IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150007349 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: 18 October 2016 DOCKET NUMBER: AR20150007349 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 to amend the decision of the ABCMR set forth in Docket Number AR20140012237 on 19 March 2015. ___________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: 18 October 2016 DOCKET NUMBER: AR20150007349 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: The applicant defers his request for reconsideration as well as his statement and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's previous request for an increase in his disability rating for post-traumatic stress disorder (PTSD) from 40 percent (%) to 60%. 2. Counsel states the Army Board for Correction of Military Records (ABCMR) should grant relief based on the following facts and arguments, which were not included in the record at the time of the Board's prior consideration. The applicant submits that the Board's decision resulted in material error or injustice. a. The Board's decision relies on an erroneous interpretation of Department of Defense (DoD) Directive Type Memorandum (DTM) 11-015, Integrated Disability Evaluation System (IDES), in two principal aspects: (1) The Board required that the new evidence sufficient to warrant correction of a service member's military records must include a portion of his or her service treatment record that was missing during the IDES process. (2) The Board concluded that absent an error by the PEB during the IDES process, no relief is warranted even if the service member successfully appeals and the Department of Veterans Affairs (VA) increases the VA rating of a PEB-referred unfitting medical condition used by the PEB in the disposition the service member's case. (3) In addition, the Board failed to treat the applicant's case in a manner similar to another case in which the Board granted full relief to the applicant on similar facts the Board did not provide any rationale for its failure to do so. b. DTM 11-015 does not make board relief contingent on a successful VA appeal based on missing service treatment records. In paragraph 2, Discussion and Conclusions, the Board incorrectly states the standard articulated by DTM 11-015, Appendix 1 to Attachment 4, paragraph 7 for correction of a military record based on new evidence: (1) In accordance with DTM 11-015, a service member, upon separation from military service for medical disability, may request correction of their military records through their respective Military Department [Board for Correction of Military Records (BCMR)] if new information regarding their service or condition during service is made available that may result in a different disposition based on a portion of their service treatment record that was missing during the IDES process. (2) The Board applied this erroneous interpretation of DTM 11-015 to deny relief to the applicant by concluding, "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... 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%." (3) The plain language of DTM 11-015, Appendix 1 to Attachment 4, paragraph 7, does not make the BCMR relief for a service member contingent on new information consisting of a service treatment record that was missing during the IDES process. Relief is warranted solely "if new information regarding his or her service or condition during service is made available that may result in a different disposition." This language requires applicants to meet the following three criterion regarding the information at issue: (1) it must be new; (2) it must relate to the service member's service or condition during service; and (3) it must potentially result in a different disposition of the service member's IDES disability disposition. The "missing service treatment record" requirement created and used by the Board appears to derive from the non­exclusive example that follows the "new information" language, as reflected in the full text of paragraph 7: 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 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 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 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. (Emphasis added). (4) The example is non-exclusive; it is merely one possible example of the many ways in which new information relating to a service member's condition in service may affect the PEB's adjudication of an unfitting condition to warrant BCMR relief. The Board improperly used language from the non-exclusive example to narrow the scope of the term "new information" in paragraph 7 by adding the requirement that new information must include missing service treatment records. If the Board had applied the correct standard, full relief for the applicant was warranted. The VA rating decision dated 9 May 2014 resulting from his appeal and increasing the evaluation for his unfitting condition of spondylosis from 10% to 40% was new information, because the increased rating decision came after the applicant's case was adjudicated by the PEB. That new VA rating decision related to the applicant's unfitting medical condition during service, because it related to his condition when he was still in service and at the time, his case was still processing through the IDES. The new evidence would result in a different disposition of the applicant's case, as it would raise his disability rating from 40% to 60% for disability retirement purposes. (5) Even if the Board were correct, that the new information must have been in existence but missing during the IDES process, which it is not, the Board was required to grant the applicant relief. Instead, the Board based its decision on the mistaken conclusion that the medical examination upon which the VA relied to increase its rating of the applicant's unfitting spondylosis "occurred after the IDES process..." This statement is flatly wrong. As the Board's decision reflects, the medical examination upon which the VA relied to increase his spondylosis rating occurred on 19 August 2013. This was six days after the PEB issued a DA Form 199 for the applicant's case on 13 August 2013, but well before the applicant's IDES process concluded as reflected by orders dated 23 November 2013, issued by the U.S. Army Physical Disability Agency (USAPDA). The USAPDA took final action with regard to applicant's IDES process by placing him on permanent disability retired status with a disability rating of 40 percent in the grade of E-5 effective 30 December 2013. DTM 11-15, Appendix 12 to Attachment 4, paragraph 1.e. makes it clear that the IDES process does not conclude until the military department's approval authority establishes a separation date: "Within 5 days of receiving the approval authority's decision to separate the Service member, establish a separation date in accordance with their respective regulations ..." For the Army, that approval authority is the USAPDA, as reflected in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24, which states "[t]he USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters" and paragraph 4-24.b., which states "Based upon the final decision of USAPDA... USAPDA will issue retirement orders or other disposition instructions as follows... (1) Permanent retirement for physical disability..." Contrary to the Board's decision, the IDES process concluded for the applicant on 25 November 2013, when the USAPDA issued orders placing him on permanent disability retirement status. On 19 August 2013, when the medical evaluation occurred resulting in the VA's increased rating, the applicant was still undergoing his IDES processing consistent with DTM 11-015 and Army Regulation 635-40. Consequently, even under the Board's flawed interpretation of DTM 11-015, the applicant warrants relief if the Board were to use the correct facts on the record before the ABCMR. c. PEB error is not required for Board relief when a successful VA appeal increases the VA rating used by the PEB. The Board's conclusion that a successful appeal of the VA rating relied upon by a PEB does not warrant relief, because it is not evidence of error in a service member's military IDES process is plainly erroneous and inconsistent with DTM 11-015. (1) The Board concedes that the applicant's successful appeal to the VA of his unfitting spondylosis condition raised the VA evaluation of that condition from the 10% rating relied upon by the PEB to a new 40% rating and that increased rating was based on medical evidence from 19 August 2013. Nonetheless, the Board denied relief because: 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... A PEB does not compensate service members for anticipated future severity or potential complications or conditions resulting in medical separation. It is a role 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. (2) The applicant made no allegation of an improper PEB evaluation in 2013, because it is not required relevant according to the DTM 11-015. The PEB properly used the 10% rating for spondylosis provided in 2013 by the VA. Under the IDES and DTM 11-015, the PEB was required to use the rating provided by the VA for a PEB-referred unfitting condition. The Board's erroneous conclusion that an allegation of PEB error in 2013 was necessary finds no support in DTM 11-015 and fundamentally misconstrues the nature of the remedial scheme established by DTM 11-015 to address situations where the VA rating of a PEB-referred unfitting condition later changes due to an appeal or other new information relating to the service member's condition while in service. (3) The Board's conclusion is inconsistent with DTM 11-015, which plainly contemplates that a BCMR should grant relief to a service member when the VA changes the rating of a condition a PEB found unfitting, when the VA action is based on evidence relating to the service member's condition while he was in service. This situation does not involve PEB error, nor does DTM 11-015 reference PEB error, because when the PEB adjudicated the case, it used the rating the VA provided at that time as required by the IDES process. Instead, Appendix 1 to Attachment 4, paragraph 7 recognizes that due to an appeal or other circumstances that arise after the PEB has taken action, the VA may increase its original rating of a PEB-referred, unfitting condition. Absent some mechanism to provide the service member relief in that circumstance, the PEB's disposition of an unfitting condition ends up being inconsistent with the final VA rating for that PEB-referred, unfitting condition, which is contrary to the IDES process. Accordingly, DTM 11-015 contemplates that the remedial mechanism to align the final VA rating for an unfitting condition with the service member's military disability disposition of that condition lies with each military department's corrections board. (4) The date on which the VA issues the changed rating is not dispositive. A VA decision changing the rating for an unfitting condition will typically come well after the service member separates from service, particularly if the changed rating results from a VA appeal. The critical factor is whether the changed VA rating is based on evidence related to the service member's unfitting condition when he was in service. That was the case with the applicant, as noted by the Board when it stated, "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 applicant did not separate from service until 30 December 2013. (5) The Board also erroneously concluded that relief for the applicant was not warranted based on the increased VA rating for his unfitting condition resulting from his VA appeal, because an "increased award of a VA service-connected disability rating does not establish entitlement to an increased disability rating." As a general matter, the Board is correct, because the Army rates only conditions that render a Soldier unfit for duty, while the VA assesses how the Soldier will function as a civilian after retirement or separation. However, in the context of the IDES process and DTM 11-015, the Board is incorrect. Pursuant to the IDES, as reflected in the applicant's case, the VA provides the PEB with the disability ratings for a service member's unfitting condition and the PEB is required to use those ratings in dispositioning the service member's case. As explained above, DTM 11-015 allows for BCMR relief for a service member whose appeal of the VA's rating of a PEB-referred, unfitting condition subsequently results in an increase to that rating. In that context, the VA rating and any subsequent change to the rating from an appeal relate solely to the status of a condition determined by a PEB to be unfitting during the service member's military service and not to the status of that condition after separation, which may improve or deteriorate. d. The Board failed to treat the applicant's case in a manner similar to another Board case with similar facts. The erroneous nature of the Board's decision that the VA's increase to the applicant's rating does not warrant relief is highlighted by its inconsistency with a prior Board case interpreting DTM 11-015 on similar facts. As noted by the Board, the applicant relied on ABCMR Docket Number AR20130011299 (11 March 2014) in which the Board granted full relief to an applicant who sought correction of her military records based on a VA appeal that resulted in a rating increase for an unfitting condition. In that case, like here, the applicant's successful VA appeal was not based on missing service treatment records during the IDES process and the VA increase to the rating of the applicant's unfitting condition occurred subsequent to her separation from military service. Nonetheless, in sharp contrast to the applicant's case, the Board granted the applicant full relief and corrected her military records to reflect a higher rating in connection with her military disability retirement. The Board dismissively brushed aside the applicability to the applicant's case of this similar case decided on similar facts with the concluding statement: 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. (1) The Board's statement is directly contrary to established law and arbitrarily and capriciously fails to articulate any factual basis to explain why the applicant's case is distinguishable from ABCMR Docket Number AR20130011299. In Wilhelmus v. Geren, 796 F.Supp.2d 157, 162 (D.D.C. 2011), Judge Boasberg in the United States District Court for the District of Columbia held that contrary to the Board's assertion in the applicant's case, the Board's cases do have precedential effect and the Board is required to treat similar cases in a similar manner unless it can point to a legitimate reason for failing to do so. Here is what the court said in that regard: It is axiomatic that an agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so. Indeed, a fundamental norm of administrative procedure requires an agency to treat like cases alike, and an agency must provide an adequate explanation to justify treating similarly situated parties differently. This is not to say that the broad discretion afforded to the ABCMR ... does not also grant it significant flexibility in judging the respective merits of each application for review. Nonetheless, like a court, normally, an agency must adhere to its precedents in adjudicating cases before it. Even if the ABCMR is not required to distinguish every similar prior decision, the need to consider relevant precedent becomes especially acute when a plaintiff has pointed to a specific prior decision as very similar to his own situation. In such cases, the Board may not simply ignore such precedent for the sake of expediency. To do so would leave open the possibility that two identical cases would be decided differently. Nothing could be more arbitrary or capricious. (2) In concluding that the Board's failure to treat similar cases in a similar fashion so was arbitrary and capricious and a violation of the Administrative Procedure Act, the Court unequivocally rejected the very same explanation upon which the Board relied in denying the applicant's relief in this case: While acknowledging this prior case's existence, the Board here entirely failed to distinguish it or to justify why the outcome in this case was different. Indeed, its only response to Plaintiff's reliance on the previous case was that... The ABCMR reviews each case individually and is presented before the Board based on its own merit and evidence... (3) It is disquieting that the Board opted to deny the applicant's application for relief based on a rationale that the United States District Court for the District of Columbia has already expressly determined to be arbitrary, capricious and contrary to law. Agency decision making directly inconsistent with a Federal court's decision is neither reasoned nor appropriate. e. In conclusion, based on the foregoing, it is requested that the Board reconsider the decision and grant the applicant full relief by correcting his military records to reflect his permanent disability retirement with a 60 percent 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. 3. Counsel provides the applicant's previous application, previously submitted evidence, and the Board's Record of Proceedings. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140012237 on 19 March 2015. 2. Counsel provides a new argument, which warrants consideration by the Board. 1. After having previous enlisted service, the applicant reenlisted in the PAARNG on 14 April 2008. He held military occupational specialty 11B (infantryman). 2. Counsel provided copies of orders, five 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 had the below diagnoses. The MEB recommended referral to a PEB and the applicant 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 for spondylosis. The VA stated that they had assigned a 10% evaluation for his thoracolumbar spine based on Title 38, Code of Federal Regulations (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 rating 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 and associated documents were reconsidered at the applicant's appeal. The PEB recommended his permanent disability retirement with a combined rating of 40%. 6. On 13 August 2013, PEB convened to reconsider 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. 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 he was assigned a 20% disability rating for Diagnostic Code 5243 (spondylosis) as far back as 25 June 2009. Title 38, CFR, section 3.951, prohibits the 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, shows 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 relief correcting the record to show that applicant, in effect, had an increased 60% disability rating because of his VA rating decision appeal, with appropriate adjustment of his 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 (Appeal to Board of Veterans' Appeals) with instructions for completing the form. 10. On 9 May 2014, the VA completed a disability assessment of his unfitting and service-connected disabilities. a. The VA proposed 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. The VA proposed a 20% service-connection rating for left shoulder degenerative joint disease with subacromial bursitis, rotator cuff tendonitis, and impingement syndrome effective 2 December 2013. c. The VA proposed a 0% service-connection rating for a residual scar. d. The VA proposed a continued 10% rating for evaluation of radiculopathy (sciatica), right lower extremity. e. The VA denied service-connection for a residual scar, abdomen REFERENCES: 1. 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. 2. 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: 1. The applicant incurred injuries or illnesses that warranted his entry into the disability system. He entered the IDES and an MEB determined some of his conditions failed retention standards. The MEB referred him to a PEB. Because his case was adjudicated under IDES, the VA conducted the compensation and pension examination. 2. He was rated at 10 percent for spondylosis. On 13 August 2013, a PEB reconsidered his request and found this medical condition, along with sciatica and PTSD, unfitting and recommended he be permanently retired with a combined rating of 40 percent, to include 10 percent for his spondylosis condition effective 30 December 2013. 3. He appealed the VA rating decision of 10 percent for spondylosis. The VA reconsidered his rating, and on 9 May 2014, after his separation, the VA increased the rating for this condition from 10 percent to 40 percent because 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. It would be premature to revise a rating for a condition that the VA believes will improve. If the condition becomes a static disability, the VA's rating may be applicable. 4. Each applicant's case is unique and is considered on its own merits. The Board makes its decisions based on the evidence of record, the circumstances of each individual's case, and available evidence and arguments. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007349 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007349 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2