BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002044 BOARD VOTE: ___x______ _x______ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002044 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: a. the U.S. Army Human Resources Command, in conjunction with the Army National Guard, reviewing his creditable service and, if this review produces results favorable to the applicant, publishing an updated Chronological Statement of Retirement Points and/or Retirement Points History Statement; b. the Army Physical Disability Agency, Arlington, VA, correcting his records to show he was permanently retired on 28 July 2015 with a combined disability rating of 100 percent (%) (and post-traumatic stress disorder rated at 100%) and amending U.S. Army Physical Disability Agency, Arlington, VA, Order D 174-35, dated 23 June 2015, to reflect the combined percentage of disability and, if applicable, the correct creditable service for disability retirement and basic pay (upon confirmation from the U.S. Army Human Resources Command); and c. paying him any retired pay he is due as a result of these corrections. ___________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. BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002044 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 combined disability rating of at least 80 percent (%) in connection with his permanent disability retirement and calculation of his monthly disability retired pay using basic pay rates applicable to an O-2E with four years of active enlisted service and with over 18 years of service for pay purposes. 2. The applicant states, in effect, that a Medical Evaluation Board (MEB) referred him to a Physical Evaluation Board (PEB) for unfitting post-traumatic stress disorder (PTSD), degenerative arthritis of the spine, and moderate bilateral L5 radiculopathy/mild right radiculopathy S1. a. He states his unfitting conditions were reviewed by the Department of Veterans Affairs (VA) and the PEB under the Integrated Disability Evaluation System (IDES) and the following disability ratings were rendered: * PTSD, with adjustment disorder with depressed mood – 30% * degenerative arthritis of the spine – 20% * moderate bilateral L5 radiculopathy/mild right radiculopathy S1 – 10% b. On 20 January 2015, the PEB recommended that he be retired by reason of permanent disability with a combined disability rating of 60%. He submitted a Notice of Disagreement (NOD) to the VA appealing the 30% disability rating of his unfitting PTSD. The VA increased the PTSD rating to 100% while he was still in service; however, the decision was issued after he was separated. c. He also states that he had four years of enlisted service prior to being appointed as a commissioned officer and he was promoted to first lieutenant (1LT)/pay grade O-2. He also was credited with more than 18 years of service for pay purposes. However, the Defense Finance Accounting Service (DFAS) calculated his disability retired pay using basic pay rates applicable to an O-2 with 8 years of service for pay purposes, instead of pay rates applicable to an O-2E (with 4 years or more of enlisted service) and 18 years of service for pay. 3. The applicant provides supporting documents through his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's military records to reflect a combined disability rating of at least 80% in connection with his permanent disability retirement, calculation of his monthly disability retired pay using basic pay rates applicable to an O-2E with four years of active enlisted service and with over 18 years of service for pay purposes, all necessary actions to ensure his retired pay and other benefits are retroactively and prospectively adjusted consistent with the relief granted, and any other remedy the Board deems appropriate. 2. Counsel states that after the applicant's combat tour in Afghanistan in 2009, he began experiencing a variety of serious medical issues, including PTSD. He was referred to the Department of Defense (DoD)/VA IDES in 2014. a. Counsel provides a background of the applicant's military service and relates his summary to referenced exhibits. b. In January 2015, the applicant was rated for the following unfitting conditions: * PTSD, with adjustment disorder with depressed mood – 30% * degenerative arthritis of the spine – 20% * moderate bilateral L5 radiculopathy/mild right radiculopathy S1 – 10% c. Relying on these ratings, the PEB recommended permanent disability with a combined rating of 60%. The applicant appealed the 30% rating of PTSD in an NOD to the VA. The VA incrementally increased the rating for the applicant's PTSD to 100% during his time in service. d. Counsel states, consistent with the IDES remedial provisions providing for Military Correction Board action to address situations where the VA rating of a PEB-referred unfitting condition later changes due to new information related to the service member's condition while in service, the applicant seeks correction of his military record to reflect his correct permanent disability rating and receipt of the statutory maximum of 75% retired pay. e. He states DFAS erroneously used a retired pay base derived from basic pay rates for an O-2 with over eight years of service, rather than basic pay rates for an O-2E with four years of enlisted service and over 18 years of service for pay purposes (that are properly associated to the applicant). Specifically, DFAS began paying him disability retired pay based on retired base pay of $4,608.94 and resulting in the gross amount of $2,765.00 per month; rather than the proper retired base pay of $5,337.33 and the resulting monthly payment of $3,202.00 at a 60% disability multiplier. He notes this would result in a gross monthly payment of $4,003.00 at a 75% disability multiplier. f. Counsel offers pertinent statutory and regulatory provisions. Counsel also offers two Army Board for Correction of Military Records (ABCMR) cases that are similar in nature to the applicant's and references a United States District Court for the District of Columbia opinion in support of his argument that the two cases set precedent in the applicant's case. 3. Counsel provides a 14-page Summary of Application explaining the applicant's application, along with a list of 22 exhibits. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 20 September 1991 for a period of 8 years. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 18 February 1992, was honorably released from active duty (REFRAD) on 16 February 1996, and transferred to a USAR unit to complete his military service obligation. He had completed 3 years, 11 months, and 29 days of net active service this period. 3. An NGB Form 22 (Report of Separation and Record of Service) shows he enlisted in the Army National Guard (ARNG) of the United States (ARNGUS) and the Michigan ARNG on 17 February 1996, was honorably discharged on 10 February 1997, and transferred to the USAR Control Group (Reinforcement). He had completed 11 months and 24 days of net service this period; 4 years and 18 days of prior active Federal service; and 5 years and 12 days of total service for pay. 4. He was honorably discharged from the USAR on 19 September 1999. He had a break in military service from 20 September 1999 to 18 November 2004. He enlisted in the Indiana ARNG (INARNG) on 19 November 2004. 5. A DD Form 214 shows the applicant was ordered to active duty for training (ADT) on 4 June 2006, was honorably released from ADT on 6 September 2006, and transferred to an INARNG unit based on completion of the Officer Candidate course. He had completed 3 months and 4 days of net active service this period. 6. An NGB Form 22 shows he was honorably discharged from the INARNG on 6 September 2006 to accept appointment as a commissioned officer. He had completed 1 year, 9 months, and 18 days of net service this period and was credited with 9 years, 4 months, and 20 days of total service for pay. 7. He was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant, on 7 September 2006. He was subsequently appointed in the INARNG, in the rank of second lieutenant, on 15 September 2006. He was promoted to 1LT on 15 September 2008. 8. A DD Form 214 shows the applicant entered active duty this period on 5 January 2009, was honorably REFRAD on 18 February 2010, and transferred to the INARNG. He had completed 1 year, 1 month, and 14 days of net active service this period. It also shows he was ordered to active duty in support of Operation Enduring Freedom and he served in Afghanistan from 27 February 2009 to 31 December 2009. 9. A DA Form 3947 (MEB Proceedings) shows an MEB convened, on 29 May 2014, at MEB Remote Operating Center, Camp Atterbury, Edinburgh, IN. a. The applicant presented views in his own behalf. b. After consideration of clinical records, laboratory findings, and physical examination, the MEB found the following conditions medically unacceptable – * PTSD * degenerative arthritis of the spine (claimed as degenerative changes lumbar spine) * moderate bilateral L5 radiculopathy/mild right radiculopathy S1 c. The other medical conditions considered medically acceptable and, therefore, were not rated included – * intervertebral disc syndrome of the neck (claimed as neck condition) * mild right cervical radiculopathy * irritable bowel syndrome (claimed as digestive condition) * Raynaud's phenomenon (claimed as Raynaud's syndrome) * eczema (claimed as dermatitis of both hands) * internal or external hemorrhoids * traumatic brain injury (TBI) * migraine including migraine variants * bilateral sensorineural loss * tinnitus * persistent depressive disorder d. The MEB recommended the applicant be referred to a PEB. e. On 29 May 2014, the findings and recommendation were approved. f. The applicant was informed of the findings and recommendation of the MEB. He indicated his disagreement with the board's findings and recommendation and submitted an appeal. He acknowledged that the MEB proceedings included all of his current medical conditions and whether or not they met medical retention standards, and that his appeal included all of his disagreements and concerns. The applicant placed his digital signature on the document. g. On 5 June 2014, the appeal was considered and the original findings and recommendation were confirmed. 10. U.S. Army PEB, Arlington, VA, memorandum, dated 13 June 2014, shows the President, PEB, requested the VA provide disability rating percentages pertaining to the applicant's unfitting conditions (i.e., PTSD, degenerative arthritis of the spine, and moderate bilateral L5 radiculopathy/mild right radiculopathy S1). 11. A DA Form 199 (Informal PEB Proceedings) shows a PEB convened on 20 January 2015 at the National Capital Region (NCR). a. It shows the following conditions were determined to be unfitting – * VA Code 9411 – PTSD, with adjustment disorder with depressed mood (MEB Diagnosis 1); Recommended rating: 30% * VA Codes 5243-5242 – degenerative changes of lumbar spine (MEB Diagnosis 2); Recommended rating: 20% * VA Code 8720 – radiculopathy right lower extremity associated with degenerative changes lumbar spine (MEB Diagnosis 3); Recommended rating: 10% (1) The PEB noted a behavior health examiner attributed the applicant's PTSD, with adjustment disorder with depressed mood (MEB Diagnosis 1) to combat stressors while deployed to Afghanistan in 2009. The PEB also noted the applicant reported the onset of degenerative changes of lumbar spine (MEB Diagnosis 2) and the onset of radiculopathy right lower extremity associated with degenerative changes lumbar spine (MEB Diagnosis 3) occurred in 1995, while in Haiti, when he injured himself performing custodial tasks. (2) The PEB also considered the applicant's MEB diagnoses of intervertebral disc syndrome of the neck, mild right cervical radiculopathy, irritable bowel syndrome, Raynaud's phenomenon, eczema, internal or external hemorrhoids, TBI, migraine including migraine variants, bilateral sensorineural loss, tinnitus, and persistent depressive disorder. In full consideration, to include combined, overall effect, the conditions were not unfitting because the MEB indicated these conditions met retention standards; did not indicate that any of these conditions caused profile limitations (functional activities); and did not indicate that performance issues, if any, were due to these conditions. b. Section V (Administrative Determinations), in pertinent part, shows the PEB made the following finding, "3. The disability did result from a combat-related injury under the provisions of 26 USC 104 [Title 26, United States Code, section 104] or 10 USC 10216 [Title 10, United States Code, section 10216]." c. Section VI (Instructions and Advisory Statements) shows the – * ratings were combined in accordance with VA Schedule for Rating Disabilities (VASRD), paragraphs 4.25 and 4.26 * PEB recommended a combined rating of 60% * VASRD codes and the disability percentages were determined by the VA and documented in a memorandum, dated 12 January 2015 * disposition recommendation was determined by the PEB based on – * the VA disability rating proposed * applicable statutes and regulations for the IDES * the case was adjudicated as part of the IDES d. The PEB President signed the PEB proceedings on 20 January 2015. e. On 28 January 2015, the PEB Liaison Officer confirmed that he had informed the applicant of the findings and recommendations of the PEB and he explained to him the results of the findings and recommendations. f. On 4 February 2015, the applicant indicated with his digital signature that he did not concur with the findings and recommendations of the PEB, and he demanded a formal hearing of his case. He attached his written appeal, requested personal appearance, and also requested regularly appointed counsel. 12. An NGB Form 22 shows the applicant was honorably separated from the ARNGUS and the INARNG on 28 July 2015 and transferred to the USAR Control Group (Retired Reserve). He had completed 8 years, 10 months, and 14 days of net service this period; 18 years, 3 months, and 12 days total service for pay; and 14 years of total service for retired pay. 13. U.S. Army Physical Disability Agency (USAPDA), Arlington, VA, Order D 174-35, dated 23 June 2015, released the applicant from assignment because of physical disability under the provisions of (UP) Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and placed him on the retired list based on permanent disability, effective 28 July 2015. The order also shows, in pertinent part: * Retired grade of rank: O-2 * Percentage of disability: 60% * Disability Retirement: 8 Years, 4 Months, 4 Days * Basic Pay: 18 Years, 3 Months, 12 Days * Completed over 4 years of active service as Enlisted or Warrant Officer (WO): Not Applicable * Disability is based on injury or disease received in line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: Yes * Disability resulted from a combat related injury as defined in 26 USC 104: Yes 14. USAPDA, Arlington, VA, Order D 181-41, dated 30 June 2015, amended so much of USAPDA Order D 174-66, dated 23 June 2015, to read, "Completed over 4 years of active serve as Enlisted or WO: Yes." 15. An ARNG Retirement Points History Statement, prepared on 18 November 2015, shows (as of 28 July 2015) the applicant had earned 2,530 total active duty points; 3,033 total career points; 3,018 total points for retired pay; and 14 years of creditable service for retired pay. It also shows "Highest Grade Held: "O2E." 16. In support of the application, the applicant and his counsel provide the following additional documents. a. VA Regional Office, Indianapolis, IN, rating decision memorandum, dated 19 August 2010, that shows the VA granted the applicant service connection for PTSD, with adjustment disorder with depressed mood (30%), effective 19 February 2010. b. VA Regional Office, Indianapolis, IN, rating decision memoranda, dated 13 May and 16 May 2014, that show the VA granted the applicant service connection for: * PTSD, with adjustment disorder with depressed mood – 30% * bilateral hearing loss – 0% c. VA Form 21-4138 (Statement in Support of Claim), NOD, dated 10 April 2014, that shows the applicant appealed the VA rating decision, dated 16 May 2014. d. VA Form 21-0819 (VA/DoD Joint Disability Evaluation Board Claim), dated 24 March 2014, pertaining to the applicant, that shows the following medical conditions were identified for consideration by the VA under the IDES: * PTSD * degenerative changes lumbar spine * radiculopathy upper extremities * radiculopathy right lower extremity * neck condition * bilateral hearing loss * dermatitis of both hands * digestive condition * Raynaud's syndrome * TBI (residuals migraines, memory loss, chronic depression, sensitivity to light, blurred vision) e. VA Regional Office, Seattle, WA, rating decision memoranda, dated 12 January and 13 January 2015, that show, in pertinent part, for DES purposes, a 30% evaluation was proposed for PTSD, with adjustment disorder with depressed mood. For purposes of entitlement to VA benefits, the issue of a higher evaluation was on appeal and not within the DES rating board jurisdiction. The memoranda also show for DES purposes: * the VA granted the applicant service connection for: * degenerative changes lumbar spine – 20% * radiculopathy right lower extremity associated with degenerative changes lumbar spine – 10% * the VA also granted the applicant service connection for: * cervical spine degenerative disc disease (claimed as neck condition) – 10% * radiculopathy left lower extremity – 10% * TBI (also claimed as memory loss, chronic depression, sensitivity to light, blurred vision) – 0% * dermatitis of both hands – 0% * bilateral hearing loss – 0% * the VA determined the following conditions were not related to the applicant's military service, so service connection was not granted: * Raynaud's syndrome * irritable bowel syndrome (claimed as digestive condition) * external hemorrhoids * migraines * left upper extremity radiculopathy * right upper extremity radiculopathy f. Office of Soldier's Counsel, NCR, Arlington, VA, memorandum, dated 15 April 2015, that shows, on behalf of the applicant, his attorney submitted a non-concurrence with the 12 January 2015 VA rating decision. He noted the applicant was initially rated for his PTSD on 19 February 2010 and was advised an examination would be scheduled at a future date, but he had not been re-rated since that time. He was examined on 25 February 2015 and met the diagnostic criteria for PTSD (as documented by the examining physician) with a suggested disability rating of at least 70% (and possibility 100%). The non-concurrence also addressed the applicant's TBI rating and migraine condition with a suggested rating of at least 40% (and possibility 70%). g. VA memorandum, dated 3 June 2015, subject: Decision Review Officer (DRO), DES, VA Regional Office, Seattle, WA, that shows the 30% evaluation proposed for PTSD was confirmed and continued. It also shows the applicant's TBI was not a condition referred as unfitting under the DES and the request for reconsideration was denied. h. VA Regional Office, Indianapolis, IN, rating decision memoranda, dated 26 October and 24 November 2015, issued in response to the applicant's NOD, received on 22 January 2015. The memoranda show, in pertinent part: * evaluation of PTSD, with adjustment disorder with depressed mood was increased to – * 50%, effective 9 January 2014 * 70%, effective 25 February 2015 * 100%, effective 6 July 2015 * effective 27 March 2014, the VA granted the applicant service connection for: * Raynaud's syndrome – 40% * irritable bowel syndrome (claimed as digestive condition) – 30% * migraines – 30% * skin tag residual of external hemorrhoid (also claimed as digestive condition) – 0% * his overall or combined ratings were – * 70%, effective 9 January 2014 * 90%, effective 27 March 2014 * 100%, effective 25 February 2015 i. Retiree Account Statement, as of 31 December 2015, that shows the applicant's gross pay as $2,765.00 and that it has been exempted from taxes due to his disability status. j. ABCMR, Record of Proceedings, Docket Number AR20130011299, dated 11 March 2014, that considered a disability rating adjudicated by an Army PEB in 2010-2011 pursuant to the DES Pilot Program. Upon appeal, the VA increased the disability rating under review effective the date of retirement. The ABCMR directed a corresponding correction of the military record to show the increased disability rating for the condition and the resulting combined disability rating. k. ABCMR, Record of Proceedings, Docket Number AR20150007051, dated 28 May 2015, that considered (through a court-remand of the case) a discharge based on disability with severance pay adjudicated by an Army PEB under the IDES in 2013. A VA Regional Office (different from the VA Regional Office that rated the condition under the IDES) increased the disability rating under review prior to the date of retirement. The ABCMR directed a corresponding correction of the military record to show the increased disability rating for the condition and permanent disability retirement. 17. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 28 November 2016. a. The ARBA staff psychiatrist stated the applicant is applying to the ABCMR requesting his military disability retirement be increased from 60% to 75% to reflect the fact the VA has found him to be 100% service-connected for PTSD. Her review considered the applicant's application, a legal brief outlining his case, select military personnel records provided by the applicant, a copy of his MEB and PEB proceedings, VA ratings, and an appeal of the PEB. DoD electronic medical records and VA electronic medical records were also reviewed. b. She noted the PEB decision letter, dated 23 June 2015, indicates the applicant was permanently retired with a disability rating of 60% (30% PTSD, 20% degenerative arthritis of the spine, and 10% radiculopathy, right lower extremity). She also noted the VA found the applicant to be 100% service-connected for PTSD, with adjustment disorder with depressed mood, effective 6 July 2015. c. The staff psychiatrist stated, "It is important to understand that the VA operates under different rules, laws and regulations when assigning disability percentages than the DoD. In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD, however, does not compensate for unsuiting conditions. It only compensates for unfitting conditions. Based on the PEB findings, the applicant's PTSD was found to be unfitting due to his inability to carry and fire a weapon. Because of this finding, he was found to be 30% disabled. No other unfitting PTSD symptoms were found by the PEB." d. She concluded that a referral of his record to IDES for reconsideration is not warranted and that there is insufficient evidence to support the applicant's request that his military disability retirement be increased to 75%. 18. On 30 November 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 19. On 9 December 2016, applicant's counsel submitted a response on behalf of the applicant. He requests the ABCMR reject the advisory official's recommendation because it fails to acknowledge and apply the applicable regulatory authority and misconstrues the relevant fact and the nature of the relief sought by the applicant. a. He notes the advisory official based her review of the applicant's condition after his disability retirement on 28 July 2015. He provides a summary of the VA ratings pertaining to the applicant's PTSD (as previously summarized in paragraph 15a-h, above). He points out the VA acted on the applicant's appeal on 26 October 2015, and increased the rating for his unfitting PTSD to 50%, effective 9 January 2014; 70%, effective 25 February 2015; and 100%, effective 6 July 2015; all of the increases being prior to his disability retirement date of 28 July 2015. b. Counsel asserts that the IDES is a joint DoD/VA process to determine appropriate benefits for service members who are separated or retired for a service connected disability. He adds the information regarding the applicant's unfitting condition is new, it is related to the applicant's service or condition during service, and potentially results in a different disposition of the applicant's IDES disability disposition. c. He concludes that any of the increased ratings by the VA applicable to the applicant's PTSD will result in a different military disability disposition, increasing his permanent disability retirement rating from the current 60% to the 75% maximum allowed by law. 20. In the further processing of this case, an advisory opinion was obtained from the USAPDA medical advisor, dated 13 February 2017. a. The medical advisor stated the USAPDA has no objection to revising the applicant's disposition to reflect that his PTSD is temporarily rated at 100%, and not 30%. This is based on the VA's revised rating for this condition, which the VA indicated was to have an effective date of 6 July 2015. The VA based its decision on additional information the applicant submitted and pre-dates the date the applicant was placed on the Permanent Disability Retired List (PDRL) (28 July 2015). b. The medical advisor added that the preponderance of evidence does not support that this condition probably will not change enough within the next five years to decrease the disability rating percentage. Specifically, the evidence does not support that this condition is stable for rating purposes. c. She noted the VA letter, dated 24 November 2015, informed the applicant (page 3), "[a]n examination will be scheduled at a future date to evaluate the severity of your service connected PTSD, with adjustment disorder with depressed mood (competent)." In addition, the VA Decision Review Officer Decision, dated 26 October 2015, shows (on page 11), [t]his condition is not shown to have persisted at the same level for five or more years, and the VA treatment note [on 6 July 2015] indicated your condition could improve if you learn better coping skills. Therefore, the assigned evaluation is not considered permanent and is subject to a future review examination. This exam will tentatively be ordered around October 2020." d. The medical advisor offered that, in accordance with the Fiscal Year 2017 (FY17) National Defense Authorization Act (NDAA), the maximum Temporary Disability Retired List (TDRL) tenure is now 3 years. However, at the time the applicant's case was adjudicated, the maximum TDRL tenure was five years. She added that an examination completed "around October 2020" will not be sufficient for IDES purposes because that will be outside the 5-year maximum TDRL tenure. 21. On 21 February 2017, the applicant was provided a copy of the USAPDA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 22. On 26 February 2017, applicant's counsel submitted a response on behalf of the applicant. He stated the advisory opinion supports an ABCMR decision to grant the full relief requested by the applicant. a. He noted that it recognizes under the IDES that the applicant's military disposition should be revised to reflect the increased VA rating of his unfitting PTSD of 100%. It also recognizes that the VA recommendation of a future examination (circa October 2020) is outside the five year maximum period for tenure on the TDRL. That fact establishes that the applicant's unfitting PTSD is sufficiently permanent and stable for IDES purposes and for the ABCMR to grant full relief (i.e., PTSD rated at 100% with continued placement on the PDRL). b. He adds the applicant has no objection to revising the applicant's disposition to reflect that his PTSD is temporarily rated at 100% and not 30% based on the VA's revised rating effective 6 July 2015. The advisory opinion is consistent with IDES policy with respect to when an applicant successfully appeals the VA rating decision that a PEB applies to an unfitting condition during the IDES process. The increased VA rating resulting from the appeal should be applied to that PEB-referred, unfitting condition on a retroactive basis. c. The USAPDA advisory official acknowledged that placing the applicant on the TDRL for his unfitting PTSD with a reexamination "around October 2020" will not be sufficient for IDES purposes because it will be outside the five year maximum TDRL tenure. Counsel states this compels the conclusion that the applicant should remain assigned to the PDRL. REFERENCES: 1. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling. 2. Title 10, U.S. Code, section 1401, provides that a member's monthly disability retired pay is calculated by multiplying the member's retired pay base by the member's percentage of disability, not to exceed 75%, on the date when the member retires. 3. Army Regulation 635-40 states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. It also allows Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier be rated as the condition(s) exist(s) at the time of the PEB hearing. The VA may find a Soldier unfit by reason of a service-connected disability and may even assign a higher rating after separation. The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 4. Directive-Type Memorandum (DTM) 11-015 – The IDES, in pertinent part, provides that upon separation from the service for medical disability and consistent with Board for Correction of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or designated representative) may request correction of his or 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 VA changes the disability rating for the unfitting condition based on records that were not available 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/her records through his/her respective Military Department BCMR. DISCUSSION: 1. The available evidence of record shows the applicant was properly evaluated under the IDES and given a 30% service-connected disability rating based on his condition (PTSD) at the time the PEB was conducted. However, the evidence of record shows he appealed the VA rating decision pertaining to his PTSD. 2. It is noted that the purpose of the IDES was to level the playing field between the DoD and the VA by ensuring that there was consistency between the two agencies with regard to ratings for disabilities. However, it appears that there were inconsistencies within the VA because one VA Regional Office would not accept another VA Regional Office's evaluation of the applicant's condition and there is no evidence that the two offices attempted to resolve the difference. Accordingly, the USAPDA did not have the authority to change the rating until such time as the VA resolved the matter. a. The evidence or record shows that his condition changed to a point where a different disposition of his case was necessary in order to afford the applicant proper adjudication of his case, which did not occur. b. The Indianapolis VA Regional Office approved incremental increases in the applicant's disability rating for PTSD from 30% up to 100%, effective 6 July 2015, which was prior to the date of his retirement based on permanent disability (on 28 July 2015) with a disability rating of 60% (to include 30% for PTSD). c. It is noted that the ARBA medical staff advisory opinion concluded that there is insufficient evidence to support the applicant's request to increase his PTSD disability rating. However, a subsequent medical advisory obtained from the USAPDA supports revising the applicant's disposition to reflect that his PTSD is temporarily rated at 100%. 3. The applicant was placed on the PDRL, effective 28 July 2015, with a total disability rating of 60% (30% for PTSD). The evidence of record shows he qualified for placement on the PDRL simply based on the ratings for his three other unfitting conditions. It is noted that the PEB was aware that the applicant's condition of PTSD was under appeal with the VA. a. The USAPDA official points out that the VA has determined the applicant's condition is not stable and is subject to a future review examination in October 2020 (i.e., five years from the date the VA rating decision was rendered). The medical advisor opines that this condition may change within the next five years to decrease the disability rating percentage. b. If the PEB had the VA recommendation concerning the applicant's PTSD, it is reasonable to conclude he would have been placed on the TDRL with a reexamination scheduled within 5 years of his separation (i.e., July 2020). c. The FY17 NDAA was enacted subsequent to the applicant's placement on the PDRL and established the maximum TDRL tenure at 3 years. The USAPDA advisory official notes the VA reexamination will not be sufficient for IDES purposes because it will be outside the 5-year maximum TDRL tenure. Thus, the advisory official suggests the ABCMR apply the 3-year TDRL tenure to the applicant's case, even though the applicant was separated and placed on the PDRL prior to the enactment of the FY17 NDAA. 4. Having been placed on the PDRL, now placing the applicant on the TDRL and subjecting his PTSD to reevaluation would place him in jeopardy of receiving a permanent disability rating that is lower than his current rating should his PTSD have resolved to a point where it is rated at less than the 30% rating he initially received. Any decrease in the combined disability rating for his unfitting conditions would adversely affect his disability retired pay. Generally, this Board will not make corrections to military records that may make an applicant worse off. The evidence in this case supports accepting the amended VA rating for PTSD without further review. If the amended VA rating is accepted as the permanent rating for PTSD, the Board would be obliged to recommend correcting the applicant's record to show he was retired by reason of permanent disability on 28 July 2015 with a 100% disability rating. He would be paid all retired back pay and allowances that flow from that change. 5. Records show the applicant completed more than 4 years of active service as an enlisted Soldier. The evidence of record also shows his ARNG Retirement Points History Statement is at odds with information on his permanent disability retirement orders with respect to his creditable service for disability retirement, basic pay, and retired pay. As such, the evidence supports referring his case to the U.S. Army Human Resources Command for review and, if appropriate, adjustment of his creditable service, provided those adjustments do him no harm. Any favorable adjustments affecting his creditable service for disability retired pay should be forwarded to DFAS so he may receive any additional retired pay he may be due, to include any retroactive retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002044 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002044 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2