of his Pilot Program's VA ratings of 22 June 2009.  The 
1 December 2009 VA ratings were normal VA increases based on post- retirement changes to his medical conditions.

10.  On 8 July 2011, he submitted a rebuttal to the USAPDA opinion.  He states he told all who would listen that he had pain and numbness in both arms.  He was informed that because the new board was a joint venture between the Department of Defense and the VA, when the doctors asked him which arm was more severe he told them the left arm was worse.  He was told not to worry, that he could get these things reconsidered even after his discharge.  He was examined by the VA in May and November 2009 and both times his injuries were determined to be service-connected.  He states he was rushed through the Pilot Program.  He was clearly told that his condition was very severe and he had to be discharged; however, he did not want to be discharged.

11.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  He concurred with the findings of his PEB and he did not request reconsideration of the disability ratings provided by the VA.  There is no evidence he appealed the VA's rating of 22 June 2009 after he was retired.

2.  The VA Rating Decision, dated 1 December 2009, increased his disability ratings based on his medical records that were dated 3 months after his retirement.  The effective date of the increase in evaluations was 8 October 2009, 2 months after the date of his retirement.  Therefore, there is no evidence the VA ratings of 22 June 2009 were in error.

3.  Cervical radiculopathy, right arm was not found to be an unfitting medical condition by the PEB.  The VA found this condition to be 40% disabling effective 8 October 2009.  Therefore, any evaluations of this medical condition would not change the disability rating he received when he retired.

4.  The disability rating assigned by the Army was based on the level of disability at the time of his separation on 14 August 2009.  The VA Rating Decision of 
1 December 2009 did not change their original DES Proposed Rating of 22 June 2009.  The 1 December 2009 VA ratings were normal VA increases based on post-retirement changes to his medical conditions.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  Therefore, there is an insufficient basis to increase his Army disability retirement rating.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  x _______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20100028635



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ABCMR Record of Proceedings (cont)                                         AR20100028635



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