BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160012592 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: 11 July 2017 DOCKET NUMBER: AR20160012592 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: 11 July 2017 DOCKET NUMBER: AR20160012592 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his DA Form 199 ((Informal Physical Evaluation Board (PEB) Proceedings) to increase his disability rating above 20 percent by rating the following additional service-connected issues as unfitting: degenerative joint disease, intervertebral disc syndrome, anxiety, sleep disorder, panic disorder, and traumatic brain injury (TBI). 2. The applicant states he wants his Army disability rating and PEB status to be reviewed again and changed to a rating above 20 percent. His additional physical health issues have and will cause him future problems, and were related to his military service. 3. The applicant provides: * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 27 November 2013 * DA Form 199, dated 28 April 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical Record – Progress Notes, dated 24 August 2015 * VISTA Electronic Medical Documentation, Department of Veterans Affairs Medical Center, Fayetteville, NC, printed on 6 June 2016 CONSIDERATION OF EVIDENCE: 1. On 3 November 2004, the applicant enlisted in the Regular Army. After initial entry training he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 2. The applicant's Enlisted Record Brief shows he served in Iraq from 1 July 2006 to 11 September 2007. 3. On 25 November 2013, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant with the conditions listed below and recommended referral to a PEB: Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. lumbar degenerative joint desease x 2. right hand tenosynovitisr x 3. left healed distal (3rd metacarpal fracture x 4. right wrist sprain with tendinopathy x 5. left knee sprain x 6. bilateral pes planus x 7. cervical strain x 8. cognitive disorder (otherwise known as tbi) x 9. sleep disorder x 10. anxiety disorder x 11. panic disorder without agoraphobia x 12. bilateral intermittent tinnitus x 4. On 27 November 2013 after having been counseled, the applicant indicated he reviewed the contents of the MEB and agreed with the findings and recommendations. He authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: a. He reviewed the contents of the MEB packet, and read the MEB Proceedings, Narrative Summary (NARSUM), and DA Form 3349. b. He understood that the PEB will consider and review only those conditions listed on the DA Form 3947. c. The DA Form 3947 included all of his current medical conditions, whether or not they met medical retentions standards. d. The conditions which did not meet medical retention standards were properly listed on the DA Form 3947; the NARSUM, and the DA Form 3349. e. All documentation of military medical care in his possession was provided to the PEB Liaison Officer (PEBLO) for inclusion in the MEB. f. He agreed that the MEB accurately covered all of his current medical conditions. g. If he did not agree with any of the statements and/or did not agree with the contents of the MEB, he will provided all of his disagreements and concerns in an appeal. 5. On 16 April 2014, an informal PEB convened and found the applicant's medical conditions prevented him from performing the duties required of his grade and military specialty. The PEB determined he was physically unfit due to the conditions listed below: a. The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows: VASRD Code Condition Percentage 5243 Lumbar Degenerative Joint Disease 20% b. The PEB also considered his other medical condition, including right hand tenosynovitis, left healed distal third metacarpal fracture, right wrist sprain with tendinopathy, left knee sprain, bilateral pes planus, cervical strain, cognitive disorder (otherwise known as TBI), sleep disorder, anxiety disorder, panic disorder without agoraphobia, and bilateral intermittent tinnitus. However, these conditions did not fail retention standards and were not found unfitting and therefore not ratable. c. Throughout the disability process, he was counseled by a PEBLO and informed of his rights at each step of the process. d. The PEB recommended a 20-percent combined disability rating and separation with severance pay. 6. The applicant's DA Form 199 shows he did not concur with the PEB findings and recommendation, and he demanded a formal hearing. He requested counsel and checked the box that states, "My written appeal is attached." His written appeal is not found in his records, nor does he provide a copy of it. (The advisory opinion addressed below states he later withdrew his request for a formal hearing.) 7. On 28 April 2013, the applicant was counseled by a PEBLO regarding his medical conditions, the findings of the MEB, the PEB process, and his rights under the law. He indicated he did not want reconsideration of his Department of Veterans Affairs (VA) rating. 8. Orders 153-007 issued by Installation Management Command-Europe, Vicenza Transition Center, dated 2 June 2014, show the applicant was issued orders discharging him from the Army on 28 August 2014. 9. On 28 August 2014, the applicant was honorably discharged. His DD Form 214 shows: * item 12c (Net Active Service This Period) – "0009  09  26" * item 12f (Foreign Service) – "0003  09  02" * item 23 (Type of Discharge) – "DISCHARGE" * item 24 (Character of Service) – "HONORABLE" * item 26 (Separation Authority) – "AR [ARMY REGULATION] 635-40, CHAP[TER] 4" * item 28 (Narrative Reason for Separation) – "DISABILITY, SEVERANCE PAY, COMBAT ZONE (ENHANCED)" 10. The applicant provides electronic medical documentation and progress notes from the Department of Veterans Affairs Medical Center, Fayetteville, NC, for chronic neck pain, back pain, bilateral wrist pain, and left hip pain. 11. There is no evidence in the available records showing the applicant appealed his VA determination and rating completed during the Integrated Disability Evaluation System (IDES) process within 1 year of its rating decision. 12. In processing this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency on 24 August 2016, which states: a. The VA awarded a 10-percent evaluation for a right lower extremity radiculopathy. The applicant appealed to the PEB regarding the issue of whether he was unfit for a right lower extremity radiculopathy, and requested a formal board if the PEB did not revise its findings; the PEB did not. However, the applicant, through counsel, withdrew his request for a formal board on 29 May 2014 and concurred with the PEB findings, noting that later evidence after his separation would not necessarily suggest the PEB erred in finding a condition of not unfitting. A subsequent 2016 magnetic resonance imaging indicates no compressive stenosis in the lumbar neuroforamina. b. With respect to the applicant's claim for additional conditions that were rated not disqualifying, the advisory opinion provided the following discussion. The MEB found his additional conditions did not interfere with his duty performance, were not cause for permanent profile limitations, and were not otherwise cause for MEB referral. Recognizing the MEB as the competent medical authority, with respect to whether a condition impacts a Soldier's military functioning, and in full consideration of Department of Defense (DOD) Instruction 1332.38, consideration of unfitness, the PEB found these conditions to be not unfitting and, therefore, not compensable. The preponderance of evidence supports that the applicant's conditions of anxiety disorder with TBI, sleep disorder due to chronic physical pain, and panic disorder were not unfitting and, therefore, not compensable for IDES purposes. 13. On 25 August 2016, the applicant was provided with a copy of the advisory opinion to give him an opportunity to submit a response/rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 8 February 2006, establishes the Army 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 office, grade, rank, or rating. a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5d provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Paragraph 4 provides guidance on referring Soldiers for evaluation by an MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 2. Army Regulation 40-501 (Standards of Medical Fitness), dated 14 December 2007 and revised on 4 August 2011, 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. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. Paragraph 3-33 states the causes for referral to an MEB are as follows: a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or b. Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or c. Persistence or recurrence of symptoms resulting in interference with effective military performance. 3. DOD Directive-Type Memorandum (DTM) 11-015 (IDES), in effect at the time, prescribed policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. (This directive has been incorporated into later publications of Army Regulation 635-40.) a. IDES is a joint DOD and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. b. In consultation with the Soldier's commander and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions to IDES. (1) The VA provides the medical examinations (identified as Compensation and Pension examinations) of the disabling conditions. Then, based on the VA Compensation and Pension examinations, an MEB makes an assessment to identify those medical conditions that fail medical retention standards. All failing conditions are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VASRD. Additionally, each rated disability is assigned a code by the VA in accordance with the VASRD. (3) Upon receipt of the disability rating(s) from VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30  percent or higher). (4) Upon separation from military service for medical disability and consistent with Boards 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. (5) 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 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 a physical disability separation of a member who has less than 20 years of service and a disability rating at 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 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. 6. 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. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. DISCUSSION: 1. The applicant contends his disability rating should be increased to above 20 percent for additional conditions that were not rated. 2. Under the IDES, the PEB is required to accept the disability rating awarded by the VA for those conditions the PEB determines to be unfit. Military Departments shall correct the records of those veterans who successfully appeal their ratings to the VA, using the appropriate BCMR. 3. The applicant does not provide a copy of his VA Disability Rating Decision and it is not available for review in his records. 4. The applicant was referred to the IDES for all of his known medical conditions, to include his lumbar degenerative joint disease, right hand tenosynovitis, left healed distal third metacarpal fracture, right wrist sprain with tendinopathy, left knee sprain, bilateral pes planus, cervical strain, cognitive disorder (otherwise known as TBI), sleep disorder, anxiety disorder, panic disorder without agoraphobia, and bilateral intermittent tinnitus. However, the MEB determined the only condition that did not meet retention standards was his degenerative joint disease. All other conditions met medical retention standards. There was no clinical evidence that his remaining conditions limited his duty performance. The applicant agreed with the MEB findings and recommendations and he was referred to a PEB. 5. At the applicant's informal PEB, the Board found him physically unfit for lumbar degenerative joint disease, recommended a disability rating of 20 percent, showed his disability resulted from a combat-related injury under the provisions of Title 26, U.S. Code, section 102, and recommended separation with severance pay. The applicant did not concur with the Board's findings and requested a formal PEB. Although the applicant records does not contain any documentation showing he appealed the Boards decision and requested a formal Board, the advisory opinion obtained by the PDA, states that the applicant eventually concurred with the informal PEB and waived his formal PEB. 6. Since the applicant's case was adjudicated as part of the IDES, and he never formally appealed to the VA, the ABCMR does not have the jurisdiction to change the percentage of disability unless the applicant has successfully appealed the rating with the VA. 7. The informal PEB, dated 28 April 2014, and the advisory opinion by the PDA, dated 24 August 2016, both agree the preponderance of evidence shows the applicant's remaining conditions were not unfitting at the time of his separation. 8. The applicant's PEB was conducted in accordance with law and regulations and the applicant exercised his rights and options with respect to demanding a formal hearing of his case, representation by counsel, and the submission of all medical evidence. There does not appear to be an error or an injustice in his case. The medical review did not yield substantiating medical evidence that would show an error or injustice occurred. 9. 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 employability. An individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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) AR20160012592 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012592 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2