BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150003420 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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to add additional medical conditions and increase his disability rating to 30 percent (%). 2. The applicant states he feels he received the wrong percentage of disability upon his discharge. Since the Department of Veterans Affairs (VA) rated him at 30%, the Army should have given him the same disability percentage. a. The Army separated him because of a PEB. The Army felt he should only receive a 10% disability rating for his shoulder and he feels he should have received a higher rating. b. Additionally, the Army did not give him a rating for his back. He has degenerative arthritis in the lumbar region of his back and he does not understand why he did not receive a disability rating for this condition. 3. The applicant provides: * self-authored statement, undated * Standard Form (SF) 600 (Chronological Record of Medical Care [Narrative Summary], dated 17 August 2012 * VA Disability Evaluation System Proposed Rating, dated 14 November 2012 * letter from the VA (Overview of Proposed Rating), dated 15 November 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * response to advisory opinion, dated 24 February 2016 * information pertaining to Veteran's Administration Schedule for Rating Disabilities (VASRD) codes 5201 and 5003 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 23 January 2007, held military occupational specialty (MOS) 42A (Human Resources Specialist), and attained the rank/grade of staff sergeant/E-6. 2. His record contains a DA Form 3349 (Physical Profile), dated 16 July 2012 and 23 July 2012 for his disqualifying condition of right shoulder pain (supraspinatus tear) and his non-disqualifying condition of lumbar spondylosis, T-11 compression. He had a permanent level 3 profile in factor "U" (U-3) and a permanent level "2" profile in factor "L" (L-2). His profile indicates he was not able to perform the push-up, run, and swim events of the Army Physical Fitness Test (APFT). The profiling official indicated he required a Medical Evaluation Board (MEB) referral. Additionally, item 5 (Functional Activity) of this form shows he was not able to perform the following functional activities: * carry and fire individual and assigned weapon * wear body armor for at least 12 hours per day * wear load bearing equipment (LBE) for at least 12 hours per day * move 40 pounds while wearing usual protective gear at least 100 yards * live in an austere environment without worsening the medical condition 3. His record contains a DA Form 7653 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 15 August 2012. His commander stated he did not recommend retaining the applicant; due to his injury and profile he was not likely to fully recover and be deployable. 4. His record contains a narrative summary, dated 17 August 2012 showing: a. His condition of right shoulder supraspinatus tendinopathy with rim rent tear at humeral insertion and mild AC joint osteoarthropathy (arthritis) fails Army retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-14n because it precludes the satisfactory performance of his military duties. "This disqualifying diagnosis was made based on the radiologic study dated 27 June 2011 showing moderate supraspinatus tendinosis with small anterior supraspinatus insertion tear and shallow partial thickness tear of supraspinatus tendon." He has been on a profile for over 12 months, he is unable to perform his primary MOS, and unable to complete all items in section 5 of his profile. On 14 August 2012, his active range of motion was flexion 170 and abduction 140 degrees. His progress has stabilized, and further treatment is unlikely to provide significant improvement. b. His condition of degenerative arthritis of the lumbar spine (L4-S1) (P2) meets retention standards in accordance with Army Regulation 40-501, paragraph 3-3d. He admits to a history of degenerative arthritis (verified by L-Spine Magnetic Resonance Image conducted in March 2009) but he could perform his duties with accommodations until approximately 1 week ago after deep waist bending. He now has continuous pain in the lower back. He admitted to no evaluation or documentation for recent increase in pain. c. His condition of resolved compression fracture of T11 meets medical retention standards in accordance with Army Regulation 40-501, paragraph 3-1. There is no evidence this condition precludes his military duties. d. His condition of benign familial essential tremors meets medical retentions standards in accordance with Army Regulation 40-501, paragraph 3-1. There is no evidence this condition precludes his military duties. 4. His record contains a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 19 September 2012, which shows: a. The MEB considered the following conditions: (1) Right shoulder mild supraspinatus tendinopathy with rim rent tear at humeral insertion and mild acromioclavicular (AC Joint) osteoarthropathy (arthritis). This condition failed retention standards in accordance with Army Regulation 40-501, paragraph 3-14n. (2) Degenerative arthritis of lumbar spine (L4-S1) for which he had a level 2 profile. This condition met medical retention standards. (3) The VA diagnosed him with a resolved compression fracture of T-11. This condition met medical retention standards. (4) The VA diagnosed him with benign familial essential tremors. This condition met medical retention standards. b. The MEB referred him to a PEB and the applicant agreed with the MEB's findings and recommendation. However, he did have the option to disagree with the findings and recommendations and request an appeal if he so desired. 5. His record contains a VA proposed Disability Evaluation System rating, dated 14 November 2012 and a letter from the VA, dated 15 November 2012. These documents state: a. The VA proposed a 10% rating for his unfitting condition of right shoulder mild supraspinatus tendinopathy with rim rent tear at humeral insertion and mild AC joint osteoarthropathy (arthritis) claimed as right shoulder pain (dominant). The VA described this condition as an unfitting disability related to his service, meaning that the VA was providing this rating to the Army for the purpose of the PEB. However, this rating would also apply for a VA disability rating of 10%. b. The VA stated that the following claimed disabilities were related to his military service (service connected), meaning these conditions were being rated for the purpose of a VA disability percentage only and did not impact the PEB or indicate that these conditions were unfitting for military service. (1) Degenerative arthritis lumbar spine (also diagnosed with compression fracture T11) (claimed as lower back pain). The VA recommended a service connected disability rating of 10% for this condition. (2) Benign familial essential tremor (claimed as tremors in hands). The VA recommended a service connected disability rating of 10% for this condition. c. The VA recommended he receive a 10% disability for the Army (PEB) for his shoulder condition only and a combined rating of 30%, for VA purposes only. 6. The informal PEB occurred at Joint Base Lewis McChord, WA, in accordance with the Integrated Disability Evaluation System (IDES) on 4 December 2012. The PEB found the applicant unfit based on his condition of right shoulder mild supraspinatus tendinopathy with rim rent tear at humeral insertion and mild acromioclavicular (AC joint) osteoarthropathy (arthritis) and requested the VA provide a disability rating percentage. 7. His record contains a DA Form 199 (PEB Proceedings), dated 4 December 2012, showing the PEB recommended a 10% disability rating for right shoulder mild supraspinatus tendinopathy with rim rent tear at humeral insertion and mild AC joint osteoarthropathy (arthritis) and that he be separated for his unfitting condition with severance pay. The applicant indicated that: * he concurred with the PEB's findings and recommendations * he waived his right to a formal hearing * he did not request reconsideration of his VA rating 8. His DD Form 214 shows the Army honorably discharged him on 11 March 2013, due to disability with entitlement to severance pay. 9. The U.S. Army Physical Disability Agency (USAPDA) issued an advisory opinion, on 28 January 2016, recommending disapproval of the applicant's request to increase his disability rating to 30%. The advisory official states: a. The applicant's MEB concluded on 19 September 2012 with only his right shoulder condition found not to meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501. The MEB also listed his back and hand tremors, but found neither required level 3 profile restrictions; both conditions met medical retention standards. The applicant concurred with his MEB findings on 28 September 2012. b. On 4 December 2012, an informal PEB found the applicant unfit for his right shoulder and assigned the 10% rating the VA provided in accordance with the IDES process; and recommended separation with severance pay. The PEB found all his other medical conditions fitting for military purposes. Only conditions found unfitting by the military are compensable notwithstanding any rating for those conditions by the VA (Department of Defense Instructions (DoDI) 1332.18 and Title 10, U.S Code (USC), Chapter 61). On 6 December 2012, the applicant concurred with the PEB findings and waived his right to a formal hearing. c. The applicant provided no evidence of any error or injustice in the MEB and PEB findings. His claim that since the VA rated conditions other than his unfitting shoulder condition his overall ratings for the military should increase is without merit. d. The PEB properly supported its findings by a preponderance of the evidence, the findings were not arbitrary or capricious, and the findings were not in violation of any statute, directive, or regulation. 10. On 24 February 2016, the applicant responded to the advisory opinion. He states: a. He reviewed the Board's decision [sic the advisory opinion] and noticed the advisory official did not provide any evidence to reverse the Army's decision. The applicant took the time to do some research and found some evidence supporting his claim. b. The evidence he found was his physical evaluation; this evaluation occurred during the medical board process. He read the evaluation and found contradictions regarding his shoulder. One portion states he met medical retention standards and another portion states he did not meet medical retention standards. The physical evaluation states his right shoulder flexion was 170 degrees and his abduction was 140 degrees. He disagrees with the flexion measurement of 170 degrees, but agrees with the abduction measurement of 140 degrees. However, if feels that since these measurements are already stated in his physical evaluation his agreement is irrelevant. c. VASRD code 5201 for limited motion of the shoulder states that if the shoulder can reach 90 degrees the rating should be at 20%. His shoulder can get to 90 degrees and as stated in the evaluation it can get to 140 degrees. d. He has degenerative arthritis in his back, as stated in the evaluation. According to VASRD code 5003 for degenerative arthritis, if there is painful motion it and hurts to move a single minor joint group then the rating is 10%. His evaluation shows he had painful motion in his back. 11. The applicant provided a document pertaining to VASRD code 5201, which addresses shoulder and arm limitation of motion and VASRD code 5003, which addresses degenerative arthritis. 12. Title 38, Code of Federal Regulation, Chapter I, Part 4, Subpart B, Section 4.71a (Schedule of ratings—musculoskeletal system) states: a. VASRD code 5003 - Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10% is for application for each such major joint or group or minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. b. VASRD code 5242 - Degenerative arthritis of the spine (see also diagnostic code 5003): [Note: Title 38, Part 4, Schedule for Rating Disabilities, Veterans Benefits Administration, Supplement Number 33 indicates that this code is used when the limitation of motion is not severe enough to warrant a rating under the general rating formula. A joint condition can only be rated as degenerative arthritis if it does not have a limited enough range of motion to rate under those codes. Conditions cannot be rated under both limitation of motion and degenerative arthritis. Limited motion first, and if not, then only arthritis. If pain is present with motion, then the minimum rating must be given.] 13. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, USC, Chapter 61, and DODD 1332.18. It 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. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 14. Army Regulation 635-40, paragraph 3–1 (Standards of unfitness because of physical disability) states the mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 15. DODI 1332.38.E2.1.25 defines physical disability as any impairment due to disease or injury, regardless of degree, that reduces or prevents an individual's actual or presumed ability to engage in gainful employment or normal activity. A medical impairment or physical defect standing alone does not constitute a physical disability. To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member's ability to perform his or her duties. 16. Title 38, U.S. Code, sections 1110 and 1131, permit 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 underwent an MEB in September 2012 and the MEB evaluated him for right shoulder mild supraspinatus tendinopathy with rim rent tear at humeral insertion and mild acromioclavicular (AC Joint) osteoarthropathy (arthritis); degenerative arthritis of lumbar spine (L4-S1), for which he had a level 2 profile; and a resolved compression fracture of T-11. a. The applicant's conditions of degenerative arthritis of lumbar spine (L4-S1 and resolved compression fracture of T-11 were not unfitting because they did not render him unfit to perform his military duties. Even though he had degenerative arthritis, it did not affect his ability to perform the duties of his MOS and grade, to perform the APFT, or to deploy. b. He was not able to fulfill the duties of his MOS, his position, and his rank/grade due to his shoulder condition. His shoulder condition was unfitting because he unable to: * carry and fire individual and assigned weapon * wear body armor for at least 12 hours per day * wear LBE for at least 12 hours per day; move 40 pounds while wearing usual protective gear at least 100 yards * live in an austere environment without worsening the medical condition * unable to able to perform the push-up, run, and swim events of the APFT c. The applicant agreed with the MEB's findings and waived his right to an appeal. This means he agreed and understood that the PEB would only evaluate his shoulder condition because this was the only condition that rendered him unfit. 2. After the MEB, the applicant participated in the IDES. This program allows the VA to medically evaluate the Soldier and then make a recommendation to the PEB on the percentage of disability. Further, the PEB is required to accept the VA's recommendation for the unfitting condition. However, this program also allows the VA to rate Soldiers on all of their service-connected medical conditions and receive a combined rating from the VA for all of the conditions, to include the unfitting condition, for VA purposes only. 3. In this case, the VA recommended the PEB award a 10% disability rating for the applicant's shoulder condition. The PEB accepted the VA's recommendation and the Army discharged the applicant with a disability and severance pay. 4. The VA also rated the applicant for his back condition (10%) and hand tremors (10%), which were not unfitting, and combined all the service-connected conditions he had to include his unfitting shoulder (10%). The combination of these three service connected conditions meant that the VA would recommend a combined disability rating of 30%. This rating only applied to the VA. 5. An award of a different rating by another agency does not establish error in the rating assigned by the Army PDES. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service; only the Army can make that determination. The VA may award ratings because of a medical condition related to service (service-connected) which affects the individual's civilian employability. For example, the VA awarded him a disability rating for his back conditions and hand tremors; though there is no evidence to indicate these conditions rendered him unable to perform his military duties. 6. The PEB conducted his physical disability evaluation in accordance with law and regulations and he concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 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) AR20150000714 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003420 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1