BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120003820 


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 permanent physical disability at the rate of 40 percent (%) effective 20 October 2010 instead of the medical discharge with entitlement to severance pay.

2.  The applicant states:

* A post-separation physical by the Department of Veterans Affairs (VA) adjudicated his disabilities at 40%
* He was referred to the Pilot Physical Disability Evaluation System (PDES) for the disabilities he incurred while on active duty
* Under this program, he was evaluated in July 2009 by the VA's contractor to determine his fitness and appropriate rating
* After reviewing the VA's report, he was convinced that it was ineffective; he requested an independent provider review the findings
* The independent provider conducted a thorough examination and concluded that he (the applicant)) failed retention standards for his knees and back
* The VA proposed a rating of 10% for the left knee, 10% for the right knee, and 0% for the back
* In June 2010, he requested reconsideration of his back rating and provided supporting evidence, but the VA denied his request
* The physical evaluation board (PEB) recorded the VA's ratings as required by the Pilot Program and because his combined rating was 20%, he only qualified for severance pay
* He was discharged in August 2010 with entitlement to severance pay; his orders were later amended to reflect his correct grade
* After discharge, he claimed his back condition with the VA and he received a 20% rating for the back condition, now called lumbago
* This rating was recently changed to 10% as shown in the VA's rating decision, dated December 2011
* Under the directive governing the DES Pilot Program, if the result of a post-VA adjudication of an unfitting disability rating appeal materially alters the DOD disability disposition, the military department would correct the record and implement necessary compensation
* Under the VA Schedule of Rated Disabilities (VASRD) code 5242 (spine) he should have been rated at 20% for his back disability at the time of his separation from the Army
* Had he been rated appropriately at 20% for his back, his combined rating would have been at 40%
* The VA has corrected the error on their part but cannot change the military separation to medical retirement

3.  The applicant provides:

* VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim)
* Memorandum, dated 21 November 2007, Subject: Policy and Procedural Directive – Type Memorandum (DTM) for the DES Pilot Program
* Impartial Provider Review Request
* Request for Independent Medical Evaluation
* Medical Statement
* VA rating decision, dated 8 June 2010
* Request for DES Pilot Rating Reconsideration for [Applicant]
* Reconsideration of Proposed DES Rating Decision
* DA Form 199 (PEB Proceedings)
* Separation orders and amendment
* DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction to DD Form 214)
* VA rating decision, dated 19 November 2010
* VA rating decision, dated 15 December 2011

CONESIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army (RA) from May 1997 to May 2001, the applicant enlisted in the RA on 16 August 2007.  He held military occupational specialty 25U (Signal Support Systems Specialist).

2.  The initial narrative summary, physical profile, and medical evaluation board (MEB) that documented his injuries/illnesses are not available for review with this case.  However, it appears an MEB considered his medical records on or about 26 January 2010 and the applicant did not agree with the MEB's findings and recommendations.  He submitted an appeal on 3 or 4 February 2010; however, his appeal was later denied.

3.  On 3 February 2010, by memorandum to officials at Winn Army Community Hospital, Fort Stewart, GA, he requested an impartial and independent health professional to adequately reflect the complete spectrum of his injuries and illnesses, specifically:  right and left knee pain due to patellofemoral syndrome, back condition, and sleep disturbances.

4.  On 4 February 2010, he acknowledged receipt and understood the findings of a physical examination as documented on his narrative summary and physical profile.  He requested an impartial medical review of his MEB, specifically the medical issues listed above.

5.  His record contains a medical statement in the form of a narrative summary related to his knee and low back, dictated on 24 February 2010 that shows he was diagnosed with patelllofemoral arthrosis/arthritis of both knees and low back pain – musculoskeletal in nature.  The attending physician concluded that the knee condition developed while the applicant was on active duty. 

6.  On 19 March 2010, an MEB convened at Winn Army Community Hospital, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of right knee pain due to patellofemoral syndrome, left knee pain due to patellofemoral pain, and low back pain, musculoskeletal in nature.  The MEB also documented his medically-acceptable conditions of right shoulder sprain, status post right femur injury, parethesia of the lower lip, and right hip pain.  The MEB recommended his referral to a PEB.

7.  He was counseled and appears to have agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

8.  On 8 June 2010, after undergoing a VA evaluation, the VA issued a proposed combined evaluation as follows:

* VASRD Code 5257, right knee strain with instability, claimed as bilateral knee pain; 10% (PEB referred proposed DES service-connected disability)
* VASRD Code 5257, left knee strain with instability, claimed as bilateral knee pain; 10% (PEB referred proposed DES service-connected disability)
* VASRD Code 5237, thoracolumbar back condition, 0% (PEB referred proposed DES not service-connected disability)
* VASRD Code 5201, 0%, dominant right shoulder sprain, proposed DES service-connected, Gulf War incurred 
* VASRD Codes 5255-5252, 0% postoperative right femur injury with right hip strain, proposed DES service-connected, Gulf war incurred 
* VASRD Code 5252, bilateral leg condition, proposed DES not service connected, no diagnosis
* VASRD Code 6847, sleep disturbance, proposed DES not service connected, no diagnosis
* VASRD Code 8307, face condition, proposed DES not service connected, no diagnosis
* VASRD Code 9913, loss of teeth, proposed DES not service connected, no diagnosis

The VA proposed a combined rating of 20%.

9.  On 9 June 2010, an informal PEB convened in Fort Sam Houston, TX.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to patellofemoral syndrome right and left and herniated lumbar disc.  The PEB listed his VASRD codes/ratings as follows:

* VASRD Code 5257, patellofemoral syndrome (right), 10% 
* VASRD Code 5257, patellofemoral syndrome (right), 10% 
* VASRD Code 5237, herniated lumbar-disc, 0% (PEB referred proposed DES not service-connected disability)

His other conditions, listed by the MEB met retention standards and were not found unfitting either independently or in combination with other conditions.  The PEB assigned a combined 20% disability rating and recommended the applicant be separated with entitlement to severance pay if otherwise qualified.  He concurred with the PEB's findings, but elected to reconsider his VA rating.

10.  On 14 June 2010, he requested a VA rating reconsideration based on what he alleged was an ineffective evaluation, specifically the thoracolumbar back condition, and contended that he should receive a 20% rating for VASRD Code 5242, degenerative arthritis of the spine based on the lack of range of motion in the lumbar spine. 

11.  On 16 July 2010, the VA considered his appeal and determined the earlier finding that his herniated lumbar disc was not service-connected was valid.  As such, the VA denied his request.

12.  On 19 July 2010, an official at the U.S. Army Physical Disability Agency (USAPDA) notified the applicant of the VA's decision regarding the appeal and that his rating did not change.

13.  On 22 July 2010, an official at the USAPDA approved the PEB on behalf of the Secretary of the Army.

14.  He was honorably discharged in the rank/grade of sergeant (SGT)/E-5 on 20 October 2010 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, with entitlement to severance pay.  His DD Form 214, as amended by a DD Form 215, dated      21 June 1022, shows he completed 3 years, 2 months, and 5 days of creditable active service.  He received $32,113.20 of severance pay.

15.  On 19 November 2010, the VA awarded him service-connected disability compensation for lumbago at the rate of 20% effective 21 October 2010 (in addition to 10% for right knee strain and 10% for left knee strain).  The VA noted that for DES purposes, the VA proposed to grant service-connection for his lumbar back condition but for VA purposes, the VA proposed to deny service-connection for the lumbar back condition.  It is also noted here that the VA rating decision indicated the applicant "filed an original disability claim that was received on October 11, 2010."  This appears to be an administrative error.  This rating is a result of the applicant's appeal of his VA rating for DES purposes. 

16.  On 15 December 2011, the VA decreased his rating for low back pain (also known as lumbago) from 20% to 10%. 

17.  Army Regulation 635-40 establishes the Army 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.  It states 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.  

	a.  Paragraph 7-2 (Reasons for placement on the temporary disability retired list or TDRL) states a Soldier’s name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.  A Soldier with a hereditary or congenital condition that is unfitting and known to be progressive will not be placed on the TDRL unless there is unstabilized service aggravation and the Soldier is qualified as described above.  If upon removal from the TDRL, there is no evidence of residual aggravation, the Soldier may be found to be ineligible for disability benefits.  The TDRL will not be used for convalescence.  When a Soldier’s correct rating is less than 30%, a rating will not be increased to 30% solely for the purpose of making a Soldier eligible for TDRL.

	b.  Paragraph 7-4 (Requirement for periodic medical examination and PEB evaluation) states a Soldier on the TDRL must undergo a periodic medical examination.  A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  Soldiers who have waived retired pay to receive compensation from the VA, continue to be retired Army Soldiers.  These Soldiers must undergo examinations when ordered by Commander, USAPDA, acting on behalf of the Secretary of the Army. 

18.  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%.  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%.

19.  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. 

20.  The governing 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 single-sourced 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 Title 10, 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 sustained certain injuries that warranted his entry into the PDES.  He underwent an MEB that recommended his referral to a PEB.  The PEB listed his disabling conditions as his right and left knee as well as his back pain.  He elected to be medically evaluated and possibly rated by the VA under the VA/DOD Joint Disability Evaluation System.

2.  The VA rated his right knee condition at 10%, left knee condition at 10%, and his back pain at 0%, for a combined rating of 20%.  He appealed the rating for his back but the VA denied his appeal.  The PEB received the results from the VA and recommended his separation with entitlement to severance pay since his rating was 20%.  The PEB also forwarded the case to the USAPDA for final processing.  Once approved, he was discharged by reason of physical disability with entitlement to severance pay.

3.  As authorized by the governing DTM, he submitted an appeal to the VA with regard to his back condition.  The November 2010 VA rating decision clearly stated for the DES purpose, the VA proposes to grant service-connection for his lumbar condition with an evaluation of 20%.  However, this was not a final rating. The VA reduced his rating to 10%.  

4.  The reduced rating suggests his condition was not of a permanent nature and/or was not stable enough for final adjudication.  Since he was unfit to perform the duties of his grade and military specialty at the time of evaluation, and since the disability appears to be temporary or unstable, he should have been placed on the TDRL instead of being discharged with severance pay.  He should have also been allowed to undergo periodic reexaminations, normally every 12 to 18 months for a maximum of 5 years as prescribed by the governing regulation, until his condition is stabilized for a final adjudication. 

5.  As also 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.

6.  Based on the foregoing, the applicant is entitled to correction of his DA Form 199 (PEB) to show a rating of 20% for VASRD Code 5237, a change to his combined rating to 40%, and his disposition at the time of discharge in October 2010 to be TDRL.  He is also entitled to have a retirement order, a revised       DD Form 214, and any back pay retired pay due as a result of this correction.  

7.  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.

8.  Furthermore, after placing him on the TDRL in lieu of discharge effective 20 October 2010, since it is premature to medically retire him, he is entitled to a determination of fitness.  The USAPDA should afford him a TDRL re-evaluation as required for an appropriate determination of his condition and final disposition. 

9.  As a result, the applicant's records should be corrected as recommended below.

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.  Correcting his DA Form 199 by:

* deleting from item 8a (VA Code) the rating of 0% that pertains to code 5237 and adding the rating of 20%
* deleting from item 8b (Disability Description) any reference to his disability rating being less than 30%
* deleting from item 9 the combined rating of 20% and adding the combined rating of 40%
* deleting from item 9 the disposition pertaining to severance pay and adding the disposition pertaining to temporary disability retired list 

	b.  Correcting 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 temporary 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.  paying him any back retired pay due as a result of this correction; and

	d.  After placing him on the TDRL, having USAPDA officials review his medical records and if necessary:

* contacting the applicant and arranging a physical evaluation via appropriate medical facilities
* issuing appropriate invitational travel orders to the applicant to accomplish the physical evaluation 
* issuing appropriate invitational travel orders to the applicant to prepare for and participate in consideration of his case by a TDRL PEB in the event that a PEB becomes necessary



      _________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)                                         AR20120003820



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ABCMR Record of Proceedings (cont)                                         AR20120003820



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