BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000751 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: 8 June 2017 DOCKET NUMBER: AR20160000751 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: 8 June 2017 DOCKET NUMBER: AR20160000751 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 her disability rating from 70 percent to 80 percent. 2. The applicant states: a. The Department of Veterans Affairs (VA) rating for migraines was based on Compensation and Pension examination statements that were contradictory to what was recorded in the description of her migraine conditions. She communicated to the examiner and it was recorded in the summary that "she had been getting weekly headaches, but further down under 4.a. prostrating attacks of headache pain, it was annotated that they were occurring on average once every month." b. This error led to her receiving a rating of 30 percent instead of 50 percent for migraines, which led to a total combined disability rating of 70 percent instead of 80 percent (brain tumor = 60 percent + migraines = 50 percent = 80 percent). 3. The applicant provides copies of: * Department of Veterans Affairs (VA) Compensation and Pension examination detail report * medical records excerpts * DA Form 5892 (Physical Evaluation Board (PEB) Liaison Officer (PEBLO) Estimated Disability Worksheet) * DA Form 199 (Informal PEB Proceedings) * medical retirement orders 254-0011, dated 11 September 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 18 January 1995. On 22 August 2002, she accepted an appointment as a Reserve warrant officer. She was promoted to chief warrant officer four on 1 May 2012. 2. An Informal PEB convened on 6 August 2015 and considered the applicant's medical issues. The PEB determined her diagnosed "brain tumor (rating of 60 percent) and migraines (rating of 30 percent)" prevented her from reasonably performing the duties required by her grade and military specialty. The PEB further determined her more than 20 other medical conditions were not unfitting and met medical retention standards. 3. The PEB rated her conditions under the VA Schedule for Rating Disabilities (VASRD), codes 8003-8100, with a 70-percent disability rating and recommended her retirement for permanently disability. Her DA Form 199, section VI (Instructions and Advisory Statements), states: a. The ratings were combined in accordance with VASRD, paragraph 4.25. b. 60 percent combined with 30 percent = 72 percent, which rounds to 70 percent. c. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). d. As documented in the VA memorandum, dated 27 July 2015, the VA determined the specific VASRD code(s) to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed VA disability rating(s) and in accordance with applicable statutes and regulations. 4. On 10 August 2015, the PEBLO indicated the applicant had been informed of the findings and recommendations of the PEB and the result of the findings and recommendations were explained to the applicant. 5. On 11 August 2015, the applicant concurred with the findings and recommendations and waived a formal hearing of her case. She did not request reconsideration of her VA ratings. The PEB's findings and recommendation were approved on 19 August 2015. 6. On 17 November 2015, the applicant was honorably retired under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability, permanent (enhanced). Her DD Form 214 for this period confirms: * she completed 13 years, 5 months, and 9 days of net active service * she also completed 7 years, 7 months, and 4 days of total prior active service 7. In the processing of this case, an advisory opinion was obtained on 29 November 2016 from the U.S. Army Physical Disability Agency (USAPDA) Medical Advisor. This official opined in pertinent part that: a. It appears the Army Review Board Agency forwarded this case for an advisory opinion in error because VA ratings in IDES are not within our domain. The applicant's issue relates to a rating for migraines which the VA provided. Ratings are (solely) within the domain of the VA. We note the applicant did not request reconsideration of this VA rating at the time she was going through the IDES process. b. As the designee for the Secretary of the Army (SECARMY), the Assistant SECARMY (Manpower and Reserve Affairs) is authorized to separate a Soldier with less than 20 years of active service when the Soldier is physically unfit to perform the duties of the Soldier's office, grade, rank, or rating because of physical disability. The PEB determined the applicant was unfit. The applicant had less than 20 years of active service. Therefore, the applicant was not eligible for military retirement and we retired the Soldier for physical disability at 70 percent. 8. The applicant was provided a copy of the advisory opinion on or about 30 November 2016 to afford her the opportunity to respond to its content. She responded by pointing out that she performed more than 20 years of active duty. She noted this just to make sure her time was counted correctly. She again asserted that her rating for migraines should have been 50 percent. REFERENCES: 1. AR 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. AR 635-40 establishes the Army Disability Evaluation System (DES) in accordance with Title 10, U.S. Code, chapter 61, and Department of Defense Instruction 1332.18 (DES). It 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. If a Soldier is found unfit because of physical disability to reasonably perform his or her duties, it provides for the disposition of the Soldier according to applicable laws and regulations. a. Public law defines physical DES as a system or process of the Department of Defense (DOD) for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the Military Departments and is comprised of MEBs, PEBs, counseling of Soldiers, and mechanisms for final disposition of disability evaluations by appropriate personnel. b. A Soldier may not be discharged or released from active duty because of a disability unit they have made a claim for compensation, pension or hospitalization with the VA or have signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. c. IDES features a single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. A single set of disability ratings provided by the VA for use by both departments. The DES 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. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile in accordance with AR 40-501 and the profile contains a numerical designator of P3/P4 in any of the serial factors for a condition that appears to not meet medical retention standards in accordance with AR 40-50. Within 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer a Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of Military Occupational Specialty Administrative Retention Review (MAR2) evaluation. e. An MEB is convened to determine whether a Soldier's medical condition(s) meets medical retention standards per AR 40-501. With the exception of cases referred by MAR2, an MEB may determine that a Soldier's condition(s) meet medical retention standards and recommend the Soldier be returned to duty. The MEB must not provide conclusions or recommendations regarding fitness determinations. (1) Upon referral into the DES, the physician approving the Soldier's P3/P4 profile will initiate the VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim) by completing Section 1 and transmitting the form to the office designated by the military treatment facility commander. (2) The Soldier will be assigned a PEB liaison officer (PEBLO) who will provide a general overview of the DES process. (3) The Soldier will have the opportunity to claim conditions in the VA Form 21-0819, Section 3. After the Soldier, or a designated representative, submits VA Form 21-0819, the Soldier may also claim additional conditions, but the VA will not evaluate the added claimed conditions until after separation unless the PEB refers the condition for further VA or MEB evaluation before issuing a final fitness determination, or if the MEB approval authority concludes that adding a new medical condition is necessary to ensure the MEB findings adequately reflect the complete spectrum of a Soldier's injuries and illness. f. The PEB determines fitness for purposes of a Soldier's retention, separation or retirement for disability under 10 USC Chapter 61. (1) All cases will be initially adjudicated by an Informal PEB. The Informal PEB conducts a documentary review of the case file without the presence of the Soldier to make an initial decision on the Soldier's fitness for continued service. The decision will be document on a DA Form 199. (2) If the initial decision of the PEB is that the Soldier is unfit, the PEB president will request preliminary VA ratings for each condition the PEB found to be unfitting. The PEB will apply the VA disability rating percentages to the conditions determined to be compensable by the PEB. (3) The Soldier can accept the Informal PEB decision, thereby waiving his or her right to a formal hearing. The Soldier can nonconcur with the Informal PEB decision and demand or request a formal hearing with or without a statement of appeal. The VA will only reconsider when there is new medical evidence or sufficient justification of an error to warrant reconsideration. g. The USAPDA will review the PEB before the PEB recommendations and finding are approved for or by the SECARMY or higher authority, as applicable. The USAPDA has the authority to approve disability cases for the SECARMY and issues disposition instructions. 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 4. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for 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. DISCUSSION: 1. An Informal PEB found the applicant medically unfit for a brain tumor (rating of 60 percent) and migraines (rating of 30 percent), and recommended retirement for physical disability (permanent) with a rating of 70 percent. She concurred with the PEB findings that they covered all of her current medical conditions and waived a formal hearing. In addition, she did not request reconsideration of her VA ratings. Accordingly, she was retired. 2. The applicant now believes she should receive a higher rating percentage for migraines based on contradictory statements that were recorded in her medical records. 3. The applicant's medical retirement for permanent physical disability was accomplished in compliance with applicable laws and regulations, as supported and substantiated by the advisory opinion, and she concurred with the recommendation of the PEB while she was still on active duty. She was processed through the IDES which involved a VA medical evaluation prior to the PEB. She waived her right to a formal hearing and indicated she did not request reconsideration of her VA ratings. It appears the applicant's rights were protected throughout the DES process. 4. After reviewing all pertinent evidence and taking into consideration the medical advisory opinion, there does not appear to be any evidence of an error or injustice in this case that is within the purview of the Army. The VA evaluates a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army determines fitness for duty, while the VA assesses one's civilian employability post-service. Only if the applicant had appealed the VA's rating before the Informal PEB, could an increased rating have been applied to change the Informal PEB's decision. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000751 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000751 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2