IN THE CASE OF: BOARD DATE: 5 November 2020 DOCKET NUMBER: AR20180007218 APPLICANT REQUESTS: in effect, his disability rating be increased to coincide with the Veterans Affairs (VA) diagnosis and disability rating of 50 percent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) disability rating dated 27 October 2017 * VA response to Notice of Disagreement (NOD) dated 5 October 2017 * VA rating decision dated 29 September 2017 * U. S. Army Physical Disability Agency (USA PDA) Order Number D070-04 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Department of Military and VA Order Number 187-1018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code § 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect, that he requests that his disability rating for retirement be increased to 50 percent to coincide with his VA disability rating because when he was discharged his disability rating was based on his VA rating. He appealed the VA rating in 2017 and is currently receiving 50 percent. 3. The applicant provides: a. VA letter dated 27 October 2017 that states his status had changed to the priority group effective 6 October 2017 and was receiving 50 percent service connected disability. b. VA letter dated 5 October 2017 that stated based on the review the decision was considered a full grant of benefits on the issue of increased evaluation. The disability rating for left lower extremity radiculopathy was increased from 10 to 40 percent with gave a combined rating of 50 percent. See attached for more details. c. VA rating decision dated 29 September 2017 that stated due to a clear and unmistakable error that was found in the evaluation of the left lower extremity radiculopathy, there was an increased evaluation of 40 percent that was established on 3 October 2014. See attached for more details. 4. A review of the applicant’s service records shows: a. He enlisted in the United States Army Reserve (USAR) on 11 September 1990. b. His DD Form 214 (Certificate of Release or Discharge) shows that he was ordered to active duty for training on 3 October 1990. He was released from active duty on 7 February 1991. His DD Form 214 shows that he completed 4 months and 5 days of active service. c. He enlisted in the Regular Army (RA) on 28 February 1991. d. He accepted non-judicial punishment on or about 16 October 1992 for use of disrespectful language to a noncommissioned officer (NCO). His punishment included reduction in rank to private (PCT)/E-1, forfeiture of $183 pay, restriction and extra duty for 14 days. e. He accepted non-judicial punishment on 11 January 1993 for failure at the time prescribed to go to his appointed place of duty. His punishment included forfeiture of $183, restriction and extra duty for 14 days. f. On 4 March 1993 his commander recommended a bar to reenlistment for the numerous counselings for not being at this appointed placed of duty and two Article 15s, which was approved by his battalion commander on 15 March 1993. g. He was released from active duty on 21 June 1993 with an honorable characterization of service under provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-5b (Locally Imposed Bar to Reenlistment) and assigned to the USAR Control Group (Reinforcement). His DD Form 214 shows that he completed 2 years, 3 months, and 24 days of active service. h. He was assigned to the USAR Troop Program Unit (TPU) on 12 December 1994. i. His service records are void of any evidence that he was assigned to the USAR Control Group (Annual Training). j. He enlisted in the Army National Guard (ARNG) on 24 March 1998. He was assigned to the ARNG on 24 March 1998. k. He extended his enlistment in the ARNG on 22 August 2000. l. He was ordered to active duty in support of Operation Iraqi Freedom on 18 December 2003. m. He was released from active duty on 14 March 2005. His DD Form 214 shows that he completed 1 years, 2 months, and 27 days of active service. He served in Iraq and Kuwait for the period of 5 February 2004 through 10 February 2005. n. He extended his enlistment in the ARNG on 19 May 2006 and again on 12 February 2012. o. On 3 June 2013, the Office of the Adjutant General for the Commonwealth of Pennsylvania notified him that his non-selection for retention was temporarily suspended until the completion of the medical board process. If found fit for duty he would be discharged from the ARNG within 60 days. p. On 9 February 2016, the Informal Physical Evaluation Board (PEB) found his physically unfit for retention and recommended a combined 30 percent disability rating and placement on the Permanent Disability Retired List (PDRL) for lumbar degenerative disc disease at 20 percent disability and left lower extremity radiculopathy at 10 percent disability. He was found physically fit for retention for cervical disc bulge, tinnitus, and bilateral hearing loss. q. On 10 March 2016, the USA PDA notified his that he was found unfit for retention and would be placed on the PDRL with a disability rating of 30 percent. r. He was released from the ARNG on 13 April 2016 under the provision of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36s (Placement on the PDRL). His NGB Form 22 shows that he completed 18 years and 20 days of service. s. He was placed in the PDRL on 14 April 2016 with a 30 percent disability rating under provision of AR 635-40 (Physical Evaluation for Retention, Retirement, and Separations). 5. In the processing of this case, an advisory opinion, dated 22 June 2020, was received from the U. S. Army Physical Disability Agency Advisor. The advisory official stated that the applicant’s request that his Department of Veterans Affairs (VA) ratings be applied to his Integrated Disability Evaluation System (IDES) case to be legally sufficient. He was found unfit for lumbar degenerative disc disease and lower left extremity radiculopathy. The lumbar was rated at 20 percent and the radiculopathy 10 percent resulting in his 30 percent permanent disability rating. The VA provided the rating for his unfitting conditions. The applicant opines the rating for his conditions by the VA were higher and should be applied to his IDES rating. He makes reference to his rating increase for his radiculopathy from 10 to 40 percent based on his 2017 appeal. The VA rating decision states a clear and unmistakable error in the original rating of his condition. 6. The applicant was sent a copy of the medical advisory and requested that he submit any comments, letter dated 24 June 2020, but he did not respond. 7. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). a. The applicant is requesting an increase in rating from 10% to 40% as reflected in the 29 September 2017 VA Rating Decision. The PEB convened 9 February 2016 found the Left Lower Extremity Radiculopathy, associated with Lumbar Degenerative Disc Disease, unfitting. b. The severity of the condition was such that strength testing was 4/5 for knee extension, ankle dorsiflexion and great toe extension muscles. His gait was antalgic. As per regulation for this case that was adjudicated as part of the Integrated Disability Evaluation System, the PEB applied the 10% rating as determined by the VA Rating Authority which was documented in the 4 January 2016 VA Rating Decision. c. The applicant appealed to the VA for an increase in rating. In their review, the VA Rating Authority found that a clear and unmistakable error was found in the evaluation of the Left Lower Extremity Radiculopathy condition. d. The previous 10% rating, was increased to 40% effective 3 October 2014, the date the VA received the claim. The 40% rating is based on moderately severe incomplete paralysis of the sciatic nerve. The condition did not meet medical retention standards in accordance with AR 40-501, chapter 3. e. The applicant’s Left Lower Extremity Radiculopathy condition was duly considered during medical separation processing; however, because the VA rating increase was based on the severity of the condition at the time of discharge from service and not based on progression of the condition after discharge, the Army should adapt the new, correct 40% rating for the Left Lower Extremity Radiculopathy condition (VASRD Code 8520). 7. By regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DODI 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the available documentation and per the medical advisory, the Board concluded there was sufficient evidence to adopt the new, correct 40% rating for the Left Lower Extremity Radiculopathy condition (VASRD Code 8520). Therefore, the Board recommended changing the combined disability rating of 50 percent, retroactive to the date of the initial discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XXX 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 Army records of the individual concerned be corrected by amending the applicant’s disability rating reflected on his discharge order to reflect 50% at the time of his separation and that all retroactive pay be paid to the applicant as a result of the change in disability rating. 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, United States Code § 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of 10 USC 61 and DoDI 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Paragraph 4–24 (Disposition by the U.S. Army Physical Disability Agency), The USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to PEB for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations. b. Final disposition. Based upon the final decision of USAPDA or APDAB, USAPDA will issue retirement orders or other disposition instructions as follows: * Permanent retirement for physical disability * Placement on the TDRL * Separation for physical disability with severance pay * Separation for physical disability without severance pay * Transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer * Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence * Release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit * Return of the Soldier to duty when he or she is determined physically fit 3. 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 in the Army rating. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge to compensate the individual for loss of civilian employability. c. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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) AR20180007218 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1