BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20170011802 APPLICANT REQUESTS: * physical disability retirement in lieu of physical disability discharge with severance pay * rating of his left and right knee conditions under a new Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) code * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Radiology Results, dated 7 June 2010 * Department of Veterans Affairs (VA) Form 9 (Appeal to Board of Veterans’ Appeals dated 26 November 2012 * partial Veteran Claims Assistance Act (VCAA) Notice Response, dated 30 April 2013 * VA letter, dated 2 April 2013 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings, dated 23 June 2014 * memorandum requesting PEB reconsideration, dated 1 July 2014 * Center for Orthobiologics and Sports Medicine letter, dated 27 August 2014 * memorandum requested Disability Evaluation System (DES) VA Rating reconsideration, dated 11 September 2014 * memorandum requested Disability Evaluation System (DES) VA Rating reconsideration, dated 15 September 2014 * DA Form 199-1, dated 4 September 2014 * partial VA memorandum, dated 9 October 2014 * multiple U.S. Army Physical Evaluation Board and U.S. Army Physical Disability Agency (APDA) memoranda, dated January 2015 * APDA Orders D 016-29, dated 16 January 2015 * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 16 January 2015 * memorandum requesting VA Request for Reconsideration (VARR), dated 19 February 2015 * VA Form 9, dated 11 March 2015 * VA appeal decision, dated 7 May 2016 * numerous pages of additional medical documentation FACTS: 1. The applicant states: a. A minimum of a 30 percent disability existed at the time of his 4 September 2014 Physical Evaluation Board (PEB) hearing and at the time of his 20 February 2015 disability separation. He should therefore have a medical retirement instead of separation. b. On 8 January 2016, the left knee, which was found unfitting at the time of his disability separation, received an additional rating from the VA through the appeal process, which had been pending for years. The effective date of his the additional rating was 15 February 2011. The PEB process moved forward while the VA was still working this rating appeal. c. He received his disability separation on 20 February 2015 following a PEB hearing on 4 September 2014. A VARR and an amended VARR containing additional medical evidence were submitted within days of the Board’s findings without due consideration. He waited for the VA appellate decision as well as had to refile and wait for a decision for his right knee before applying to the Army Board for Correction of Military Records (ABCMR), as the VA said they only considered the left knee despite his claim. His appeal and evidence all state “both left and right” and “bilateral”. 2. The applicant was appointed a Reserve Commissioned Officer of the Army on 3 June 2009. 3. A VA Form 9, shows the applicant filed an appeal to the Board of Veterans’ Appeals on 26 November 2012, claiming bilateral instability and pain in both knees and requesting a hearing. On 2 April 2013, the VA acknowledged his request for a video conference hearing before the Board of Veterans’ Appeals and a partial VCAA Notice Response, dated 30 April 2013, shows the applicant submitted documentary evidence to the VA to support his claim. 4. The applicant’s Medical Evaluation Board (MEB) proceedings are not in his available records for review. 5. A DA Form 199 shows and Informal PEB convened on 23 June 2014 and found the following: a. The applicant’s case was adjudicated as part of the Integrated Disability Evaluation System (IDES) and the specific VASRD codes used to describe his condition and the disability percentage were determined by the VA. The disposition recommendation was determined by the PEB based on the VA disability rating. The applicant was found physically unfit with a recommended rating of 10 percent and a recommended disposition of separation with severance pay. b. He was found unfit for degenerative joint disease of the left knee (MEB diagnosis 1) using VASRD code 5003. This is unfitting because it prevents the performance of one or more common Soldier tasks and prevents him from functioning in his current assignment. c. He was found fit for MEB diagnoses 2-12: left distal clavicle resection for left shoulder impingement syndrome; right shoulder rotator cuff tear, degenerative joint disease in the right knee; sequela of incomplete stress fracture of left medical knee; tibial plateau; bilateral ankle stress reaction; chronic mild residual back strain; chronic mild residual left hip strain; chronic mild residual strain in the left foot; sensorineural hearing loss in left ear; sensorineural hearing loss in right ear; and tinnitus. The conditions were not unfitting because the MEB indicates these conditions meet retention standards. It does not indicate these conditions cause physical profile limitations or performance issues are due to these conditions. d. On 2 July 2014, the applicant did not concur, demanded a formal hearing, requesting personal appearance and regularly appointed counsel and attached his written appeal to his nonoccurrence. 6. His written appeal, dated 1 July 2014 and composed by his MEB counsel requested reconsideration of his informal PEB and demanded a formal hearing, stating in pertinent part: a. The applicant initially injured his left knee while enrolled in the Judge Advocate General (JAG) Officer Basic Course in the summer of 2009. Thereafter, he continued his military career, which involved additional physical activities required of a drilling U.S. Army Reserve (USAR) Soldier while avoiding running that his physical profile precluded him from participating in. While participating in other unit function, he aggravated his right knee and his lower back as he compensated for the pain in his left knee. b. His unfitting left knee condition directly caused the chronic pain in his right knee and lower back and both of those conditions have been deemed by the VA to be service-connected disabilities. His right knee and lower back conditions should be found unfitting by the formal PEB. Supporting medical documents were provided with his appeal. 7. A DA Form 199-1 shows a formal PEB convened on 4 September 2014, and found the following: a. The applicant’s case was adjudicated as part of the IDES and the specific VASRD codes used to describe his condition and the disability percentage were determined by the VA. The disposition recommendation was determined by the PEB based on the VA disability rating. The applicant was found physically unfit with a recommended rating of 20 percent and a recommended disposition of separation with severance pay. b. He was found unfit for degenerative joint disease of the left knee (MEB diagnosis 1) using VASRD code 5003. This is unfitting because it prevents the performance of one or more common Soldier tasks and prevents him from functioning in his current assignment. c. He was found unfit for degenerative joint disease of the right knee (MEB diagnosis 4) using VASRD code 5260. This is unfitting because it prevents the performance of one or more common Soldier tasks and prevents him from functioning in his current assignment. d. He was found fit for MEB diagnoses 2, 3, and 5-12, because the MEB indicates these conditions meet retention standards and does not indicate any of these conditions cause physical profile limitations or performance issues. The Board found him fit for bilateral ankle stress reaction and chronic mild residual back strain. A review of his medical records describe mild stress reaction changes in ankles; however, there is no significant evaluation or recommendation for treatment, has no physical profile limitations for either condition, and the MEB found they met medical retention standards. The VA Compensation and Pension (C&P) exam describes no significant limitation of range of motion, normal strength, and normal gait. e. The applicant singed the form on 11 September 2014 showing he concurred and requested the VA reconsider his disability ratings. 8. In an 11 September 2014 memorandum, the applicant requested a VA rating reconsideration of the DES proposed rating memorandum dated 21 May 2014, stating: a. His current ratings were for two unfitting conditions: 10 percent for degenerative joint disease of the left knee (VASRD code 5003) and 10 percent for degenerative joint disease of the right knee (VASRD code 5260). Based on the evidence provided, he contends his bilateral knee condition is such that it should have also been rated under VASRD code 5257 (recurrent subluxation or lateral instability – left knee) as he was Receiving treatment for slight lateral instability of both knees. b. A rating of 10 percent under VASRD code 5257 is not warranted unless there is slight lateral instability of the knee. Slight instability is present when the knee moves a little more side-to-side than it should and causes pain, but does not really affect the functioning of the knee. c. He provided medical documentation showing he was prescribed a medial unloader to treat the lateral instability in his right knee and requests his right knee be reevaluated to include, in addition to his 10 percent rating under VASRD code 5260, a rating of 10 percent under VASRD code 5257. He additionally requests reevaluation of his left knee condition to include a 10 percent rating for his left knee under VASRD code 5257. 9. In a second memorandum, dated 15 September 2014, the applicant again requested reconsideration of the DES proposed rating memorandum dated 21 May 2014, restating the facts of the above request from 4 days prior, but additionally including new medical evidence. The new evidence was an examination undertaken at the Rothman Institute on 10 September 2014, wherein the examining doctor opined the applicant’s functional movement screen elicits medical knee pain with demonstrable core weakness and mild bilateral knee instability. 10. A partial VA memorandum dated 9 October 2014, addressed to the U.S. Army PEB pertaining to the applicant’s request for reconsideration of the DES rating decision, dated 21 May 2014 shows: a. The VA considered the applicant’s request for a separate 10 percent rating for the left knee under VASRD code 5257 and a separate 10 percent rating for the right knee under VASRD code 5257, reviewing all provided evidence. b. For DES purposes, the evaluation of patellofemoral syndrome with degenerative joint disease, left knee, which was currently rated at 10 percent, was continued. A separate evaluation under VASRD code 5257 was not warranted. Evaluation under VASRD code 5257 for either knee was denied. c. For each knee, the prior evaluation of 10 percent was continued based on painful motion of the knee. A higher evaluation of 20 percent is not warranted for limitation of extension of the knee or limitation of flexion of the knee unless there is extension limited to 15- 19 degrees or flexion limited to 16-30 degrees. A higher evaluation of 20 percent is not warranted for degenerative arthritis unless there is x-ray evidence of involvement of two or more major joints or two or more minor joints. 11. A U.S. Army PEB memorandum, dated 9 January 2015, informed the applicant the PEB received the results of the his request for reconsideration of his proposed DES ratings and his ratings did not change. He was informed he was not authorized another VA reconsideration. 12. APDA Order D 016-29, dated 16 January 2015, honorably discharged the applicant from the USAR with severance pay and a disability rating of 20 percent effective 20 February 2015, after 3 years of service. 13. In a memorandum dated 19 February 2015, the applicant requested a return of his case to the PEB to allow him to submit his amended VARR for his right and left knee lateral instability, stating: a. The PEB received and transmitted the applicant’s VARR to the VA on 12 September 2014, but the applicant provided further medical documentation a few days later and a new VARR was drafted on 15 September 2014 and sent to the PEB for further submission. On 16 January 2015, the applicant received his VA decision denying any rating increase based upon the VARR that was dated 11 September 2014, that did not include any of the new medical documentation. b. By allowing the applicant to submit his VARR dated 15 September 2014, it does no harm to the Government and is in the best interest of the Soldier. 14. A VA Form 9, shows the applicant submitted an appeal to the Board of Veteran’s Appeals on 11 March 2015, requesting a personal hearing and stating the VA failed to Consider all of the evidence submitted by his PEB attorney on 15 September 2014, but instead only considered the original submission dated 11 September 2014. 15. A VA letter, dated 7 May 2016, shows the applicants left knee instability was assigned a disability rating of 10 percent effective 15 February 2011. His combined rating was 20 percent effective 15 February 2011, 50 percent from 3 February 2012, and became 60 percent effective 14 August 2013. 16. On 18 November 2019, the APDA legal advisor provided an advisory opinion, which states: a. The applicant was medically separated with severance pay effective 20 February 2015. His unfitting conditions were his right and left knee. His right knee was rated under VA Schedule for Rating Disabilities (VASRD) code 5260 (limitation of motion of the knee.) His left knee was rated under VASRD code 5003 (degenerative arthritis.) Each unfitting condition was rated at 10 percent and he was separated with severance pay due to his unfitting conditions not equaling or exceeding a combined rating of 30 percent. He reviewed and accepted his DA Form 199-1 results of the formal PEB on 11 September 2014. On that same day, 11 September 2014, he filed a one-time only VARR for his right and left knees requesting that each condition also be rated under VASRD Code 5257 (instability of the knee). It should be noted that the PEB did not find the applicant’s bilateral knee conditions to be unfitting due to instability. Nevertheless, on 12 September 2014, the PEB forwarded the applicant’s one-time only VARR to the VA. b. According to the applicant and his counsel, on 15 September 2014, he filed a second VARR with the PEB with new medical evidence to support his first VARR. The PEB has no record of this second VARR ever being received. Nonetheless, he was only entitled to a one­ time VARR, not two. On 9 October 2014, the VA reached its decision regarding the applicant’s first one-time only VARR and maintained his rating of 10 percent for each knee; thus, denying him separate ratings for instability of the knees. The result was that his rating for his unfitting conditions remained the same at 20 percent combined and he was medically separated effective 20 February 2015. c. Soldiers processing through the IDES are only authorized to request one VARR. A VARR is limited to those conditions that have been found to be unfitting by the PEB. In this case, the PEB did not find Mr. Northridge's the applicant’s bilateral knee condition to be unfitting due to instability. Still, it processed the VARR and the VA indicated that a rating under VASRD code 5257 was not warranted. Once the VA determines if the rating should be adjusted or sustained, the rating is then finalized as the lDES rating for separation determination purposes. It makes no difference if the Soldier continues to press their claims with the VA as the IDES case is finalized and the Soldier is separated from service. Here, the applicant continued to appeal his VA rating even after his IDES case was finalized and closed. Fortunately for the applicant, his subsequent VA appeal resulted in a change to his overall VA rating. Unfortunately for him, his IDES case was already finalized for rating purposes. Even if it had not been finalized, he was not found unfit for knee instability. d. The applicant has not provided any new evidence to show that his knee conditions should have been found unfit due to instability, that they should have warranted a combined higher rating at the time of his PEB, or that he had other unfitting conditions that should have also been found unfitting by the PEB. 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, we find the applicant’s request to be legally insufficient. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 15 January 2020, and given an opportunity to submit comments. He responded on 28 January 2020, providing numerous documents, many of which were already provided, and all of which have been provided to the Board for review. He states: a. He is only seeking to have his medical discharge changed to a medical retirement as his unfitting knee condition was rated at least 30 percent at the time of his discharge, although admittedly retroactively applied via decision a later decision. b. He has included thirteen documents, many of which show that he had been awaiting a decision from the VA and later from the IDES process prior to, during, and after the PEB hearing in which he was granted a medical discharge with separation pay. He understands that if his request is granted and his status is changed to medically Retired, he very well may suffer monetarily, may have to pay back the separation pay, and will likely not receive any retirement payments, or at best break even so to speak. His GI Bill would likely be upgraded and maybe he would be eligible to pay into the Tricare medical insurance system, so I make this plea for altruistic reasons and seek out your expert ability to apply fundamental fairness to his situation. c. He respectfully requests review of his additional documents and it should become apparent that the continuity of service from Army medical providers, VA doctors, and outside medical providers for a Reservist such as himself, coupled with the confusion of the IDES process, led to an unjust outcome at the PEB hearing. Clearly, had he known how the IDES process worked, he would have requested a postponement of the PEB hearing until my VA rating was perfected. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his processing through IDES, the determination of a PEB regarding unfitting conditions and his appeal and request for reconsideration. The Board considered the VA ratings and a change subsequent to the PEB hearing, the review and conclusions of the APDA legal advising official and the applicant’s response. The Board found insufficient evidence of an additional unfitting condition or a condition warranting a higher rating. Based on a preponderance of evidence, the Board determined that the applicant’s medical separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 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. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating. 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. 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). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. Title 38, Code of Federal Regulations, Book C, Schedule for Rating Disabilities provides guidance on the VASRD, which lists the detailed requirements for assigning disability ratings to conditions for military disability, assigning a four-digit VASRD Code to each condition or analogous symptom of a condition and regulating the amount of compensation received for each disability. a. Section 4.1 states the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. b. VASRD code 5260 is used for limitation of motion of the knee and VASRD code 5003 is used for degenerative arthritis. VASRD code 5257 is used for knee, other impairment, with the criteria based on the extent of recurrent subluxation or lateral instability of the knee. c. The Schedule of Ratings – Musculoskeletal System provides formulas for rating musculoskeletal conditions. A 30 percent rating is assigned for VASRD code 5257 if the condition is severe, a 20 percent rating is assigned if the condition is moderate, and a 10 percent rating is assigned if the condition is slight. 6. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). 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 the 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 (Disability Evaluation System (DES)) 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 (C&P) 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. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the rating using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. The Service member may request a one-time reconsideration of their disability rating(s) for unfitting conditions only by notifying their PEBLO, in writing, within 10 days of receiving their preliminary disability ratings. The request must include new medical evidence or sufficient justification of an error to warrant reconsideration. f. 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. 7. 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. 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. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director, ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011802 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1