IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230001142 APPLICANT REQUESTS: * correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show a disability rating of 30% or higher resulting in his retirement for physical disability instead of separation with severance pay * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) rating decisions FACTS: 1. The applicant states the PEB found him physically unfit and recommended a 20% disability rating and his separation with severance pay. His rating was determined through the Integrated Disability Evaluation System (IDES), however, the VA changed his proposed rating to 40% effective 2 September 2022. The increase in his disability rating entitles him to a medical retirement, 2. The applicant was appointed a commissioned officer in the Regular Army and entered active duty on 27 May 2017. 3. On 26 May 2022, a PEB found the applicant unfit for further military service due to diabetes mellitus type 1. The PEB recommended a 20% disability rating and the applicant's separation with severance pay. The PEB found him fit for 5 additional undisclosed medical conditions. 4. The applicant's DA Form 199 contains the following statements: a. VA reconsideration/correction: As a result of the Soldier's VA reconsideration request, the rating for this condition was increased from 10% to 20%. b. This administrative correction is made per the Decision Review Officer Reconsideration dated 17 May 2022. The DA Form 199, dated 1 February 2022, is hereby superseded and replaced by this DA Form 199. c. This case was adjudicated as part of the IDES. d. As documented in the VA memorandum dated 17 May 2022, the VA determined the specific VA Schedule for Rating Disabilities (VASRD) code(s) to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed VA disability rating(s) and in accord with applicable statutes and regulations. 5. The applicant's DD Form 214 shows he was discharged on 31 August 2022 under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, severance pay, non- combat related. 6. The applicant provided his VA rating decisions showing he was granted service- connected disability compensation, effective 1 September 2022, for the following conditions with the corresponding disability ratings: * diabetes mellitus type 1 40% * obstructive sleep apnea 30% * rhabdomyolysis 0% 7. The applicant's VA rating decisions contain the following statements: This decision represents a change to a rating originally assigned as part of the Integrated Disability Evaluation System. This decision could potentially warrant a change to your military record and/or an adjustment to the disability separation benefits you received from your service department. Each service department operates an agency or board for correction of records. ln light of the change in your VA disability rating, it may be to your benefit to request a review of your discharge to the appropriate board. We received new medical evidence indicating daily insulin injection. Your condition was considered to be unfitting with an evaluation of 20 percent. Your proposed rating decision of 20 percent for diabetes mellitus type 1 is now changed to 40 percent disabling. 8. 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. 9. 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. 10. Title 38, Code of Federal Regulations, Part IV is the VASRD. 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 or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 11. 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 his military disability rating and that his disability discharge disposition be changed from separated with severance pay to permanent retirement for physical disability. He states: I am requesting that my disposition is changed from separated to medically retired. The physical evaluation board found (20220526) that I was physically unfit and recommended a rating of 20% (for my unfitting condition) and that my disposition will be separated with severance pay. Moreover, this rating was informed through The Integrated Disability Evaluation System. However, the Department of Veterans Affairs changed my proposed rating from 20 percent to 40 percent, effective 20220902. This increase in disability rating for an unfitting condition of 30 percent or greater entitles me to a disposition of medical retirement and the associated benefits. c. The Record of Proceedings details the applicant s service and the circumstances of the case. His DD 214 shows he entered the regular Army on 27 May 2017 and was honorably discharged with $77,785.20 of disability severance pay on 31 August 2022 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). d. 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). 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. 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. f. 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. g. On 27 July 2021, the applicant was referred to the IDES for Type 1 Diabetes Mellitus. The applicant claimed five additional conditions on a separate Applications for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). A medical evaluation board (MEB) determined the referred diabetes failed the medical retention standards of AR 40-501, Standards of Medical Fitness. The MEB determined five other medical conditions met medical retention standards. h. On 8 December 2021, he non-concurred with the MEB s decision. He requested that his history of rhabdomyolysis, be found to fail retention standards: The VA Kidney Examination, dated 29 November 2021, shows CPT [Applicant] has a current diagnosis of rhabdomyolysis. Although the NARSUM [MEB Narrative Summary] indicates there has only been a single episode of rhabdomyolysis, CPT [Applicant] reports ongoing symptoms. As an Infantry Officer, CPT [Applicant] is required to lift, carry, and wear heavy gear as well as live in an austere environment. CPT [Applicant] s rhabdomyolysis condition prevents him from performing these activities. i. The physician addressing the appeal recommended no change in the MEB s determinations. He opined: The SM [service member] was initially diagnosed with Rhabdomyolysis in November 2012 while at West Point. At the time, SM developed bilateral arm pain after a strenuous workout. He was subsequently hospitalized due to elevated creatine kinase (CK) and treated with IV [intravenous] fluids. After discharge, he was slowly returned to physical activity and his CK levels trended down. He applied for, and received, a waiver for commissioning. SM did not experience another episode until November 2020 when he was again hospitalized with elevated CK and arm pain after a strenuous workout. SM was evaluated by PM&R [Physical Medicine and Rehabilitation] and his case was reviewed by the Uniformed Services University Consortium for Health and Military Performance (CHAMP) team. SM completed a comprehensive workup and was cleared to follow-up with his PCM [primary care manager] in February 2021. During his PHA [periodic health assessment in April 2021, SM states to have no new medical concerns at this time. Does not wish to schedule appointment with PCM. SM required only temporary profile restrictions as a result of this condition. Though SM experienced two episodes of rhabdomyolysis, this would be considered a reoccurrence rather than a recurrent condition. Though his CK was elevated in April 2013, 5 months after the initial event, he did not report any other sequelae. As he fully recovered, SM was not considered for an MEB and received a waiver for commissioning. Though his CK levels were significantly elevated during his 2nd episode of rhabdomyolysis, his levels were less than five times normal after two weeks. IAW AR 40-501, 3-26b, the condition of rhabdomyolysis did not warrant a referral for a MEB and as such, the condition will remain as listed on the DA Form 3947 as meeting retention standards. j. Paragraph 3-26b of AR 40-501, Standards of Medical Fitness (27 June 2019) addresses the retention standards for exertional rhabdomyolysis: Exertional rhabdomyolysis. The diagnosis of exertional rhabdomyolysis, defined as severe exercise-induced muscle pain resulting from repetitive exercise with an elevation of serum creatine kinase generally at least five times the upper limit of the lab normal range or urine myoglobin, will be referred to DES for the following: (1) The Soldier has recurrent episodes of exertional rhabdomyolysis. (2) The Soldier has a single episode with severe systemic complications (for example, compartment syndrome). (3) The Soldier has a single episode which results in physical complications that meets the definition of a disqualifying medical condition or physical defect as in paragraph 3 1. (4) Soldiers with any of the following symptoms 2 weeks after experiencing an episode of exertional rhabdomyolysis should be referred to the appropriate specialist for consideration of referral to DES: (a) Persistent residual kidney injury. (b) Persistent elevation of serum creatine kinase five times the upper limit of the lab normal range or delayed clinical recovery. (c) A history of sickle cell trait. (5) The Uniformed Services University Consortium for Health and Military Performance (CHAMP) (online at https://www.usuhs.edu/champ-provider) is available via email to assist in clinical consultation at champ@usuhs.edu. In addition, a Clinical Practice Guideline in the Management of Exertional Rhabdomyolysis in Soldiers is available at https://www.usuhs.edu/champ- clinical-tools. k. Following his appeal, his case, along with his appeal, was forwarded to a physical evaluation board (PEB) for adjudication. l. On 1 February 2022, the applicant s informal PEB found his Diabetes mellitus type I to be the sole unfitting for continued military service. They found the five remaining medical conditions not unfitting for continued service. The PEB applied the Veterans Benefits Administration (VBA) derived rating of 10% and recommended the applicant be separated with disability severance pay. The applicant non-concurred with the PEB s findings and demanded a formal hearing with the assistance of regularly appointed counsel and requested a VA reconsideration of the rating (VARR) for his diabetes. m. He requested that his history of rhabdomyolysis and sleep apnea be determined additional unfitting medical conditions for continued military service. The PEB maintained the informal board s findings as seen in their 1 March 2022 response to the applicant. The applicant subsequently withdrew his request for a formal hearing on 29 April 2022: Pursuant to AR 635-40, and after discussing his options with legal counsel, CPT [Applicant] hereby withdraws his demand for a formal Physical Evaluation Board (PEB) that is scheduled for 15 June 2022. CPT [Applicant] does not contest the Informal PEB decision, finding him unfit for further service for MEB Dx 1: Diabetes Mellitus. CPT [Applicant] WILL be submitting a VARR for the unfitting condition. CPT [Applicant] clearly understands that his withdrawal from this formal PEB is permanent IAW AR 635-40, paragraph 4-24e(3). n. In their 19 May 2022 reconsideration, the VA increased his disability rating to 20%: In this case, no error has been found in the prior rating decision and the additional records received with the request for reconsideration are duplicative of those contained within the claim file at the time of the previous decision. However, a current prescription for oral hypoglycemics shown in your treatment records supports a higher 20 percent evaluation. If additional treatment records are received showing that a higher evaluation is supported, those records will be considered in the final rating decision. o. We have assigned a 20 percent evaluation for your diabetes mellitus type I based on: * Oral hypoglycemic agent required * Additional symptom(s) include: * Restricted diet * A higher evaluation of 40 percent is not warranted for diabetes mellitus unless the evidence shows: * Diabetes requiring insulin, restricted diet, and regulation of activities. (3 8 CFR 4.119) * Diabetes (VASRD diagnostic code 7913) is rated at as follows: * Requiring insulin, restricted diet, and regulation of activities ........................40 * Requiring insulin and restricted diet, or; oral hypoglycemic agent * and restricted diet ..........................................................................................20 * Manageable by restricted diet only.................................................................10 * The higher ratings of 60% and 100% require complications and hospitalizations secondary to diabetes. * Review of his PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies or discrepancies. p. JLV shows the rating for his diabetes was increased to 40% effective 1 September 2022. However, 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. q. The rating derived from the VA Schedule for Rating Disabilities reflects the disability at the point in time the VA exams were completed, or as in this case, his VARR was completed. 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. r. Given no evidence of error or injustice, 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 determined that relief was not warranted. The Board carefully considered applicant s contentions, military record, regulatory guidance and other supporting documentation as provided. In reviewing the request, the Board noted that the applicant references the variance in ratings from Veterans Affairs and the Department of Defense. Veterans Affairs and DoD operate under separate laws, policies and guidance. As VA primarily assesses the degree of disabling conditions to determine compensation and employment potential and the Army for fitness for duty, there is not necessarily a correlation between VA disability ratings and those of the Army. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief and referral to the Disability Evaluation System is not warranted. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. The disability evaluation assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. b. Service members whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 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%. 4. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001142 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1