IN THE CASE OF: BOARD DATE: 25 January 2021 DOCKET NUMBER: AR20180008772 APPLICANT REQUESTS: * inclusion and rating of additional disabling conditions for physical disability retirement rating * determination that physical disabilities were caused by an instrumentality of war * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3349 (Physical Profile), dated 22 August 2003 * DA Form 3349, dated 5 February 2004 * Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Record of Proceedings, dated 5 January 2004 * DD Form 2807-1 (Report of Medical History), dated 3 May 2004 * DD Form 2808 (Report of Medical Examination), dated 3 May 2004 * Hillbrook Family Medicine Physical Examination Report, dated 27 October 2004 * Department of Veterans Affairs (VA) Rating Decision, dated 12 April 2005 * VA Decision Review Officer Decision, dated 11 October 2007 * Physical Disability Board of Review (PDBR) Record of Proceedings, dated 26 December 2017 * Deputy Assistant Secretary of the Army, Army Review Boards Agency letter dated 11 January 2018 * additional medical documents in excess of 270 pages FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was not allowed to present any additional medical conditions during his Medical Evaluation Board (MEB) proceedings as allowed by Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-10c. The MEB stated he could only be evaluated for his back injury and it would not consider any other disabling or unfitting conditions. b. The MEB and later the Physical Evaluation Board (PEB) as well as the PDBR did not rate all disabling medical conditions that affected him at the time of his discharge. He had disabling conditions that were evaluated prior to his discharge by the VA on 29 September 2004 and he was later rated as service-connected with a disability rating of 80 percent. c. The cause of the medical condition for which he was retired was a fall while carrying an All-purpose Lightweight Individual Carrying Equipment (ALICE) pack with approximately 60 pounds of military clothing and equipment in it during a foot march over uneven terrain at Special Forces Assessment and Selection March 2002. The ALICE pack should be considered an instrumentality of war because it is a materiel device designed primarily for military service and intended for use in such service at the time of his injuries that occurred in the performance of duty under conditions simulating war. d. He applied for re-characterization of his medical separation on 21 November 2016. The PDBR notice dated 11 January 2018 informed him the Board could not review medical conditions which were not included in the original PEB and that he needed to file an appeal with the ABCMR. 3. The applicant enlisted in the Regular Army on 13 August 1991 and was awarded MOS 31B (Military Police). 4. A DA Form 3349, dated 22 August 2003 shows: * the applicant received a permanent physical profile rating of “3” for upper and lower extremities due to back pain post surgery * his assignment limitations were no running, road marching, swimming, push-ups, sit-ups or wearing a backpack * he could lift up to 45 pounds and walk at own pace and distance 5. MMRB Record of Proceedings, dated 5 January 2004, shows: a. The applicant appeared before an MMRB on 13 November 2003 based on his 22 August 2003 permanent physical profile rating of “3” for his upper and lower back. He was then currently performing administrative duties related to his MOS as the operations noncommissioned officer at the unit level. It was his commander’s evaluation that the applicant could not meet worldwide field assignments and that he was very limited in his ability to perform most physical activity. His commander did not envision the applicant able to wear or used his helmet, load bearing vest, flak vest or protective mask in the future. b. Doctor C____ C____, U.S. Army Health Clinic, Fort McPherson, GA, Medical Officer, stated the applicant received his permanent physical profile rating of “3” in August 2003, for injuries he previously sustained to his back while attending the Special Forces Assessment Course. He since had surgery to stabilize and improve his back complications. His physical profile was such that he could not do push-ups, sit-ups, 2.5 mile walk, or swimming. c. The MMRB recommendation based on the applicant’s physical ability to perform in his primary (P) MOS or specialty and his capability to perform the duties of his office, grade and rank under worldwide field conditions were referral to an MEB and PEB for further review of his medical condition. 6. A DA Form 3349, dated 5 February 2004 shows: * his physical profile rating of “3” for upper and lower extremities, due to spondylolisthesis L5-S1 and fusion L5-S1 with some radiculopathy remained unchanged * his assignment limitations remained unchanged * he was recommended for an MEB 7. A DD Form 2807-1, dated 3 May 2004, shows the applicant indicated on the form a number of conditions he currently had or had in the past, including: * bronchitis * hay fever * ear, nose, or throat trouble * impaired use of arms, legs, hand, or feet * swollen or painful joints * knee trouble * frequent indigestion or heartburn * skin diseases * depression or excessive worry * numb hands and feet in cold * wrist pain 8. A DD Form 2808, dated 3 May 2004, shows: * the applicant underwent a physical examination on the date of the form for the purpose of an MEB * his listed abnormalities were spine, other musculoskeletal and neurologic * he was recommended for an MEB based on chronic severe recurrent lower back pain and spondylolisthesis * his physical profile rating was “3” in lower extremities 9. The applicant provided a Hillbrook Family Medicine Physical Examination Report, dated 27 October 2004, a complete copy of which has been provided for the Board, which states, in pertinent part, he had a history of the following conditions: * bilateral shin splints since 1996 * bilateral chronic knee condition secondary to back condition since 2002 * bilateral hip condition secondary to back condition since 2003 * chronic right shoulder condition since 2002 * spondylothesis with bilateral leg radiculopathy since 2002 * allergic rhinitis since 1997 * gastro esophageal reflux disease since 2002 10. The applicant’s MEB and PEB documentation, to include MEB Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) and DA Form 199-1 (Formal PEB Proceedings) are not in his available records for review nor have they been provided by the applicant. 11. Headquarters, Fort McPherson, , dated 15 October, show the following: a. The applicant was honorably discharged effective 30 December 2004 due to physical disability with a rating of 10 percent. b. His disability was not based on injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law. c. His disability did not result from a combat related injury. 12. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 30 December 2004, due to disability with severance pay after 13 years, 4 months, and 18 days of net active service. 13. A VA Rating Decision, dated 12 April 2005, shows based on an original disability claim received on 16 July 2004, prior to his discharge, the applicant was granted a service-connected disability for the following conditions with the following disability ratings effective 31 December 2004: * right and left shin splints, 0 percent * right knee strain, 10 percent * left knee strain, 10 percent * degenerative joint disease, right hip, 10 percent * degenerative joint disease, left hip, 10 percent * chronic right shoulder strain, 10 percent * degenerative disc disease, lumbar spine L5-S1 with spondylolisthesis L5 on S1 with L5-S1 laminectomies, 20 percent * bilateral tinnitus, 0 percent * allergic rhinitis, 10 percent * gastroesophageal reflux disease, 0 percent * left ankle strain with distal lateral tibial sclerosis, 10 percent * chronic right ankle strain, 0 percent * scar residual left hip bone graft harvest, 10 percent * scar residual lumbar fusion, 10 percent 14. Based on a Notice of Disagreement from the applicant on 28 February 2006, a VA Decision Review Officer Decision, dated 11 October 2007 shows: * his evaluation of bilateral tinnitus, which was previously rated at 0 percent disabling, was increased to 10 percent effective 31 December 2004 * his evaluation of chronic right ankle strain, which was previously rated at 0 percent disabling, was increased to 10 percent effective 31 December 2004 15. A PDBR Record of Proceedings, dated 26 December 2017 shows: a. The applicant applied to the PDBR contending his back condition, rated at 10 percent for his physical disability discharge, should have been rated at 40 percent based on the fact that flexion of the thoracolumbar spine of 30 degrees or less regardless of pain is a disability rating of 40 percent. b. According to the service treatment record (STR) and the MEB NARSUM, the applicant underwent back surgery with fusion of L4-S1 in September 2002 for grade Il/lV spondylolisthesis (forward sliding of one vertebrae over the lower one). Following the surgery, the Cl was on profile but the back pain persisted although leg pain had resolved. At an 18 June 2003 neurosurgery visit the applicant reported that he had fallen during an exercise and began having pain down both legs with dysesthesias (unpleasant, painful sensations) to the lateral aspect of the feet. Lumbar spine X-rays the same day showed a persistent significant spondylolisthesis at L5-S1. On 1 July 2003 follow-up flexion and extension X-rays showed incomplete fusion. At a February 2004 primary care visit, the Cl reported back pain and a change in gait. The examiner noted the applicant appeared uncomfortable and had a waddling gait. A 17 March 2004 primary care visit the applicant reported increased low back pain without radiation to the legs. c. At the 3 May 2004 physical therapy (PT) back ROM evaluation, 8 months prior to separation, flexion was 15 degrees (examiner normal 80, VA 90), extension 5 degrees (examiner normal 20, VA-30) and left and right lateral flexion 5 degrees (examiner normal 35 bilaterally, VA-30). The examiner noted that he used an inclinometer to assess ROM. The Cl's active ROM was severely limited by pain. d. During the 3 May 2004 MEB examination (recorded on DD Forms 2807- 1 and 2808), 8 months prior to separation, the examiner recorded that the applicant had grade 6-7/10 back pain radiating to the hips and thighs bilaterally. Pain increased with cold, standing, sitting, changing positions, driving, walking greater than 45 minutes or lifting greater than 35 pounds. Physical examination showed a wide based, antalgic gait. There was midline lumbar tenderness and bilateral spasm. Back ROM measurements were 20 degrees of flexion (normal 90) and 80 degrees of total combined ROM (normal 240). Motor strength was graded 2/5 in the bilateral lower extremities, sensation was decreased in the right foot, but reflexes were normal. e. The MEB NARSUM, dated 18 May 2004, 7 months before separation, noted complaints of low back pain that radiated to the buttocks and thighs bilaterally (left worse than right). The applicant’s pain increased with prolonged walking, standing or going up and down stairs. The applicant denied bowel or bladder dysfunction. The 12 April 2004 physical examination, 9 months prior to separation, showed that the applicant walked slowly. There was mild tenderness, and "obvious decreased ROM in the lower back," without ROM measurements recorded. Straight leg raise testing to elicit radicular symptoms was positive at 30 degrees bilaterally. Lower extremity reflexes were normal, but motor strength and sensation were not recorded. f. A 24 May 2004 primary care visit, 7 months before separation, the applicant reported increased low back pain for several days without radiation down both legs. A lumbar MRI on 25 May 2004 showed surgical hardware and persistent grade Il spondylolisthesis at L5-S1 with high grade foraminal narrowing, left more than right. On 31 August 2004 a computed tomography myelogram showed the grade Il spondylolisthesis without definite nerve root contact, but with clumping of the lumbar nerve roots at L5-S1, consistent with arachnoiditis. On 8 September 2004, the neurosurgeon indicated that the CT showed resorption of the surgical fusion. He noted the applicant had poor ROM due to his fusion and chronic pain due to nerve injury. He also recommended a second opinion for consideration of further spine surgery. g. At the 29 September 2004 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the applicant reported constant 7/10 low back pain that radiated to the outside of his hips and down into the buttocks. The pain was elicited with physical activity and stress. The applicant reported six incidents of incapacitation totaling 12 days within the past year, but the examiner indicated that the physician who recommended bed rest was the initial spine surgeon in September 2002, which was well outside the 12 month window. The applicant reported that at the time of pain he could sometimes function, but at others he could not and medication decreased, but did not eradicate the pain. Physical examination showed a normal gait. There was lumbar tenderness and spasm. Thoracolumbar (TL) ROM testing showed forward flexion of 30 degrees and combined TL ROM of 105 degrees. The examiner noted pain with flexion and extension movements. There was no radiating pain with movement. There was no additional limitation due to fatigue, weakness, lack of endurance or incoordination. Provocative tests to elicit radicular pain were negative bilaterally and motor strength, reflexes and sensation were all normal. There was no ankylosis of the TL spine and there were no signs of intervertebral disc syndrome present. Lower extremity strength, sensation, and reflexes were normal. h. The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10 percent, coded 5241 (spinal fusion), citing "thoracolumbar ROM limited by pain, with localized tenderness" and "without neurologic abnormality." The VA rated the back condition 20 percent, coded 5239 (spondylolisthesis or segmental instability), based on the C&P examination 3 months before separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees. i. The panel agreed that a 40 percent rating was justified for limitation of flexion not greater than 30 degrees as reported on the PT, MEB, and VA examinations. Although the applicant had a complex spine condition with radiating pain to the lower extremities, there was no evidence of incapacitating episodes which required physician-prescribed bed rest within the 12 months before separation, or in the period up to the VA examination to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes. After due deliberation, considering all of the evidence and mindful of VASRD section 4.3 (reasonable doubt), the panel recommends a disability rating of 40 percent for the back condition, coded 5241. j. In the matter of the back condition, the panel unanimously recommends a disability rating of 40%, coded 5241 in accordance with VASRD section 4.71a. There are no other conditions within the panel's scope of review for consideration. The panel recommends that the applicant’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation 16. A letter from the Deputy Assistant Secretary of the Army, Army Review Boards Agency dated 11 January 2018, states the recommendation of the PDBR to re- characterize the applicant’s separation as a disability retirement with the combined disability rating of 40 percent effective duty date of his physical disability separation with severance pay was accepted. 17. A DD Form 215 (Correction to DD Form 214), dated 5 April 2018, amended the applicant’s above-referenced DD Form 214 to remove reference to physical disability discharge with severance pay and instead to show his permanent physical disability retirement. 18. An advisory opinion was provided by the U.S. Army Physical Disability Agency legal advisor on 6 April 2020, which states: a. The applicant successfully applied for re-characterization of his disability separation in 2016, wherein the PDBR re-characterized his 10 percent separation with severance pay to a permanent disability retirement with a 40 percent rating. The PDBR’s authority does not allow them to rate conditions not found as unfitting for continued military service but directed the applicant to seek relief from the ABCMR for any other conditions he felt should be unfitting and receive rating consideration. b. At present, the applicant seeks to have those conditions rated by the VA added as compensable conditions under the Department of Defense Disability Evaluation System. However, the VA applies ratings based on service-connection, not on the service member’s ability to perform military duties. The record, including the applicant’s MEB, Commander’s Statement, and Physical Profile, supports the determination that the only condition that made him unfit for continued military service was his lower back pain. He has submitted no new evidence to counter that determination. In addition, he claims his lower back condition should be found combat-related. Again, the record does not support this claim. The historical medical record and line of duty make no note of the conditions under which the injury was sustained. The applicant offers only his current contention made well over a decade after the incident without offering any supporting evidence. c. Although the PDBR re-characterized the applicant's separation to permanent disability retirement, he has not provided any new medical evidence to substantiate an unfit finding for any of the condition(s) previously found as meeting medical retention standards. Only unfitting conditions are compensable. In addition, there is no evidence to support a combat-related determination. Due to the above, we find the applicant’s request to be legally insufficient and recommend no change to his physical disability determination. 19. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 19 May 2020, providing a self-authored rebuttal letter and two sworn statements, one sworn statement made by him and one by his wife. 20. The applicant states: a. He filed his appeal because his disabling conditions were not fairly adjudicated by the U.S. Army Physical Disability Agency (USAPDA). Throughout the PEB, the system acted to eliminate additional medical conditions from being part of the fitness determination for further service. The doctor who conducted his physical as part of the PEB did not conduct his examination as part of an impartial medical review as required by the regulation. Instead, this doctor only focused on his back pain to the detriment of his other disabling conditions. b. This is the reason he requested the disabilities and injuries identified by the VA prior to his discharge be considered as unfitting conditions. Since the APDA in the form of the PEB did not consider the additional unfitting disabilities he suffered during his time in service, he pleads with the Board to disregard the APDA’s determination of legal insufficiency. He further asks the board to consider the VA physical conducted two months prior to his discharge to demonstrate these unfitting conditions existed prior to his discharge and to consider the VA Rating Decision dated 12 April 2005 and the VA Decision Review Officer Decision, dated 11 October 2007 which show the extent of these unfitting and disabling conditions. c. He also argues that the APDA is incorrect when saying there is no evidence to support a combat-related determination. The fact is his back injury was sustained in the performance of duty under conditions simulating war. This injury was sustained while participating in Special Forces Assessment and Selection while navigating through wooded terrain as part of military training exercises. Additionally, he was carrying an ALICE pack with military equipment inside, wearing a load-bearing vest, and carrying a mock M16A2 rifle. d. While he would argue that an ALICE pack is a device designed primarily for military service, the ALICE pack was in use at the time of the occurrence of his injury and therefore that ALICE pack was an instrumentality of war. The fact is his injury is directly attributable to a fall he sustained while carrying a load of military equipment in that ALICE pack while performing duties under conditions simulating war and should be considered combat-related. The purpose of this field training, as he understood it, was to simulate war conditions moving from point to point to accomplish a military objective. He is supplying affidavits that demonstrate these facts. Aside from these affidavits, the facts are that these circumstances surrounding when his back injury began were submitted as part of his appeal and are in medical documentation as part of his PEB proceedings. These facts and evidence should be sufficient for a reasonable person to determine these injuries are combat-related. e. He appreciates the Board’s willingness to see this matter and provide an objective review of the evidence and facts that he feels the USAPDA did not and continues to fail to provide. Finally, he asks for an increase in his disability rating percentage and a change in characterization of his disability to combat-related based on the evidence he has provided. 21. In the applicant’s sworn statement he writes: a. In March 2002, he attended Special Forces Assessment and Selection at Fort Bragg, NC. During this time he was wearing full battle dress uniform, load bearing equipment, and carrying a mock M16A2 rifle. Additionally, whenever he was moving from point to point, he was carrying an ALICE pack, weighing between 40-60 pounds filled with his military clothing and equipment. b. At the end of the first week or start of the second week, he was navigating alone through wooded terrain in a field training environment in the performance of duty under conditions simulating war. He was carrying the aforementioned equipment when he slipped on a wet log, causing him to fall to the ground. Upon landing in an awkward position, he heard a pop which sounded to him to come from his back. His belief that the pop came from his back was further confirmed as his back began aching. Within 1 week he was dropped from the selection and returned to his home station at Fort McPherson, GA. He was later diagnosed with spondylolisthesis, began the MEB process, and was eventually medically retired for this disabling condition 22. In his wife’s sworn statement, she says she was married to and lived with the applicant in McDonough, GA throughout 2002. In March 2002, her husband traveled to NC to participate in Special Forces Assessment and Selection. He left fully healthy and returned with back problems. He related to her that he fell to the ground while conducting land navigation. This is when he told her his back problems started. He had surgery in September 2002 and was later medically retired in December 2004. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board further found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board concurred with the conclusion of the advisory official that, other than his back condition, the available records contain no evidence of additional conditions that limited his ability to perform his military duties. While several conditions now have service-connected ratings from the VA, the VA rates disabilities on the basis that they are service-connected, not on the basis of whether or not those conditions limit a Soldier's ability to perform his military duties. Based on a preponderance of evidence, the Board determined the applicant's disability evaluation properly captured the one unfitting condition and, as amended by the PDBR, was not in error or unjust. 3. The Board further concurred with the conclusion of the advisory official that there is insufficient evidence to support a conclusion that his disabling condition was caused by an instrumentality of war. The gear he was wearing when he fell is not so unique to military service that it can be considered an instrumentality of war, nor was the activity he described, essentially walking in the woods with a mock weapon and his gear, conducted in conditions that could be considered simulation of war. Based on a preponderance of evidence, the Board determined the finding that his disabling condition was not combat related was not in error or unjust. 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 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 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. 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 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. 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. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 (Combat-Related), covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 6. DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in general, covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live-fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. 7. Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 (Disability Evaluation System) (DES) currently in effect, defines armed conflict and instrumentality of war as follows: a. Incurred in Combat with an Enemy of the United States: The disease or injury was incurred in the LOD in combat with an enemy of the United States. b. Armed Conflict: The disease or injury was incurred in the LOD as a direct result of armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference (d). The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. Engaged in Hazardous Service: Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. d. Under Conditions Simulating War: In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. e. Caused by an Instrumentality of War: Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. 8. 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. 9. 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. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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) AR20180008772 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1