IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150004197 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____X___ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150004197 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150004197 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 his medical discharge be changed to a medical retirement. 2. He states, in effect, he was discharged from the Army with a 20 percent disability rating. However, the Department of Veterans Affairs (VA) initially rated his disability as 50 percent disabling, and later increased the rating to 70 percent. He contends that his insomnia and radiculopathy (pinched nerve as a result of degenerative changes in the spine) are unfitting conditions that should have been taken into consideration by both the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 3. The applicant provides copies of his medical records, VA examinations, and VA rating decisions. CONSIDERATION OF EVIDENCE: 1. The applicant’s physical disability evaluation was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the 19 December 2011 Policy and Procedure Directive-Type Memorandum (DTM) 11-015. 2. On 2 November 2012, a PEB convened to consider his fitness for continued service based on nine MEB diagnoses. 3. The PEB found that he was unfit due to thoracic degenerative joint disease (DJD) without specific causative injury and post-surgery right knee derangement. The PEB recommended a 10 percent disability rating for each condition with a combined disability rating of 20 percent and separation with severance pay if otherwise qualified. 4. The PEB found the other seven MEB diagnoses met medical retention standards. Those diagnoses were listed as: * primary insomnia * cyst of male genital organs * calluses bilateral great toe * right shoulder scars * dermatitis bilateral hands * constant bilateral tinnitus * adjustment disorder with anxiety and depressed mood 5. On 21 November 2012, he concurred with the PEB findings and recommendations and waived a formal hearing of his case. He made an additional election to have the VA reconsider his disability ratings. 6. In his request for reconsideration of his disability rating, dated 20 November 2012, the applicant’s counsel argued that based on new medical evidence, the VA Schedule for Rating Disabilities (VASRD) supported a disability rating of 20 percent for each of the applicant’s unfitting conditions (right knee derangement status post-surgery and thoracic DJD). Specifically, the fact that the applicant used a cane and a knee brace to walk supported a finding that the functional loss due to instability more closely approximated a 20 percent level. Further, his muscle spasms and guarded movement aligned with a 20 percent rating for thoracic DJD. 7. His record is void of the VA’s determination in regard to his request for reconsideration and the applicant did not provide this document. 8. On 2 January 2013, the PEB findings and recommendations were approved. 9. On 27 March 2013, he was honorably discharged with severance pay by reason of non-combat-related disability. 10. The United States Army Physical Disability Agency reviewed the applicant’s IDES records and provided an advisory opinion on 29 January 2016, wherein they recommended that no change be made to the applicant’s military disability findings. The official stated that only unfitting conditions are compensable. Further, the applicant concurred with his MEB and PEB findings. The applicant received a new VA rating for several conditions in 2014 with 10 percent being provided for a new diagnosis of radiculopathy. However, the applicant did not provide any new evidence to show that his insomnia and radiculopathy were unfitting when he was in the military. The applicant was provided this information but did not provide a response. 11. He provides three VA rating decisions, dated 16 October 2012, 16 June 2013, and 1 October 2014. These documents show his combined service connected disability rating is currently 70 percent. 12. His VA rating decision dated 1 October 2014 shows his medical condition of left lower extremity radiculopathy (claimed as bilateral lower neuropathy) was granted a 10 percent rating, effective 14 March 2014. This condition was found to be secondary to the service-connected disability of thoracolumbar degenerative arthritis with lumbar scoliosis (PEB referred thoracic DJD, and claimed as lower back pain). 13. He provides medical records which show he was evaluated and received treatment for lower back pain during active duty and after his discharge. REFERENCES: 1. 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 VASRD. 2. 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. 3. DTM 11-015, in effect at the time, explained the IDES. a. The IDES is the joint Department of Defense (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. 4. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant contends that his insomnia and radiculopathy warranted consideration by both the MEB and PEB for a medical retirement. 2. A review of his MEB shows that his radiculopathy was not evaluated and his insomnia was not found to be an unfitting condition; therefore, neither condition was evaluated by the PEB. A key element of the Army DES is the Soldier's condition at the time of separation. It is not intended to be a prediction of future medical ailments. The PEB awarded him a 20 percent disability rating under the VASRD. 3. Subsequent to his separation, the VA assigned him a 10 percent rating for right lower extremity radiculopathy (claimed as bilateral lower neuropathy), effective from 14 March 2014, the date of the first evidence of a diagnosed condition. 4. It is acknowledged that medical conditions may worsen over time; however, the Army’s rating is dependent on the severity of the unfitting condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating. An award of a VA rating does not establish entitlement to medical retirement or indicate that the initial medical evaluation was in error. 5. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and effects the individual's civilian employability and/or social functioning. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings or finding other medical conditions to be service connected. 6. The applicant's physical disability evaluation was conducted in accordance with the law and regulations. There is no evidence of procedural or administrative error or an injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004197 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2