IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220003866 APPLICANT REQUESTS: in effect, correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to reflect the disability rating percentages for his unfitting conditions as determined by the Board of Veterans’ Appeals decision dated 31 January 2022. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ARBA online application in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * Memorandum: Request for Formal Board or Reconsideration of Disability Rating for the Physical Evaluation Board Proceedings * Dr. letter of support * Memorandum: Request for Review or Reconsideration of Disability Rating for the Physical Evaluation Board Proceedings * Memorandum: Medical Opinion * x-ray * Federal Drug Administration (FDA) definition of Birmingham Hip Resurfacing (BHR) System * DA Form 199 (Physical Evaluation Board Proceedings) * VA Form 21-0958 (Notice of Disagreement) * VA letter of acknowledge receipt of written disagreement * VA Statement of the Case * Kentucky VA Veteran/Family Member Claim Checklist * VA video conference hearing confirmation letter * VA certification of appeal and VA notification of video hearing letter * VA appeal decision, 31 January 2022 and rating decision letter, 8 February 2022 FACTS: 1. The applicant did not file within the 3-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. His disability rating assigned by the PEB and VA was improper and was overturned by the VA on appeal. As a medical retiree with less than 20 years of service, he receives retirement from both DFAS and the VA, but total retirement compensation is capped by his Army disability percentage. In order to receive back pay, that percentage should be updated to reflect the corrected ratings. b. The PEB determined his bi-lateral hip replacements to be unfitting for continued service. The VA improperly rated those conditions only as a loss of range of motion instead of a joint replacement and only assigned them a 10 percent rating, as reflected in the PEB. The applicant then requested a one-time VA reconsideration of ratings (VARR), which upheld the 10 percent rating. He then returned his PEB without signature and requested a formal hearing before the PEB to attempt to correct the rating error. In lieu of a hearing, the PEB found an additional condition unfitting, which met the disability percentage required for medical retirement but left the erroneous ratings for the hip conditions stand. c. On 28 April 2017, following separation from the Army, he filed a notice of disagreement seeking a minimum 30 percent rating for hip replacements, but was denied again in a decision dated 14 May 2018. He then filed a formal appeal through the Kentucky Department of Veterans Affairs on 30 May 2018. On 18 June 2018, he received notice that his case had been docketed. On 12 July 2018, the appeal was certified. The original hearing date of March 2020 was postponed due to COVID, and on 11 May 2021, he received notice that his hearing had been rescheduled for 2 September 2021. d. Upon appeal, completed on 31 January 2022, the VA has now correctly rated the conditions as hip replacements under code 5054 and has corrected the rating to 50 percent for both left and right sides. As these were unfitting conditions as determined by the PEB, the ratings assigned them by the VA were used in determining the applicants Army disability percentage, which determines his retirement pay. In order to receive back pay and correct the injustice of incorrect total retirement compensation, the Army rating should be increased commensurate with the newly assigned VA rating. 3. The applicant was commissioned as a Reserve Officer effective 29 January 1998. He was ordered to active duty effective 28 December 1998. He was honorably discharged on 7 March 2008. 4. On 8 March 2008, he was commissioned as a Reserve Officer in the Ohio Army National Guard (OHARNG). He was then commissioned as a Reserve Officer on 28 July 2008. He was commissioned as a Reserve Officer in the Kentucky Army National Guard on 25 November 2009. 5. The applicant was ordered to active duty for operation support effective 2 August 2013. He served in Qatar from 10 August 2013 to 7 August 2014. 6. On 15 August 2015, an informal physical evaluation board (PEB) convened. The Informal PEB found the applicant physically unfit with a recommended rating of 20 percent and that his disposition be separated with severance pay. a. The PEB determined the following conditions were unfitting: * left-sided osteoarthritis of the hip bilateral femoral acetabular; rating: 10% * right-sided osteoarthritis of the hip bilateral femoral acetabular; rating: 10% * left-sided osteoarthritis, femoral acetabular, limitation of flexion; rating: 0% * right-sided osteoarthritis, femoral acetabular, limitation of flexion; rating: 0% * left-sided osteoarthritis of the hip bilateral femoral acetabular, impairment of the thigh; rating: 0% * right-sided osteoarthritis of the hip bilateral femoral acetabular, impairment of the thigh; rating: 0% b. The PEB found the following conditions not to be unfitting. In full consideration of DoDI 1332.18, Enc. 3, App. 2, to include combined, overall effect, the conditions are not unfitting because the MEB indicates these conditions meet retention standards; does not indicate that any of these conditions cause profile limitations (functional activities a- j); and does not indicate that performance issues, if any, are due to these conditions: * tinnitus * left ear with normal hearing * right ear hearing loss * migraine headache * cervical spondylosis * left cervical radiculopathy * remote tumid cutaneous lupus * right shoulder status post lipoma resection * right shoulder osteoarthritis * remote right ankle sprain with residual pain * bilateral hip arthroplasty scars * remote left foot tinea pedis * right shoulder lipoma resection scar * right hand scar * right thumb scar right hand and thumb scars * facial scars and chin * facial scars of left temple Facial scars of chin and left temple c. The PEB made the following administrative determinations: * The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and 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 (5 USC 8332, 3502, and 6303); (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) * Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975 * The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216 d. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). e. As documented in the Department of Veterans Affairs (DVA) memorandum dated 26 July 2016, DVA determined the specific VASRD code(s) to describe the [applicant]'s condition(s). The PEB determined the disposition recommendation based on the proposed DVA disability rating(s) and in accord with applicable statutes and regulations. e. The DA Form 199 dated 20 May 2016 is hereby superseded. f. A handwritten note indicates the DA Form 199 was returned without signature because the applicant refused to sign due to disagreement with the assigned disability percentage. The applicant requested a Formal Board and attached a memorandum and supporting evidence. 7. On 23 November 2016, an Informal PEB convened to reconsider the applicant’s case and found the applicant physically unfit and recommended a rating of 50 percent and that his disposition be permanent disability retirement. a. The PEB determined the following conditions were unfitting: (1) Left Cervical Radiculopathy. Onset occurred in 2014 while stationed near Qatar, not related to combat, simulation of combat or instrumentality of war. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, [applicant] is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision) Rating: 30 percent. (2) Left-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular (PEB referred as: Left-sided osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)). Onset occurred in 2011 while [applicant] was stationed to CONUS. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, he is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 10 percent. (3) Right-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular (PEB referred as: Right-sided osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)). Onset occurred in 2011 while [applicant] was stationed to CONUS. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, [applicant] is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 10 percent. (4) Cervical Spondylosis, (Diagnosed by VA as Degenerative cervical disc disease). IAW 1332.18, Enc. 3, App. 2., para. 4d, [applicant] is unfit for this diagnosis as a result of the combined effect of this condition and C6-C7 radiculopathy. Physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 10 percent. (5) Left-Sided Osteoarthritis, Femoral Acetabular, Limitation of Flexion (PEB referred as: Left-sided osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)). Onset occurred in 2011 while [applicant] was stationed to CONUS. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, [applicant] is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 0 percent. (6) Right-Sided Osteoarthritis, Femoral Acetabular, Limitation of Flexion (PEB referred as: Right-sided osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)). Onset occurred in 2011 while [applicant] was stationed to CONUS. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, [applicant] is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 0 percent. (7) Left-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular, Impairment of the Thigh (PEB referred as: Left-sided osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)). Onset occurred in 2011 while [applicant] was stationed to CONUS. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, [applicant] is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 0 percent. (8) Right-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular, Impairment of the Thigh (PEB referred as: Right-sided osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)). Onset occurred in 2011 while [applicant] was stationed to CONUS. The injury was the result of running a marathon. IAW DoDI 1332.18, Enc. 3, App. 2, [applicant] is unfit because DA Form 3349, physical profile limitations associated with this condition make him unable to reasonably perform in his PMOS/AOC. His condition prevents him from performing functional activity (e) wear body armor for at least 12 hours a day. (NARSUM, DA Form 7652, DA Form 3349, VA C&P Exam and DVA Proposed Rating Decision). Rating: 0 percent. b. The PEB found the following conditions not to be unfitting. In full consideration of DoDI 1332.18, Enc. 3, App. 2, to include combined, overall effect, the conditions are not unfitting because the MEB indicates these conditions meet retention standards; does not indicate that any of these conditions cause profile limitations (functional activities a- j); and, does not indicate that performance issues, if any, are due to these conditions: * tinnitus * left ear with normal hearing * right ear hearing loss (diagnosed by the VA as Right Ear with sensorineural hearing loss (in the frequency range of 500-4000 Hz) * migraine headache * remote tumid cutaneous lupus (diagnosed by the VA as tumid lupus erythematosus (Cutaneous lupus erythematosus)) * right shoulder Status Post lipoma resection * right shoulder osteoarthritis (diagnosed by the VA as Right shoulder rotator cuff tendonitis and AC osteoarthritis) * remote right ankle sprain with residual pain * bilateral hip arthroplasty scars * remote left foot tinea pedis * right shoulder lipoma resection scar * right hand scar (diagnosed by the VA as dorsal metacarpal scar; right thumb scar; Right hand thumb scars * right thumb scar Right hand and thumb scars (diagnosed by the VA as right dorsal metacarpal scar; right thumb scar) * facial scars and chin (diagnosed by the VA as Facial scars of chin and left temple; submental skin scar; left temple cyst resection scar) * facial scars of left temple Facial scars of chin and left temple (diagnosed by the VA as submental skin scar; left temple cyst resection scar) c. The PEB made the following administrative determinations: (1) The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and 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 (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) (2) Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (3) The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. d. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). Combined rating is 50 percent and his disposition be permanent disability retirement. e. As documented in the Department of Veterans Affairs (DVA) memorandum dated 1 September 2017, DVA determined the specific VASRD code(s) to describe the [applicant]'s condition(s). The PEB determined the disposition recommendation based on the proposed DVA disability rating(s) and in accord with applicable statutes and regulations. f. The DA Form 199 dated 20 May 2016 is hereby superseded. g. The applicant concurred with the findings and did not request reconsideration of his VA ratings. h. The proceedings were finalized on 17 January 2017. 8. On 27 January 2017, Headquarters, U.S. Army Garrison, Fort Belvoir, VA published Orders 027-0008 releasing him from assignment and duty because of physical disability incurred on 28 March 2017, and on the date following release from active duty, he was placed on the retired list and transferred to the U.S. Army Reserve Control Group (Retired). * Effective date of retirement: 28 March 2017 * Date placed on retirement list: 29 March 2017 * Retired grade/Date of rank: LTC/28 March 2017 * Permanent grade of rank: LTC * Percentage of disability: 50% His DD Form 14 show she was honorably retired on 28 March 2017 under the provision of AR 635-40, chapter 4 for disability, permanent (enhanced). 9. The applicant provides: a. A DA Form 3947 showing a MEB convened on 29 February 2016. After consideration of clinical records, laboratory findings, and physical examination, the Board found the applicant has the following conditions/defects: * left-sided osteoarthritis of the hip - does not meet retention standards IAW AR 40-501 Chapter 3-14c * right-sided osteoarthritis of the hip - does not meet retention standards IAW AR 40-501 Chapter 3-14c * tinnitus - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * left ears with normal hearing - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * right ear hearing loss - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * migraine headache - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * cervical spondylosis - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * left cervical radiculopathy - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * remote tumid cutaneous lupus - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 * right should status post lipoma resection - meets retention standards and are medically acceptable IAW AR 40-501 Chapter 3 b. A memorandum, subjected: Request for Formal Board or Reconsideration of Disability Rating for the Physical Evaluation Board Proceedings, dated 16 September 2016, requesting the PEB grant his request for a formal appeal in person before the board for the review of pertinent medical documentation of his case. Specifically, he addresses the rating for his prosthetic joints and radiculopathy in his left arm. c. A letter of support from Dr. dated 7 September 2016, addressing the applicant’s bilateral hip pain. Dr. had treated the applicant for 2 years. He detailed the applicant’s treatment history, specifically, he had failed non-operative treatment and was recommended for the Smith and Nephew Birmingham Resurfacing instead of a conventional primary total hip replacement. He explains a total hip replacement on younger individuals often results in additional future surgeries. e. A memorandum subjected: Request for Review or Reconsideration of Disability Rating for the Physical Evaluation Board Proceedings, dated 13 September 2016, from Major (orthopedic surgeon), confirming the applicant has prosthetic joint implants, and endorsing his request for a formal appeal. f. An undated memorandum subjected: Medical Opinion, from Dr. also confirming his Birmingham Resurfacing should be considered a hip replacement. g. An x-ray showing hip implants. h. The FDA definition of Birmingham Hip Resurfacing (BHR) System. The BHR system is a metal on metal resurfacing artificial hip replacement system, surgically implanted to replace the hip joint. The BHR is called a resurfacing prosthesis because only the surface of the femoral head (ball) is removed to implant the femoral head resurfacing component. The BHR System is intended for patients, who doe to their relatively younger age or increased activity level, may not be suitable for traditional total hip replacement due to an increased possibility of requiring future hip joint revision. i. A VA Notice of Disagreement, dated 28 April 2017, requesting his left sided and right sided osteoarthritis of the hip, bilateral femoral acetabular be rated under VA code 5054 for hip replacements with a rating of 30 percent for each, and a rating of 50 percent for sleep apnea. j. A VA letter of acknowledge receipt of written disagreement, dated 3 May 2017. k. A VA Statement of the Case, dated 12 May 2018, showing the following: (1) Issues: * whether at least the minimum 30 percent evaluation is warranted as specified under Diagnostic Code 5054 for the service connected condition of left hip osteoarthritis, femoral acetabular impingement syndrome, status post left total hip resurfacing * whether at least the minimum 30 percent evaluation is warranted as specified under Diagnostic Code 5054 for the service connected condition of right hip osteoarthritis, femoral acetabular impingement syndrome, status post right total hip resurfacing (2) An explanation of VA’s procedures, rules and regulations, and provides specifications for codes 5251 (thigh, limitation of extension), 5252 (thigh, limitation of flexion), 5253 (thigh, impairment), and 5054 (hip replacement (prosthesis)). (3) Decision: * at least the minimum 30 percent evaluation is not warranted as specified under Diagnostic Code 5054 for the service connected condition of left hip osteoarthritis, femoral acetabular impingement syndrome, status post left total hip resurfacing * at least the minimum 30 percent evaluation is not warranted as specified under Diagnostic Code 5054 for the service connected condition of right hip osteoarthritis, femoral acetabular impingement syndrome, status post right total hip resurfacing l. A Kentucky VA Veteran/Family Member Claim Checklist dated 30 May 2018, confirming he contacted the KY VA. A VA video conference hearing confirmation letter, dated 18 June 2018, confirming his request for an appearance before the Board of Veteran’s Appeal (BVA). A VA certification of appeal, dated 12 July 2018, advising the applicant action will be delayed on his case until his appearance before the Board. A VA notification of video hearing letter, dated 11 May 2021, advising him he will be afforded a virtual tele-hearing as a result of the global pandemic. m. A VA appeal decision, dated 31 January 2022, showing a rating of 50 percent, but no higher, for the applicant's right hip osteoarthritis is granted and a rating of 50 percent, but no higher, for his left hip osteoarthritis is granted. The applicant's bilateral hip resurfacings are hip replacements for VA purposes. For the entire appeal period, the applicant's right and left hip osteoarthritis have been most nearly approximated by moderately severe residual pain and limitation of motion. n. A VA rating decision letter, dated 8 February 2022, shows the applicant’s new ratings for his left and right hip osteoarthritis is granted at 50 percent each effective 29 March 2017. 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. 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. 11. 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. 12. MEDICAL REVIEW: 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: a. The applicant is applying to the ABCMR requesting an increase in his current military disability. He states: “PEB determined bilateral hip replacements to be unfit for continued service. VA improperly rated those conditions only as a loss of range of motion instead of a joint replacement and only assigned them a 10% rating, as reflected in the PEB. Applicant then requested a one-time VA reconsideration of ratings (VARR), which upheld the 10% rating.” The applicant then filed a formal appeal through the Kentucky Department of Veterans Affairs on 30 May 2018 … Upon appeal, completed on 31 JAN 2022, VA has now correctly rated the conditions as hip replacements under code 5054 and has corrected the rating to 50% for both left and right sides.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. The DD 214 for the period of Service under consideration shows the former Army National Guard Officer entered active duty on 2 August 2013 and was permanently retired for physical disability on 28 March 2017 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers 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 other conditions they believe to be service-connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). d. 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. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her 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 7 January 2016, the applicant was referred to the IDES for “Persistent Left Hip Pain S/P Arthroplasty.” The applicant claimed 16 additional conditions on his VA 21- 0819, including “right hip pain S/P arthroplasty with implants.” A medical evaluation board (MEB) determined both his right and left hip conditions failed the medical retention standards of AR 40-501, Standards of Medical Fitness. The MEB identified the condition for each hip as: “osteoarthritis of the hip (diagnosed by the VA as Bilateral femoral acetabular impingement with secondary advanced osteoarthritis Status Post Birmingham hip resurfacing arthroplasty with residual functional impairment; Femoral acetabular impingement syndrome)” g. The MEB determined seventeen other medical conditions met medical retention standards. On 21 March 2016, the applicant agreed with the Board’s findings and recommendation and his case was forwarded to a physical evaluation board (PEB) for adjudication. h. On 8 April 2016, the applicant’s informal PEB determined both his left and right hip conditions were unfitting for continued military service. They found the seventeen remaining medical conditions not unfitting for continued military service. i. The PEB applied the Veterans Benefits Administration (VBA) derived ratings of 10% (diagnostic code 5251 – Thigh, limitation of extension) to each hip and recommended the applicant be separated with disability severance pay. After being counseled on the PEB’s findings and recommendation by his PEB liaison officer, the applicant concurred with the PEB and requested a VBA reconsideration of the ratings (VARR). The VA reconfirmed their 10% rating for each hip and the applicant subsequently requested a formal hearing. j. The PEB reconsidered (i.e., reviewed) the applicant’s appeal, evidence, and case file prior to the formal PEB. They added a third disability of “Left Cervical Radiculopathy” which the VA had rated at 30%, and fourth disability of “Cervical Spondylosis” rated at 10%. With his combined military disability rating now at 50%, they recommended the applicant be permanently retired for physical disability. On 16 December 2016, after being counseled on the PEB’s findings and recommendation by his PEB liaison officer, the applicant concurred with PEB and declined to request a VARR for his cervical radiculopathy. He could not request a second VARR for his hip conditions as Service Members are allowed only one VARR of a condition during the IDES process. k. Following his discharge, the applicant submitted a formal Kentucky Department of Veterans Affairs on 30 May 2018. He contended his hip conditions should have been rated using VASRD diagnostic code 5054 – Hip replacement (prosthesis) – because he had undergone bilateral hip resurfacing in 2015. l. The applicant’s hip prostheses, the Birmingham Hip Resurfacing (BHR) System, did not replace the hip joint but resurfaced the joint. Unlike total hip replacement, which removes the femoral head and the surface of the acetabulum (socket of the hip joint), the BHR resurfaces just a few centimeters of bone form the femoral head, preserving more of the original joint. m. In their 31 January 2022 decision, the VA concurred with the applicant that this relatively new implant (approved for use in the United States by the Food and Drug Administration in 2006) was a prosthetic replacement which should have been rated under VASRD diagnostic code 5054: * Thus, based upon the Veteran’s relevant medical history, the Board finds that it is appropriate to reassign the Veteran’s rating under DC 5054 ... * An initial evaluation of 50 percent, but no higher, is granted for left hip osteoarthritis effective March 29, 2017. * An initial evaluation of 50 percent, but no higher, is granted for right hip osteoarthritis effective March 29, 2017. n. It is the opinion of the Agency Medical Advisor that the applicant’s combined military disability rating should be increased to 90% effective 29 March 2017 (50% combined with 50% = 75% + 8% (bilateral factor = 10% of 75% = 7.5% which rounds to 8%) = 83% combined with 30% = 88% combined with 10% = 89% rounds to 90%). BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The evidence shows the applicant was found unfit by a PEB for Left Cervical Radiculopathy (30%), Left-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular (10%), Right-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular (10%), Cervical Spondylosis (10%), Left-Sided Osteoarthritis, Femoral Acetabular (0%), Right- Sided Osteoarthritis, Femoral Acetabular, Limitation of Flexion (0%), Left-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular (0%), and Right-Sided Osteoarthritis of the Hip Bilateral Femoral Acetabular (0%). He was assigned a 50% combined disability rating and his disposition was permanent retirement. The applicant concurred with the recommended combined 50% disability rating. b. The Board reviewed and agreed with the medical advisor’s finding that in their January 2022 decision, the VA concurred with the applicant that this relatively new implant (approved for use in the Food and Drug Administration in 2006) was a prosthetic replacement which should have been rated under VASRD diagnostic code 5054: Thus, based upon the applicant’s relevant medical history, the VA board of appeal found it appropriate to reassign the applicant’s disability rating for left hip osteoarthritis at 50% and for right hip osteoarthritis at 50%, both effective 29 March 2017. Based on this adjusted rating, the Board agreed that the applicant’s combined military disability rating should also be increased as follows (50% combined with 50% = 75% + 8% (bilateral factor = 10% of 75% = 7.5% which rounds to 8%) = 83% combined with 30% = 88% combined with 10% = 89% which rounds to 90%). ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * voiding the DA Form 199 (Informal Physical Evaluation Board Proceedings) dated 23 November 2016 and issuing a revised DA Form 199 that shows in * Section II, Recommended Disposition) a combined rating of 90% * Section III, Medical Conditions Determined to be Unfitting: VASRD 5054, Left Hip Osteoarthritis 50%; VASRD 5054, Right Hip Osteoarthritis 50%; VASRD 8510, Left Cervical Radiculopathy 30%; and VASRD 5237, Cervical Spondylosis, 10% * revoking Orders 027-0008 issued by Headquarters, U.S. Army Garrison, Fort Belvoir, VA on 27 January 2017 and issuing new orders releasing him from assignment due to physical disability, effective 28 March 2017, and on the date following release from active duty, he was placed on the retired list to show his percentage of disability as 90% 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 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 ABCMR determines it would be in the interest of justice to do so. 2. 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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 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. 3. 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. 4. 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. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 6. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. Section 1556 of Title 10, U.S. Code, 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) AR20220003866 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1