IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016114 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 IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016114 BOARD DETERMINATION/RECOMMENDATION: 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 records of the individual concerned be corrected by: a. amending his DA Form 199, dated 4 April 2015, to add a 20 percent disability rating for radiculopathy in the left arm for a combined rating of 30 percent, and b. issuing to him the appropriate disability retirement retroactive to 19 June 2015, his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. _____________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. IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016114 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, his honorable discharge be changed to a medical retirement with a disability rating of 30 percent. 2. The applicant states he was medically discharged with a 10 percent disability rating and severance pay on 19 June 2015. The Department of Veterans Affairs (VA) changed his military rating to 30 percent; therefore, he should be medically retired instead of medically separated. He has invested most of his severance pay. He only completed 14 years of active duty service. 3. The applicant provides: * VA Disability Evaluation System Proposed Rating, dated 11 February 2015 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 8 April 2015 * DD Form 214 (Certificate of Release or Discharge From Active Duty) with an ending dated of 19 June 2015 * VA Disability Rating, dated 23 July 2015 CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable service in the Regular Army (RA). On 14 June 2013, he reenlisted in the RA in military occupational specialty (MOS) 92G (Food Service Specialist). 2. The applicant was issued a DA Form 3349 (Physical Profile), dated 2 December 2014 in which he was given a permanent profile of “U3” for neck pain and cervical fusion, and a permanent profile of “L2” for left knee pain. It was determined that his conditions for “U3” did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and warranted a Medical Evaluation Board (MEB). 3. An MEB narrative summary, dictated on 30 December 2014, indicated that the applicant reported to his primary care manager (PCM) in 2013 for neck and shoulder pain; however, he did not report any specific injury or traumatic event that was a direct result of his pain. The summary noted: a. His first encounter with his PCM was on 26 September 2013, when he was seen at the emergency room for pain in his left shoulder, upper back ,and tingling down his left arm but also traveling up his neck. He reported this pain had been going on for about 2 months, was slowly worsening, and now has a diminishing his grip in his left arm. b. The neurosurgeon stated his impression and plan was cervical spondylotic radiculopathy with left arm pain. They discussed the treatment options for cervical radiculopathy due to a disc herniation and/or degenerative spondylotic changes. c. On 18 March 2014, the applicant underwent surgery. He was placed on a profile to limit his activities. He was seen in June 2014, post-operatively and was recovering well. The applicant underwent physical therapy and was to continue his profile for an additional 8 weeks. The surgeon stated that he was making slow progress with his fusion at C5-6, and discussed that it typically takes 9 months to 1.5 years to fully fuse. However, due to the applicant’s persistent pain and continued need to require activity restriction, he was referred to a MEB. 4. On 5 January 2015, an MEB convened and determined that his cervical intervertebral disc disease status post fusion C5-C7 with decreased range of motion (ROM) and residual pain in left arm were medically unacceptable under the provisions of chapter 3-30(j) and 39(e) of Army Regulation 40-501 (Standards of Medical Fitness). His left ear sensorineural hearing loss, left foot hallux valgus, status post bunionectomy, allergic rhinitis, left shoulder impingement syndrome, eczema, obstructive sleep apnea, left knee status post patellar tendon repair, minimal lumbar spine arthritis, and unspecified neurocognitive disorder met retentions standards were considered medically acceptable. 5. The MEB recommended the applicant be referred to a PEB. The findings and recommendation of the MEB were approved on 9 January 2015. The applicant agreed with the findings and recommendation of the MEB. 6. An informal PEB convened on 8 April 2015 and found the applicant unfit for duty for cervical intervertebral disc disease status post fusion C5-C7 with decreased range of motion (ROM) and residual pain in left arm. The PEB stated his condition limited his ability to perform Army functional activities. The PEB rated him at 10 percent for his cervical intervertebral disc disease only. It appears that although he was also rated unfit for residual pain in the left arm, it was inadvertently omitted for a disability rating. Therefore, the PEB recommended an overall rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified. 7. On 10 April 2015, the applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing. The Secretary of the Army approved the PEB proceedings on 23 April 2015/ 8. On 19 June 2015, the applicant was discharged by reason of disability, severance pay, non-combat related under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He completed 13 years, 1 month, and 18 days of net active service this period that was characterized as honorable. 9. The applicant provided a copy of his VA disability rating, which shows he was assigned a 20 percent rating for a left arm radiculopathy secondary to cervical intervertebral disc disease. In addition, the VA noted that their decision represents a change to a rating originally assigned as part of the Integrated Disability Evaluation System (IDES). 10. During the processing of this case, on 17 August 2017, an advisory opinion was obtained from the Legal Advisor, U.S. Army Physical Disability Agency (USAPDA). The advisory official recommended approval of the applicant's request and stated: a. An informal PEB found the applicant unfit for cervical disc disease status post fusion C5-C7 with decreased ROM and residual pain in the left arm and cited MEB diagnoses 1 and 2 as being the evidence to support such unfitting conditions. b. The PEB rated the condition of cervical disc disease status post fusion C5-C7 with decreased ROM at 10 percent, and to separate the applicant with severance pay; however, the secondary condition of left arm radiculopathy was not rated. c. In accordance with Department of Defense Instruction (DoDI) 1332.18 (Disability Evaluation System (DES)), the two unfitting conditions were referred to the VA rating division and the VA rating the first condition at 10 percent and the second condition at 20 percent. However, the PEB did not include the 20 percent rating for the radiculopathy in the left arm notwithstanding their including the condition as an unfitting portion of the cervical disc disease. d. Recommend that the applicant’s military records be changed to reflect a separate unfitting condition for the second condition (left arm radiculopathy), and include the 20 percent rating for said condition. A 20 percent rating combined with a 10 percent rating equals 28 percent rounded up to 30 percent for a permanent disability retirement. 11. The applicant was provided a copy of the advisory opinion for an opportunity to respond. He did not respond. REFERENCES: Directive-type Memorandum (DTM) 11-015, in effect at the time, explains the IDES. a. The IDES is the joint DOD-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. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. 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'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. DISCUSSION: 1. The applicant requests correction of his records to reflect a medical retirement in lieu of separation with severance pay. 2. Title 10, U.S. Code, 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. Although the initial findings of the PEB rated the applicant unfit at 10 percent for his cervical disc disease status post fusion C5-C7 with decreased ROM, it appears that the PEB neglected to rate the secondary condition of residual pain in the left arm, which was also unfitting. 3. The VA Rating Decision the applicant provides, dated 23 July 2015, rated his service-connected disability for his left arm radiculopathy secondary to cervical intervertebral disc disease at 20 percent. 4. In an advisory opinion, the Legal Advisor, USAPDA, states the PEB did not include the 20 percent rating for radiculopathy in the applicant’s left arm notwithstanding their including the condition as a unfitting portion of the cervical disc disease. The advisory official recommended that the applicant’s military records be changed to reflect a separate unfitting condition for his left arm radiculopathy, at a rating of 20 percent. A 20 percent rating combined with a 10 percent rating for the cervical intervertebral disc disease equals 28 percent rounded up to 30 percent which warrants a permanent disability retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016114 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016114 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2