IN THE CASE OF: BOARD DATE: 14 October 2023 DOCKET NUMBER: AR20220009024 APPLICANT REQUESTS: in effect, an increase to her retirement physical disability rating from 60 percent to 100 percent, based on an increase to her Department of Veterans Affairs (VA) disability rating. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Rating Decision, 30 January 2022 * VA letter, dated 2 February 2022 FACTS: 1. The applicant states a letter from the VA instructed her to apply for an increase to her Army disability rating based on a change to a rating originally assigned as part of the Integrated Disability Evaluation System (IDES). 2. The applicant enlisted in the Regular Army on 22 June 2016 and was awarded the Military Occupational Specialty (MOS) 35N (Signals Intelligence Analyst). 3. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), Medical Evaluation Board (MEB) Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), Department of Veterans Affairs (VA) Compensation and Pension (C&P) Exam, and the VA Rating Decision from the IDES proceedings are not in her available records for review and have not been provided by the applicant. 4. A DA Form 199 (Informal Physical Evaluation Proceedings (PEB)) shows the following: a. An informal PEB convened on 27 August 2021, wherein the applicant was found physically unfit with a recommended rating of 60 percent and that her disposition be permanent disability retirement. b. The following medical conditions were determined to be unfitting because functional activity limitations associated with these conditions as listed on the DA Form 3349, render the applicant unable to reasonably perform her required duties: * headache syndrome (MEB diagnosis (Dx) 2); 50 percent * cervical spine bulging disc, degenerative arthritis, and spasmodic torticollis with inflammatory polyarthropathy (MEB Dx 1, 9-11) 10 percent * lumbosacral strain with inflammatory polyarthropathy (MEB Dx 1, 12); 10 percent * right knee patellar tendinitis with inflammatory polyarthropathy (MEB Dx 1, 14); 10 percent c. The applicant was found fit for MEB DX 3-8, 13, 15-24, the combined effect of which were considered in the fitness determination for these conditions referred by the MEB. d. On 22 September 2021, the applicant signed the form indicating she concurred with the findings and recommendations and waived a formal hearing of her case. She also indicated on the form that she requested the VA reconsider her disability ratings. 5. A U.S. Army PEB memorandum, dated 30 September 2021, shows the PEB received the results of the applicant’s request for reconsideration of her proposed DES Ratings. The VA Decision Review Officer Memorandum, dated 29 September 2021, was enclosed and shows her rating did not change. She was informed she was not authorized another VA reconsideration. 6. The applicant’s DA Form 199 shows the PEB determinations were approved for the Secretary of the Army on 4 October 2021. 7. U.S. Army Installation Management Command Orders 300-005, dated 27 October 2021, released the applicant from assignment and duty because of physical disability with an effective date of retirement of 27 January 2022, and a disability rating of 60 percent. 8. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was retired due to physical disability, permanent effective 27 January 2022 and credited with 5 years, 7 months, and 6 days of net active service. 9. A VA Rating Decision, dated 30 January 2022, shows the applicant was granted service-connection for the following conditions with the following ratings effective 28 January 2022: * post-traumatic stress disorder (claimed as military sexual trauma), 70 percent * migraine, tension and cervicogenic headaches, 50 percent * cervical spine strain with bulging disc and degenerative arthritis with spasmodic torticollis and inflammatory polyarthropathy, 20 percent * left shoulder inflammatory polyarthropathy (non-dominant), 20 percent * narcolepsy with insomnia disorder, 20 percent * right shoulder inflammatory polyarthropathy, 20 percent * temporomandibular joint disorder, 20 percent * thoracic and lumbosacral strain with inflammatory polyarthropathy, 20 percent * acne, 10 percent * left ankle inflammatory polyarthropathy, 10 percent * left elbow inflammatory polyarthropathy (non-dominant), 10 percent * left hip inflammatory polyarthropathy, limitation of flexion, 10 percent * left knee patellar tendinitis, 10 percent * left wrist inflammatory polyarthropathy (non-dominant), 10 percent * right 4th and 5th toe fracture, 10 percent * right ankle inflammatory polyarthropathy, 10 percent * right elbow inflammatory polyarthropathy (dominant), 10 percent * right hip inflammatory polyarthropathy, limitation of flexion, 10 percent * right knee patellar tendinitis and inflammatory polyarthropathy, 10 percent * right wrist inflammatory polyarthropathy (dominant), 10 percent * tinnitus, 10 percent * left hip inflammatory polyarthropathy, impairment, 0 percent * left hip inflammatory polyarthropathy, limitation of extension, 0 percent * right ear eustachian tube disorder with otalgia, 0 percent * right eyelid myokymia, 0 percent * right hip inflammatory polyarthropathy, impairment, 0 percent * right hip inflammatory polyarthropathy, limitation of extension, 0 percent * bilateral impacted cerumen denied * dysmenorrhea with heavy bleeding denied * high blood pressure denied * right lower leg strain of muscle and tendon denied 10. A VA letter, dated 2 February 2022, informed the applicant of her new VA Rating Decision, which represents a change to a rating originally assigned as part of the IDES. It shows her combined rating evaluation is now 100 percent. She was informed this decision could potentially warrant a change to her military record and/or an adjustment to the disability separation benefits she received from the Army. In light of the change to her VA disability rating, she was advised it may be to her benefit to request a review of her discharge to the appropriate Board. 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/her duties. Unlike the Army, the VA can evaluate a veteran throughout his/her 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an increase in her military disability ratings based on new VA ratings she received just after discharge. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 for the period of Service under consideration shows she entered the regular Army on 22 June 2016 and was permanently retired for physical disability on 27 January 2022 under provisions in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 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 9 February 2021, the applicant was referred to the IDES for “Inflammatory Polyarthropathy” and Headache Syndrome.” The applicant claimed 24 additional conditions on her Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) with a supplemental Statement in Support of Claim (VA form 21-4138). A medical evaluation board (MEB) determined the applicant’s referred medical conditions failed the medical retention standards of AR 40-501, Standards of Medical Fitness and seventeen other conditions met medical retention standards. There was no VA diagnosis for an additional five conditions. On 10 May 2021, the applicant concurred with the board’s findings, declined to request an impartial medical review (IMR), and her case was forwarded to a physical evaluation board (PEB) for adjudication. g. On 27 August 2021, the applicant’s informal PEB determined she had four medical conditions which were unfitting for continued service; “Headache syndrome,” “Cervical spine bulging disc, degenerative arthritis, and spasmodic torticollis with inflammatory polyarthropathy,” “Lumbosacral strain with inflammatory Polyarthropathy,” and “Right knee patellar tendinitis with inflammatory polyarthropathy.” They determined the remaining 19 conditions were not unfitting for continued service. The PEB applied the Veterans Benefits Administration’s (VBA) derived rating of 50%, 10%, 10%, and 10% respectively, and recommended the applicant be permanently retired for physical disability with a combined military disability rating of 60% (50% combined with 10% = 55% combined with 10% = 60% combined with 10% = 64% which rounds to 60%) h. On 21 September 2021, after being counseled on the informal PEB’s findings and recommendation by an PEB Liaison Officer, the applicant concurred with the informal PEB’s findings and requested a VA reconsideration of the disability ratings of her two spine disabilities. The Department of Veterans Affairs Rating Activity Site (DRAS) reconfirmed their 10% ratings for both conditions on 29 September 2021. Her informal Physical Evaluation Board (PEB) Proceedings (DA Form 199) was authenticated for the Secretary of the Army on 4 October 2021. i. The applicant sent the VA clinical notes from her civilian physician dated with dates from March to August 2021 which the VA received on 12 October 2021. Based on these examinations, they increased the ratings for both her cervical and lumbar conditions from 10% to 20% as noted on 30 January 2022 Rating Decision. j. This is not the typical route for Soldiers to obtain VA ratings during the IDES process. However, because these ratings were based upon examinations completed prior to her discharge, and the fact the VA is the rating expert responsible for essentially all disability ratings applied in the IDES process, these two new ratings should be applied to her combined military disability rating. This yields a combined military disability rating of 70% (50% combined with 20% = 60% combined with 20% = 68% combined with 10% = 71% which rounds to 70%). k. It is the opinion of the ARBA Medical Advisor that an increase in her military disability rating to 70% is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows an informal PEB found the applicant unfit and accepted the VA recommended combined disability rating of 60% (headache syndrome 50%; cervical spine bulging disc, degenerative arthritis, and spasmodic torticollis with inflammatory polyarthropathy, 10%; lumbosacral strain with inflammatory polyarthropathy, 10%; and right knee patellar tendinitis with inflammatory polyarthropathy, 10%). The Board reviewed and agreed with the medical advisory official’s finding that she sent the VA clinical notes from her civilian physician dated from March to August 2021 which the VA received on 12 October 2021. Based on these examinations, the VA increased the ratings for both her cervical and lumbar conditions from 10% to 20% as noted on 30 January 2022 Rating Decision. Because these ratings were based upon examinations completed prior to her discharge, and the fact the VA is the rating expert responsible for essentially all disability ratings applied in the IDES process, these two new ratings should be applied to her combined military disability rating. This yields a combined military disability rating of 70% (50% combined with 20% = 60% combined with 20% = 68% combined with 10% = 71% which rounds to 70%). ? 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: 1. 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 amending the DA Form 199 (Informal Physical Evaluation Proceedings (PEB)) to show the medical conditions/disability rating for * cervical spine bulging disc, degenerative arthritis, and spasmodic torticollis with inflammatory polyarthropathy, 20% * lumbosacral strain with inflammatory polyarthropathy, 20% 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 to any relief in excess of that described above. 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 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 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. 3. 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 r her 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. 4. 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. 5. 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. 6. 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. 7. 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) AR20220009024 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1