ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 January 2020 DOCKET NUMBER: AR20170009381 APPLICANT REQUESTS: Correction of her DA Form 199 (Informal Physical Evaluation Board (IPEB) Proceedings), dated 8 March 2016, by adding her diagnosis of diabetes as an unfitting condition and adjusting the percentage of her disability to reflect this added condition. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * separation orders, dated, 12 April 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 April 2016 * Department of Veterans Affairs (VA) rating decision letter, dated 28 April 2017 * DA Form 199, dated 6 April 2018 * U.S. Army Physical Disability Agency (USAPDA) removal from the Temporary Disability Retired List (TDRL) notification and orders, dated 16 April 2018 * approximately 30 pages of medical records FACTS: 1. The applicant states: a. She was placed on the Temporary Disability Retired List (TDRL) with a 60 percent disability rating. However, three weeks before being placed on TDRL, she was diagnosed with type II diabetes. She requested through the Warrior Transition Battalion to remain on active duty another 30 days or through the end of her orders of 10 June 2015 for the purpose of establishing a healthcare plan and to allow the PEB a chance to consider her diagnosis and make changes to her overall rating. She was denied the opportunity and told that because she had received an initial rating, they would not allow such an extension. b. Her diagnosis has not changed since her discharge and her VA rating has gone from 60 to 90 percent. She believes she deserves a second look by the Board and a reconsideration of change in rating status on the Army side. As stated above, the diagnosis was made during her military service and she initially began treatment under the military healthcare system. She realizes that these things take time and that not all cases are the same. She appreciates the Board's time and consideration in advance and will be happy to provide any and all documentation required that may not already be on file through the military and VA health records. c. She is requesting a review of her disability determination. She strongly believes she is entitled to back pay beginning in April 2016. Recently she was given a disability increase on the Army side and permanently retired from the military. She had appealed her DA Form 199 decision that led to the change in disability from 60 to 70 percent. At the time of the appeal process, she was informed that she would receive back pay to the time of the diagnosis. 2. The applicant, a member of the U.S. Army Reserve, was found unfit for the performance of her military duties by a PEB on 8 March 2016. The DA Form 199 shows she was found unfit due to depression, left tibiotalar arthritis, and left patellar chondromalacia. The PEB recommended a disability rating of 60 percent and her placement on the TDRL. The DA Form 199 also shows the Medical Evaluation Board (MEB) diagnosed her with nine additional medical conditions which were found not to be unfitting. The DA Form 199 does not show her diabetes condition was considered. 3. The PEB findings and recommendations were approved by the U.S. Army Physical Disability Agency (USAPDA) on 18 March 2016. 4. Orders issued on 12 April 2016 directed the applicant's release from assignment and duty because of physical disability and her placement on the TDRL effective 23 April 2016. 5. On 6 April 2018, a PEB reevaluated the applicant's disabilities. The PEB found the applicant unfit and recommended a combined 70 percent disability rating and her permanent disability retirement. The DA Form 199 shows she was found unfit for the following conditions with the corresponding disability ratings: * post-traumatic stress disorder with major depressive disorder - 50 percent * left tibiotalar arthritis - 10 percent * left patellar chondromalacia - 10 percent * diabetes mellitus type 2 - 20 percent 6. The DA Form 199 shows the following comments in regards to her diabetes diagnosis and the disability rating of this condition: a. RECONSIDERATION: This condition was diagnosed in February 2016 and treated with oral medication and dietary restrictions beginning on 4 March 2016. The IPEB convened on 8 March 2016 and the Soldier was placed on TDRL on 24 April 2016. This condition was not considered by the PEB because it was not listed on the DA Form 3947 (MEB Proceedings). The HgbA1c was 7.6 percent on 29 February 2016 and the Soldier received treatment with an oral hypoglycemic and dietary restrictions. Although the majority of Soldiers with type 2 diabetes mellitus would have been found fit under the regulations in existence at that time, her diagnosis was so new that it would have been found unfitting and unstable so that it could be re-evaluated. However, by November 2016 her HgbA1c was up to 13.3. b. In accordance with Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation), the Soldier is unfit because this condition does not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and is listed in Department of Defense Instruction (DODI) 6490.07, enclosure 3, paragraph c (2). In accordance with DOD Manual 1332.18-V2, enclosure 5, paragraph 4, this condition is rated at 20 percent. In accordance with DODI 1332.18 appendix 4 to enclosure 3, 2. i. (1) and (3) this condition is compensable. This pattern has continued to the point where the Soldier now requires insulin. There have been no episodes of diabetic ketoacidosis or hypoglycemia. There are no specific limitations to her activity. The Soldier meets the requirements for this 20 percent rating based on requiring insulin and restricted diet. 7. Orders issued by the USAPDA on 16 April 2018 directed the applicant's removal from the TDRL and her permanent disability retirement. The orders show a disability rating of 70 percent. 8. On 30 October 2019, an advisory opinion was obtained from the USAPDA Legal Advisor. The advisory opinion states: a. The applicant requests that her VA ratings be applied to her Integrated Disability Evaluation System (IDES) case. For the reasons below, they find the request to be legally insufficient. b. The applicant states that her diabetes mellitus, type II (DM) condition has not changed since her placement on the TDRL and subsequent removal and placement into Permanent Disability Retired List (PDRL), but that her overall VA rating for her conditions has increased. As such, she is requesting that her condition, specifically her DM, be re-evaluated by the PEB and that her IDES rating be increased. c. The applicant cites a VA website article that states "[i]f your type 2 diabetes became at least 10 percent disability within one year of discharge from the military you may be eligible for presumptive service-connection." This pertains to VA compensation and not to the IDES. It is not disputed that the applicant was diagnosed with DM while on active duty orders of greater than 30 days. Therefore, the DM condition is presumed to be service connected. It is also not disputed that her overall VA rating did increase with the addition of obstructive sleep apnea, allergic rhinitis and DM. Her obstructive sleep apnea and allergic rhinitis were not found to be unfitting conditions. She received an initial disposition of TDRL, which did not include her then newly diagnosed DM. Not all diagnoses of DM are found to be unfitting. d. During her TDRL reevaluation proceedings, she was then found to be unfit for DM, as well as other unfitting conditions, and was rated for DM under the VA Schedule for Rating Disabilities (VASRD). She was also placed into the PDRL. Her DM condition was rated at 20 percent. This is the same rating percentage that the VA awarded her for DM. Thus, her overall PDRL rating increased from 60 to 70 percent. She concurred with the findings of her PEB on 9 April 2018. e. Conclusion: Although she received an increased rating from the VA and now requests that the Army follow suit, only unfitting conditions are compensable in the IDES process. She has not provided any new evidence to show that her DM now would warrant a higher rating or that she has any other unfitting conditions. The PEB findings were supported by a preponderance of evidence, were not arbitrary nor capricious, and were not in violation of any statute, directive, or regulation. Due to the above, the USAPDA find the applicant's request to be legally insufficient. 9. The advisory opinion was provided to the applicant on 31 October 2019 and given the opportunity to submit comments. She responded and stated: Per the instructions provided in the letter sent to me on 31 October 2019, I am sending you this response. In the letter provided, the review board appears to be under the impression that I am requesting an increase in disability on the Army side because of my DM II diagnosis. This is NOT the case. I am/have requested a back date of my orders from April 2018 to o/a April 2016. I appealed my decision to the PEB based on the fact that I was denied the opportunity to remain on orders once the diagnosis was discovered (o/a February 2016) to have the adjustment made to my rating before discharge. Be it policy or failure, I was not given that chance and was retired. I appealed this decision which took two years to have corrected. When I inquired with my PEB case manager about the back date orders, she initially agreed and said she would look into having the orders back dated. However, after several days of emails (see documents attached, Pages 13-19), I was advised that I would have to go through the Army Board of Corrections to have these orders amended. This will be the third time I am sending these documents to ABCMR. The first time I sent them was through the website on 24 May 2017 (page 12) and given a case number PBS3741. The second time I submitted my packet was after I received the increase in disability (page 11) and mailed it to ARBA. Again, I am not appealing or disputing the disability rating on the VA or Army side. I am however, requesting that a correction be made to my orders which state that my disability was effective April 2018 and not the actual time of diagnosis o/a February 2016 when I was initially informed that I had DM II. Again, I was not afforded the opportunity to receive a formal rating, this was not my fault or doing. The battalion made the decision to discharge me even though I still had time left on my orders and per policy I should have been given the time to have those adjustments made. I did my due diligence and followed the process as instructed. Subsequently, my family and finances were disrupted without any recourse. Please do not mistake my appeal for disregard of the privilege I have been afforded. I ask that you review my case and make the appropriate determination. 10. In support of her response to the advisory opinion, she provided a series of emails between her, the PEB Liaison Officer (PEBLO), PEB, and the USAPDA showing her attempts to have her initial DA Form 199 corrected by adding diabetes as an unfitting condition and showing she was advised to apply to this Board for the requested correction(s). 11. The applicant provided VA rating decision letter, dated 28 April 2017, showing she was assigned a combined disability rating of 90 percent by the VA, which includes a 20 percent disability rating for diabetes mellitus type 2. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board agreed that the record clearly shows the applicant had a diagnosis of diabetes mellitus type 2 prior to placement on the TDRL. The condition was diagnosed in February 2016 and treated with oral medication and dietary restrictions beginning on 4 March 2016. The PEB convened on 8 March 2016 and the applicant was placed on the TDRL on 24 April 2016. This condition was not considered by the PEB at the time the applicant was placed on the TDRL because it was not listed by the MEB on the DA Form 3947. The Board noted the statement by the 6 April 2018 PEB that the new diagnosis of diabetes mellitus type 2 would have been found unfitting and unstable at the time of placement on the TDRL. The 6 April 2018 PEB then determined the diagnosis was unfitting and would be rated at 20 percent. 2. By a preponderance of the evidence, the Board determined the applicant’s DA Form 199 dated 8 March 2016, should be corrected by adding her diagnosis of diabetes as an unfitting condition rated at 20 percent, and adjusting her overall rating percentage accordingly at the time of placement on the TDRL. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 amending her DA Form 199, dated 8 March 2016, by adding her diagnosis of diabetes as an unfitting condition rated at 20 percent and adjusting the overall percentage of her disability to reflect this added condition. She should be paid any additional retired pay she may be due as a result of this correction. 3/10/2020 X Richard H. Dianich CHAIRPERSON Signed by: DIANICH.RICHARD.H.1044931717 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. REFERENCES: 1. Army Regulation 635-40, Rapid Action Revision Issue dated 20 March 2012, (in effect at the time of the applicant’s placement on the TDRL) establishes the Army 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. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it 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. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. c. The TDRL is used in the nature of a “pending list.” It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him/her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. d. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his/her office, grade, rank, or rating at the time of the evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service. In addition, the condition must be determined to be temporary or unstable. e. Soldiers will be placed on the TDRL when they would be qualified for permanent disability retirement and the preponderance of evidence indicates one or more conditions will change within the next 5 years so as to result in a change in rating or a finding of fit. The Army Disability Evaluation System will re-evaluate each Soldier placed on the TDRL at least once every 18 months. Evaluation may be sooner. Once the PEB finds each condition is stable upon evaluation, the PEB will assign a final rating that includes the ratings for the disabilities determined to be permanent and stable when the Soldier was placed on the TDRL or during preceding TDRL adjudications. When the PEB rates the case, the ratings will be under the VASRD in effect at the time of the current TDRL adjudication. f. The combined percentage rating approved at the time the Soldier was placed on the TDRL cannot be changed by the PEB throughout the period the Soldier is on the TDRL. Adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL. g. A final determination of the case of each Soldier on the TDRL will be made at the latest upon the expiration of 5 years after the date when the Soldier was placed on the TDRL. If, at the time of that determination the physical disability for which the Soldier was placed on the TDRL still exists, it will be considered to be permanent and stable. Placement on the TDRL confers no right to remain on the TDRL for the entire 5-year period. h. If upon reexamination, Soldiers whose disabilities have stabilized and who are not determined fit for duty and meeting medical retention standards for the conditions for which they were placed on the TDRL will be removed from the TDRL and placed on the PDRL if the physical disability rating remains 30 percent or greater. If upon reexamination, the Solider is found unfit for duty and not meeting medical retention standards but the stabilized physical disability percentage is rated at below 30 percent, the Soldier will be removed from the TDRL and separated with severance pay if the Soldier has less than 20 years of active Federal service. 2. Army Regulation 635-40, dated 19 January 2017, (in effect at the time of the applicant’s placement on the PDRL) states: a. Conditions newly diagnosed since placement on the TDRL or conditions that have progressed since the Soldier was placed on the TDRL will be compensable when: * the condition is unfitting * the condition was caused by the unstable disability for which the Soldier was placed on the TDRL, or it was caused or is otherwise directly related to its treatment either before or after the Soldier was placed on the TDRL * the evidence of record establishes the condition was either incurred while the Soldier was entitled to basic pay and/or was incurred in the LOD and was an unfitting disability at the time the Soldier was placed on the TDRL b. Disabilities determined to be unfitting and compensable will be rated in accordance with the VASRD. This rating will generally be determined by the D–RAS. For those cases that are evaluated as an exception to IDES, the military department determines the rating. 3. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 4. Title 38, USC, permits 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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//