IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150000508 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 correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show: * a 10-percent disability rating for his left Achilles tendon * a 30-percent combined and total disability rating for military retirement 2. The applicant states: a.  His total service-connected disability was originally rated as 20 percent: 10 percent for right rotator cuff,10 percent for right Achilles tendon surgery, and 0 percent for left Achilles tendon surgery. b.  The Department of Veterans Affairs (VA) has since awarded him a 10-percent disability rating for his left Achilles tendon. His left Achilles tendon is one of his service-connected disabilities; therefore, his Army rating should be amended from 20 percent to 30 percent. c.  The VA awarded him a combined service-connected disability rating of 70 percent while he was still serving on active duty. d. He should be awarded a 30-percent disability rating from the Army, be medically retired, and be entitled to retiree benefits. 3. The applicant provides: * email correspondence * page 2 of a VA rating letter, undated * duplicate application, dated 13 January 2015, with accompanying self-authored letter, undated * DA Form 199 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Disability Evaluation System (DES) Proposed Rating, dated 9 September 2013 * VA rating letter, dated 4 April 2014 CONSIDERATION OF EVIDENCE: 1. After having prior honorable enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 21 February 2002. 2. On 9 September 2013, the VA rendered a Proposed DES Rating as follows: a.  20 percent for the following PEB referred Proposed DES service-connected disabilities: (1)  10-percent disability rating for torn rotator cuff (dominant) shoulder residual surgery, scars, pain, limited mobility; acromioclavicular joint degenerative disease right shoulder residual pain, limited mobility (also claimed as loss of strength, right arm; and right shoulder pain); (2)  10-percent disability rating for Achilles tendon rupture right residual surgery, with pain; also diagnosed as right ankle strain with residual functional pain (claimed as bilateral ankle pain); and (3)  0-percent disability rating for left Achilles tendon adhesions residual surgery, scar, pain; also diagnosed as left ankle strain with residual of intermittent functional pain (claimed as bilateral ankle pain). b.  70 percent for the proposed service-connected combined evaluation for DES purposes. 3. His DA Form 199 shows he was evaluated under the Integrated DES (IDES) in accordance with Under Secretary of Defense for Personnel and Readiness Directive-Type Memorandum (DTM) 11-015, dated 19 December 2011. a.  He was rated for the following unfitting conditions: (1)  torn rotator cuff right (dominant) shoulder residual surgery scars, pain, limited mobility acromioclavicular joint degenerative joint disease right shoulder residual pain, limited (10 percent disability rating); (2)  Achilles tendon rupture right residual surgery, scar, pain (10 percent disability rating); (3)  left Achilles tendon adhesions residual surgery, scar, pain (0-percent disability rating); and (4)  torn rotator cuff of the right shoulder with residual scars status post-surgery; and bilateral tendon Achilles rupture with residual scars status post-surgery (0 percent disability rating). b.  The informal PEB found he was physically unfit and recommended a 20-percent combined disability rating and his separation with severance pay. c.  On 15 November 2013, he concurred with the findings and recommendation of the PEB, waived his right to a formal hearing, and elected not to request reconsideration of his VA rating. d.  On 4 December 2013, the PEB findings and recommendation were approved by the Secretary of the Army designee. 4. On 4 December 2013, the applicant submitted a DA Form 4187 (Personnel Action) requesting separation with severance pay. 5. On 16 February 2014, he was honorably discharged due to a disability with severance pay. 6. On 4 April 2014, the VA granted him an 80-percent service-connected disability rating. Among his service-connected disabilities, the VA granted him a 10-percent disability rating for left Achilles tendon adhesions residual surgery, pain, also diagnosed as left ankle strain with residual of intermittent functional pain (claimed as bilateral ankle pain) effective 17 February 2014. 7. On 21 August 2015, the U.S. Army Physical Disability Agency Legal Advisor provided an advisory opinion wherein he recommended denial of the applicant's request and stated: a.  The informal PEB found the applicant unfit based on three conditions: right Achilles residuals of rupture; right shoulder torn rotator cuff; and left Achilles tendon condition. The VA, in its 9 September 2013 proposed rating decision, rated these conditions as 10 percent, 10 percent, and 0 percent respectively. The PEB applied the VA-assigned ratings for each of these conditions. After an initial 15 November 2013 request for the VA to reconsider its 0-percent rating for the left Achilles condition, the applicant concurred with the PEB findings and indicated he no longer requested reconsideration of his VA rating. b.  The applicant's sole claim of error is that the VA subsequently rated him at 10 percent for the same condition. The case file contains a VA rating document that indicates the VA increased the left Achilles tendon to a 10 percent rating on 17 February 2014. There is nothing in the VA rating document to indicate this is the result of an appeal of the previous VA rating under the IDES process; it was a new rating based upon a change in his condition since his separation from the military. c.  The PEB findings are supported by a preponderance of evidence; were not arbitrary or capricious; and were not in violation of any statute, directive or regulation. 8. On 16 September 2015, a copy of the advisory opinion was forwarded to the applicant for his review and response. 9. On 12 October 2015, he responded and stated: a.  The advisory opinion states he did not argue the PEB findings of his 0 percent rating. The fact of the matter is that he was told he was going to be finally discharged in the July/August 2013 time frame. His family moved into the house in New Hampshire in August 2013 while he was stuck at Fort Drum in New York. b.  When the PEB findings came in a few months later, he filed an appeal with the help of his PEB counselor. He was told he had 365 days from his expiration term of service date to file an appeal. He did not let it go because he agreed with the findings. He was instructed to allow his VA disability benefits to start and receive his first disability check before he filed his appeal; otherwise he would hold up the process. He consulted numerous personnel and the process was a headache. c.  He did not "agree" with the findings, he just had to file his appeal after he got off active duty due to the hardship the whole process placed on his family. d.  In reference to the advisory opinion and his 28 November 2012 examination, the advisory opinion is inaccurate. He made several complaints about pain and stiffness, loss of range of motion, and constant pain daily. He cannot run anymore, play sports with his children, or do many things he loved doing, including hiking and sightseeing due to the injury. He simply cannot walk for very long without significant pain. He has never reported to any doctor that he has no pain and normal range of motion. e. His claim is that his injury has been causing him daily pain since it occurred almost 10 years ago. The advisory opinion is also incorrect in stating his new rating is based on a change in his condition. He questions the whereabouts of reports from his VA provider if the injury worsened since his discharge. f.  The VA, after reviewing his records to officially award his disability, found the injury which was pre-existing and not new to be 10 percent disabling and not 0 percent disabling and he desires his records corrected to show this. His disability rating should be 30 percent according to the official rating he received in April 2014. He understood the 20-percent rating was a proposed rating and he was told the official rating would come in the mail after his separation. He understands the official rating is 30 percent. 10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical DES 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. 11. DTM 11-015, dated 19 December 2011, explains the IDES and states: a.  The IDES is the joint Department of Defense (DOD) and VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. c.  Upon separation from military service for medical disability and consistent with Board 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 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. d.  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. 12. 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 in the Army rating. 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 an 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. Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, 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. The 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 AND CONCLUSIONS: 1. The evidence of record shows the applicant was processed through the IDES. He was assigned a 20-percent combined disability rating. He waived his right to a formal PEB hearing. 2. His DA Form 199 shows he accepted the findings and recommendations of the PEB, he waived his right to a formal hearing, and he elected not to request reconsideration of his VA ratings for his PEB. 3. He is correct in his understanding that he had 365 days to appeal his VA service-connected disability rating. His appeal of this rating decision resulted in the VA changing its 0-percent rating to a 10-percent rating effective 17 April 2014. The VA did not make the change retroactive to its 9 September 2013 rating. 4. The available evidence in this case indicates the applicant was properly evaluated for his medical conditions by the PEB and he was afforded all of his due process rights during the evaluation of his case. 5. In view of the foregoing evidence, there is an insufficient basis to grant the requested relief. The applicant has not shown error, injustice, or inequity for the relief he requests. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x____ ___x____ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20150000508 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000508 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1