IN THE CASE OF:  	  

		BOARD DATE:  5 February 2015  	  

		DOCKET NUMBER:  AR20140011538 


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 an increase of his disability rating from 50 percent to 60 percent with entitlement to back pay effective 30 April 2013. 

2.  The applicant states he was permanently retired by reason of disability in April 2013.  The Department of Veterans Affairs (VA) never properly rated his unfitting lumbar radiculopathy and thus it was not included in his physical evaluation board (PEB) unfitting rating.  He filed an appeal with the VA on 9 August 2012 and on 14 March 2013.  The VA now rates his lumbar radiculopathy at 10 percent for the right leg and 10 percent for the left leg.  The effective date of the VA rating is 30 April 2013, the date he was separated.  With the inclusion of his lumbar radiculopathy rating, his permanent retirement rating for his unfitting conditions should add up to 60 percent.  He was previously rated at 40 percent for the lumbar degenerative disc disease and 10 percent for the right ankle tendon injury for a combined rating of 50 percent.  The additional 10 percent rating for each of his legs should give him a combined rating of 60 percent. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 29 April 2013
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 17 January 2012
* DA Form 199 (PEB Proceedings), dated 15 January 2013
* Retirement orders
* VA rating decisions, dated 7 June 2013 and 8 May 2014
CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 17 October 2008.  He completed the Military Police Basic Officer Leadership Course. 

2.  He was ordered to active duty on 27 July 2010.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 13 October 2011 and he was promoted to captain (CPT) on 16 April 2012. 

3.  On 17 January 2012, 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.  Lumbar degenerative disc disease with radiculopathy 

X
2.  Right ankle tendon injury

X
3.  Right patellofemoral syndrome 
X

4.  Right ham strain 
X

5.  right lower extremity neuropathy 
X

6.  Cervical degenerative disc disease
X

7.  Left elbow tendonitis
X

8.  Left wrist tendon injury
X

9.  Primary snoring 
X

10.  Periodic limb movement disorder
X

11.  Hearing loss
X

12.  Tinnitus
X

13.  Perforated tympanic membrane
X

14.  Hemorrhoids
X

15.  Eczema
X

16.  Surgical scar
X

4.  On 14 July 2012, the VA completed a disability assessment of his unfitting and service-connected disabilities under the Integrated Disability Evaluation System (IDES).  The VA proposed the following ratings: 

	a.  For his unfitting disabilities, the VA proposed a 40 percent combined rating as follows: 


* Lumbar degenerative disc disease with radiculopathy, 20 percent
* Right ankle status post torn tendon with ankle reconstructive surgery, 10 percent
* Left ankle status post torn tendon with ankle reconstructive surgery,  10 percent

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

* Tinnitus, 10 percent
* Left elbow tendonitis, 0 percent 
* Left wrist post torn tendon, 0 percent
* Cervical strain, 0 percent 
* Right hip strain, 0 percent
* Right patellofemoral syndrome (right knee pain), 0 percent
* Right ear hearing loss, 0 percent
* Perforated tympanic membrane, 0 percent
* Hemorrhoids, 0 percent
* Surgical scar lower back, 0 percent
* Surgical scar left wrist and right ankle, 0 percent
* Eczema, 0 percent
* Sensory neuropathy of sciatic nerve, 0 percent
* Sensory neuropathy, femoral nerve, 0 percent

5.  The informal PEB Proceedings are not available for review with this case.  However, on 18 October 2012, a formal PEB (FPEB) 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 rated his medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD):

* VASRD Codes 5299/5241, Herniated disc status post laminectomies and spinal fusion of L4/L5, also referred to as degenerative disc disease with radiculopathy, 20 percent
* VASRD Codes 5271, right ankle tendon injury, 10 percent

	b.  The FPEB 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 "30 percent" and that his disposition be "Permanent disability retirement."

	c.  During the formal board, the applicant requested the FPEB find his right knee unfitting and rated at 0 percent; his left knee unfitting and rated at 0 percent; and rated his radiculopathy at 0 percent separately from his low back pain and consider the combined effects of these conditions.  The VA examination along with the MEB included his radiculopathy in the rating of his degenerative disc disease (VASRD Codes 6299-5241).  He is now providing new medical documents to support rating the radiculopathy separately. 

	d.  A left ankle examination, dated 16 October 2012, indicated lateral instability; however, the range of motion was normal and not limited by pain; no tenderness on palpation; and his gait and stance were normal.  Also, the condition was not listed on the physical profile as duty limiting.  Therefore, the PEB determined the left ankle condition is not unfitting. 

	e.  He also requested the FPEB find the right ankle condition unfitting and adopt the VA proposed rating decision at 0 percent.  Although he testified that he had difficulty walking steps and running, his physical profile indicated "Permanent 2" for right knee pain.  The FPEB had no medical evidence indicating a worsening of his right knee condition is not unfitting.

6.  On 31 October 2012, the applicant elected not to concur and indicated a written statement of rebuttal would be submitted explaining why he did not agree with the findings and recommendations. 

7.  On 15 January 2013, his case was reconsidered in accordance with paragraph 4-21(t) of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement) based on the additional information he provided.  As such, a new DA Form 199 was issued and superseded the previous DA Form 199, dated 18 October 2012. 

	a.  The revised FPEB rated his medically-unacceptable conditions under the VASRD:

* VASRD Codes 5299/5241, Herniated disc status post laminectomies and spinal fusion of L4/L5, also referred to as degenerative disc disease with radiculopathy, 40 percent
* VASRD Codes 5271, right ankle tendon injury, 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." 

	c.  He was counseled but again indicated he did not concur with the FPEB findings and recommendations and demanded a formal hearing.  He also indicated his statement identifying his issues of disagreement was attached. 

8.  On 14 February 2013, the U.S. Army Physical Disability Agency (USAPDA) reviewed his PEB processing and found it complied with the governing statutes and regulation.  An official approved the PEB on behalf of the Secretary of the Army. 

9.  On 20 March 2013, Headquarters, U.S. Army Garrison, Fort Meade, MD published Orders 079-0003 ordering his permanent retirement effective 29 April 2013 and placement on the Retired List in his retired grade of CPT on 30 April 2013. 

10.  On 29 April 2013, he retired under the provisions of Army Regulation 635-40, chapter 4, by reason of permanent disability.  He was placed on the Retired List in his retired rank of CPT on 30 April 2013. 

11.  On 7 June 2013, the VA reconsidered his petition for a review.  As a result of this request, the VA changed his service-connected disability rating but did not address or change his DES rating.  The VA changed his rating as indicated below effective 30 April 2013: 

* Sleep apnea, 50 percent
* Lumbar degenerative disc disease radiculopathy, 40 percent
* Tinnitus, 10 percent
* Right ankle status post torn tendon with ankle reconstructive surgery, 10 percent 
* Left ankle status post torn tendon with ankle reconstructive surgery, 10 percent 
* Right ear hearing loss, 0 percent
* Perforated tympanic membrane, 0 percent
* Surgical scar, left wrist and ankle, 0 percent
* Surgical scar lower back, 0 percent
* Eczema, 0 percent
* Sensory neuropathy of sciatic nerve, 0 percent
* Sensory neuropathy, femoral nerve, 0 percent
* Left wrist post torn tendon, 0 percent
* Hemorrhoids, o percent
* Cervical strain, 0 percent
* Tendonitis, left elbow, 0 percent

12.  On 8 May 2014, the VA again reconsidered his petition and changed his service-connected disability rating but did not address or change his DES rating, effective 30 April 2013: 

* Lumbar radiculopathy, left lower extremity, 10 percent
* Painful scars, bilateral ankles, 20 percent
* Cervical radiculupthy, left upper extremity, 20 percent

13.  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.

14.  Directive-type Memorandum (DTM) 11-015, in effect at the time, 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 appears to confuse his DES and service-connected ratings.  These are two separate ratings that are proposed by the VA subsequent to the C&P examination.  His 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.

2.  The only two unfitting conditions listed on his MEB were his degenerative disc disease and his right ankle tendon injury.  The VA proposed a combined rating of 30 percent for his unfitting conditions.  The PEB initially assigned him a rating of 20 percent for his degenerative disc disease and 10 percent for his ankle.  He did not concur and raised two issues: 

	a.  He requested the PEB find his right knee unfitting and rated at 0 percent; his left knee unfitting and rated at 0 percent; and to rate his radiculopathy at 0 percent separately from his low back pain and consider the combined effects of these conditions.  The PEB noted that the VA examination along with the MEB included his radiculopathy in the rating of his degenerative disc disease (VASRD Codes 6299-5241).  He provided new medical documents to support rating the radiculopathy separately.  A left ankle examination, dated 16 October 2012, indicated lateral instability; however, the range of motion was normal and not limited by pain; no tenderness on palpation; and his gait and stance were normal. Also, the condition was not listed on the physical profile as duty limiting. Therefore, the PEB determined the left ankle condition is not unfitting. 

	b.  He also requested the PEB find the right ankle condition unfitting and adopt the VA proposed rating decision at 0 percent.  Although he testified that he had difficulty walking steps and running, his physical profile indicated "Permanent 2" for right knee pain.  The PEB had no medical evidence indicating a worsening of his right knee condition is not unfitting.

3.  Based on the new information he provided, the PEB formally reconsidered his conditions and assigned a rating of 40 percent for his degenerative disc disease and 10 percent for his right ankle tendon injury for a combined rating of 50 percent.  He did not concur.  His case was reviewed by the USAPDA and the decision was affirmed.  He ultimately retired on 29 April 2013 and he was placed on the Retired List on 30 April 2013.

4.  The VA rating he provides, dated 8 May 2014, changed his service-connected disability rating but did not address or change his DES rating, effective 30 April 2013.  The IDES provided that 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.  The change in his service-connection rating has no bearing on his DES rating.  His rating for service-connection was changed.  His DES rating did not. 

5.  In view of the foregoing, there is insufficient evidence to grant him the requested relief.  He has not shown his rating to be in error or unjust.






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)                                         AR20140011538





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ABCMR Record of Proceedings (cont)                                         AR20140011538



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