IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210013192 APPLICANT REQUESTS: correction of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show a higher disability rating and to show her disability was caused by an instrumentality of war. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * rebuttal to Medical Evaluation Board (MEB) and Narrative Summary (NARSUM), dated 12 September 2011 * MEB physician's response to MEB rebuttal, dated 13 September 2011 * DA Form 199, dated 12 December 2011 * Department of Veterans Affairs (VA) Board of Veterans' Appeals Decision, dated 24 November 2020 FACTS: 1. The applicant states the 0% rating for her fibromyalgia condition should be increased to 40% based on a VA rating decision. She contends that her DA Form 199 should also show that her disabilities were incurred in the line of duty during a period of war and caused by an instrumentality of war. She tried several times to get the PEB to recognize and assign a fair disability rating for her condition which started to affect her while deployed to Afghanistan. She further contends that pushing a generator (instrumentality of war) was the cause of her back condition as stated on the PEB proceedings. 2. Following active duty service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 23 May 2006. She entered active duty on 21 April 2009 and served in Afghanistan from 23 August 2009 to 14 April 2010. 3. The applicant's MEB proceedings are not available; however, she provided her MEB rebuttal memorandum, dated 12 September 2011, in which she argued that her fibromyalgia condition should be added to her MEB proceedings as failing retention standards. She also provided the MEB physician's response to her MEB rebuttal in which the physician conveyed to the PEB that the applicant's fibromyalgia condition should be added to her MEB proceedings as failing retention standards. 4. On 12 December 2011, a PEB found the applicant physically unfit for the performance of her military duties due to the following medical conditions with the corresponding disability percentage ratings: * lumbar degenerative disk disease – 20% (Note: She did not identify prior trauma other than helping push a large generator a few days earlier) * right knee patellofemoral syndrome – 10% * left knee patellofemoral syndrome – 10% * bilateral plantar fasciitis – 10% * fibromyalgia – 0% (Note: diagnosed by rheumatology in April 2011) 5. The PEB recommended a 40% combined disability rating and the applicant's permanent disability retirement. The DA Form 199 contains the following statements in Section 8: a. The specific VA Schedule for Rating Disabilities (VASRD) codes to describe the Soldier's condition and the disability percentage was determined by the VA and is documented in VA memorandum dated 6 December 2011. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). b. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the 21 November 2007 Policy and Procedure Directive-type Memorandum (DTM). 6. The DA Form 199 contains the following statements in Section 10: a. The Soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. b. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and for purposes of Title 10, U.S. Code, section 10216. 7. On 20 March 2012, orders were published directing the applicant's retirement for permanent physical disability effective 27 May 2012 and placement on the Permanent Disability Retired List (PDRL) the following day. The orders contain the following entries: * disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: No * disability resulted from a combat related injury as defined in Title 26 U.S. Code section 104: No 8. The applicant provided VA Board of Veterans' Appeals Decision, dated 24 November 2020, showing the VA increased her disability rating for fibromyalgia from 0% to 40% effective 28 May 2012. 9. On 26 October 2021, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). It states: a. The applicant requests to have her rating increased for her unfitting fibromyalgia condition and award a combat code (V3) for her unfitting lumbar degenerative disc disease (back) condition. For the reasons below, the USAPDA find the requests to be legally sufficient in part and legally insufficient in part. b. Background: Per the applicant's DA Form 199, she was found unfit for, amongst others, her back and fibromyalgia conditions. The back was rated at 20% and the DA Form 199 indicates that the condition’s onset was due to no specific trauma, other than helping to push a large generator a few days earlier. (See DA Form 199 pg. 3/10 and NARSUM pg. 77/237.) The fibromyalgia was rated at 0%. On 29 December 2011, she filed a one-time VA ratings reconsideration to have her rating for her fibromyalgia increased to 40%. On 12 February 2012, the VA denied her request and maintained her rating at 0%. c. As required, the PEB adopted the rating and she was placed into the PDRL on 28 May 2012. Sometime thereafter, she appealed the VA’s rating decision for her fibromyalgia condition. The appeal eventually reached the Board of Veterans Appeals which then remanded the case back to the VA to reconsider her ratings. On 24 November 2020, her fibromyalgia rating was increased to 40%, effective 28 May 2012, the day she was placed into PDRL. The VA cited evidence indicating that she was being treated for fibromyalgia prior to her separation as well as shortly thereafter and that the condition more closely approximated the 40% rating level. She now appeals seeking to increase her rating for the fibromyalgia condition on her DA Form 199 and to be awarded a combat code (V3) for the back condition based on her beliefs that the generator she helped to push caused her injury and is an instrumentality of war. d. Analysis: Turning first to the fibromyalgia condition, the VA admitted error in rating the applicant's condition 0% and that the true rating at the time of her separation should have been 40%. Turning next to her request to be awarded a combat code for her back condition we are faced with two issues. First, did her efforts to push the generator cause her back condition? Second, if so, is the generator an instrumentality of war? According to her DA Form 199 and NARSUM, there was no specific trauma to her back with no specific event other than helping to push a large generator a few days earlier. (See DA Form 199 pg. 3/10 and NARSUM pg. 77/237.) A note in her Compensation and Pension (C&P) exam stated that according to her, "The condition is due to injury; it occurred gradually from carrying heavy gear." (See C&P Exam, pg. 103/237.) Thus, it would appear that her condition is actually due to a gradual injury over time rather than to a specific incident. Furthermore, it would be speculative, without objective evidence, to say that her efforts to push a generator days earlier, without incident, is the cause of the injury. e. Finally, the USAPDA turn to the generator itself. The definition of an instrumentality of war is found in DoD 7000.14-R, Volume 7B, Chapter 63. "An instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such Service at the time of the occurrence or injury. It may also include such instrumentality not designed primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits." (See DoD 7000.14-R, Volume 7B, Chapter 63, Para. 630604 B) (Emphasis added). Stated plainly, the electrical power generator must have been designed for military service. Clear examples of an instrumentality of war would be an armored vehicle, aircraft carrier, and a weapons system. An example of a device that is not an instrumentality of war would be a toaster. For instance, a toaster in a unit's breakroom would not qualify as a device intended for military use as the toaster was not designed for military use, but instead is widely used in the same civilian pursuant of toasting bread. In this case, the applicant must show how the electrical power generator that she helped to push was in particular designed for military service. An electrical power generator is designed to convert mechanical energy into electrical energy, typically by burning fossil fuel. The users of the electrical power generator then use the electricity that is generated to power electrical devices. There is no difference in the use of an electrical power generator from its military use to that of its civilian use. Indeed, civilians use electrical power generators for the same reasons that the military does, loss of power or none available at their present location. Think of Federal Emergency Management Agency responses to natural disasters. Barring some unique design not found in civilian electrical power generators they do not meet the definition of an instrumentality of war. f. Conclusion: The applicant's rating for her fibromyalgia should be adjusted to reflect the actual rating of her condition at the time of her separation. A DA Form 199-1 (Formal PEB Proceedings) should be issued with the new rating of 40%. As for her contention that she should have been awarded a combat code (V3) for her back condition, this fails on two fronts. First, it is speculative that her helping to push the generator is the singular incident that caused her back injury. Second, an electrical power generator is not an instrumentality of war. Therefore, a combat code cannot be awarded even if it were shown that her efforts to push the generator actually caused her condition. Given the above the USAPDA find the applicant's requests to increase her rating for her fibromyalgia to be legally sufficient. They also find that her request to add a combat code (V3) to her back condition is legally insufficient. 10. The USAPDA advisory opinion was provided to the applicant and given an opportunity to submit additional evidence or comments. She did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered applicant’s contentions, military record, advisory opinion and regulatory guidance. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for partial relief. The Board concurred with the advisory opinion in that the applicant’s rating for fibromyalgia should be adjusted to reflect the actual rating at the time of separation. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains show her disability was caused by an instrumentality of war. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing her a DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) reflecting 40% rating, the actual rating of her condition at the time of separation. 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 USAPDA is responsible for administering the Army PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 2. Army Regulation 635-40 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. 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 physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination or directed by medical providers. 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 or 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 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 whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. 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. c. 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. 3. 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. 4. 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 Boards for Correction of Military Records (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 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. 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. 5. Army Regulation 635-40, Paragraph 5-24 (Determination for Purposes of Federal Civil Service Employment) states that physical disability evaluation will include a decision and supporting documentation regarding whether the injury or disease that makes the Soldier unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during a period of war. These determinations impact the eligibility of certain military retirees for certain benefits when employed under the Federal Civil Service System. a. The determinations will be recorded on the record of proceedings of the Soldier’s adjudication. Notwithstanding that the determinations concern disability retirements, the determination will be documented on the record of proceedings for a disability disposition of separate with disability severance pay. b. Armed Conflict: The fact that a Soldier may have incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations, is not sufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. 6. Army Regulation 635-40, paragraph 5-25 (Determination for Federal Tax Benefits) states: a. Physical disability evaluation will include a determination and supporting documentation on whether the Soldiers disability compensation is excluded from Federal gross income under the provisions of Title 26, U.S. Code, section 104. The entitlement to this exclusion is based on the Soldier having a certain status on 24 September 1975 or being retired or separated for a disability determined to be combat related as set forth in this paragraph. The determination will be recorded on the record of proceedings of the Soldier’s adjudication. b. Combat related: This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability will be considered combat-related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: (1) As a direct result of armed conflict. (2) While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. (3) Caused by an instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, if a Soldier is on a field exercise and is engaged in a sporting activity and falls and strikes an armored vehicle, the injury will not be considered to result from the instrumentality of war (the armored vehicle), because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the Soldier, the injury would be considered the result of an instrumentality of war (the armored vehicle). 7. Title 26, U.S. Code, section 104, states that for the purpose of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. //NOTHING FOLLOWS//