IN THE CASE OF:	  

		BOARD DATE:	 11 March 2014  

		DOCKET NUMBER:  AR20130011299 


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 her military records to reflect a combined disability rating of 60 percent (%) in connection with her permanent disability retirement.

2.  The applicant states an Army Physical Evaluation Board (PEB), under the Disability Evaluation System (DES) Pilot Program, recommended her permanent disability retirement with a combined rating of 50% based on a Department of Veterans Affairs (VA) rating of 10% for her unfitting temporomandibular (TMJ) dysfunction.  In response to her post-separation Notice of Disagreement, the VA changed the TMJ dysfunction rating relied on by the PEB from 10% to 30%, which increased the combined rating recommended by the PEB to 60%.  Department of Defense (DoD) policies and procedures applicable in the DES Pilot Program required correction of her records to reflect the 60% combined rating.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records to reflect a combined disability rating of 60% in connection with the applicant's permanent disability retirement, with an effective date of 19 June 2011.

2.  Counsel states:

   a.  The applicant's disability retirement was adjudicated by an Army PEB in 2010 and 2011 pursuant to the DES Pilot Program.  The PEB recommended her permanent disability retirement with a combined rating of 50% based on ratings provided by the VA for four unfitting medical conditions including the TMJ dysfunction which was rated by the VA at 10%.  

   b.  On 14 May 2013, the VA corrected the TMJ dysfunction rating relied on by the PEB, raising it from 10% to 30%.  As a result, had the PEB considered the corrected 30% rating for the TMJ dysfunction the applicant's proper combined disability for her permanent retirement would be 60%.  DoD policies and procedures applicable in the DES Pilot Program required that the Army Board for Correction of Military Records (ABCMR) correct the applicant's combined disability rating and ensure the appropriate adjustment of her compensation and benefits effective as of 19 June 2011.

   c.  In or about 2009, the applicant was referred to evaluation and processing by the U.S. Army Physical Disability Evaluation System (USAPDES) under the DES Pilot Program due to a variety of medical conditions.  Her disability case was adjudicated under the DES Pilot Program.  Under the DES Pilot Program, a VA Rating Board determines the appropriate disability rating for military unfitting and Soldier-claimed medical conditions incurred or aggravated as a result of military service.  The disability rating awarded by the VA Rating Board for military unfitting medical conditions serves as a basis for the PEB's findings and recommendations regarding the Soldier's final disposition (separation with disability severance pay or disability retirement) from military service.

   d.  On 3 November 2010, an informal PEB convened and considered the applicant's case.  The PEB determined that she had four unfitting medical conditions and assigned each condition a recommended disability percentage and recommended her permanent disability retirement with a combined disability rating of 50%.  Consistent with the DES Pilot Program, the PEB assigned to each of the applicant's unfitting medical conditions the disability rating determined by the VA Baltimore Regional Office DES Rating Activity Site (D-RAS) in its Decision Review Officer Reconsideration, dated 13 October 2010, transmitted to the PEB via a VA memorandum, dated 18 October 2010.  

   e.  On 16 November 2010, through counsel, the applicant non-concurred with the proposed VA D-RAS rating decision of 10% with respect to her TMJ dysfunction arguing that the appropriate TMJ dysfunction rating was 30%, consistent with an earlier D-RAS rating, dated 7 December 2008.  The PEB forwarded the applicant's memorandum to the VA RD-RAS requesting the TMJ rating be viewed as a PEB referred condition and that the applicant's rating be reconsidered using the data provided in the memorandum of 16 November 2010.


   f.  By memorandum, dated 11 April 2011, the PEB notified the applicant that the VA D-RAS had determined that her TMJ was appropriately rated at 10% and that her "entire case file had been forwarded to the USAPD Agency [USAPDA]." Orders Number 136-0137, dated 16 May 2011, were issued placing the applicant on permanent disability retirement with a 50% rating effective 19 June 2011.

   g.  On 29 July 2011, through counsel, the applicant filed a Notice of Disagreement with the VA Baltimore Regional Office regarding the VA D-RAS rating arguing that the proper rating for her unfitting TMJ dysfunction at the time it was considered by the PEB was 30% rather than 10%.  In a Decision Review Officer Decision, dated 14 May 2013, the VA Roanoke Regional Officer took favorable action and assigned the applicant a rating of 30% for the TMJ dysfunction retroactive to the time of her claim before the PEB.

3.  Counsel provides copies of the applicant's:

* 2009 Compensation and Pension (C&P) Examination
* 2009 Request for Reconsideration memorandum
* 2009 Request for Reconsideration of Proposed DES Rating Decision and VA Rating Decision
* 2010 VA Rating Decision
* 2010 PEB Proceedings
* 2010 Notice of non-conccur memorandum
* 2010 Concurrence memorandum
* 2011 Request for Reconsideration memorandum
* 2011 VA Rating Decision
* Orders Number 116-0137
* 2011 Notice of Disagreement
* 2013 VA Rating Decision

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned in the Regular Army on 2 October 2002 and she held area of concentration 15D (aviation logistics).

2.  Counsel provided copies of the following documents pertaining to the applicant:

   a.  A C&P Examination, dated 3 February 2009, which shows the applicant was diagnosed with a TMJ disorder.

   b.  A VA DES Proposed Rating, dated 1 October 2009, which shows she was awarded a proposed rating of 30% for her TMJ dysfunction.

   c.  A memorandum, dated 7 December 2009, wherein a VA Decision Review Officer stated they declined jurisdiction for reconsideration of the applicant's medical conditions of the adjustment disorder, chronic obstructive pulmonary disease, and hemorrhagic ovarian cyst because they were not PEB referred as unfitting.  The applicant's new conditions of cervical spine arthritis, mild disc bulging, and geniculate neuralgia would be addressed with the VA at the point of separation.

   d.  A VA Decision Review Officer Reconsideration Decision, dated 13 October 2010, which shows she was awarded a proposed 20% rating for dysphagia, a 10% rating for foraminal stenosis (low back pain), and 10% rating for TMJ.

   e.  PEB Proceedings, dated 3 November 2010, which show a formal PEB convened and considered and rated the applicant's medical conditions of chronic low back pain with degenerative changes at L4-L5 at 20%, glossopharyngeal neuralgia at 20%, foraminal stenosis at 10%, and TMJ at 10%.  The PEB found those medical conditions prevented satisfactory performance of duty in her grade and primary specialty.  The PEB recommended she be separated for permanent disability retirement with a combined rating of 50%.
   
   f.  A memorandum, dated 16 November 2010, wherein the applicant, through counsel, concurred with the findings and recommendations of the PEB and non-concurred with the proposed 18 October 2010 D-RAS Rating Decision and requested a D-RAS rating reconsideration.  Counsel stated the applicant specifically disagreed with the decision to reduce her rating for TMJ to 10%.  Counsel and the applicant maintained the earlier D-RAS decision dated 7 December 2009 which rated her condition at 30% was appropriate as it included the condition of the required DeLuca factors (DeLuca v. Brown (1995)).

   g.  A memorandum, dated 13 December 2010, wherein the applicant's counsel submitted a notice of non-concurrence with the VA Baltimore DES Rating Activity exercising the applicant's right to a one-time request for a D-RAS rating reconsideration prior to her disability separation or retirement pertaining to the reduced rating for TMJ.  Counsel stated the current D-RAS proposed rating for the applicant's TMJ dysfunction was in error as it failed to consider any DeLuca factors when rating her functional range of motion.

   h.  A memorandum, dated 5 March 2011, wherein the VA DES Decision Review Officer advised the PEB of their reconsideration denial of the 10% evaluation for TMJ since the PEB had removed the condition from referred to a proposed PEB condition on 10 August 2010.  Since the TMJ condition was no longer a referred condition, reconsideration couldn't be undertaken.

   i.  A memorandum, dated 24 March 2011, wherein the applicant's counsel requested reconsideration of the proposed rating decision of the 10% rating for TMJ because it was not a referred condition.  Counsel stated:

		(1)  The PEB originally referred the applicant for three conditions:  myofascial pain syndrome, chronic low back pain, and trigeminal neuralgia.  The applicant also claimed TMJ, but the medical evaluation board deemed this to be medically acceptable and the PEB determined that this condition was not unfitting;

		(2)  On 1 October 2009, the applicant was rated by the VA (Baltimore D-RAS) for TMJ and rated at 30%.  The applicant requested a reconsideration of this rating on 6 November 2009.  On 7 December 2009, the D-RAS issued a new rating using the VA Schedule for Rating Disabilities (VASRD) Code 8309 for left glossopharyngeal neuralgia for the referred conditions of trigeminal neuralgia at 10%.  The rating for the TMJ under VASRD Code 9905 at 30% was then listed as a proposed DES service-connected disability, i.e., not compensable by the Army and not unfitting, but service connected;

		(3)  On 10 December 2009, the PEB requested a reconsideration of the 7 December 2009 rating noting that the left glossopharyngeal neuralgia was not unfitting nor was the TMJ, but that the trigeminal neuralgia remained unfitting and should be rated as a PEB referred condition.  On 15 December 2009, the USAPDA determined that no change was warranted and issued a memorandum to that effect;

		(4)  Despite the TMJ dysfunction being evaluated in the Dental and Oral Conditions section of the VASRD, application of the Deluca factors to TMJ range of motion was appropriate as it is an orthopedic joint.  The U.S. Court of Appeals for Veterans Claims held in DeLuca that evaluation of a service-connected disability involving a joint rated on limitation of motion required adequate consideration of functional loss due to pain under Title 38, Code of Federal Regulations, sections 4.40 and 4.45 (2010); and 

		(5)  They maintained a mechanical application of VASRD 9905 erroneously disregarded mandatory consideration of the DeLuca criteria and the applicant's additional functional loss due to TMJ weakness, fatigability, incoordination, and pain.  They maintained the earlier D-RAS decision, dated 7 December 2009, which rated the applicant's TMJ dysfunction at 30% was correct as it properly included consideration of DeLuca factors;

   j.  A VA Decision Review Officer Reconsideration Decision, dated 6 April 2011, which shows the TMJ dysfunction was replaced among the referred conditions per the PEB request with a proposed 10% rating.
   k.  A memorandum, dated 11 April 2011, wherein the President, USAPDA, advised the applicant that the VA had determined her TMJ was appropriately rated at 10%.

   l.  Orders Number 136-0137, issued on 16 May 2011, which released the applicant from active duty for permanent disability with a combined rating of 50%.

4.  She was honorably retired in the rank of lieutenant colonel on 19 June 2011, by reason of a permanent disability retirement.  She completed 10 years, 10 months, and 11 days of net active service.

5.  Counsel also provided copies of the following:

   a.  A Notice of Disagreement, dated 29 July 2011, wherein counsel stated that the applicant disagreed with the VA rating decision to reduce her rating for TMJ from 30% to 10% as well as the VA Decision Review Officer Reconsideration declining to change the 10% rating for TMJ, and reiterated the chronological order of events.  Counsel concluded the VA determination, dated 7 December 2009, more closely approximated the applicant's range of motion, warranting a 30% rating.

   b.  A VA Decisions Review Officer Decision, dated 14 May 2013, which shows the applicant's 10% disabling rating for TMJ was increased to 30% effective 20 June 2011.  The decision stated the 30% evaluation was derived based on the objective results demonstrated on the DES VA Dental and Oral Medical Examination.  Her TMJ dysfunction more nearly approximated the next higher level of compensation, as contemplated by the markedly dysfunctional operation of the joint with pain beyond 20 millimeter (mm) of inter-incisal movement.  Therefore, the 30% evaluation was warranted and was established from the day following her separation from active service.  A higher evaluation of 40% was not warranted unless the record showed limited inter-incisal movements between the 0 and 10 mm.  That decision was considered to be a full grant of the benefit sought on appeal; therefore, her appellate record was closed.

6.  Directive Type Memorandum (DTM) 11-015 – IDES states that upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his/her military records through his/her respective Military Department BCMR if new information regarding his/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/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/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/her respective Military Department BCMR. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was initially awarded a proposed 30% rating for TMJ by a VA D-RAS.  Subsequently, this rating was reduced to 10%.  A PEB found her TMJ dysfunction unfitting.  She was permanently retired on 19 June 2011 by reason of disability with a combined rating of 50% to include 10% for her TMJ condition.

2.  She appealed the VA rating decision to reduce her rating for TMJ from 30% to 10% as well as the VA Decision Review Officer Reconsideration declining to change the 10% rating for TMJ.  On 14 May 2013, the VA increased the rating for her TMJ from 10% to 30% based on the objective results demonstrated on the DES VA Dental and Oral Medical Examination.  

3.  In view of the foregoing, the applicant is entitled to correction of her military records to show she was awarded a 30% evaluation by the PEB for her TMJ dysfunction resulting in a combined disability rating of 60%.

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 





showing the applicant was permanently retired on 19 June 2011 with a combined disability rating of 60% (TMJ rated at 30%) with appropriate adjustment of her retired pay retroactive to that date.




      _______ _   _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)                                         AR20130011299



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ABCMR Record of Proceedings (cont)                                         AR20130011299


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