IN THE CASE OF: BOARD DATE: 7 May 2020 DOCKET NUMBER: AR20180005166 APPLICANT REQUESTS: in effect, an increase in his physical disability rating percentage from 20 percent to at least 30 percent, enabling physical disability retirement in lieu of physical disability discharge with severance pay in order to apply for combat related special compensation (CRSC). The applicant also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 1 page of a Department of Veteran Affairs (VA) Rating Decision * Orders * Partially redacted Revised Physical Evaluation Board (PEB) Proceedings * Physical Disability Information Report * 1 page of DA Form 3947 (Medial Evaluation Board (MEB) Proceedings * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Medical documents FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070008249 on 8 January 2008. 2. The applicant states, in part, he received a 20 percent disability rating from the Army; however, his disability rating should have reached the 30 percent threshold. His post- traumatic stress disorder (PTSD) and chronic back degenerative disc disease should have rated higher. He should receive a medical retirement based on service-connected issues. He has always wanted to retire from the Army. He doesn’t understand why he only received a 20 percent disability rating. He's aware of other Soldiers who received a 50 percent rating just for PTSD. His chronic back disease is forcing him to have surgery. He was under the impression he was being retired and not discharged. 3. On 16 February 2005, a MEB referred the applicant to a PEB due to mechanical low back pain and right ulnar nerve compressive neuropathy. It also shows that the MEB referred the applicant's case to a Physical Evaluation Board (PEB). 4. The PEB findings are not on file in the applicant's Official Military Personnel File (OMPF). However, a Physical Disability Information Report shows the applicant incurred combat-related injuries in the line of duty, rendering him unfit for further military service. It also indicates that he was to be discharged by reason of disability with severance pay through his assignment of separation program designator (SPD) code "JFL", and he was assessed a 10 percent disability rating. This document further showed that he was mentally competent. 5. The applicant provides partially redacted copy of a Revised PEB Proceedings, dated 8 March 2005. The form shows the applicant was found unfit due to chronic low back pain with a history of a motor vehicle accident in Iraq. This form indicates it is an administrative correction to the previously issued DA Form 199, dated 4 March 2005. The board recommended a 10 percent disability rating and separation with severance pay. 6. On 19 May 2005, the applicant was discharged on under the provisions of Army Regulation 635-40 ((Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3), due to Disability, Severance Pay. 7. On 8 January 2008, ABCMR denied the applicant's request for an increase of his disability rating. 8. On 27 August 2008, ACMBR informed the applicant his request for reconsideration of his previous ABCMR decision was denied because it was not received within one year of the original decision. 9. The applicant provides evidence showing, effective 20 May 2005, he is receiving 30 percent service-connected disability rating for cervical spine strain, including disc bulge and 20 percent for lumbar spine strain, disc bulge. 10. On 16 December 2010, the Deputy Assistant Secretary, Army Review Boards, informed the applicant the Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed his application and found his disability rating should be modified but not to the degree that would justify changing his separation for disability with severance pay to a permanent retirement with disability. She reviewed the board's recommendation and record of proceedings and accepted its recommendation. It would not result in any change to his separation document or the amount of severance pay. The decision was final. Recourse within DoD or the Department of the Army was exhausted; however, the applicant had the option to seek relief by filing suit in a court of appropriate jurisdiction. 11. On 3 April 2020, the U.S. Army Physical Disability Agency (USAPDA), Legal Advisor, provided an advisory opinion which states, in part: a. The applicant cites his VA rating for his chronic lower back injury less than a month after his disability separation from the military. The rating increase from 2011 was awarded by DoD PDBR, utilizing a different Veterans Administration Schedule for Rating Disabilities (VASRD) Code allowing for the higher rating. The VA rating the applicant was awarded for his cervical spine strain was not a condition which the PDBR considered in the determination to increase his rating. VA applies ratings based on service connection not on the service member's ability to perform military duties. b. Although he received an increased rating from VA and desires the Army to increase its rating. Only unfitting conditions are compensable. The applicant has not provided any new evidence to show this condition should have received a higher disability rating. The PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation. Due to the above, we find the applicant's request to be legally insufficient. 12. The applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 13. 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. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 15. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). 16. 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. 17. Title 38, U.S. Code, 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. 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 unfitting condition that resulted in his separation and the rating assigned, the review by the PDBR and subsequent increase in that rating, and the applicant’s VA ratings for service-connected conditions. The Board considered the distinct criteria for assignment of Army disability ratings for unfitting conditions and VA ratings for service- connected conditions. The Board considered the review and conclusion of the USAPDA advising official. The Board found insufficient evidence of additional unfitting conditions and insufficient evidence to support further increase of the disability rating for the applicant’s unfitting condition or to support a CRSC determination. Based on a preponderance of evidence, the Board determined that the applicant’s current Army disability rating is not in error or unjust. 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. 3. 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 :XX 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, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005166 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1