IN THE CASE OF: BOARD DATE: 27 March 2020 DOCKET NUMBER: AR20180015347 APPLICANT REQUESTS: Correction of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings to show a higher disability rating. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) summary of rated disabilities FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (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: a. She was medically discharged in 2008 because of her bilateral hip impingement with total combine disability rating of 20 percent. She appealed her VA rating and was granted a combined disability rating of 100 percent. She contends that her hip impingement warrants a higher disability rating. b. She is inquiring whether she is eligible for reconsideration and a medical retirement. She received a letter regarding the possibility to appeal her Medical Evaluation Board (MEB) but she disregarded as she thought it was a scam. She was advised by a co-worker that the letter was not a scam. For this reason, she would like to take the opportunity to inquiry about the steps needed to have her file reviewed to see is she is eligible for a medical retirement. 3. The applicant enlisted in the Regular Army on 4 November 2003. She was awarded military occupational specialty (MOS) 31B (Military Police) upon completion of initial entry training. 4. The applicant's MEB proceedings are not available. 5. A DA Form 199 shows that on 3 October 2008, a PEB found the applicant physically unfit for bilateral hip pain consistent with impingement (confirmed by imaging) (diagnostic codes (DC) 5099 and 5003). Evaluated analogous to degenerative arthritis in accordance with VA Schedule for Rating Disabilities (VASRD) code 4.20. Atraumatic onset of hip pain in 2006. Pain increases with weight-bearing and impact activities. Conservative treatments have not resolved pain sufficiently to allow her to run or train for the Army Physical Fitness Test which is unfitting for MP MOS. Exam notes normal gait, painful hip motion and guarding. Rated 10 percent right and 10 percent left, for satisfactory evidence of painful motion. 6. The DA Form 199 also shows she was diagnosed with two additional medical conditions by the MEB which met retention standards. Further consideration by the PEB found the conditions not to be unfitting and therefore not ratable. 7. The PEB recommended a combined disability rating of 20 percent and the applicant's separation with severance pay. 8. On 6 October 2008, the applicant concurred with the PEB findings and recommendations and waived a formal hearing. On 9 October 2008, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations. 9. On 28 November 2008, the applicant was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, non-combat related. 10. The applicant provided a VA summary of rated disabilities showing she was granted a total combined disability rating of 100 percent for a number of medical conditions, which include a 10 percent disability rating for impingement, left hip and a 10 percent rating for impingement, right hip. 11. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant, with primary MOS 31B20 Military Police, requests an increase in Army disability rating from 20% combined total rating for her bilateral hip condition. She received 10% for each side from the Army. She says after an appeal, she is receiving a 100% combined total from the VA. Although the applicant received a higher total combined rating from the VA after her appeal; the specific ratings for the hip/thigh conditions were unchanged: Ratings for the hip/thigh conditions found in JLV are the same as listed in the document the applicant submitted: 0% for extension and flexion of right and left thigh; and 10% for right and left thigh condition. In addition, there is no rating error after review of section § 4.71a in VASRD (Veteran Affairs Schedule for Rating Disabilities). IAW Army Regulation (AR) 40-501, the bilateral hip condition did not fail medical retention standards. It should be noted that impairment of the thigh and limitations in thigh flexion/extension are reflective of hip conditions. A review of the available documentation did not reveal evidence which would support referral to the Army DES for consideration of medical disability. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, her record of service, the absence of MEB proceedings, the determination of the PEB and the reason for her separation. The Board considered the applicant’s VA ratings, the conditions that met medical retention standards and the applicant’s concurrence with the PEB results. The Board considered the review and conclusions of the medical advising official. The Board found insufficient evidence to support additional conditions or a change to the ratings she received at separation. 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 :XXX :XXX :XXX 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, section 1552(b), provides that applications for correction of military records must be filed within three 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 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 (Standards of Medical Fitness). 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. Paragraph 4-17 provides guidance for PEBs. It states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendations may be revised. 3. The 2008 National Defense Authorization Act, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA. 4. Title 38, U.S. Code, section 4.20 (Analogous Ratings) states when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 5. Title 38, U.S. Code, section 4.71a (Schedule of Ratings – Musculoskeletal System), DC 5003, pertains to arthritis, degenerative (hypertrophic or osteoarthritis) and states: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: a. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations – 20 percent. b. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups – 10 percent. 6. 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 and 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 at less than 30 percent 7. Title 38, U.S. Code, 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// ABCMR Record of Proceedings (cont) AR20180015347 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1