ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20180002791 APPLICANT REQUESTS: in effect, reevaluation of his DA Form 199-1 (Formal Physical Evaluation Board Proceedings) to show his post-traumatic stress disorder (PTSD) is unfitting, and that he be given a higher rating. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s personal statement * Medical Evaluation Board (MEB) Narrative Summary, dated 1 February 2016 * DA Form 199-1 (Formal PEB), dated 25 April 2016 * VA Form 3288 (Request for and Consent to Release of Information from Individual’s Records), dated 11 August 2016 * Department of Veterans Affairs Progress Notes – 8 pages * four character reference letters FACTS: 1. The applicant states since he has been discharged from the service his PTSD has greatly impacted his daily life beyond sleepless nights and occasional anxiety. As a full- time student and a husband, his PTSD condition has made it difficult to go about his daily routine, he is hyper vigilant and anxious. His anxiety impairs his ability to breathe and he suffers from emotional distress. When he was is the Warrior Transition Battalion, he received treatment for his PTSD, but he claims it was not recognized by a higher percentage [disability rating] because he had no prior treatment before seeking help at the Warrior Transition Battalion. After his first deployment to Iraq, he returned home and sought assistance through the Military and Family Life Counseling Program consultants. The consultants did not keep records especially of PTSD because he planned to make the Army a career. Life is difficult for him and work is unattainable because of his responsibilities to his family and school. He states his PTSD has interfered with his personal relationships with his peers, his wife and others. 2. After a brief period in the Delayed Entry Program, the applicant enlisted in the Regular Army in the grade of E-1 on 7 April 2009. He completed his training, was awarded a military occupational specialty (MOS), and assigned to his first unit. He served continuously through numerous reenlistments and assignments. He was promoted to the rank of sergeant/pay grade E-5 on 1 December 2013. 3. The applicant served in three hazardous duty locations as follows: * Iraq from 28 February 2010 to 5 February 2011 * Afghanistan from 1 May to 7 December 2012 * Bahrain from 13 January to 13 October 2014 4. Filed within his personnel record are two DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Reports) for the periods ending 15 August 2014 and 25 February 2015. He was assigned to two different field artillery units at Fort Sill, Oklahoma. Each evaluation shows he successfully embraced and demonstrated the Army Values. A few of the evaluator’s comments include: * adaptability to changing missions, displayed his professionalism and expertise; a true standard bearer * mission first attitude played a critical role in his section exceeding all mission standards * technically and tactically proficient, was chosen to perform duties outside his MOS including inactivation operations and consistently excelled * always willing to provide personal time to assist Soldiers in need; genuine NCO that showed true concern for the wellbeing of Soldiers * consistent accomplishment of all missions set him apart from his peers * task oriented and detail minded; completed assignments to the fullest while staying focused to make sound and thoughtful decisions * instilled the importance of self-development within his section; all his Soldiers completed prerequisite training for the Warrior Leader Course 5. The applicant underwent a medical examination in preparation for a MEB. On 1 February 2016, the medical provider dictated his notes for the MEB Narrative Summary. The reason for the referral to the MEB was for upper back pain and lower back pain due to an injury on 9 December 2013. He stated he was in the motor pool with full combat gear and slipped and fell on the ice. After multiple doctors' appointments, x-rays were taken and he had fractured the second lumbar vertebral body wedge compression. He was referred to physical therapy for follow up treatment. a. In May 2014, he sought medical treatment for low back pain since his fall in December 2013. A magnetic resonance imaging (MRI) showed mild minimal decreased anterior vertebral body height L2 vertebral body otherwise it was a negative MRI of the spine. He was given a special brace to wear and medication to relieve the pain symptoms. By August 2014, he had multiple injections and nerve ablation and appeared to be doing better. He was advised that he would have flare ups of back pain and that he could manage the symptoms with medication and rest. He received a profile stating that he could do his physical fitness training in the gym on the elliptical machine. b. By September 2014, he was seen for a thoracic sprain for his upper back pain that preliminary was diagnosed as muscle strain or spasm. He was treated symptomatically for pain. (There are no pertinent entries until May 2015.) c. In May 2015, he was seen for increasing pain that is constant and localized, but had been steadily increasing despite numerous medications to ease the pain. The diagnosis was intervertebral disc degeneration of the thoracic spine. At this point he was identified as not meeting retention standards and was referred to neurosurgery. If he is not a surgical candidate then a consult with physical medicine for determination of his medical retention determination point and possible MEB. He again was referred to physical therapy. d. In July 2015, he was seen by a neurosurgeon who requested a new MRI which showed the old L2 compression fracture and degenerative disc disease L4/5 and L5/S1 with a new diagnosis of herniated disc (L5-S1 and at L4-L5). He was deemed not to be a surgical candidate and the surgeon recommend a permanent profile of the lower extremities factor of P3 and a MEB by his primary care manager. As the applicant was stationed in South Korea, he was brought back to Fort Lewis, Washington and assigned to the Warrior Transition Battalion in November 2015. e. Upon arrival at Fort Lewis he was assigned a nurse case manager who performed the initial health risk assessment wherein the applicant scored in the low range indicating he was not a risk to himself or others. He also was not a suicidal risk. By January 2016 he was examined at the interdisciplinary pain management clinic and received epidural steroid injections f. He was issued a DA Form 3349 (Physical Profile) showing his PULHES was 1 1 3 1 1 1 with his lower extremities factor rated as "3." In addition his former commander in South Korea completed a DA Form 7652 (Commander’s Statement) wherein he stated, in effect, that the applicant’s physical profile limits the number of hours he can work and what personal protective equipment (PPE) he can wear. This is unacceptable in the Korean theater of operation due to their real-world need to be deployed at all times. During training, he is unable to complete a mandatory 12-hour shift due to his profile. g. In January 2016, the applicant underwent a medical examination by the Department of Veterans Affairs (VA) because he was part of the Integrated Disability Evaluation System. From the VA examination, the applicant’s DA Form 3947 (MEB) was created. [This form is not available to the Board for its review.] The diagnosis was lower back pain due to herniated nucleus pulpous at L1-2 and L2 with compression fracture occurring on 9 December 2013. The VA evaluated this condition as "degenerative arthritis of the lumbar spine." Upon review by Army medical provides it was determined this condition failed the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39e and h. The second diagnosis was upper back pain due to thoracic spine strain with herniated nucleus pulpous at T5-6, T7-8 and T7-8 with mild acquired spinal canal stenosis without neuroforaminal stenosis or nerve root encroachment which also failed the standards of Army Regulation 40-501, paragraph 3-39e. h. Concurrent with the VA examination there were additional medical conditions that met retention standards as follows: * status post upper back cyst excision surgery * genital warts * status post gastroenteritis * left shoulder sprain * right shoulder sprain, in remission * right hip bursitis * bilateral ankle sprain * status post right great toe fracture * status post left foot contusion * status post right rib injury in 2012 * tinnitus * chronic PTSD i. He met the medical retention determination point as his condition was present for more than 12 months and continued symptoms resulted in duty limitations. He had an adequate trail of treatment and it was reasonably determined that this Soldier is not capable of performing the duties of his MOS, grade or rank. j. His physical profile was updated. He was assigned a "3" for upper extremities with the following restrictions: no running, no physical fitness test, no body armor or load- bearing equipment, no carrying a rucksack, no riding in tactical vehicles, no sit-ups, no push-ups, etc. k. Within the narrative summary it states, "The above 2 diagnoses were arrived separately after multiple clinical signs and symptoms, x-rays, MRIs, consultant visit with physical therapy and rehabilitation specialist, neurosurgeon Dr. Choi and physiatrist Dr. Kim." l. Concerning the chronic PTSD, the MEB psychologist notes show that on 5 January 2016 he was evaluated with his symptoms diagnosed as PTSD with the evaluator opining, in effect, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. While in the Warrior Transition Battalion, he was participating in behavioral health therapy service and through the post hospital. The applicant had four sessions with the treatment modality as cognitive behavioral therapy, problem solving, and supportive counseling. "Based on a review of the record, there is no evidence of any negative impact of behavioral health symptoms on duty performance." This behavioral heath condition does not prevent him from deploying to an austere environment. Additionally, The preponderance of the evidence currently available reflects that behavioral symptoms do not interfere with effective duty performance, necessitate duty limitations, or require recurrent/extended hospitalization. Therefore, the condition of Posttraumatic Stress Disorder (sic), Chronic MEETS (sic) medical retention standards in accordance with AR [Army Regulation] 40-501, Chapter 3-33 a, b, and c. 6. The applicant’s MEB and informal PEB documents are not available for the Board’s review. What is available to the Board is his formal PEB (DA Form 199-1) which states the applicant is physically unfit for continued duty in the U.S. Army due to his back conditions with a 20% rating, and discharge was directed with severance pay. It appears during the formal PEB the applicant presented an argument that his back conditions should be considered "V3" or a combat related injury because his injury occurred during pre-deployment training. The applicant presented evidence which supports his testimony that he fell onto his back in the motor pool while in full battle rattle before movement to a training area. (The designation V3 is meant to cover an injury of sickness attributable to the special dangers associated with armed conflict or training simulating war.) Therefore, as his injury occurred in garrison his injury/physical condition does not meet the intent of the "V3" designation. a. As stated in the MEB Narrative Summary and by the VA, the VA Schedule for Rating Disabilities (VASRD) Code 5254 is applicable to the applicant’s condition of lower back pain due to herniated nucleus pulposus at L1-2 and L2 with upper back pain due to thoracic spine strain with herniated nucleus pulposus at T5-6, T6-7 and T7-8 which were the two diagnoses of the MEB. b. In full consideration of Department of Defense Instruction 1332.18 (Disability Evaluation System (DES)) there were an additional 12 conditions that were found fitting because the MEB indicated these conditions, including PTSD, met retention standards and did not indicate that any of these 12 conditions cause profile limitations or duty performance issues by grade, rank and MOS. 7. On 9 May 2016, the applicant concurred with the formal PEB and under the Integrated Disability Evaluation System he elected to not request reconsideration of his VA ratings (emphasis added), a right under this system. 8. On 17 May 2016, a representative on behalf of the Secretary of the Army at the U.S. Army Physical Disability Agency, Washington, D.C. approved the findings of the formal PEB. 9. Accordingly, the applicant was discharged effective 4 July 2016. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he completed 7 years, 2 months and 28 days of active service. He is a recipient of the Combat Action Badge. His DD Form 214 contains the following pertinent information: * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-40, chapter 4 * Block 26 (Separation Code) – JEB * Block 28 (Narrative Reason for Separation) – disability, severance pay, non- combat (enhanced) 10. The applicant provided evidence for the Board’s consideration. a. A college professor writes he is a liaison for Veterans on campus. The applicant was a student of his. He was able to get academic accommodations for him because of his PTSD. From his observation the applicant’s heightened anxiety and poor sleep patterns prevent him from attending scheduled classes. His anxiety, hypervigilance and reduced frustration tolerance are also a problem on campus. The applicant will leave the room missing portions of the instructions. However, some instructors have strict policies which can create a loss of points for him causing him to drop a class. He finds the applicant bright, hard-working and a diligent student, who gives every effort to his class. b. The applicant’s spouse states his PTSD interferes with their marital relationship. He has frequent nightmares causing him to wake up sweating, frustrated and aggressive. She states because of his nightmares they sleep in separate rooms. In social gatherings they leave early because crowds cause him anxiety and nervousness. She can tell he is having an episode when he begins to sweat heavily. His PTSD also interferes with his studies and attendance at school. c. A second professor writes he noticed the applicant began to slip during the semester. He had increased absences and missed assignments. During the semester he received notice that the applicant met the criteria for students with disabilities and was entitled to certain accommodations such as sitting near the exit door, additional time for assignments and test taking, and excused absences. He also showed signs of extreme anxiety when he had to give presentations in the class. He finds the applicant a bright and talented student but his disability impacts his ability to function. d. His licensed clinical social worker wrote the applicant sought treatment for PTSD upon the request of his wife. He said he had been struggling with PTSD prior to his arrival at the Warrior Transition Battalion. He sought assistance from Military and Family Life Counselors’ because he was afraid if he sought medical treatment at behavioral health he would lose his military career. She described his sleeping pattern to include sleep walking, nightmares and hypervigilance and that he had grabbed his wife by the throat during his sleep. Further, he has difficulty being around people, loses his temper quickly and is always on guard. He did not like to go places with his wife because he has intrusive memories and feelings from his deployments. She assured him that his reactions were normal, but said he did need more work on his PTSD conditions. e. He provided progress notes from his clinical encounters at the VA for his treatment of PTSD. These medical records were reviewed by the Army Review Boards Agency (ARBA) psychologist and incorporated into his medical advisory opinion. 11. On 13 March 2018, the ARBA psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant did not meet medical retention standards for low back pain and upper back strain as defined in the applicant’s formal PEB [that was conducted jointly with the VA under the provisions of the Integrated Disability Evaluation System]. a. While not shown in the MEB Narrative Summary, the ARBA psychologist had access to his electronic medical service treatment record. Those records revealed the following additional conditions: * adjustment disorder, unspecified * alcohol abuse * cannabis abuse * episodic cannabis abuse * obesity * obstructive sleep apnea b. His electronic medical record shows he had two visits for PTSD in 2015 and then 23 visits with medical providers for PTSD in 2016 prior to his discharge. The duration of the visits was from 15 November 2015 to 1 June 2016. On his discharge date he had yet to reach the medical readiness decision point for PTSD. c. The PEB was aware of his PTSD with the board having an earlier psychological evaluation for the PEB. It appears the PEB examiner relied on notes from January 2016 to reach the conclusion that PTSD was not interfering with his work and that his PTSD met retention standards. The medical note of 1 June 2016 was consistent with the notes from January 2016. He did have PTSD, but it did not interfere with his normal activities (while on active duty). d. The applicant is currently rated at 90 percent service-connected as shown on the VA Joint Legacy Viewer. His VA problem list includes unspecified PTSD as of 17 February 2017. His VA records did imply the applicant’s PTSD was worse that at the time of his discharge on 4 July 2016. e. His medical conditions, including PTSD, were duly considered during the disability evaluation system by both the VA and the Department of the Army medical providers and examiners. Notwithstanding the applicant’s argument, a review of the available documents found insufficient evidence of an additional medical disability or conditions which would support a change to the reason for his discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 13 March 2018 and given an opportunity to submit comments. He responded by stating it is important for him to provide his point of view and why he applied to the Army Board for Correction of Military Records. a. He states he started experiencing PTSD symptoms long before his assignment to South Korea. When he arrived at the Warrior Transition Battalion he informed the medical personnel that he felt he had issues with PTSD and that he wanted to work on them as well as claim PTSD on his medical board. He was provided with psychological counseling and treatment but was informed that he would not be able to get a rating since there was no record of treatment for a prolonged period of at least 6 months. b. He explained to his provider that he had been dealing with it for several years through Military Life and Family Counseling. He tried to talk to behavioral health professionals in 2012 after his deployment to Afghanistan. After his return, he had a panic attack during a unit formation and was seen in behavioral health where a provider told him he was fine. That’s when he started seeing someone at Military Life and Family Counseling. He used their services for the remainder of his career until he entered the Warrior Transition Battalion. c. A new provider explained that his previous program kept no records and he would have to start working on his PTSD at the battalion, which he did after an outburst on New Year's Eve. He worked with his provider for 4 months but unfortunately his MEB was finalized before he was able to submit his rating change for PTSD since he still required two more months of treatment. At least this is what he was told by the medical providers and his chain of command. He claims if he had been allowed to complete 2 months of treatment while in the Army he would have been rated for PTSD and his back injury. d. He then addresses specific details of the advisory opinion he disagrees with such as dates of treatment between 15 November 2015 to 1 June 2016. He was officially out of the Army on 4 July 2016. He started his transition leave on 4 June 2016 and was heading home. To him these dates seem wrong. He never indicated he was ready to leave the Army nor does he have a commercial driver’s license. He states, “I think that the lack of attention and willingness to enter false data on my AHLTA (sic) [Armed Forces Health Longitudinal Technology Application] notes…is one of the reasons why my case was handled as such.” e. While in the Warrior Transition Battalion he had no work so how could his PTSD interfered with his work? He then points out he had strong NCOERs which is a good way to judge him as a person and Soldier. His depression and anxiety he experienced at the battalion led him to some of the lowest points in his life. He was addicted to opioids and had gained 40 pounds. He was truly affected by PTSD and it should be ratable. f. He concludes by disagreeing with the advisory opinion. He was advised to provide evidence for the Board’s review to support his contentions that PTSD greatly impacts his life while in the military and then post-service. He has provided the evidence he believes that is sufficient to warrant changing his record to show his PTSD was rated and found to not meet retention standards under the Integrated Disability Evaluation System. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, medical concerns, the medical advisory opinion and his rebuttal were carefully considered. The applicant was separated due to physical disabilities. Amongst his medical conditions considered for fitness during his PEB was PTSD. His PTSD was not determined an unfitting disability during the PEB. He contends, in effect, his PTSD should have been an unfitting condition and that he should receive an addition disability percentage as a result. Based upon the preponderance of evidence, and the medical advisory, the Board determined there is insufficient evidence to grant relief as the severity of his PTSD was fully considered during the PEB process. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code (USC), 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 PDES 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 (Disability Evaluation System (DES)) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board, when they are command-referred for a fitness-for-duty medical examination, and or they are referred by the U.S. Army, Human Resources Command (HRC). c. The PDES assessment process involves two distinct stages: The MEB and the 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 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 are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. d. 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. Department of Defense (DoD) Technical Manual (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the technical manual were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly- initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office 3. Army Regulation 40-501 (Standards of Medical Fitness) Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. a. Paragraph 3-33 states for anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to an MEB if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. c. Paragraph 3-39h states for low back pain/Piriformis syndrome (chronic) that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity, a Soldier can be referred to a MEB. Range of motion measurements should be obtained using a goniometer and Standard Form 527 should be used to document the measurements and method of measurement. The VA instructions will be used to complete the spine and joint evaluations which includes the six measurements shown on the VASRD Plate V range of motions of cervical and thoracolumbar spine. 4. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. Chapter 4 provides guidance on referring Soldiers for evaluation by a MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 5. 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 less than 30 percent. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of 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 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 ----NOTHING FOLLOWS---- ABCMR Record of Proceedings (cont) AR20180002791 11 1