BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004312 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: 14 November 2017 DOCKET NUMBER: AR20160004312 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: 14 November 2017 DOCKET NUMBER: AR20160004312 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 records to show an increase of his combined service-connected physical disability rating from 30 percent (%) to 70% or more. 2. The applicant states he was evaluated by a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB) in 2013; however, the findings were not complete. After further medical examinations, the Department of Veterans Affairs (VA) discovered there were new developments and complications, and that a disability rating of 40% was correct. The VA subsequently adjusted his disability rating to 80%. He adds that the new VA rating is much more comprehensive and accurately reflects the difficulties he has on a daily basis. 3. The applicant provides an extract of his VA rating decision. CONSIDERATION OF EVIDENCE: 1. The applicant had honorable enlisted service in the Regular Army and in the Army National Guard (ARNG) of the United States (ARNGUS) that included the New York ARNG and the Texas ARNG that spanned the period from 26 June 1984 to 27 June 2013. a. He was initially awarded military occupational specialty (MOS) 11B (Infantryman). He was subsequently awarded MOS 13B (Cannon Crewmember) and most recently awarded MOS 12H (Construction Engineer). b. He served in Iraq in support of Operation Iraqi Freedom from 6 April 2004 to 11 March 2005 c. He attained the rank of staff sergeant/pay grade E-6 on 17 August 2009. 2. He was ordered to active duty on 22 November 2010 and served in Iraq from 24 November 2010 to 2 June 2011. 3. A review of the applicant's military personnel records failed to reveal a copy of his MEB proceedings. 4. A DA Form 199 (Informal PEB Proceedings) shows a PEB convened on 13 March 2013 at Fort Sam Houston, TX. a. Section VI (Instructions and Advisory Statements) shows the case was adjudicated as part of the Integrated Disability Evaluation System under the 19 December 2011 Policy and Procedure Directive-type Memorandum 11-015. The specific VA Schedule for Rating Disabilities (VASRD) codes to describe the applicant's condition and disability percentage was determined by the VA and is documented in VA memorandum, dated 29 January 2013. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System. b. The applicant's following conditions were found unfitting: * VASRD Code 8712 – right (dominant) upper extremity radiculopathy status post C4–C5 anterior fusion surgery (MEB Diagnosis) – 20% * VASRD Code 5242 – cervical degenerative disc disease status post fusion with residual paresthesia (MEB Diagnosis 1) – 10% (1) The above conditions began in 2005 with neck pain, stiffness, and right upper extremity radiculopathy confirmed by electromyogram which progressed to include bilateral spasticity and weakness, and subsequently was aggravated in 2011 during deployment to Iraq when the applicant reported the additional symptoms of repeated falling to the left due to weakness of his upper and lower extremities which he attributes to wearing battle gear and carrying weight exceeding 135 pounds. (2) The PEB considered the MEB diagnoses and narrative summary, DA Form 7652 (Disability Evaluation System Commander's Performance and Functional Statement), Line of Duty (Approved, 7 July 2011), DA Form 3349 (Physical Profile), VA Compensation and Pension Examination, and VA Rating Decision. c. The PEB also considered the applicant's MEB diagnoses 2–11 (i.e., left sensorineural hearing loss; tinnitus; left foot arthritis and ganglion cyst; left knee strain; right knee strain; blepharitis bilateral eyes; dry eyes; Meibomian gland dysfunction; presbyopia; and hypertension) both individually and in combination with other conditions. These conditions (individually and in combination) were not associated with profile limitations and did not impact the applicant's ability to perform any one of the ten functional activities. The MEB indicated that these conditions met medical retention standards and the PEB did not find these conditions to be unfitting. d. The PEB recommended a combined rating of 30% and permanent disability retirement. e. The PEB President signed the PEB proceedings on 7 March 2013. f. The PEB Liaison Officer affirmed with her signature that she had informed the applicant of the findings and recommendations of the PEB, and explained to him the results of the findings and recommendations. g. On 28 March 2013, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. h. On 29 March 2013, the Chief, Operations Division, U.S. Army Physical Disability Agency, Alexandria, VA, affirmed the applicant's PEB proceedings and permanent disability retirement. 5. Headquarters, III Corps, Fort Hood, TX, Orders 112-0117, dated 22 April 2013, as amended by Orders 114-0137, dated 24 April 2013, released the applicant from the ARNGUS on 27 June 2013, based on permanent disability (30%), and placed him on the retired list effective 28 June 2013. He was credited with 6 years, 4 months, and 4 days for disability retirement; 7 years, 1 month, and 20 days under Title 10, U.S. Code, section 1405 (years of service); and 22 years, 4 months, and 18 days for basic pay. 6. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 22 November 2010 and he was honorably retired under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures), based on permanent disability (enhanced) on 27 June 2013. 7. In support of his request the applicant provides an extract of his VA rating decision (pages 3–11). a. The document shows, in pertinent part, the VA granted him service- connection for the following conditions – * radiculopathy, right lower extremity – 20% * intervertebral disc syndrome including degenerative arthritis of the spine – 10% * bilateral pes planus including mild hallux valgus – 30% * right knee strain (claimed as right knee condition) – 10% * partial anterior cruciate ligament (ACL) tear and medial meniscus degeneration, left knee (claimed as left knee condition) – 10% * left (non-dominant) upper extremity radiculopathy status post C4-C5 anterior fusion surgery, PEB referred issue as residual paresthesia (claimed as radiculopathy upper extremities) – 0% * right (dominant) upper extremity radiculopathy status post C4-C5 anterior fusion surgery, PEB referred issue as residual paresthesia including right carpal tunnel syndrome (claimed as radiculopathy upper extremities) – 20% * hearing loss, left ear (claimed as bilateral hearing loss) – 0% * metatarsalgia and ganglion, left dorsal foot (claimed as metatarsal arthritis and ganglion, left foot) – 10% * cervical degenerative disc disease status post-fusion (claimed as cervical disc degeneration) – 10% b. It also shows the history of his VA service-connected overall disability ratings, as follows – Combined Rating Effective Date 40% 13 December 2011 0% 27 June 2013 40% 28 June 2013 80% 26 January 2015 8. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 6 June 2017. a. The ARBA senior medical advisor reviewed the applicant's military personnel records, electronic military medical (AHLTA) records, VA medical records, and VA rating decisions provided by the applicant with his application. (1) The senior medical advisor provided an extensive description of the applicant's clinical encounters, physical profile (for neck pain, status post-surgery), x-rays, magnetic resonance imaging, and medical examinations. His review shows, in pertinent part, theater clinic visits (May to June 2011) for backache, fatigue, cervical radiculopathy, muscle weakness, and others. (2) The senior medical advisor provided a summary of the applicant's PEB proceedings (previously summarized in this Record of Proceedings). He also reviewed follow-up care the applicant received at the Warrior Transition Unit from April to June 2013 and provided a summary of the applicant's VA disability ratings (previously summarized in this Record of Proceedings). (3) A limited review of his VA medical records through the Joint Legacy Viewer revealed 43 problems, including 2005 era: sensorineural hearing loss, tinnitus, obesity, Achilles tendonitis, and unspecified idiopathic peripheral neuropathy; 2006 era: chondromalacia patella; 2009 era: cervical radiculopathy, allergies/sinusitis; 2011 era: osteoarthritis, spinal stenosis in cervical region, paresthesia; 2012 era: presbyopia, dry eye, blepharitis, and sensorineural hearing loss unilateral. He noted the applicant is currently VA service-connected at 80% overall (as of 17 June 2015). The VA service connections include: flat foot condition (30%), paralysis of sciatic nerve (20%), neuralgia of lower radicular nerve group (20%), lumbosacral or cervical strain (10%), knee condition (10%), degenerative arthritis of the spine (10%), arthritis degenerative (10%), tinnitus (10%), foot pain (10%), excessive tearing (0%), impaired hearing (0%), neuralgia of lower radicular nerve group, other side (0%), and hypertensive vascular disease (0%). Other current diagnosis includes diabetes mellitus. b. The senior medical advisor found the available records do not support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) existed at the time of the applicant's military service. c. He found the applicant did not meet medical retention standards for right (dominant) upper extremity radiculopathy status post C4–C5 anterior fusion surgery and cervical degenerative disc disease status post fusion with residual paresthesia in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. He added the following: "Note: The right upper extremity radiculopathy (clinical diagnosis) not supported by post-PEB electromyogram/nerve conduction study (EMG/NCS), dated 10 April 2013. That EMG/NCS study supported a clinical diagnosis of carpal tunnel syndrome that met retention standards and subsequent post-study review before separation." d. The senior medical advisor found the applicant did meet medical retention standards for left sensorineural hearing loss; tinnitus; left foot arthritis and ganglion cyst; left knee strain; right knee strain; blepharitis bilateral eyes; dry eyes; Meibomian gland dysfunction; presbyopia; and hypertension IAW AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. He noted additional diagnoses that met medical retention standards, including possible hyperlipidemia (based on a 2010 elevated cholesterol level) and carpal tunnel syndrome. He added that morbid obesity is non-boardable and non-compensable. e. The senior medical advisor concluded the applicant's medical conditions were duly considered during his medical separation processing. His review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. He noted the post-service era progression of symptoms and compensation for post-service progression is under the purview of the VA. 9. On 7 June 2017, the applicant was provided a copy of the ARBA advisory medical opinion to allow him the opportunity to submit comments or a rebuttal. 10. On 14 June 2017, the applicant provided two VA documents pertaining to his disability ratings for consideration by the Board. a. VA Washington, DC, letter, dated 14 June 2017, that shows he was granted service-connection for disabilities with a combined rating of 80%, effective 1 December 2016. b. A two-page Rating Disabilities document that shows the VA – * granted service-connection for the following conditions (i.e., disability, rating, effective date) – * left (non-dominant) upper extremity radiculopathy status post C4-C5 anterior fusion surgery, PEB referred issue as residual paresthesia (claimed as radiculopathy upper extremities), 0%, 28 June 2013 * tinnitus, 10%, 28 June 2013 * metatarsalgia and ganglion, left dorsal foot (claimed as metatarsal arthritis and ganglion, left foot), 10%, 28 June 2013 * partial ACL tear and medial meniscus degeneration, left knee (claimed as left knee condition), 10%, 26 January 2015 * hearing loss, left ear (bilateral hearing loss), 0%, 28 June 2013 * right knee strain (claimed as right knee condition), 10%, 26 January 2015 * right (dominant) upper extremity radiculopathy status post C4-C5 anterior fusion surgery, PEB referred issue as residual paresthesia including right carpal tunnel syndrome (claimed as radiculopathy upper extremities), 20%, 28 June 2013 * hypertension – 0%, 28 June 2013 * intervertebral disc syndrome including degenerative arthritis of the spine, 10%, 26 January 2015 * radiculopathy, right lower extremity, 20%, 26 January 2015 * bilateral pes planus including mild hallux valgus, 30%, 26 January 2015 * dry eyes syndrome and blepharitis, 0%, 28 June 2013 * cervical degenerative disc disease status post-fusion (claimed as cervical disc degeneration), 10%, 28 June 2013 * denied service-connection for the following conditions – * hearing loss, right ear * residuals right elbow nerve damage * right shoulder condition * left carpal tunnel * myelopathy with spasticity and weakness of lower right extremity * weakness – right leg – hip to ankle * sleep apnea * myelopathy with spasticity and weakness of lower left extremity REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the Integrated Disability Evaluation System. Chapter 3 (Policies), paragraph 3-5 (Use of the VASRD), shows that 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. Any non-ratable defects or conditions will be listed on the DA Form 199, but will be annotated as non-ratable. a. Disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. It also allows Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings. b. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier be rated as the condition(s) exist(s) at the time of the PEB hearing. The VA may find a Soldier unfit by reason of a service-connected disability and may even assign a higher rating after separation. The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 2. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30% * section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30% DISCUSSION: 1. The applicant's request for correction of his records to show a higher physical disability rating based on additional service-connected, unfitting conditions was carefully considered. 2. The evidence of record shows an MEB considered the applicant's medical conditions and the MEB recommended referral to a PEB. 3. Records show a PEB considered the medical conditions listed on the applicant's MEB. Under the Integrated Disability Evaluation System, the VA and the U.S. Army found the following service-connected conditions unfitting – * right (dominant) upper extremity radiculopathy status post C4–C5 anterior fusion surgery (rated at 20%) * cervical degenerative disc disease status post fusion with residual paresthesia (rated at 10%) a. The conditions that were not unfitting were clearly identified. b. In conjunction with VA memorandum, dated 29 January 2013, the PEB found the applicant physically unfit, recommended a combined rating of 30%, and permanent disability retirement. c. The applicant concurred with the results of the PEB. Accordingly, he was released from military service and placed on the retired list. 4. The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the disability evaluation system process. a. The applicant's medical conditions were duly considered during his medical separation processing. b. The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing. 5. The evidence of record shows the VA has granted the applicant post-service disability compensation for several additional service-connected medical conditions and granted him a higher combined disability rating. However, this is not evidence that the Army misapplied either the medical factors involved or the governing statutory/regulatory guidance concerning his disability processing. 6. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA, on the other hand, provides compensation for disabilities it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004312 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004312 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2