IN THE CASE OF

		BOARD DATE:	    4 June 2014

		DOCKET NUMBER:  AR20130017822 


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 the disability ratings awarded by the Department of the Army and by the Department of Veterans Affairs (VA).

2.  The applicant states, in effect:

* the Physical Evaluation Board Liaison Officer (PEBLO) failed to present all of his medical information during the medical board process
* he underwent two surgeries while in the Warrior Transition Unit (WTU), shoulder surgery and open heart surgery
* he also suffered from a number of injuries and continues to experience pain; his unit at the WTU let him down they led him to believe they were on his side
* he believes he should have received a 100 percent disability rating from both agencies due to the multiple conditions he sustained
* he did not agree with the proposed ratings because he knew there were other medical issues that were not listed  
* the calculation of his Army disabilities is incorrect; all of his disabilities should be rated at 60 percent, not 50 percent
* there are several disabilities (he lists 11 disabilities) that the Army should have rated him for

3.  The applicant provides:

* Retirement orders and amendments
* Mobilization orders
* DA Form 3349 (Physical Profile)
* Medical Evaluation Board (MEB) Proceedings
* PEB Proceedings
* Multiple VA documents, correspondence, and rating decision
* VA Form 21-0819 (VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim)
* VA proposed rating
* Petition to Endorse and Enforce the Second Amendment
* Service Computation for Retirement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet)
* Service and VA medical records

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the North Carolina Army National Guard (NCARNG) on 15 March 1996.  He held military occupational specialty 19K (M-1 Armor Crewman). 

2.  He served through multiple extensions, in a variety of assignments, including mobilization from October 2003 to March 2005 and service in Iraq from February 2004 to January 2005.  He attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  He was ordered to active duty on 11 February 2009 and he served in Iraq from 9 April 2009 to 16 January 2010. 

4.  It appears at some point he entered the Army Physical Disability Evaluation System (PDES) and agreed to a VA/DOD joint evaluation of his unfitting and/or service-connected disabilities. 

5.  On 27 April 2011, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the conditions below.  The MEB recommended referral to a PEB. He agreed.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Hypertrophic cardiomyopathy

X
2.  Chronic postsurgical left shoulder pain

X
3.  Cervicalgia

X
4.  Degenerative disc disease 

X
5.  Sensorineural hearing loss
X

6.  Bilateral pes planus 
X

7.  Benign prostatic hypertrophy
X

8.  Insomnia 
X

9.  Retro-patellar pain syndrome
X

10.  Mild headaches
X

11.  Traumatic arthritis secondary to fracture, left hand
X

6.  On 6 October 2011, the VA completed a disability assessment of his unfitting and service-connected disabilities.  The VA proposed the following ratings: 

	a.  For his unfitting disabilities, the VA proposed a 50 percent combined rating as follows: 

* Hypertrophic cardiomyopathy (claimed as shortness of breath) 
30 percent
* Degenerative disc disease, lumbar spine (claimed as back condition) 10 percent
* Left shoulder strain with post-surgical pain (claimed as left shoulder condition) 10 percent
* Cervicalgia with degenerative disc disease, cervical spine (also claimed as neck condition) 10 percent

	b.  For his service-connected disabilities, the VA proposed an 80 percent combined rating as follows: 

* Obstructive sleep apnea, not otherwise specified (claimed as insomnia) 50 percent
* Tinnitus, 10 percent
* Headaches, status post traumatic brain injury (also claimed as chronic left ear aches) 10 percent
* Degenerative joint disease, left hand and fingers (claimed as left hand fourth and fifth digit stiffness and limited motion) status post fracture 
0 percent
* Retro-patellar pain syndrome with bone spur (claimed as left knee condition) 0 percent
* Healed fracture right fourth metatarsal with degenerative joint disease, right great toe and bone spurs right heel (claimed as eight foot condition) 0 percent
* Bilateral sensorineural hearing loss, 0 percent
* Hypertension, 0 percent
* Benign prostatic hypertrophy with bladder hyperactivity, 0 percent
* scars, left shoulder, right elbow, and right hand, 0 percent

7.  On 15 November 2011, an informal PEB (IPEB) convened and found the 
applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the conditions below.

	a.  Item 8 (The board considered the applicant's condition described in the records.  Each disability is listed below in descending order of significance) of his DA Form 199 (PEB Proceedings) rated his medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD):

* VASRD Code 7020, Hypertrophic cardiomyopathy (claimed as shortness of breath) 30 percent
* VASRD Codes 5242/5010, Degenerative disc disease, lumbar spine (claimed as back condition) 10 percent
* VASRD Codes 5201/5019, Left shoulder strain with post-surgical pain (claimed as left shoulder condition) 10 percent
* VASRD Code 5242, Cervicalgia with degenerative disc disease, cervical spine (also claimed as neck condition) 10 percent

	b.  The PEB also considered his other conditions, but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The DA Form 199 further shows in Item 9 the board found the applicant physically unfit and recommended a combined rating of "50 percent" and that his disposition be "Permanent disability retirement."  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

8.  On 29 May 2012, he retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), chapter 4, by reason of permanent disability.  He was placed on the Retired List in his retired rank/grade of SSG/E-6.

9.  Army Regulation 635-40 establishes the 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 or her office, grade, rank, or rating.  

	a.  The PDES assessment process involves two distinct evaluations, the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or 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 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 are either separated from the military or 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 individuals who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	b.  Paragraph 3-2b (Processing for Separation or Retirement from Active Duty) states disability compensation is not an entitlement acquired by reason of a 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 service.  

	c.  Table B-12 (Combined Rating Table):  When a Soldier has more than one compensable disability the percentages are combined rather than added (except when a "Note" in the VASRD indicates otherwise).  This results from the consideration of the individual’s efficiency, as affected by the most disabling condition, then by the less disabling conditions in the order of their severity. Thus, a person having a 60 percent disability is considered to have a remaining efficiency of 40 percent.  If he has a second disability rated at 20 percent, then he is considered to have lost 20 percent of that remaining 40 percent, thus reducing his remaining efficiency to 32 percent.  Hence, a 60 percent disability combined with a 20 percent disability results in a combined rating of 68 percent.  The combined rating for any combination of disabilities can be determined by first arranging the disabilities in their exact order of severity and then referring to the combined ratings table of the VASRD according to the following instructions:

		(1)  Combining two percentages.  Enter the table by locating the highest percentage in the left-hand column and reading across to where that horizontal line intersects with the vertical column headed by the second percentage. For example: 40 combined with 20 equals 52.  

		(2)  Combining three or more percentages.  First, combine the first two percentages as above.  Second, re-enter the table by locating that combined value in the left-hand column and reading across to where that horizontal line intersects with the vertical column headed by the third percentage.  For example: 50 combined with 30 equals 65, 65 combined with 20 equals 72.  If there are additional percentages, the second step is repeated using the new combined value and the next percentage.

		(3)  Converting combined ratings.  After all percentages have been combined, the resulting combined value is converted to the nearest number divisible by 10.  Combined value ending in 10 will be adjusted upward.  If the combined value included a decimal fraction of 0.5 or more as a result of applying the bilateral factor, the fraction is converted to the next higher whole number; otherwise, the decimal fraction is disregarded.  For example: If the combined value is 64.5, first round off the fraction to make the combined value 65, which in turn is rounded to 70.  If the combined value is 64, the decimal fraction is disregarded and the combined value of 64 is rounded off to 60).

10.  Directive-type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES).  It states: 

	a.  The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda.  All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards.  Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or 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 or 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 or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a review of his IDES processing, change to his VA and Army disability rating, and correction to his combined disability rating.  

2.  The applicant's case was processed under the IDES.  This means he underwent an examination by the VA and upon completion the VA proposed a disability rating for the unfitting conditions to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable.  

3.  The VA proposed a combined rating of 50 percent for his unfitting conditions.  The IPEB accepted and adopted this rating for various VASRD Codes.  He was counseled and not only did he concur and waive his right to a formal hearing, he also elected not to request reconsideration of his VA rating.  

4.  After separation from service and attaining veteran status, if the former service member desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.  Since VA issues are not within the purview of this Board, the applicant is advised to address his issues with the VA and follow the VA's statutory or regulatory rules regarding appeals.  


5.  The applicant was assigned a combined rating of 50 percent.  The percentages are combined rather than added.  This results from consideration of the individual’s efficiency, as affected by the most disabling condition, then by the less disabling conditions in the order of their severity.

	a.  The combined rating for any combination of disabilities can be determined by first arranging the disabilities in their exact order of severity and then referring to the combined ratings table of the VASRD.  His highest disability was rated at 30 percent, thus placing it first.  Then his second, third, and fourth disabilities were rated at 10 percent, thus placing them in second, third, and fourth order.

	b.  He had a 30 percent disability rating for the first and highest disability.  This means he was considered to have a remaining efficiency of 70 percent (100 percent minus 30 percent).  Since he had a second disability rated at 10 percent, then he is considered to have lost 10 percent of that remaining 70 percent, thus reducing his remaining efficiency by 7 percent to 63 percent.  He also has a third disability at 10 percent, thus reducing his remaining efficiency by 10 percent to 57 percent, and a fourth disability, also rated as 10 percent, this further reducing his efficiency by another 10 percent.   

* First disability rated at 30 percent of 100 percent, leaving 70 percent
* Second disability rated at 10 percent of 70 percent, equal 7 percent, and leaving 63 percent
* Third disability rated at 10 percent of 63 percent, equal 6.3 percent, and leaving 56.7 percent (or 57 percent)
* Fourth disability rated at 10 percent of 57 percent, equal 5.7 percent (or 
6 percent)
* 30 plus 7 plus 6 plus 6 equal 49 percent, rounded up to a 50 percent combined disability rating

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)                                         AR20130017822



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ABCMR Record of Proceedings (cont)                                         AR20130017822



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