IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220011320 APPLICANT REQUESTS: an increase to his physical disability retirement rating. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 (Informal Physical Disability Evaluation Board (PEB) Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Department of Veterans Affairs (VA) Rating Decision * VA letter FACTS: 1. The applicant states: a. Upon notification of his permanent and total 100 percent disability rating from the VA on 22 July 2022, the VA advised him to contact the Army using a DD Form 149 because the VA was sure that the Army would want to adjust it’s disability rating percentage based on the permanent and total 100 percent rating subsequently given to him by the VA. He was surprised when the VA told him this because he thought all Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) disability rating percentage decisions were final once they were made. The PEB rated him at 40 percent disabled. b. The VA gold him that the Army would always like to base their disability rating percentages off the VA’s permanent disability rating percentages which are given to Soldiers when they medically retire from the Army. Since there is a large discrepancy between the Army and the VA’s disability raring percentages, he was told he needed to file this form to bring the discrepancy to the Army’s attention. 2. The applicant enlisted in the Regular Army on 6 October 1999. 3. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), MEB Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), and Department of Veterans Affairs (VA) Compensation and Pension (C&P) Exam and original VA Rating Decision are not in his available records for review and have not been provided by the applicant. 4. A DA Form 199 shows the following: a. An informal PEB convened on 27 January 2022 where the applicant was found physically unfit with a recommended rating of 40 percent and that his disposition be permanent disability retirement. b. The following evidence was considered in arriving at this recommended disposition: * applicant’s appeal, dated 17 December 2021 * DA Form 3349 * DA Form 3947 * NARSUM * DA Form 7652 * VA C&P Exam * VA Rating Decision c. The following conditions were determined to be unfitting: (1) Degenerative disc disease and intervertebral disc syndrome lumbar spine; MEB diagnoses (Dx) 1 and 2; 20 percent; the PEB reconsidered the informal findings based on the applicant’s appeal and new evidence. Presumption of Fitness: the applicant entered the Disability Evaluation System (DES) on 6 June 2021, which is the approval date of the referring permanent physical profiling DA Form 3349. His DES entry date was within 12 months of his retention control point (RCP) date of 31 October 2021. He entered the presumptive period and was pending retirement as of 1 November 2020; therefore, the presumption of fitness applies. The case file indicates the applicant was not performing duties befitting his rank or experience before entering the presumptive period; therefore, the evidence overcomes the presumption of fitness rule. The insidious onset of these conditions are noted to have begun in 2015 and he is unfit because his DA Form 3349 shows functional activity limitations associated with these conditions interfere with his ability to reasonably perform his required duties. (2) Left wrist degenerative arthritis, other than posttraumatic and tenosynovitis MEB Dx 6 and 7; 10 percent; Presumption of Fitness: the applicant entered the DES on 6 June 2021, which is the approval date of the referring permanent physical profiling DA Form 3349. His DES entry date was within 12 months of his RCP date of 31 October 2021. He entered the presumptive period and was pending retirement as of 1 November 2020; therefore, the presumption of fitness applies. The case file indicates the applicant was not performing duties befitting his rank or experience before entering the presumptive period; therefore, the evidence overcomes the presumption of fitness rule. The onset of this condition is noted to have begun in November 2016, with worsening in 2017 due to a fall and he is unfit because his DA Form 3349 shows functional activity limitations associated with this condition interfere with his ability to reasonably perform his required duties. (3) Right wrist degenerative arthritis, other than posttraumatic and tenosynovitis; MEB Dx 4 and 5; 10 percent; Presumption of Fitness: the applicant entered the DES on 6 June 2021, which is the approval date of the referring permanent physical profiling DA Form 3349. His DES entry date was within 12 months of his RCP date of 31 October 2021. He entered the presumptive period and was pending retirement as of 1 November 2020; therefore, the presumption of fitness applies. The case file indicates the applicant was not performing duties befitting his rank or experience before entering the presumptive period; therefore, the evidence overcomes the presumption of fitness rule. The onset of this condition is noted to have begun in November 2016, with worsening in 2017 due to a fall and he is unfit because his DA Form 3349 shows functional activity limitations associated with this condition interfere with his ability to reasonably perform his required duties. (4) Degenerative arthritis cervical spine, MEB Dx 3; 0 percent; Presumption of Fitness: the applicant entered the DES on 6 June 2021, which is the approval date of the referring permanent physical profiling DA Form 3349. His DES entry date was within 12 months of his RCP date of 31 October 2021. He entered the presumptive period and was pending retirement as of 1 November 2020; therefore, the presumption of fitness applies. The case file indicates the applicant was not performing duties befitting his rank or experience before entering the presumptive period; therefore, the evidence overcomes the presumption of fitness rule. The onset of this condition is noted to have begun in October 2007 and he is unfit because his DA Form 3349 shows functional activity limitations associated with this condition interfere with his ability to reasonably perform his required duties. d. The PEB determined the applicant was fit for the MEB Dx 8 -34. e. On 1 February 2022, the applicant signed the form indicating having been advised of the findings and recommendations of the PEB concurred and waived a formal hearing of his case. He also indicated he did not request reconsideration of his VA ratings. 5. U.S. Army Installation Management Command Orders 042-1301, dated 11 February 2022, released the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability effective 4 May 2022, with a disability rating of 40 percent. 6. U.S. Army Installation Management Command Orders 053-1300, dated 22 February 2022, revoked above Orders 042-1301 pertaining to the applicant’s retirement. The applicant’s available service records do not contain amended retirement orders, but it is presumed the original orders were amended solely to reflect his new retirement date of 12 July 2022 in lieu of 4 May 2022. 7. The applicant’s DD Form 214, issued on 25 February 2022, shows he was retired due to physical disability, permanent effective 12 July 2022, after 22 years, 9 months, and 7 days of net active service. 8. A DD Form 215, issued on 23 May 2022, shows the applicant’s DD Form 214 covering the period ending 12 July 2022, was amended to reflect the award of the Meritorious Service Medal. 9. A VA Rating Decision, dated 21 July 2022, shows the following: a. The applicant was granted the following service-connected disability ratings effective 13 July 2022, for the following conditions: * human immunodeficiency virus (HIV) with macrocytic anemia, 30 percent * persistent depressive disorder with anxious distress, 30 percent * lumbar spine degenerative disc disease and intervertebral disc syndrome, 20 percent * right shoulder bicipital, rotator cuff tendonitis and labral tear, including superior labral anterior-posterior lesion (SLAP), 20 percent * facial lipodystrophy, 10 percent * hemorrhoids, 10 percent * left foot hallux valgus and osteoarthritis, 10 percent * left hand arthritis, index finger, 10 percent * left hand arthritis, thumb, 10 percent * left hip strain and osteoporosis, 10 percent * left knee joint osteoarthritis, 10 percent * left lower extremity radiculopathy, 10 percent * left wrist degenerative arthritis and tenosynovitis, status post wrist fracture, 10 percent * nephrolithiasis (kidney stones) with chronic renal insufficiency, 10 percent * right foot hallux valgus and osteoarthritis, 10 percent * right hand arthritis, thumb, 10 percent * right hand, long (middle) finger tenosynovitis, 10 percent * right hip strain and osteoporosis, 10 percent * right knee joint osteoarthritis, 10 percent * right wrist degenerative arthritis and tenosynovitis, status post wrist fracture, 10 percent * supraventricular and ventricular arrhythmia, 10 percent * tinnitus, 10 percent * allergic rhinitis, 0 percent * cervical spine degenerative arthritis, 0 percent * chronic anterior blepharitis, both eyes, 0 percent * erectile dysfunction, 0 percent * gastroesophageal reflux disease (GERD), 0 percent * left foot hammer toe, 0 percent * left hip strain and osteoporosis (impairment of thigh), 0 percent * left hip strain and osteoporosis (limitation of extension), 0 percent * right hammer toe, 0 percent * right hand, ring finger tenosynovitis, 0 percent * right hip strain and osteoporosis, 0 percent b. The following conditions were denied service-connection: * chronic fatigue syndrome from HIV * leukopenia (chronic low white blood cell count * skin damage c. Decision on the following conditions was deferred: * chronic migraine headaches * dry eyes syndrome; damage to eyes from surgery; eye hypersensitivity, PRK surgery, extreme dry eyes * hypertension 10. A VA letter to the applicant, dated 22 July 2022, informed him of the above detailed VA rating decisions. 11. 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. 12. Title 38, USC, 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. 13. Title 38, CFR, 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. 14. MEDICAL REVIEW: a. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting an increase in his military disability rating. He states: “Upon notification of my Permanent and Total 100% Disability Rating from the VA (on 22 July 2022), the VA advised me to contact the Army using this form because the VA was sure that ‘the Army would want to adjust/change its percentage of disability rating given to me, based off the permanent and total 100% rating which the VA later gave to me.’ I was surprised when the VA told me this because I thought that all MEB/PEB Board disability rating percentage decisions were final once they were made. (The PEB rated me at 40% disabled.) The VA told me that the Army always would like to base their disability rating percentages off the VA's permanent disability rating percentages which are given to Soldiers as they medically retire from the Army. Since there is a large discrepancy between the Army and the VA's disability rating percentages, the VA told me that l needed to file this form to bring the discrepancy to the Army's attention.” c. The Record of Proceedings details the applicant’s service and the circumstances of the case. His DD 214 for the period of Service under consideration shows entered the regular Army on 6 October 1999 and was permanently retired for physical disability on 12 July 2022 under provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (17January 2017). d. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). e. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. f. On 27 January 2022, his informal PEB determined four medical conditions rendered him unfit for continued military service; Degenerative disc (DDD) and intervertebral disc syndrome (IVDS) lumbar spine (20%); Left wrist degenerative arthritis, other than posttraumatic and tenosynovitis (10%); Right wrist degenerative arthritis, other than posttraumatic and tenosynovitis (10%); and Degenerative arthritis cervical spine (0%). These VA derived disability ratings yielded a combined military disability rating of 40% (Bilateral Factor: 10% combined with 10% = 19%; 10% of 19% = 1.9% (bilateral factor) added to 19% = 20.9% which rounds to 21%; 21% combined with 20% = 37% combined with 0% = 37% which rounds to 40%). g. The PEB recommended the applicant be permanently retired for physical disability. On 1 February 2022, after being counseled on the informal PEB’s findings by his PEB Liaison Officer, the applicant concurred with the informal PEB’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability ratings. h. The VA’s Disability Evaluation System Proposed Rating obtained during the IDES is dated 29 September 2021 and shows the same disability ratings for these conditions as the 21 July 2022 submitted with the application. i. Even had the ratings changed after his permanent retirement for physical disability, the awarding of a higher VA rating does not establish prior error or injustice. A disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The rating derived from the VA Schedule for Rating Disabilities reflects the disability at the point in time the VA exams were completed. j. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during or permanently aggravated by their military service. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. k. It is the opinion of the ARBA medical advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The Board also considered the findings of the PEB. The Board noted the applicant concurred with the informal PEB’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability ratings. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during or permanently aggravated by their military service. Based upon a preponderance of the evidence, the Board determined the final decision made by the PEB was not in error nor unjust. 2. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. Variance in ratings does not indicate an error on the part of either entity. ? 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 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. 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. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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 Department of Veterans Affairs (VA) Schedule for Rating Disabilities (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 their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their 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. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states 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 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. 6. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011320 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1