BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20170008731 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: 22 June 2017 DOCKET NUMBER: AR20170008731 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130018458, dated 12 November 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that he was retired from the Army by reason of physical disability on 28 May 2012, with a combined service connected disability rating of 30 percent for degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity; b. auditing his military pay records based on this correction; and c. paying him all back pay and allowances he may be due as a result of this correction, less any monies previously paid that are now unauthorized due to this correction. ____________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: 22 June 2017 DOCKET NUMBER: AR20170008731 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, through a court remand, reconsideration of his request for correction of his records to show he retired due to medical disabilities instead of discharged with severance pay. 2. The U.S. Court of Federal Claims noted, in part, the Army Board for Correction of Military Records' (ABCMR's) denial of the applicant's request to correct his records to reflect a combined 30-percent disability rating was based on two interrelated determinations. First, the ABCMR concluded that a 20-percent (rather than 30-percent) rating was appropriate because "radiculopathy of the left lower extremity, by itself, was found to be an unfitting medical condition at the time of the applicant's separation." Second, that the Department of Veterans Affairs' (VA's) Final Rating Decision, which provided a separate rating of 10 percent for the applicant's radiculopathy of the lower left extremity was "indicative of the worsening or the natural progression of the disease" since the time of his discharge. It therefore rejected the applicant's argument that the disability that the physical evaluation board (PEB) identified as the unfitting condition "degenerative disc disease (DDD) of the lumbar spine with radiculopathy of the left lower extremity" should likewise have reflected an additional 10-percent rating for the radiculopathy. 3. The Court noted that both of the Board's interrelated determinations were incorrect. First, it is irrelevant to the issue by the applicant that the PEB did not identify radiculopathy of the left lower extremity, by itself, as an unfitting medical condition. Pursuant to Army regulation, in making the determination of fitness or unfitness, the PEB is to consider the "overall effects of all disabilities." A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness. 4. The Court noted the PEB issued a DA Form 199 (Physical Evaluation Board Proceedings) on 17 February 2012 in which it identified "DDD of the lumbar spine with radiculopathy of the left lower extremity" as the condition that rendered the applicant unfit for duty." In a subsequent paragraph, the PEB then listed gastroenteritis, temporal mandibular joint (TMJ) disease of the left jaw, mild high-frequency sensorineural hearing loss of the left ear, bilateral tinnitus, and vertigo. It concluded that those conditions, by contrast, "did not render the applicant unable to reasonability perform the duties of his rank/grade and therefore render him fit for duty." In other words, the PEB determined that DDD with radiculopathy of the left lower extremity was the overall unfitting condition. Indeed, the ABCMR recognized this fact, explicitly observing that the "PEB diagnosed the applicant with DDD of the lumbar spine with radiculopathy of the left lower extremity and found him medically unfit." Thus its observation that the applicant's radiculopathy was not found "separately unfitting" is beside the point. 5. The Court noted that Army regulations provide that "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." Whether the radiculopathy was separately unfitting is therefore irrelevant to what rating should have been assigned, because the PEB concluded that DDD of the lumbar spine with radiculopathy of the left lower extremity rendered the applicant unfit. 6. The Court noted that, notwithstanding the foregoing, it is undisputable that the PEB failed to take the applicant's radiculopathy into consideration when it assigned a rating of 20 percent for his unfitting conditions. The PEB assigned the applicant's unfitting condition a diagnostic code of 5242. That code corresponds to degenerative arthritis of the spine. The ratings prescribed for this code are based solely on the range of motion (ROM) of the spine, and do not account for "pain (whether or not it radiates), stiffness, or aching." According to the schedule, a 20-percent disability rating under this diagnostic code corresponds to "forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees or, the combined ROM of the thoracolumbar spine not greater than 120 degrees." 7. The Court noted that with respect to radiculopathy, the rating table states that "any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code (DC). But the PEB did not do so. Accordingly, despite the fact that the PEB labelled the applicant's condition as "DDD of the lumbar spine with radiculopathy of the left lower extremity," the 20-percent rating it assigned the applicant for code 5242 failed to account for his radiculopathy. 8. The Court noted the Disability Evaluation System (DES) Proposed Rating Decision (upon which the PEB apparently relied) similarly failed to take the applicant's radiculopathy into consideration. But the VA's Final Rating Decision separately rated and considered his radiculopathy. Thus, as noted, the Final Rating Decision assessed a 20-percent rating to DDD and a 10-percent rating to the applicant's radiculopathy of the left lower extremity. Under the VA and Army regulations, these two ratings together result in a combined disability rating of 30 percent for his DDD with radiculopathy of the left lower extremity. 9. The Court noted that unlike the VA, the PEB never corrected its rating of the applicant's unfitting condition. Thus, the ABCMR erred here by failing to direct the Army to similarly assign the applicant a disability rating that took the radicular aspect of his unfitting condition into consideration to reflect the VA's final rating. 10. The Court found the ABCMR's conclusions that the September 2012 Final Rating Decision reflected a "worsening or natural progression of the disease" and was "reflective of new evidence of changes to the applicant's conditions after his discharge" are unsupported by the administrative record. The Court noted that as counsel for the government conceded at oral argument in this case, the VA based the Final Rating Decision upon the exact same medical records on which it based the DES Proposed Rating Decision. Those records covered a time period ending 23 November 2011, approximately 3 weeks prior to the VA's Proposed Rating and approximately 4 months prior to the applicant's discharge. 11. The Court noted that no medical evidence is cited by the ABCMR or exists in the record to support the conclusion that there was any worsening of the applicant's DDD following his discharge from the Army. Rather, the record clearly indicates he had radiculopathy symptoms at least as far back as 17 July 2010, almost 2 years prior to his discharge. He was diagnosed with DDD with radiculopathy on 18 October 2011, by an individual who conducted the compensation and pension examination that was supposed to serve as the basis for the applicant's entitlement to both military and VA benefits. Further, in the Final Rating Decision, the VA specifically stated the ratings assigned were retroactively effective as of 29 May 2012, the day after the applicant was discharged from the Army. 12. The court found that because the VA did not review any new records evidencing a worsening of the applicant’s lumbar DDD after separation, the changes it made in the Final Rating Decision cannot be the result of changes to the applicant's conditions after discharge. Instead, the Final Rating Decision sets forth the VA's final rating of the applicant's unfitting conditions. Further, because VA issued a Final Rating Decision before it issued the 19 September 2012 benefits decision letter (which, as noted, marked the end of the Joint Pilot Program process), the ratings of 20 percent for DDD and 10 percent for radiculopathy represented VA's final views regarding the appropriate ratings to assign for both military disability and VA compensation. 13. The Court found that Army regulations established that the applicant's radiculopathy should have been considered in determining his disability rating for purposes of the military's DES, but the PEB failed to do so. It found that it was erroneous for the ABCMR not to correct the applicant's records to reflect the VA's Final Rating Decision (which assigned a 20 percent for DDD and a separate 10 percent for radiculopathy). The Court found that the ABCMR's basis for declining to do so, that the Final Rating Decision was based on a post-discharge worsening of the applicant's condition, is not supported by the record. The Court found the ABCMR's decision regarding the applicant's request for correction of his records was arbitrary and capricious, and contrary to law. 14. The Court concluded that for the stated reasons, the Government's motion for judgement on the applicant's administrative record is denied and the applicant's motion for judgment on his administrative record is granted. The court remanded this matter to the ABCMR for correction of the applicant's military records to reflect the assignment of a combined disability rating of 30 percent for the unfitting condition of DDD of the lumbar spine with radiculopathy of the left lower extremity, and to show he was retired with medical retirement pay rather than discharged with severance pay. The Court directed that the ABCMR take all necessary action, including issuing any necessary orders, to ensure the applicant receives back pay and any ongoing disability retired pay to which he is entitled as a result of the corrections. The Court directed that the ABCMR make any other corrections and take any other actions required to carry out the Court's instruction. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130018458 on 12 November 2014. 2. On 30 December 2008, the applicant enlisted in the Regular Army and he was awarded military occupational specialty 21K (Plumber). 3. On 21 September 2011, he was referred to the Joint Department of Defense (DOD)/VA Disability Evaluation Pilot Program. He completed an FA Form 210819 (VA/DOD Joint Disability Evaluation Board Claim) and he listed lumbar DDD as the medical condition to be considered as the basis of a fitness for duty determination. 4. On 27 October 2011, a medical evaluation board (MEB) convened to determine whether the applicant should be referred to a PEB for consideration. The MEB diagnosed him with DDD, lumbar spine, which was deemed medically unfit for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness). He was also diagnosed with gastroenteritis, TMJ and muscle disease, mild high frequency sensorineural hearing loss (left ear), tinnitus, and vertigo bilateral) all of which were determined to meet medical retention standards. The MEB recommended referral of the applicant to a PEB for consideration. 5. As part of a Joint Pilot Program between the VA and DOD, his disability ratings were approved by the VA. A DES Proposed Rating from the VA, dated 13 December 2011, provided a finding of DDD of the lumbar spine with radiculopathy of the left lower extremity (PEB referred as DDD, lumbar spine (claimed as lumbar DDD)) rated at 20 percent disabling. 6. A PEB found the applicant physically unfit for continued service due to DDD of the lumbar spine with radiculopathy of the left lower extremity (PEB referred as DDD, lumbar spine) (claimed as lumbar DDD). The PEB recommended a combined service-connected disability rating of 20 percent and discharge with severance pay. 7. On 28 May 2012, the applicant was discharged from the Army with severance pay, with a service-connected disability rating of 20 percent. 8. A VA Rating Decision, dated 14 September 2012, shows the applicant was granted a combined service-connected disability rating of 40 percent for the following conditions: * DDD, lumbar spine, 20 percent under DC 5242 * tinnitus, 10 percent under DC 6260 * radiculopathy, left lower extremity, 10 percent under DC 8520 * temporal mandibular joint disease, 10 percent under DC 9905 * gastroesophageal reflux disease, 0 percent under DC7346 9. The VA reviewed the same evidence the PEB used when it made its findings and recommendations. The VA rating clearly shows he was awarded a 20-percent service-connected disability rating for DDD of the lumbar spine under code 5242. He was awarded a separate 10-percent service-connected disability rating for radiculopathy, left lower extremity, under DC 8520, which totals a 30-percent service-connected disability rating. 10. On 12 November 2014, the ABCMR denied the applicant's request for correction of his records to show he retired due to medical disabilities instead of discharged with severance pay. 11. On 19 April 2017, an order was issued by the U.S. Court of Federal Claims remanding this case to the ABCMR and directing that the ABCMR correct the applicant's military records: (1) to reflect the assignment of a combined disability rating of 30 percent for the unfitting condition of DDD of the lumbar spine with radiculopathy of the left lower extremity; (2) to reflect that the applicant was medically retired, rather than discharged with severance pay; (3) by taking all necessary action, to including issuing any necessary orders, to ensure that the applicant receives back pay; and (4) by making any other corrections and taking any other actions that are required to carry out the Court's instructions. DISCUSSION: 1. 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 rated at least 30 percent. 2. The U.S. Court of Federal Claims has remanded this case to the ABCMR and directed that the applicant's military records be corrected by: (1) showing he was assigned a combined service-connected disability rating of 30 percent for the unfitting condition of DDD of the lumbar spine with radiculopathy of the left lower extremity; (2) showing he was medically retired, rather than discharged with severance pay; (3) taking all necessary actions, to including issuing any necessary orders, to ensure the applicant receives back pay; and (4) making any other corrections and taking any other actions required to carry out the Court's instructions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170008731 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008731 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2