IN THE CASE OF: BOARD DATE: 20 August 2020 DOCKET NUMBER: AR20190015657 APPLICANT REQUESTS: Correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show a combined disability rating of 80 percent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Disability Evaluation System (DES) Proposed Rating, dated 15 May 2019 * DA Form 199, dated 18 June 2019 * separation orders * VA Rating Decision, dated 7 October 2019 * VA benefits decision letter, dated 9 October 2019 FACTS: 1. The applicant states his DA Form 199 should be corrected to reflect his VA disability rating decision dated 7 October 2019. The PEB's findings and recommendations were based on proposed ratings that were ultimately determined to be inaccurate and unfair. All evidence for the VA ratings was gathered while he was still on active duty. 2. The applicant was appointed a Reserve commissioned officer, Medical Specialist Corps, on 17 May 2009. He entered active duty on 18 May 2009. 3. A VA DES Proposed Rating, dated 15 May 2019, shows the VA assigned the applicant service-connection for the following conditions: * right shoulder bursitis (dominant), 20 percent * Peyronie's disease with erectile dysfunction, 20 percent * thoracolumbar spondylosis with degenerative arthritis of the spine, 10 percent * cervical strain, 10 percent * right hip chronic tendinitis (Integrated DES (IDES)/PEB referred), 10 percent * left hip psoas tendinitis (IDES/PEB referred), 10 percent * left knee strain, 10 percent * right knee strain, 10 percent * flat foot (pes planus) with plantar fasciitis, bilateral (IDES/PEB referred), 10 percent * tension headaches, 10 percent * left upper extremity ulnar neuropathy (non-dominant), 10 percent * right upper extremity ulnar neuropathy (dominant), 10 percent * old left index finger avulsion fracture (non-dominant), 0 percent * right hip limitation of flexion of the thigh (IDES/PEB referred), 0 percent * left hip limitation of flexion of the thigh (IDES/PEB referred), 0 percent * esophoria, 0 percent * motion sickness, 0 percent * allergic rhinitis, 0 percent * Raynaud's syndrome, 0 percent * gastroesophageal reflux disease, 0 percent * scar, bilateral hip status post labral repair arthroscopic surgery (IDES/PEB referred), 0 percent * eczema with rosacea, 0 percent. 4. On 18 June 2019, an Informal PEB found the applicant unfit for: * right hip chronic tendinitis, 10 percent * left hip psoas tendinitis, 10 percent * flat foot (pes planus) with plantar fasciitis, bilateral, 10 percent * right hip limitation of flexion of the thigh, 0 percent * left hip limitation of flexion of the thigh, 0 percent 5. The Informal PEB recommended a combined 30 percent disability rating and the applicant's permanent disability retirement. The DA Form 199 contains the following statements in section VI (Instructions and Advisory Statements): a. This case was adjudicated as part of the IDES. b. As documented in the VA memorandum dated 15 May 2019, the VA determined the specific VA Schedule for Ratings Disabilities (VASRD) code(s) to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed VA disability rating(s) and in accord with applicable statutes and regulations. 6. On 20 June 2014, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. 7. Orders issued on 2 July 2019 directed the applicant's release from assignment and duty because of physical disability and retirement for permanent physical disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was retired due to physical disability on 26 September 2019. 8. A VA Rating Decision, dated 7 October 2019, and a VA benefits decision, dated 9 October 2019, show the VA granted the applicant service-connected disability compensation, effective 27 September 2019, for approximately 30 medical issues that include: * flat foot (pes planus) with plantar fasciitis, bilateral with neuralgia and neuritis (claimed as bilateral foot condition), 50 percent * left hip femoral acetabular impingement syndrome with iliopsoas tendinitis (claimed as left hip condition), 30 percent * right hip femoral acetabular impingement syndrome with iliopsoas tendinitis (claimed as chronic tendinitis, right hip), 30 percent 9. The VA benefits decision, dated 9 October 2019, includes the following statement: This decision represents a change to a rating originally assigned as part of the Integrated Disability Evaluation System. This decision could potentially warrant a change to your military record and/or an adjustment to the disability separation benefits you received from your service department. Each service department operates an agency or board for correction of records. In light of the change in your VA disability rating, it may be to your benefit to request a review of your discharge to the appropriate board. A DD Form 149, "Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552," is enclosed for this purpose. 10. 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. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 11. 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 VA rating does not establish an error or injustice on the part of the Army. 12. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 13. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations. 2. The applicant is applying to the ABCMR in essence requesting a referral back to the DES. He requests that Veterans Benefits Administration changes made to his disability ratings after his retirement for physical disability retroactively replace the Veterans Benefits Administration ratings applied by the PEB. He states, “I request that my [PEB] findings and recommendations be corrected to align with my actual Veterans Affairs Disability Ratings. The PEB's findings and recommendations were based on proposed ratings that were ultimately determined to be inaccurate and unfair. All evidence for VA ratings was gathered while I was still on Active Duty prior to retirement.” 3. The applicant’s informal PEB convened on 18 June 2019, at which time they found him unfit for “Right Hip Chronic Tendinitis,” “Left Hip Psoas Tendinitis,” “Flat Foot (Pes Planus) with Plantar Fasciitis, Bilateral,” “Right Hip Limitation of Flexion of the Thigh,” and “Left Hip Limitation of Flexion of the Thigh.” The Veterans Benefits Administration’s (VBA) rating decision dated 15 May 2019 shows they rated the first three disabilities at 10% for each condition and the last two at 0% for each condition. 4. The PEB correctly applied these ratings, correctly applied the bilateral factor and combined this rating with that for his planus to arrive at a combined rating of 30%, and correctly recommended the applicant’s disposition be permanent disability retirement. After being counseled on the PEB’s findings by his PEB liaison officer (PEBLO), he concurred with their findings and declined the opportunity to have the VBA perform a reconsideration of his disability ratings on 20 June 2019. 5. The applicant has submitted a VBA rating decision dated 7 October 2019 in which the ratings for several of the disabilities for which he was found unfit were increased. However, these ratings were made effective following his discharge and there is no evidence of prior error annotated in this document. 6. Barring clear and unmistakable errors, physical disability cases are not reopened. Furthermore, changes in ratings made by the VBA after a Soldier is retired, whether increases or decreases, are not applied to a medically retired Soldier’s disability compensation. Review of the new October ratings show these are likely in error, as the reasoning behind them are not found in the applicable disability benefits questionnaires (DBQ) (aka C&P exams) obtained during his IDES processing and which were used as the basis for both sets of ratings. For example: Pes planus: The October rating decision states: We have assigned a 50 percent evaluation for your flat foot (pes planus) with plantar fasciitis, bilateral based on: Extreme tenderness of plantar surfaces of the feet Marked Pronation Symptoms NOT improved by orthopedic shoe or appliance However, the “Foot Conditions, including Flatfoot (Pes Planus)” DBQ examiner noted that the Veteran did not have pain on manipulation of the foot, did not have extreme tenderness of the plantar surfaces of the feet, did not have swelling, did not have marked pronation, and did not have characteristic callouses. Left hip condition: The October rating decision states: We have assigned a 30 percent evaluation for your left hip limitation of flexion of the thigh based on: Flexion of the thigh limited to 11-20 degrees However, the “Hip and Thigh Conditions” DBQ examiner noted the applicant’s left hip flexion to be 115 degrees, just 10 degrees shy of the normal 125 degrees. Right hip condition: The October rating decision states: We have assigned a 30 percent evaluation for your left hip limitation of flex ion of the thigh based on: Flexion of the thigh limited to 11-20 degrees However, the “Hip and Thigh Conditions” DBQ examiner noted the applicant’s left hip flexion to be 115 degrees, again just 10 degrees shy of the normal 125 degrees. 7. Given the current documentation, it is the opinion of the ARBA Medical Advisor that referral of his case to the DES is not warranted. It is recommended to the Board that consideration be given to sharing these findings with the Veterans Benefits Administration. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board concurred with the conclusions of the ARBA Medical Advisor, agreeing that the VA's determinations that were effective subsequent to his retirement for disability do not provide a basis for reconsideration of the ratings he received for his unfitting conditions from the PEB. The Board determined there is no error or injustice in the combined disability rating he received prior to his retirement. 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. 2. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army DES 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. Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the IDES. It states: a. The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and 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 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 requirements promulgated in DODI 1332.18 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 standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member 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 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 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. e. If after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 4. Title 38 U.S. Cose, section 1110 (General - Basic Entitlement) states that for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states that for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015657 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1