IN THE CASE OF:	  

		BOARD DATE:	  13 October 2015

		DOCKET NUMBER:  AR20150005449 


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 records to reflect retirement due to physical disability in lieu of discharge due to physical disability with severance pay.

2.  The applicant states the Department of Veterans Affairs (VA) subsequently awarded him a 60 percent (%) service connection for his disabilities; therefore, he believes he should have received a medical retirement due to the severity of his medical conditions.

3.  The applicant provides a plethora of his service and post-service medical and personnel records.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) on 22 March 2002.  He completed training and he was awarded military occupational specialty (MOS) 31R (Multichannel Transmission Systems Operator/Maintainer.  

2.  The evidence shows he was ordered to active duty in support of Operation Iraqi Freedom and he served in an imminent danger pay area in Iraq for the period 4 March 2004 through 5 March 2005.



3.  His record contains:

   a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 December 2010, which states the applicant was moving generators on 10 November 2010.  His back popped, but it was not painful at the time.  On the night of 14 November 2010, he woke up with a sharp pain and he was taken to the emergency room by ambulance where he was treated for a herniated disk.

   b.  DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement), dated 26 July 2012, in which his commander states the applicant has been unable to perform duties since November 2010.  The applicant has a permanent profile and has been unable to work or be medically returned to duty.

   c.  DA Form 3349 (Physical Profile), dated 12 August 2013, which indicates the applicant did not meet the retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and was in need of a Medical Evaluation Board (MEB).

4.  On 6 August 2013, after consideration of the applicant's clinical records, laboratory findings, and physical examination, an MEB diagnosed the applicant with lumbar degenerative disc disease diagnosed by the VA as radiculopathy which was deemed medically unacceptable in accordance with Army Regulation 40-501, chapter 3-39h.  Eight other ailments were considered and determined medically acceptable or not disqualifying for military service.  On 13 August 2013, the applicant agreed with the board's findings and recommendations and he was subsequently referred to a Physical Evaluation Board (PEB).    

5.  His case was adjudicated as part of the Integrated Disability Evaluation System (IDES).  On 11 April 2014, the PEB found the applicant physically unfit due to moderate thoracic spine degenerative disc disease, PEB referred as lumbar degenerative disk disease.  The applicant's condition and disability percentage was determined by the VA documented in a VA memorandum dated 27 March 2014, which recommended a combined disability rating of 10%.

6.  On 23 April 2014, the applicant did not concur with the findings, but waived a formal hearing.  His written appeal was not located in the available records.

7.  The applicant's PEB findings were forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review and final adjudication.  On 21 May 2014, the PEB findings were approved for the Secretary of the Army by the USAPDA.

8.  On 29 June 2014, he was honorably discharged from the ARNGUS due to physical disability with severance pay.  He was authorized disability severance pay in grade E-5 based on 5 years and 16 days of service as computed under Section 1208, Title 10, United States Code.  His percentage of disability was established at 10%.

9.  The applicant provides a plethora of his service and post-service medical and personnel records in addition to a portion of a VA Rating Decision statement, dated 10 December 2014, which verifies his combined service-connected disability rating as 60%.  This document shows he received:

* 40%, for lumbar degenerative disk disease
* 20%, for a cold injury to his right hand
* 10%, for tinnitus, bilateral
* 10%, for a right leg condition
*   0%, for a surgical scar on his low mid back

10.  During the processing of this case, on 22 July 2015, an advisory opinion was obtained from the Legal Advisor, USAPDA.  The advisory official recommended denial of the applicant's request and stated:

   a.  The applicant's MEB was completed on 6 August 2014, with only one condition not meeting medical retention standards in accordance with chapter 3, Army Regulation 40-501:  Lumber degenerative disk disease.  All other conditions met medical retention standards and were not listed on the physical profile.  The applicant concurred with the MEB findings and waived his right to an independent medical review.

   b.  An informal PEB found the applicant unfit for his lumbar condition and, in accordance with the Department of Defense (DOD) IDES, requested the VA rate that condition for the military.  On 27 March 2014, the VA rated the lumbar condition at 10% and the PEB incorporated the VA rating into their 11 April 2014 findings of separation with severance pay.  On 23 April 2014, the applicant nonconcurred with the informal PEB findings and waived his right to a formal PEB and any VA review of his rating.  

   c.  His appeal reflected his belief that his lumbar condition was very painful and he was not satisfied with the PEB's findings.  He also noted that he had ringing in his ears (the VA did not provide a rating for his ears).  The PEB reviewed the appeal and reaffirmed their findings.  Because the applicant nonconcurred with the PEB findings the USAPDA reviewed the case file and found that the PEB's findings were correct based on the preponderance of the evidence.  The applicant was separated from the military with disability severance pay on 29 June 2014.

   d.  The applicant has not provided any evidence of any error in the PEB's findings. In the IDES system the only finding that the PEB makes is whether the MEB listed conditions are fit or unfit.  The applicant has not indicated that he believes that the PEB findings of unfit for his lumbar condition is incorrect and has presented no evidence or claim that the PEB findings of fit for the other conditions listed on the MEB are incorrect.  

   e.  The applicant cannot request a review of the VA applied ratings in his PEB from the U.S. Army or the Army Review Board Agency.  The only recourse the applicant has in regard to those ratings is to file an appeal with the VA.  The applicant has provided evidence that the VA had a rating for his lumbar condition of 40% as of December 2014, but there is no evidence that this rating is the result of an appeal to the VA of their previous rating of March 2014 or is simply a change in rating based on his condition after separation from the military.

   f.  The PEB findings are based on a preponderance of evidence; were not arbitrary or capricious; and, were not in violation of any statute, directive, or regulation.  The applicant has not provided any evidence of error regarding his military disability findings.

11.  On 29 July 2015, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD).

13.  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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  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.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:
	
   a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

15.  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 percent.  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 of less than 30 percent.

16.  Directive-type Memorandum (DTM) 11-015, in effect at the time, explained the IDES.  

	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 (Disability Evaluation System (DES)) 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 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's request for correction of his records to reflect retirement due to physical disability in lieu of discharge due to physical disability with severance pay has been carefully considered.

2.  Title 10, U.S. Code, 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 percent.  The applicant had neither a disability rating of 30 percent nor did he have 20 years of service to render him eligible for a physical disability retirement upon his separation from service.

3.  The applicant's case was processed under the IDES in which he underwent an examination by the VA.  Upon completion the VA proposed a combined disability rating of 10% and the PEB accepted and adopted this rating.  He was counseled and he did not concur with the informal PEB findings; however, he waived his right to a formal PEB and any VA review of his rating prior to his separation. 

4.  His appeal reflected his belief that his lumbar condition was very painful and he was not satisfied with the PEB's findings.  The PEB reviewed the appeal and reaffirmed their findings.  Because the applicant did not concur with the PEB findings, the USAPDA reviewed the case file and found that the PEB's findings were correct based on the preponderance of the evidence.  The applicant was separated from the ARNGUS with disability severance pay on 29 June 2014.

5.  The DES guidance provides that after separation from service and attaining veteran status, if a former service member desires to appeal a determination from a 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.  

6.  The VA Rating Decision he provides, dated 10 December 2014, changed his service-connected disability rating for his lumbar degenerative disk disease to 40% and added service-connected conditions which amounted to a combined service-connected disability rating of 60%; however, there is no evidence that this rating is the result of an appeal to the VA of their previous rating of 27 March 2014, or is simply a change in rating based on his condition after separation from the military.

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)                                         AR20150005449





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ABCMR Record of Proceedings (cont)                                         AR20150005449



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