IN THE CASE OF:	  

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120002361 


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 correction of his records to reflect he retired due to a permanent physical disability rated at least 40 percent effective 24 February 2011.

2.  The applicant states he should have been medically retired based on his being found unfit due to physical disability.  He further contends that his original disability rating was corrected from 20 to 40 percent based on the Department of Veterans Affairs (VA) reconsideration of the VA decision.

3.  The applicant provides copies of:

* VA Rating Chart for VA Schedule for Rating Disabilities (VASRD) code 5002 (Rheumatoid Arthritis (RA))
* Physician Referral dated 19 August 2010
* VA Decision Review Officer Reconsideration dated 15 September 2010
* VA Benefits Estimate dated 16 September 2010
* VA Memorandum dated 19 October 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 23 February 2011
* VA Decision Review Officer (DRO) Decision dated 18 October 2011
* Service medical records (copies) from April 2007 to April 2010
* Amplification of Minimal Standards for Deployment to Central Command Area of Responsibility


CONSIDERATION OF EVIDENCE:

1.  On 27 February 2003, the applicant enlisted in the Regular Army.  He completed his initial training and subsequently served through two additional reenlistments.  He attained the rank of staff sergeant, pay grade E-6.

2.  A 4-page Medical Record Report, Bassett Army Community Hospital, dated
19 August 2010, states the applicant was a physician referral.  The applicant's chief complaint was inflammation, stiffness and pain, associated with RA.

	a.  The applicant was initially diagnosed on 16 September 2007 with RA based on pain and swelling in his hands, feet, and elbows during deployment.  The diagnosis was based on clinical presentation and laboratory evaluation.  He was initially prescribed prednisone and then began on sulfasalazine, folic acid, plaquenil, and methotrexate.  He was subsequently referred to a rheumatologist at Oregon Health Sciences University.  In January 2010, his medication was changed to humira because the previous medications failed.  A diagnosis of RA requiring humira for treatment does not allow for deployment.  Therefore, a permanent profile was initiated and a medical board begun.

	b.  This medical report further states that at the time the applicant was on humira and was able to perform most of the duties of his military occupational specialty (MOS), except in hot weather when he has additional problems with his joints.  He is able to perform all the activities of his private life.  However, this improved condition is dependent on humira, which he must take on a regular basis.  He is unable to do the duties of his MOS in a sustained manner, having both good and bad days.

	c.  The applicant has been compliant with all medical treatment recommendations.  His physical profile is for RA, bilateral hand pain, as well as bilateral knee and foot pain.

	d.  The applicant is unable to carry and fire his assigned weapon.  He is unable to carry a fighting load for 2 miles and is nondeployable based on his treatment with humira.  He has significant physical training limitations.  The final diagnosis is RA.

	e.  The referring physician concluded that the applicant did not meet retention standards as a result of RA requiring humira therapy and, therefore, referred him to the Physical Evaluation Board (PEB) for adjudication.


3.  On 15 September 2010, in a DRO Reconsideration, the VA provided the following determination under the Disability Evaluation System (DES) Pilot Program.

	a.  The DRO states that on 14 June 2010 the applicant underwent a medical examination during which he reported that he had been diagnosed in 2007 with RA and was taking medication to treat his condition.  His condition was stable and he had not experienced any incapacitating episodes.

	b.  The DRO stated the applicant's condition had been reviewed on 19 August 2010 by an MEB and by a PEB on 9 September 2010, resulting in a decision that his condition did not allow him to meet retention standards.

	c.  The DRO proposed establishment of service connection for RA with a disability rating of 20 percent.  A higher evaluation of 40 percent was not found to be warranted because there was no objective evidence showing the combination of his symptoms produced definite impairment of health or that he had 3 or more incapacitating exacerbations in a year.

4.  On 16 September 2010, the VA Benefits Estimate proposed a 20 percent disability rating for his unfitting condition of RA, with service connection.

5.  In a VA Memorandum, dated 19 October 2010, the DRO considered the applicant's request for reconsideration of the earlier VA rating decision.  The DRO confirmed and continued the 20 percent rating evaluation for RA.  The DRO restated the criteria discussed in paragraph 3c above and noted there was no evidence showing that a higher evaluation was warranted.

6.  On 20 October 2010, an informal PEB convened at Fort Lewis, Washington.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and MOS and determined he was physically unfit due to RA.  The PEB listed VASRD Code 5002, Rheumatoid Arthritis:  20 percent.

7.  On 30 November 2010, the applicant, through his counsel, submitted a request for a formal PEB.  He had previously elected to concur with the informal PEB; however, based on new information, he now disputed the informal PEB rating of 20 percent.

8.  On 1 December 2010, the applicant's case was returned for a formal board.

9.  On 8 December 2010, the applicant's commander was notified of the formal PEB scheduled for 7 January 2011.

10.  On 6 January 2011, the applicant withdrew his request for a formal PEB.  He based this request on discussion with his legal counsel concerning his options and legal rights.  However, he reserved the right to submit a request for reconsideration.

11.  On 23 February 2011, the applicant was discharged with an honorable characterization of service due to physical disability, with severance pay, non-combat.  

12.  On 18 October 2011, a VA DRO Decision, increased the applicant's disability rating for RA to 40 percent effective 24 February 2011, the day after he was discharged from active duty.

	a.  This decision was based on the applicant's Notice of Disagreement received by the VA on 9 August 2011.

	b.  The DRO stated the applicant's service treatment records from June 2009 to April 2010, a 10-month period, showed that he had suffered multiple exacerbations of arthritis in his hands, fingers, and other areas of his body.  In conjunction with his physical examinations, his commander provided a performance and functional statement showing that his disability had prevented him from engaging in his occupational duties.

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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.  

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

16.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

17.  A Policy and Procedural Directive-Type Memorandum (DTM) established the DOD guidance for the overall implementation and management of the DES Pilot Program.  The DES Pilot will, for a limited period of time, test a new DOD and VA disability system.  The DES Pilot will be a service member-centric initiative designed to eliminate the duplicative, time-consuming, and often confusing elements of the two current disability processes of the Departments.  Key features of the DES Pilot include one medical examination and a singlesourced disability rating.  The DOD administered, comprehensive, VA protocol-based, general medical and specialty medical examinations will serve the needs of the Military Department PEBs in determining a service member’s fitness for continued military service and will serve the needs of the VA Rating Board in determining the appropriate disability rating to be awarded a service member for military unfitting and member claimed medical conditions incurred or aggravated as the result of military service.  The disability rating awarded by the VA Rating Board, specifically for the military unfitting medical condition(s), will serve as the basis for determining a DES Pilot participant’s final disposition (separation with disability severance pay or disability retirement) from military service, except as provided in paragraph 4.2.  The VA Rating Board’s combined disability award, for all medical conditions rated, shall be the basis for determining disability compensation payments and benefits administered by the VA.

	a.  Paragraph 4.2 states for the purpose of the DES Pilot and under the authorities granted by Title10, U.S. Code, sections 113, 3013, 5014, and 8013, 
the Military Department Secretary concerned will use the VA disability ratings awarded to each of the military unfitting conditions to determine combined DOD disability rating for all military unfitting conditions.  As an exception to the above and in accordance with DODI 1332.39, paragraphs 6.1.3 and 6.11, the Military Department Secretary concerned may adjust the VA disability ratings awarded for conditions that result or are aggravated as a consequence of the Service member’s non-compliance with prescribed treatment or for conditions that existed prior to service (EPTS).

	b.  Paragraph 5.4 states the Secretaries of the Military Departments shall correct the records of veterans who separate in the pilot to reflect disability ratings of military unfitting conditions that are adjusted by the VA if the veteran successfully appeals those ratings to the VA and the respective Military Department Board for Correction of Military Records (BCMR) after separation.

	c.  Paragraph 6.3.3.3 states service members who accept the informal PEB unfit determination may request reconsideration of their VA disability rating(s) by notifying their PEB liaison officer (PEBLO), in writing, within five calendar days of receiving the VA disability rating from the PEBLO.

	d.  Paragraph 6.3.9. states upon separation from military service for medical disability, veterans may request correction of their military records through their respective BCMR if new information on their case is made available that may result in a different disposition.  For example, post-separation appeal of a VA disability rating may warrant a change in the Military Department's disability disposition from separation to disability retirement or may change retired pay.

	e.  Paragraph 6.14.12.states if the result of a post-separation VA adjudication of an unfitting disability rating appeal would have materially altered the DOD disability disposition (e.g., increased the amount of DOD disability compensation or changed the disposition from disability separation to permanent disability retirement), the respective Military Department will, upon receipt of a request from the member through the respective BCMR, correct the service member’s record and implement necessary compensation and benefit changes.  The Military Department will forward the corrected service member’s DD Form 214 to the VA Regional Office as outlined in paragraph 6.14.9., and the BCMR will provide for an expedited review of veterans’ requests to correct their Service disability record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to a permanent physical disability rated at least 40 percent effective 24 February 2011.  He argues that this correction is required based on the VA correcting its original rating decision.

2.  The available evidence clearly shows that the applicant was diagnosed with RA and found to be unfit for retention by an informal PEB.

3.  The original VA rating decision determined that his unfitting condition warranted only a 20 percent disability rating based on the standards established in the VASARD.  However, after a second reconsideration, this determination was found to be in error.  Accordingly, the rating was increased to 40 percent.

4.  As authorized by the DTM, if the result of a post-separation VA adjudication of an unfitting disability rating appeal would have materially altered the DOD disability disposition (e.g., increased the amount of DOD disability compensation or changed the disposition from disability separation to permanent disability retirement), the respective Military Department will, upon receipt of a request from the member through the respective BCMR, correct his/her record and implement necessary compensation and benefit changes.

5.  Based on the foregoing, the applicant's DA Form 199 (PEB) should be corrected to show a rating of 40 percent for VASRD Code 5002, and his final disposition to be permanent retirement.  He should be entitled to any back retired pay as a result of this correction.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

7.  In view of the above, the applicant's request should be granted.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

	a.  Amending his DA Form 199 by:
   
* deleting from item 8a (VA Code) the rating of 20 percent that pertains to code 5002 and adding the rating of 40 percent
* deleting from item 8b (Disability Description) any reference to his disability rating being less than 30 percent
* deleting from item 9 the combined rating of 20 percent and adding the combined rating of 40 percent
* deleting from item 9 the disposition pertaining to severance pay and adding the disposition pertaining to retirement

	b.  Amending his separation orders and DD Form 214 by:

* revoking any separation orders or amendment that authorized him severance pay
* issuing retirement orders placing him on the retired list by reason of physical disability
* voiding his current DD Form 214 and issuing him a new DD Form 214 that reflects his medical retirement under the appropriate authority and with the appropriate codes

	c.  Auditing his record and paying him any back retired pay due as a result of this correction.




      _______ _   _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)                                         AR20120002361





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ABCMR Record of Proceedings (cont)                                         AR20120002361



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