BOARD DATE: 15 May 2018 DOCKET NUMBER: AR20160006215 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. 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: 15 May 2018 DOCKET NUMBER: AR20160006215 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 15 May 2018 DOCKET NUMBER: AR20160006215 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 (Physical Evaluation Board (PEB) Proceedings), dated 9 August 2012, to increase his medical disability rating from 10 percent to 30 percent. 2. The applicant states: a.  He was being medically evaluated for retention in the Army and he was only being treated for his right knee, which is why he was sent to a Warrior Transition Unit following his redeployment. b.  He already had the injuries the Department of Veterans Affairs (VA) ruled service connected. His most serious injury was his right knee. He had four surgeries on his right knee, two orthoscopic and two replacements. c.  He retired on 28 February 2013 and he had to have another knee replacement in March 2013. This eludes to the fact that his knee injury was not fully assessed and treated prior to his retirement. He underwent physical therapy beginning March 2013 for 1 year with no improvement and then he was diagnosed with too much damage resulting in right knee revision on 30 May 2014. d.  He continued to see a doctor and attends physical therapy for left knee arthritis and right knee revision with hopes of improvement. e.  His current VA rating for his right knee is 30 percent service connected. The original rating was 10 percent service connected. f.  He did not accept the severance pay and he was not properly informed of the appeal process at the time of his separation. Had he been familiar with the procedures, he would have continued to appeal. g.  There is a large disparity between his Army disability rating of 10 percent and his VA disability rating of 80 percent. The VA has awarded him an individual unemployability rating of 100 percent due to his service-connected disabilities. h.  He acknowledged he was approved for eligibility for Combat-Related Special Compensation, but he did not receive retired pay. He was advised that he would be eligible once he received his retired pay. 3. The applicant provides: * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) * VA Form 10-5345 (Request for Authorization to Release Medical Records or Health Information) * DA Form 3349 (Physical Profile), dated 9 December 2011 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 9 January 2012 * VA Proposed Rating Decision, dated 22 June 2012 * PEB Liaison Officer memorandum, dated 17 August 2012 * DA Form 199, dated 9 August 2012 * VA memorandum, dated 26 October 2012 * National Capital Region Physical Evaluation Board memorandum, dated 30 November 2012 * PEB counsel memorandum, dated 18 January 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 22 August 2009 through 28 February 2013 * VA Rating Decision, dated 28 May 2013 * VA letter, dated 3 June 2013 * VA letter, dated 26 October 2015 * medical records extracts CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service, the applicant was appointed as a second lieutenant in the New Jersey Army National Guard on 9 July 1988. 2. On 17 July 2003, he was promoted as a Reserve commissioned officer to the rank of major. 3. On 4 January 2007, he received his notification of eligibility for retired pay at age 60 (20-year letter). 4. Deployment Support Command Orders 09-175-00028, dated 24 June 2009, ordered him to active duty as a member of his Reserve Component unit for the purpose of mobilization in support of Operation Iraqi Freedom for a period of 400 days. 5. His DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 April 2010, shows he was seen in an outpatient status at Walson Medical Support Element, Fort Dix, NJ, for a meniscal tear of the right knee while serving on active duty. His injury was determined to have been incurred in the line of duty. 6. On 29 September 2010, the Director of Human Resources Military, Headquarters, Army Support Activity, Joint Base McGuire-Dix-Lakehurst, Fort Dix, NJ, approved the applicant's line-of-duty investigation as service aggravated, existing prior to service. 7. Headquarters, U.S. Army Medical Command, Orders A-06-018040, dated 17 June 2010, retained the applicant on active duty for a period of 161 days to participate in Reserve Component medical hold transfer for completion of medical care and treatment. 8. His DA Form 3349, dated 9 December 2011, shows: a.  He was issued a permanent physical profile rating with physical limitations and levels of functional capacity ratings in six factors (PULHES) as: * P – physical capacity or stamina – 2 * U – upper extremities – 1 * L – lower extremities – 3 * H – hearing and ears – 1 * E – eyes – 1 * S – psychiatric – 1 b.  He did not meet retention standards in accordance with Army Regulation  40-501 (Standards of Medical Fitness), chapter 3, and he required an evaluation by a medical evaluation board (MEB). 9. His DA Form 3947, dated 9 January 2012, shows: a.  The MEB diagnosed him with right knee pain due to osteoarthritis, bilateral foot pain status post-bunionectomies, sleep apnea, chronic sinusitis, hypertension, refractive error both eyes, erectile dysfunction, left knee and right wrist keloid scars, diarrhea, low back pain, hemorrhoids, left knee pain due to mild osteoarthritis, left shoulder condition, gastroesophageal reflux disease, memory loss, and radiology osteoarthritis right/left thumbs. Only his right knee pain due to osteoarthritis was determined to be medically unacceptable per Army Regulation 40-501, paragraph 3-14c. b.  The MEB referred him to a PEB. 10. On 22 June 2012, the VA provided the Army Physical Disability Agency with the applicant's proposed Disability Evaluation System rating. The proposed rating notes the findings of the PEB Board Proceedings, dated 1 February 2012, as one of the documents used for consideration; however, this document is not available for review. Only a 10-percent disability rating was proposed for his evaluation of right knee osteoarthritis for Disability Evaluation System purposes and proposed entitlement to service connection for VA benefits. 11. His DA Form 199 shows the PEB convened on 9 August 2012. a.  His right knee osteoarthritis was given a 10-percent service-connected disability rating and noted the condition was aggravated by prolonged sitting, standing, running or walking. b.  His other medical conditions met medical retention standards and they did not represent a decided medical risk to his health should he continue on active duty or in a Reserve status. The conditions were not independently or in combination with other conditions unfitting. c.  His case was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the policy and procedural Directive-Type Memorandum of 19 December 2011. d.  The PEB found him physically unfit and recommended a 10-percent disability rating and separation with severance pay, if otherwise qualified. 12. On 17 August 2012, he was notified of the PEB findings and recommendations, given a 10-day suspense to make an election, and he was advised of his rights by the PEB Liaison Officer. 13.  On 22 August 2012, the applicant non-concurred with the PEB findings, demanded a formal hearing with a personal appearance, and requested regularly appointed counsel to represent him. 14.  On 24 August 2012, his counselor informed him of the findings and recommendations of the PEB and explained the results of the findings and recommendations and his legal rights pertaining thereto. 15. On 26 October 2012, the Decision Review Officer, Disability Evaluation System Pilot Team, VA Regional Office, Baltimore, MD, provided a memorandum to the PEB in reference to the applicant's request for reconsideration of his proposed disability rating. This memorandum states: a.  The applicant contends the 10-percent evaluation provided for the PEB-referred condition of right knee osteoarthritis (PEB referred as right knee pain due to osteoarthritis) should have been a 20-percent evaluation under diagnostic code 5258 for dislocated semilunar cartilage or under Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 5257 for moderate recurrent subluxation or lateral instability. The applicant provided a letter and three medical reports from his physicians. b.  After considering all the available evidence, the Decision Review Officer determined no change was warranted in the prior decision of 22 June 2012 and the previously assigned 10 percent evaluation was confirmed. The reviewer stated there was no error in the prior decision and no new evidence was provided warranting a change in the evaluation. 16. On 30 November 2012, the President, National Capital Region PEB, advised the applicant his informal PEB decision was still applicable and his entire case was being sent to the U.S. Army Physical Disability Agency for review. 17. On 18 January 2013, the applicant's PEB counsel requested reconsideration of his case by the National Capital Region PEB based on new medical information regarding his knee condition of osteoarthritis. The applicant was refitted for an osteoarthritis lite knee brace, which counsel contended could change his VASRD code 5258 to VASRD code 5257 for moderate recurrent sublaxation or lateral inability because of his use of the brace. 18. On 28 February 2013, he was honorably released from active duty by reason of completion of active service. 19. On 18 March 2013, the Chief, Operations Division, U.S. Army Physical Disability Agency, stated the PEB determined the applicant was physically unfit for continued service and would be transferred to the Retired Reserve. The applicant was entitled to apply for retirement benefits upon reaching age 60. The 99th Regional Support Command was tasked with providing orders and applicable documentation transferring him to the Retired Reserve. 20. On 28 May 2013, the VA increased his overall or combined rating to 70 percent, but did not change his 10-percent disability rating for right knee osteoarthritis. 21. Headquarters, U.S. Army Reserve Command, Orders 13-240-00044, dated 28 August 2013, assigned him to the Retired Reserve effective 28 September 2013 by reason of promotion non-selection. 22. He provided extracts of medical treatment records and attending physician's statements of functionality for the period 2011 through 2015. 23. On 10 December 2015, he submitted an application to the Physical Disability Board of Review. 24. On 13 January 2016, the Physical Disability Board of Review denied his request for an assessment of his assigned disability rating. He was advised his case was ineligible for review by that agency. 25. On 28 August 2017, the Legal Advisor for the U.S. Army Physical Disability Agency rendered an advisory opinion wherein he stated that while it is unclear the exact date the applicant submitted a request for the condition's rating reevaluation, it would appear to be outside the 1-year limitation. Nevertheless, the Army Board for Correction of Military Records (BCMR) would be the appropriate agency to make the final determination. He further stated: a.  The applicant was referred into the IDES for a right knee osteoarthritis condition rated at 10-percent disabling as indicated by his DA Form 199. b.  Through counsel, he submitted an appropriately drafted VA reconsideration request to have the condition reevaluated at a higher rating percentage, citing supporting documented medical evidence. c.  The reconsideration request was denied, resulting in the National Capital Region's PEB processing the case with a final disposition rating of 10 percent and recommendation for separation with severance pay along with 10-percent combat-related benefits. d.  The applicant affirmatively waived his right to appear before the formal PEB and, according to his provided statement, subsequently opted out of receiving separation with severance pay benefits as a result of qualifying for Non-Regular (Reserve) retirement. e.  The applicant retired on 28 February 2013. He received his VA benefits decision letter on or about 28 May 2013. On or about 26 October 2015, the VA increased the rating to 30 percent following a prosthetic replacement. 26. On 6 September 2017, a copy of the advisory opinion was provided to the applicant for review and for an opportunity to provide a response. He did not respond. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System 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. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 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. 3. Department of Defense (DOD) Manual 1332.18, volume 2 (Disability Evaluation System Manual: IDES), implements policy, assigns responsibilities, and provides procedures for the Disability Evaluation System. a.  Paragraph 3 states the Secretaries of the Military Departments establish procedures to use the proposed VA disability ratings for each of the military unfitting conditions to determine the individual and combined DOD disability rating for all military unfitting conditions. Military Departments will adhere to applicable DOD policy to implement the VASRD. b.  Appendix 1 (Service Member Procedures) to enclosure 4, paragraph 7, states upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or a designated representative) may request correction of his or her military records if new information arises regarding his or her service or condition that may result in a different disposition. (1)  For example, a veteran who was separated or retired through the IDES and who locates a portion of their service treatment record that was missing during the IDES process may request that the VA adjust the disability rating of an unfitting condition. (2)  If the VA changes the proposed disability rating for the unfitting condition based on the new information, and the change would have resulted in a different DOD disability disposition, then the service member may request correction of the military records through his or her respective Military Department BCMR. c.  Appendix 1 to enclosure 4 states if, after separation from the service and attaining veteran status, the former service member (or a designated representative) desires to appeal a determination in the VA rating decision provided after separation, the veteran (or a designated representative) has 1 year from the date of the benefits decision letter that VA sends the veteran after separation from military service, to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 4. 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 rating of at least 30 percent. 5. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. 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 on the part of the Army. 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 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. Furthermore, unlike the U.S. 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 U.S. 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: 1. The applicant contends his 10-percent service-connected disability rating for his right knee osteoarthritis should be increased to 30 percent. 2. An MEB referred him to a PEB for the unfitting condition of right knee pain due to osteoarthritis and other conditions that were not unfitting. 3. He was processed through the IDES and the VA determined his right knee osteoarthritis was rated 10-percent disabling. The PEB accepted the VA's determination and the applicant was notified of the findings and recommendations and rights available to him by the PEB Liaison Officer on or about 17 August 2012. 4. On 22 August 2012, he non-concurred with the PEB findings and recommendations, demanded a formal hearing with a personal appearance, and requested regularly appointed counsel to represent him. 5. On 24 August 2012, his counselor informed him of the findings and recommendations of the PEB and explained the results of the findings and recommendations of the PEB and his legal rights pertaining thereto. 6. On 26 October 2012, the Disability Evaluation System Pilot Team Decision Review Officer determined no change was warranted in his 22 June 2012 rating decision. 7. Although the VA increased his ratings for conditions that were not unfitting, a competent authority determined in 2013 that no change was warranted in his original decision with regard to his unfitting condition of right knee osteoarthritis. 8. On or about 26 October 2015, after more than the 1 year appeal limitation, the VA increased his unfitting condition of right knee osteoarthritis disability rating to 30 percent following prosthetic replacement of the knee joint. This increased disability rating was not made retroactive to his 22 August 2012 PEB findings and recommendations. 9. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2