IN THE CASE OF:  

		BOARD DATE:  2 July 2020

		DOCKET NUMBER:  AR20170017083


APPLICANT REQUESTS:  change of his disability percentage rating received due to 
limited motion of shoulders from 20% to 30% or above. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Veterans Service Office letter dated 27 September 2017
*	National Personnel Records Center letter dated 24 October 2017

FACTS:

1.  The applicant states that his right shoulder fails to meet retention standards.  His left 
shoulder fits the same standards as his right shoulder; however, was deeded to meet 
retention standards.

2.  A review of the applicant’s available military records reflects the following: 

   a.	On 26 June 2009 he enlisted in the United States Army Reserve (USAR).

   b.	On 20 October 2009 he enlisted in the Regular Army.
   
   c.	On 25 January 2017 a Physical Evaluation Board (PEB) was convened 
concerning the applicant’s right shoulder finding him medically unfit for continued 
military service and recommended a rating of 20%.  Further noted is that this rating 
would result in an entitlement to severance pay; ratings of less than 30%.

   d.	On 6 February 2017 the applicant acknowledged he had been advised of the 
findings and recommendations of the PEB and received a full explanation of the results 
of the findings and recommendations and legal rights pertaining thereto.  The applicant 
concurred with the findings and recommendation, waived his right to a formal hearing of 
his case, but requested to have the Department of Veteran Affairs (VA) reconsider his 
disability rating.

   e.	On 6 April 2017 (Order# 096-0013) he was reassigned to the transition point 
pending medical discharge from the Army with a disability percentage rating of 20% 
effective 26 June 2017.  
   
   f.	On 26 June 2017 he was medically discharged from the Army with entitlement to 
disability severance pay for the amount of $45,705.60.  

3.  The applicant provides a Veterans Service Office letter dated 27 September 2017 
requesting a change in his percentage of disability assigned to his left shoulder upon 
discharge from the Army.  Both of his shoulders were classified the same however his 
right shoulder was rated lower.  Further noted is that the applicant feels that the rating 
should be at least 30% for both shoulders.  

4.  On 5 May 2020 a medical advisory was obtained from the Army Review Boards 
Agency Medical Advisor recommending that neither a change in the disability rating for 
his right shoulder nor a referral of the applicant’s record to the Integrated Disability 
Evaluation System (IDES) for reconsideration of his left shoulder condition are 
warranted at this time.  Further stated in part is that during the applicant’s processing 
through the IDES, the Medical Evaluation Board (MEB) found that his right shoulder 
condition failed retention standards, while his left shoulder condition was found to meet 
retention standards.  The applicant appealed to the MEB requesting that his left 
shoulder be found to fail retention standards as well.  In response the physician 
provided the following explanation on why the left shoulder condition met retention 
standards:  

  “A review of the AHLTA notes shows this complaint was last reported in 2014 without 
further limitations or complaints until 21 July 2016.  In that note, the examiner 
documented normal left shoulder strength and did not document any abnormalities.  On 
26 July 2016, his case was evaluated and it was determined that only the right shoulder 
met the criteria for entry into IDES, likely because there is no history of complaints of left 
shoulder pain since 2014, no history of treatment for left shoulder pain, no evidence of 
treatment failure, and no evidence of duty limitations for the left shoulder existed.”
      
A copy of the entire advisory is available for the Board’s review.

5.  On 12 May 2020 the applicant was provided a copy of the advisory opinion and 
given 15 days to submit comments in response.  As of 28 May 2020 the applicant had 
not responded 

6.  See applicable regulatory guidance below under REFERENCES. 



BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents and 
evidence in the records.  The Board considered the applicant’s statement, his record of 
service, the results of medical proceedings and the reason for his separation with 
severance pay.  The Board considered the Veterans Service Office letter he provided 
and the review and conclusions of the medical advising official.  While the VA 
compensated the applicant for his left shoulder using VA criteria, the Board concurred 
with the conclusions of the advising official finding sufficient evidence to show that his 
left shoulder condition met medical retention standards at the time of his separation.  
Based on a preponderance of evidence, the Board determined that the percentage of 
disability the applicant received upon separation was not in error or unjust.   

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XXX	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.
 


		  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.






REFERENCES:

1.  Title 10, United States Code (U.S.C), 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.

2.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating.  Only the unfitting conditions or defects and those which 
contribute to unfitness will be considered in arriving at the rated degree of incapacity 
warranting retirement or separation for disability.

	a.  Paragraph 3-2 states 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.  Paragraph 3-4 states 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.

3.  Army Regulation 40-501 provides that for an individual to be found unfit by reason of 
physical disability, he/she must be unable to perform the duties of his or her office, 
grade, rank or rating.  Performance of duty despite impairment would be considered 
presumptive evidence of physical fitness. 

4.  Title 38, U.S.C sections 1110 and 1131, permits the VA to award compensation for 
disabilities that were incurred in or aggravated by active military service.  However, an 
award of a higher VA rating does not establish error or injustice on the part of the Army.  
The Army rates only conditions determined to be physically unfitting at the time of 
discharge which disqualify the Soldier from further military service.  The VA does not 
have the authority or responsibility for determining physical fitness for military service.  
The VA awards disability ratings to veterans for service-connected conditions, including 
those conditions detected after discharge, to compensate the individual for loss of 
civilian employability.  These two government agencies operate under different policies.  
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.

5.  DTM 11-015, 19 December 2011, provides for the Integrated Disability Evaluation 
System (IDES).  The IDES is the joint Department of Defense (DOD) - VA process by 
which DOD determines whether wounded, ill, or injured Service members are fit for 
continued military service and by which DOD and VA determine appropriate benefits for 
Service members who are separated or retired for a service-connected disability.

   a.  Appendix 10 to Attachment 4 states within 15 days of receiving proposed 
disability ratings from the (D-RAS), the PEB would apply the ratings using the 
diagnostic code(s) provided by the D-RAS to the Service member’s unfitting conditions 
and publish the disposition recommendation.

   b.  Appendix 11 to Attachment 4 (D-RAS Procedures), in effect at the time, stated:

      1)  Upon receipt of the case files (request for rating and service treatment record) 
of unfit Service members from PEB administration, the D-RAS determines whether the 
VA C&P disability examination report is adequate for disability rating purposes.

      2)  The D-RAS will rate the service member’s referred and claimed service-
connected disabilities and provide a proposed rating decision, with rationale, to the PEB 
within 15 days of notification by the PEB administration staff that a service member is 
unfit.

      3)  Once the D-RAS has rated all unfitting conditions, the D-RAS will provide their 
proposed rating decision to the PEB.  The D-RAS will defer rating all other conditions 
that require additional claim development in accordance with VA business practices and 
regulations.

      4)  Within 15 days of receipt from the PEB of a service member’s written request 
for a one-time reconsideration of a proposed disability evaluation assigned for unfitting 
conditions by VA, the VA decision review officer will consider any new documentation or 
information from the Service member and provide the PEB updated proposed ratings, if 
any.

      5)  This is a one-time “request for reconsideration” of the rating(s) from the D-
RAS.  Subsequent appeals of ratings to VA must occur when the Service member has 
separated, attained veteran status, and has been formally notified of the rating decision

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20170017083


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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