IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140012237 


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, in effect, correction of his military records to reflect a permanent disability retirement with a 60 percent (%) combined disability rating and adjustment of his retired pay or other benefits.

2.  The applicant states under the Department of Defense/Department of Veterans Affairs (DOD/VA) Integrated Disability Evaluation System (IDES), he was placed on permanent disability retirement status with a 40% combined disability rating consistent with a Physical Evaluation Board's (PEB) findings and recommendations based in part on a VA rating of his unfitting spondylosis.  After his appeal to the VA, the VA increased the service-connection rating from 10% to 40% as a result of new information of his service condition not available to the PEB and which would have increased his combined disability rating from 40% to 60%.  DOD regulations require that his military records be corrected to reflect this increased rating.

3.  The applicant defers submission of additional evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records to reflect his permanent disability retirement with a 60% combined disability rating effective 30 December 2013, together with the appropriate retroactive and prospective payment or adjustment of his retired pay and accompanying or other benefits.


2.  Counsel states:
   
   a.  Under the DOD/VA IDES, the VA is responsible for determining the disability ratings to be assigned to a Soldier's unfitting medical conditions and to be used by a PEB for the disposition of the Soldier's disability case.  The VA initially rated the applicant's unfitting spondylosis with degenerative disc disease lumbar spine at 10%, which resulted, together with his other unfitting medical conditions, in a PEB recommending his permanent disability retirement with a 40% combined disability rating.  Subsequently, as a result of the applicant's appeal to the VA of his 10% rating of his spondylosis, the VA increased the rating from 10% to 40%.

   b  The DOD Directive-Type Memorandum (DTM) applicable to the IDES provides that the Army Board for Correction of Military Records (ABCMR) action to correct a Soldier's records is warranted in a case like this where the VA changes a Soldier's disability rating for a PEB-determined unfitting medical condition after the Soldier is separated, when the changes may result in a difference disposition of the Soldier's case.

   c.  An Army PEB at Fort Sam Houston, TX, found the applicant unfit for continued military service on 13 August 2013, as a result of three unfitting conditions:  (1) major depressive disorder (30%); (2) spondylosis (10%); and (3) sciatica, right lower extremity (10%).  The PEB recommended that the applicant be retired based on a permanent disability with the 40% combined disability rating for his unfitting medical conditions resulting from the individual ratings assigned by the VA Disability Evaluating System Rating Activity Site     (D-RAS) in the VA Regional Office in Seattle, WA.  

   d.  Prior to the applicant's retirement, he appealed to the 10% rating the VA had assigned for his spondylosis, upon which the PEB had relied, arguing that the proper rating was 40% based on additional medical evidence he submitted which showed, among other things, that the forward flexion of his thoracolumbar spine was 30 degrees or less.  On 9 May 2014, after the applicant's retirement, the VA Regional Office in Philadelphia, PA, took favorable action on the applicant's appeal and increased the rating from 10% to 40%.

   e.  Had the PEB had before it the new, increased 40% VA rating, consistent with the VA Schedule for Rating Disabilities (VASRD) the PEB would have recommended the applicant's retirement with a combined rating of 60%.  Accordingly, correction of his military records is warranted to reflect his permanent disability retirement with a 60% combined disability rating and to ensure the appropriate adjustment of his retirement status and his retired pay with accompanying benefits effective as of 30 December 2013.
   f.  In 2008, the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion, 112th Infantry Regiment, Pennsylvania Army National Guard (PAARNG).  He was mobilized and ordered to active duty in Federal service between 10 September 2008 and 24 September 2009, during which period he served 10 months in Iraq in connection with Operation Iraqi Freedom.  During his service in Iraq, he developed or aggravated a variety of medical conditions that resulted, after his return to the United States, in his referral to the IDES in February 2012.

   g.  The applicant's case was subsequently reviewed by a Medical Evaluation Board (MEB).  Effective 17 June 2012, the MEB determined that the applicant did not meet medical retention standards due to 3 conditions:  spondylosis, sciatica, and post-traumatic stress disorder (PTSD).  Accordingly, the MEB referred him to the PEB.  Consistent with the IDES process, the applicant underwent a medical examination by VA-approved medical providers and his unfitting medical conditions were rated by the VA.

   h.  In a rating decision, dated 17 June 2013, the Seattle VA D-RAS rated his unfitting medical conditions as follows: 

		(1)  VASRD Diagnostic Code (DC) 9434 – major depressive disorder - 30%

		(2)  VASRD DC 5243 - spondylosis - 10%.

		(3)  VASRD DC 8520 – sciatica,  right lower extremity - 10%.

   i.  As required by the IDES, an informal PEB applied the D-RAS ratings to the 3 unfitting conditions and recommended the applicant's permanent disability retirement with a 40% combined disability rating.  On 20 August 2013, through counsel, the applicant submitted through the informal PEB to the VA D-RAS, a request for a VA rating reconsideration (VARR).  The applicant attached the results of a medical examination, dated 19 August 2013 and argued that the new medical information, together with the physical limitations detailed in various DA Forms 3349 (Physical Profile) required a VA rating of his Spondylosis at 40%.

   j.  The VA D-RAS declined to take favorable action on the VARR and, as a result, the informal PEB issued a revised DA Form 199 (PEB Proceedings), dated 13 August 2013, in which the PEB found that the applicant suffered from 3 unfitting medical conditions with the disability ratings assigned by the VA D-RAS.  By Orders Number D329-01, dated 25 November 2013, the U.S. Army Physical Disability Agency (USAPDA) placed the applicant on permanent disability retired status with a 40% rating in pay grade E-5 effective 30 December 2013.
   
   k.  Title 10, U.S. Code (USC), section 1202, states that the Secretary of the Army may retire with retired pay a Soldier who is determined to be unfit to perform the duties of his/her grade, rank, or rating because of a physical disability.  Among other things, the statute requires that:  (1) based on accepted medical principles, the disability is of a permanent nature and stable; (2) the disability is not the result of the Soldier's intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence; (3) the disability is at least 30% under the VASRD at the time of the determination; and (4) either (a) the disability was not noted at the time of the Soldier's entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member's entrance on active duty and was not aggravated by active military service) or (b) the disability is the proximate result of performing active duty.

   l.  Title 10, USC, section 1216a states that the Army must use the VASRD in making a disability determination for a Soldier, including any applicable interpretation of the VASRD by the U.S. Court of Appeals for Veterans Claims.

   m.  It is undisputed that when the informal PEB considered the applicant's case, it did not have the benefit of the VA Philadelphia Regional Office Rating Decision, dated 9 May 2014, which increased from 10% to 40% the rating for the applicant's unfitting spondylosis.  This PEB made its findings and recommendations approximately 15 months before the VA in Philadelphia issued the rating decision increasing his ratings.  DTM 11-015 (attached) unambiguously contemplates that the ABCMR should correct the applicant's military records in this circumstance.

   n.  There is similarly no dispute that the VA's favorable action on the applicant's appeal raising the disability ratings of his PEB-determined unfitting spondylosis from 10% to 40%, results in a difference and more favorable disability retirement disposition than that recommended by the PEB during its consideration of his case under the IDES.  Specifically, the applicant's combined rating for retirement purpose is properly 60%, rather than the 40% rating recommended by the PEB based on the prior superseded VA D-RAS rating for his unfitting spondylosis.  With the increased rating for spondylosis, the applicant had 3 unfitting conditions before the PEB as follows:  (1) spondylosis (DC 5243) at 40%, (2) major depressive disorder (DC 9434) at 30%, and (3) sciatica, right lower extremity (DC 8520) at 10%.

   o.  Application of the VASRD combined rating table at 38 Code of Federal Regulations (CFR), section 4.25, consistent with the methodology employed by the PEB and required by Title 10, USC, section 1216a, results in a revised combined disability rating for the applicant of 60%:  40% combined with 30% equals 55% combined with 10% equals 64% which rounds to 60%.  Consequently, the applicant's disability retired pay should be calculated by multiplying his retired pay by 60% rather than 40%, retroactive to 30 December 2013, his effective date of disability retirement.

   p.  Granting the applicant the relief he seeks is also appropriate because the facts of his case are indistinguishable from those of a recent case in which the ABCMR granted the full relief requested by an applicant through correction of her military records to reflect an increased military disability retirement rating resulting from a post-separation rating by the VA of an unfitting military medical condition after a VA appeal by the applicant  (ABCMR Docket Number AR20130011299 (11 March 2014)).  In that case, the VA assigned a 10% rating to the applicant's unfitting temporomandibular joint disorder (TMJ) and a PEB recommended her retirement with a combined 50% rating to include 10% for her TMJ condition.  She appealed the VA rating decision and they took favorable action by increasing the rating from 10% to 30%.

   q.  The ABCMR concluded, "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 50%."  The applicant is similarly situated to the applicant in that case and he is entitled to relief because the VA changed the disability rating for his unfitting spondylosis based on a new VA rating that was unavailable during the IDES process.  The ABCMR is required to treat similar cases in a similar manner.

3.  Counsel provides copies of the following:

* Orders Number 224-389
* Orders Number 251-093
* four DA Forms 3349
* DA Form 3947 (MEB Proceedings)
* two VA Rating Decisions
* DA Form 199 (PEB Proceedings)
* Initial Evaluation – First Choice Rehabilitation Specialists
* Addendum to Request for VA Rating Reconsideration memorandum
* VA Form 21-526b (Veteran's Supplemental Claim for Compensation)
* Orders Number D329-01
* ABCMR Docket Number AR20130011299
* letter to the Army Review Board Agency (ARBA) 
* VA Form 9 (Appeal to Board of Veterans' Appeals) and instructions for completing the form

CONSIDERATION OF EVIDENCE:

1.  The applicant reenlisted in the PAARNG on 14 April 2008, with prior service.
He held military occupational specialty 11B (infantryman).

2.  Counsel provided copies of orders, 5 DA Forms 3349, and a Joint DOD/VA Disability Evaluation Pilot Referral pertaining to the applicant's period of active duty, temporary and permanent profile assignments, and a 2012 diagnosis of spondylosis with degenerative joint disease and depression.

3.  On 8 June 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.  Spondylosis with degenerative disc disease

X
2.  Sciatica

X
3.  PTSD 

X
4.  Erectile dysfunction 
X

5.  Status post bilateral inguinal hernia repair 
X

4.  On 17 June 2013, the VA completed a disability assessment of his unfitting and service-connected disabilities under the IDES.  The VA proposed the following ratings: 

	a.  For his unfitting disabilities, the VA proposed a 10% rating Spondylosis.  The VA stated that they had assigned a 10% evaluation for his thoracolumbar spine based on the 38 CFR, section 4.59, which allowed consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint.  Since he demonstrated painful motion of the thoracolumbar spine, the minimum compensable evaluation of 10% was assigned.  Additional symptoms included forward flexion of the thoracolumbar spine within normal range and combined range of motion of thoracolumbar spine within normal range (emphasis added).  A higher evaluation of 20% was not warranted unless there was forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees.
	b.  For his service-connected disability of sciatica a 10% disabling rating was proposed.  The VA stated a higher evaluation of 20% was not warranted for sciatica unless the nerve damage was moderate.

   c.  For his unfitting disability of PTSD a 30% disabling ratings was proposed.

5.  On 31 July 2013, an informal PEB convened and considered his medical conditions of PTSD, spondylosis, and sciatica. The PEB found those medical conditions prevented satisfactory performance of duty in his grade and primary specialty.  The PEB also found that the spondylosis was unfitting because the symptoms of stiffness, decreased range of motion and chronic low back pain prevented the Soldier from standing, walking, marching for prolonged periods, running, lifting, or bending which significantly impaired his ability to perform the duties required of an infantryman.  The informal PEB findings were reconsidered by the applicant's appeal and associated documents. The PEB recommended his permanent disability retirement with a combined rating of 40%.

6.  On 13 August 2013, a reconsideration PEB convened and considered and rated the aforementioned medical conditions.  The PEB found those medical conditions prevented satisfactory performance of duty in his grade and primary specialty.  The PEB recommended his permanent disability retirement with a combined rating of 40%.  He concurred and waived his right to a formal hearing.  He also requested the VA reconsider his disability ratings.

7.  Counsel also provided copies of the following:

   a.  An Initial Evaluation-First Choice Rehabilitation Specialists which shows he was evaluated on 19 August 2013 and a decreased right knee flexion was indicated and physical therapy was required to address the problems identified and decrease the pain.
   
   b.  An Addendum to Request for VA Rating Reconsideration memorandum, dated 20 August 2013, wherein the applicant's counsel requested the VA reconsider the applicant's disability rating assigned for his spondylosis with degenerative disc disease lumbar spine.  The applicant stated that he had been assigned a 20% disability rating for DC 5243 as far back as 25 June 2009.  38 CFC, section 3.951, prohibited reduction of a disability rating "unless medical evidence established that the disability to be evaluated had actually improved."  

   c.  A VA Form 21-526b, dated 5 November 2013, the applicant filed a claim for an increased evaluation for spondylosis and a left shoulder condition secondary to sciatica.

   d.  Orders Number D329-01, dated 25 November 2013, placing him on the retired list effective 30 December 2013.

8.  He was honorably discharged from the PAARNG on 29 December 2013, by reason of permanent disability.  He was credited with completing 12 years, 8 months, and 16 days of total service for retired pay.

9.  Counsel also provided copies of the following:

   a.  ABCMR Docket Number AR20130011299, dated 11 March 2014, wherein the Board granted that applicant, in effect, an increased 60% disability rating as a result of her VA rating decision appeal, with appropriate adjustment of her retired pay.

   b.  A letter, dated 30 June 2014, wherein the applicant's counsel advised the Board that the applicant had not failed to exhaust his administrative remedies through an appeal to the VA and requested the Board reverse its decision to return the applicant's application without action and instead process and take action on the application.

   c.  A blank VA Form 9 with instructions for completing the form.

10.  On 9 May 2014, the VA completed a disability assessment of his unfitting and service-connected disabilities.  The VA proposed the following ratings: 

   a.  A 40% service-connection rating for lumbosacral degenerative disc disease (previously rated as spondylosis with degenerative disc disease lumbar spine) effective 19 August 2013.  The VA stated the rating was increased based on additional symptoms to include combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees and painful motion upon examination.  Since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination (emphasis added).

   b.  A 20% service-connection rating for left shoulder degenerative joint disease with subcromial bursitis, rotator cuff tendonitis, and impingement syndrome effective 2 December 2013.
   
   c.  0% service-connection rating for residual scar.
   
   d.  Continued 10% rating for evaluation of radiculopathy (sciatica), right lower extremity.
   
   e.  Denial of service-connection for residual scar, abdomen

11.  The DTM 11-015 – IDES states 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. 

12.  Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was initially awarded a 10% rating for spondylosis by         VA D-RAS.  On 13 August 2013, a reconsideration PEB found this medical condition, along with sciatica and PTSD, unfitting and recommended he be permanently retired with a combined rating of 40%, to include 10% for his spondylosis condition effective 30 December 2013.  It appears that the PEB that convened on 13 August 2013 considered all the medical evidence provided and available at the time.  He concurred with the findings and recommendation of the PEB and he was retired accordingly.

2.  On 19 August 2013, after the VA proposed a rating and the PEB made its determination, he was seen by a civilian doctor and was diagnosed with decreased right knee flexion.  In accordance with DTM 11-015, a service member upon separation from military service for medical disability 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 based on a portion of his/her service treatment record that was missing during the IDES process. 

3.  He appealed the VA rating decision of 10% for spondylosis.  On 9 May 2014, after his separation, the VA increased the rating for this condition from 10% to 40% as a result of the 19 August 2013 civilian evaluation of additional symptoms. The VA also advised him that since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination, meaning, if that condition improves, the VA can lower its rating.

4.  As such, that evaluation was not missing during the IDES process; it occurred after the IDES process with the VA then considering that information and increasing the rating from 10% to 40%.  There is no evidence of record and neither counsel nor the applicant provided sufficient evidence showing his medical condition of spondylosis was not properly evaluated and rated by the 2013 PEB.

5.  A PEB does not compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  It is a role that the VA assumes.  The PEB grades determination of fitness and disability based on the information at hand.  The fact that the VA awarded him an increased service-connected disability rating for this medical condition is not evidence of any error in his 2013 military IDES process.

6.  An increased award of a VA service-connected disability rating does not establish entitlement to an increased Army disability rating.  Operating under its own policies and regulations, the VA awards a rating because a medical condition is related to service (service connected).  He was evaluated and is being compensated for this service-connected medical condition based on a higher rating given by the VA.  Therefore, he is not entitled to the requested relief.

7.  Each ABCMR case is unique and the Board makes its decisions based upon each individual set of the circumstances, available evidence, and arguments presented.  ABCMR cases do not set precedent and each case is considered based on its own merits. 

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)                                         AR20140012237





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ABCMR Record of Proceedings (cont)                                         AR20140012237



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