BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002383 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 BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002383 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. BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002383 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: a.  correction of his retirement orders to show his injury or disease was caused as a direct result of armed combat which occurred during a period of war and b.  correction of his records to show he received a higher disability rating. 2. The applicant states: a.  His retirement orders state he was released from assignment and duty because of a physical disability incurred while entitled to basic pay and under conditions that permit retirement for permanent physical disability. b.  His retirement orders indicate "No" for the following: (1)  Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law. (2)  Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104. c.  He qualifies for combat-related injuries according to the definition of a combat-related injury. His back injury was initially sustained during a field training exercise. His adjustment disorder claimed as post-traumatic stress disorder (PTSD) was caused by being in an active combat zone. Both of his disabilities alone meet the criteria for combat-related injuries. He retired with an enhanced permanent disability. d.  His original disability rating of 30 percent was based on a Department of Veterans Affairs (VA) examination. The same examination resulted in a 40-percent disability rating for VA purposes. He resubmitted his claim to the VA and his VA disability percentage was increased to 70 percent. e.  His initial 30-percent disability rating was for multiple conditions combined into one rating. If his combined rating was separated by each disability as it is now, he would have been granted a higher Army disability rating. f.  He would have appealed the decision before he retired had the option been properly presented to him. He was not assigned a counselor during his outprocessing to guide him through the process because he was assigned to the Warrior Transition Unit. He was advised that he had 3 years from his retirement date to make corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) instead of having someone inform him as to what the statements in his orders and DD Form 214 meant. g.  The only assistance he received was from a Physical Evaluation Board (PEB) Liaison Officer (PEBLO) to complete his medical evaluation board (MEB) paperwork and who could not give him any advice. 3. The applicant provides: * VA Form 21-0819 (VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim) * DA Form 3947 (MEB Proceedings) * PEB letter, dated 7 January 2013, subject: Request for Rating * U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Drum, Orders 1982-1037, dated 1 July 2013 * DD Form 214 * VA Rating Decision, dated 7 December 2013 * VA letter, dated 16 December 2013 * VA Rating Decision, dated 7 July 2014 * VA letter, dated 9 July 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 16 November 2009. 2. His VA Form 21-0819 shows he was referred to a MEB for pain disorder associated with chronic psychological factors on 29 October 2012. He listed additional conditions he felt were incurred in or aggravated by his active military service as follows: pack pain, groin/testicle pain, bilateral knee pain and ankle pain, tinnitus, stomach pain, headaches, carpal tunnel symptoms, skin patches, neck pain, joint pain, anxiety, and insomnia. 3. On 30 October 2012, he was counseled regarding the DOD Disability Evaluation System Pilot. 4. His DA Form 3987, dated 13 November 2012, shows an MEB referred him to a PEB. a.  His medical conditions/defects which failed to meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-33b and c, were listed as follows: * chronic pain disorder associated with psychological factors, back pain * chronic pain disorder associated with psychological factors, groin/testicular pain * chronic pain disorder associated with psychological factors, bilateral knee pain * chronic pain disorder associated with psychological factors, residual abdominal pain * chronic pain disorder associated with psychological factors, carpal tunnel * chronic pain disorder associated with psychological factors, ankle pain * chronic pain disorder associated with psychological factors, neck pain * chronic pain disorder associated with psychological factors, joint pain b.  He was diagnosed with the following conditions which were determined to meet retention standards: * tension headaches * xerosis cutis (dry skin) * primary insomnia * tinnitus * normal hearing c.  His adjustment disorder with anxiety was determined not to have constituted a physical disability in accordance with DOD Instruction 1332.38 (Physical Disability Evaluation) and Army Regulation 40-501. 5. On 26 December 2012, the MEB findings and recommendations were approved and the applicant concurred with the findings and recommendations on the same date. 6. His DA Form 199, dated 21 June 2013, shows the PEB found him physically unfit. The PEB recommended a 30-percent disability rating and permanent disability retirement. This form shows in: a.  Section III (Medical Conditions Determined to Be Unfitting): adjustment disorder with anxiety, insomnia also diagnosed as chronic pain disorder associated with psychological factors, back, groin, testicular, bilateral knee, abdominal, carpal tunnel, ankle, neck and joint pains; b.  Section IV (Medical Conditions Determined Not to Be Unfitting): headache, xerosis cutis (abnormally dry skin), primary insomnia, tinnitus, and normal hearing; c.  Section V (Administrative Determinations): (1)  the disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict caused by an instrumentality of war and incurred in the line of duty during a period of war and (2)  the disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216; d.  Section VI (Instructions and Advisory Statements): (1)  The case was adjudicated as part of the Integrated Disability Evaluation System (the Joint Army-VA process to determine whether ill or injured Soldiers are fit for continued military service and Army and VA determine appropriate benefits for Soldiers who are separated or retired for disability) under the 19 December 2011 Policy and Procedure Directive-Type Memorandum Number 11-015. (2)  The specific VA Schedule for Rating Disabilities codes to describe the Soldier's condition and the disability percentage was determined by the VA and is documented in the VA memorandum, dated 17 April 2013. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System. e.  Section VIII (PEBLO/Soldier's Counsel Statement), he was advised and counseled regarding the results of the findings and recommendations of the PEB on 26 June 2013. f.  Section IX (Soldier's Election), he concurred with the findings and recommendations of the PEB, he waived a formal hearing of his case, and he elected not to request reconsideration of his VA ratings on 26 June 2013. g.  Section XII (U.S. Army Physical Disability Agency Authentication for the Secretary of the Army), the findings and recommendations of the PEB were approved for the Secretary of the Army on 27 June 2013. 7. His DA Form 4187 (Personnel Action), dated 1 July 2013, shows his request for permanent disability retirement effective 25 September 2013 was submitted and approved on the same date. 8. U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Drum, Orders 182-1037, dated 1 July 2013, released him from active duty and retired him for physical disability. These orders show: * effective date of retirement – 25 September 2013 * date place on Retired List – 26 September 2013 * percentage of disability – 30 9. His DD Form 214 shows he retired by reason of permanent disability (enhanced) effective 25 September 2013. He completed 3 years, 10 months, and 10 days of active duty service. 10. He provided his VA Rating Decision, dated 7 December 2013, wherein the VA granted him: a. a 30-percent service-connected disability rating for adjustment disorder with anxiety and insomnia, also diagnosed as chronic pain disorder associated with psychological factors, back, groin, testicular, bilateral knee, abdominal, carpal tunnel, ankle, neck, and joint; and b. a 10-percent service-connected disability rating for tinnitus. 11. He provided his VA letter, dated 16 December 2013, that shows his overall or combined disability rating as 40 percent and his monthly monetary amount. 12. He provided his VA Rating Decision, dated 7 July 2014, wherein the VA granted him: a.  a 20-percent service-connected disability rating for lumbar strain (claimed as back pain and back lower lumbar spine); b.  a 10-percent service-connected disability rating for radiculopathy lower right extremity; c.  a 10-percent service-connected disability rating for radiculopathy lower left extremity; d.  a 10-percent service-connected disability rating for right knee strain (claimed as bilateral knees); e.  a 10-percent service-connected disability rating for left knee strain (claimed as bilateral knees); and f.  his 30-percent service-connected disability rating for adjustment disorder with anxiety (claimed as post-traumatic stress disorder and depression previously rated as adjustment disorder with anxiety, insomnia) was continued. 13. He provided his VA letter, dated 9 July 2014, wherein the VA advised him of his monthly payment amount. 14. On 7 April 2017, the U.S. Army Physical Disability Agency Medical Advisor provided an advisory opinion wherein she recommended no change in the applicant's records. She stated: a.  The PEB found the applicant unfit for chronic pain disorder associated with psychological factors (adjustment disorder with anxiety and insomnia), back pain, groin/testicular pain, bilateral knee pain, residual abdominal pain, carpal tunnel disorder, ankle pain, neck pain, and joint pains. b.  The PEB awarded a 30-percent disability rating for his condition based on the VA rating provided and discussed in the VA Rating Decision, dated 17 April 2013. c.  The applicant filed a claim for an increase in his disability rating from the VA after his separation from the Army. The VA awarded ratings for conditions that were not listed on the applicant's initial MEB and conditions for which the PEB did not find unfitting. 15. On 7 April 2017, a copy of the advisory opinion was provided to the applicant for his review and an opportunity to respond. He did not respond. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. c.  Integrated Disability Evaluation System features: (1)  A single set of disability medical examinations that may assist the Disability Evaluation System in identifying conditions that may render the Soldier unfit. (2)  A single set of disability ratings provided by VA for use by both departments. The Disability Evaluation System applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. d.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it 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. e.  Recommendations of the informal PEB are recorded on a DA Form 199. Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded f.  Soldiers indicate their elections by placing a checkmark in item 9 (Soldier's Election) and by signing and dating the original and the medical treatment facility copies. 3. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 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, 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 error or injustice on the part of the Army. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Furthermore, unlike the U.S. 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. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant contends he qualifies for combat-related injuries according to the definition of combat-related injury and if his combined disability rating had been separated as were his VA ratings, he would have been granted a higher Army disability rating. 2. He also contends he would have appealed the PEB decision before he retired had the option been properly presented to him and he was not assigned a counselor during his out-processing to guide him through the process because he was assigned to the Warrior Transition Unit. 3. The Army must find that a Soldier is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the Disability Evaluation System. The evidence of record shows he was processed through the Integrated Disability Evaluation System and his disability percentage was determined by the VA based upon his unfitting conditions. 4. The PEB determined his disability was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States, a direct result of armed conflict caused by an instrumentality of war, incurred in the line of duty during a period of war, and his disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216. 5. Although he questions his separation processing, the evidence of record shows he was advised by a PEBLO of the results of the findings and recommendations by the PEB. He elected not to request a formal hearing of his case and he elected not request reconsideration of his VA ratings. He was properly retired from the Army by reason of permanent disability (enhanced). 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002383 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002383 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2