BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180013324 APPLICANT REQUESTS: Reconsideration of his previous request for retirement due to physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Neurology Consult Report, dated 18 June 2016 * VA Progress Notes, dated 24 August 2017 * VA Progress Notes, dated 1 September 2017 * 7-page self-authored statement * Office of the Under Secretary of Defense memorandum, dated 25 August 2017, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment * email from the Colorado Technical University, dated 24 January 2018, pertaining to the applicant's request for special accommodations * Standard Form (SF) 600 (Chronological Record of Medical Care, dated 15 November 2013 * SF 600, dated 8 April 2015 (pages 7,8, and 13 of 13 * SF 600, dated 11 May 2015 (pages 3,4 and 5 of 5) * SF 600, dated 5 June 2015 * VA Progress Notes, undated, printed on 2 May 2018 FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. In 2014, the applicant suffered a severe injury. He was hit by a gun turret while in a training mission. He was knocked out for 20 minutes and requested to go to the hospital but his noncommissioned officers would not permit him to, rather, a medic provided ibuprofen and he continued his training. Additionally, he suffered from various forms of harassment, causing him to suffer from various depressive and anxious symptoms up until the present day. During his time of service, the applicant reported his head and brain injury to a counselor. After his discharge, he sought out a mental health examination and was treated for his depression and anxiety in 2016. b. The applicant's chain of command made a material error of fact regarding his discharge from the United States Army. Although recognizing and treating post- traumatic stress disorder (PTSD) in our fighting force has become a priority for the military today, the American Psychiatric Association did not recognize PTSD as a legitimate psychological disorder until 1980. Further, it was not until 2009 that the armed forces promulgated guidance regarding the recognition and treatment of PTSD. The applicant was honorably discharged in 2015, and at the time, the United States Army was not able to fully recognize and distinguish the symptoms of PTSD that he experienced. It is respectfully submitted that the applicant should be processed through the Medical Evaluation Board (MEB) process in pursuit of medical retirement from the United States Army. c. The Applicant suffered from PTSD at the time of his discharge in 2015 even though medical professionals were unable to properly diagnose him at the time. He attended multiple doctor appointments and was hospitalized for 3 days due to this mental condition. Additionally, his medical records indicate feelings of depression, anxiety, and nightmares during doctor visits while on active duty. Presently, he suffers from anxiety attacks, continued nightmares, suicidal ideations, and struggles with integration into society from his time with the United States Army. He has nightmares about his commanding officer screaming at him during training sessions and will hear his voice during panic attacks on a daily basis. d. While the applicant has been diagnosed with depressive and dysthymic disorders, it was not until 2016 that he showed extreme symptoms of PTSD. Medical records dating back as far as 2016 indicate that he reported symptoms of depression. Additionally, in 2016, he was hospitalized for a 72-hour mental health hold. The applicant, due to his PTSD, experienced homicidal ideations due to the flashbacks he was experiencing from events that occurred between himself and his commanding officer. e. In August of 2017, the Office of the Under Secretary of Defense release a memorandum in which it listed a multitude of factors in which a medical review board can consider for individuals who suffer from PTSD that was not diagnosed during their time of active service. For example, the memorandum states that evidence may include episodes of depression, anxiety without an identifiable case, and unexplained social behavior changes. His medical records demonstrate that he suffered from a variety of conditions that trace to the factors listed in the memorandum. He struggles on a daily basis to function with individuals in public. For example, he began taking college-level courses after his discharge. During this time, he struggled to participate in class, felt as if others were constantly belittling his classroom performance. Due to these mental health concerns, his university approved him for accommodations during tests, and created an individualized plan to aid him in the classroom. f. It would be unreasonable to expect the applicant's chain of command to know in 2015 that he was suffering from PTSD, but in hindsight this is clearly the case. The material error of fact is further demonstrated by his discharge in 2015 where the reason for his discharge is "disability". It was not possible for the chain of command to properly categorize this disability and rule him unfit for continued service because they were unable to recognize the PTSD that he suffered from during his active service. The applicant, after reporting these symptoms, was unable to recognize that he had PTSD due to the lack of education regarding these symptoms and the lack of information provided to service members regarding their mental health. g. The applicant completed 3 months and 18 days of foreign service in Korea. After his foreign service, he enlisted with the United States Army in 2012. However, as a foreigner who was not born in the United States, he struggled with language barriers, cultural differences, and hazing from other service members in his squadron. He still presently suffers from the harassment that he endured throughout his time in the United States Army. His depressive disorder was not diagnosed until after the completion of his time in the United States Army came to a close, but he struggled to report his mental health concerns to officers due to this harassment that he experienced. It was not until 8 April 2015 that he began to speak to medical examiners regarding his feelings of depression and anxiety. He reported suicide attempts and constant feelings of depression. Because the military did not create a protocol to detect signs of PTSD until 2017, his chain of command was not able, at no fault to them, to properly assess and recognize the symptoms he experienced throughout his 3 years of service with the United States Army. h. The applicant's medical records from 2013 and 2016 demonstrate that his medical issues were incurred in the line of duty and were not a result of his misconduct. The only question that remains is whether he would have been found fit for duty by an MEB at the time. As such, it is respectfully submitted that the applicant should be processed for an MEB in order to prove that his PTSD and mental and physical symptoms were significant enough to find him unfit for continued service in the United States Army. i. In addition to the PTSD, the applicant still suffers from the lingering effects of the traumatic brain injury (TBI) he sustained in training and mental health issues. He underwent an MRI on 23 December 2015 at Evans Army Community Hospital on Fort Carson, Colorado. His concussion occurred approximately five to six weeks earlier, but he was still suffering from dizziness while running, trouble sleeping, visual changes, and daily headaches. Although the medical providers found that there were no lingering effects of the TBI, he continues to deal with memory loss issues, headaches and migraines, and difficulty concentrating. These symptoms have exacerbated his depression and anxiety that were first diagnosed while he was serving as a Soldier. He was diagnosed with persistent depressive disorder in July 2015, which he is 50 percent disabled for. His struggles with his mental health were evident during his service, during which he had two instances of suicidal ideations, once in 2013 and once in 2015. Although his mental health issues arose prior to his TBI, the lingering effects of the TBI have exponentially multiplied the severity of his depression and anxiety issues. As such, both his TBI and his mental health issues should have been thoroughly reviewed by an MEB prior to his discharge from the Army in November 2015. j. Material Injustice. The applicant still suffers from numerous ailments to this day. In accordance with the VA's metric, the applicant is 70 percent service connected for dysthymic disorder, 70 percent for persistent depressive disorder with anxious stress (adjustment disorder/sleep disturbance), and 50 percent for sleep apnea syndrome. He struggles on a daily basis with his home life, including the care of his wife and his son. He struggles to sleep at night and during the day finds himself extremely anxious when attempting to complete daily activities. He was not diagnosed with depressive disorder until a day after his completion of service with the United States Army. However, he experienced symptoms of depressive disorder and continues to experience the symptoms to this day. Additionally, it was not until 2016 that doctors began to assess him for signs of PTSD. k. The Applicant served with the United States Army for over 3 years. As an M1 armor crewman, he served in a designated imminent danger pay area. He has suffered from this condition for many years and now prays for relief in the form of a medical retirement. He sacrificed his mental health for the good of the United States Army through his years of training and deployment to Kuwait. He was unfit for continued service at the time of his discharge because of his PTSD, mental health symptoms, and injuries sustained during various training procedures. To continue to deny him the opportunity to be awarded his medical retirement would be a prima facie case of material injustice. l. Conclusion. In light of the facts and arguments presented herein, it is respectfully submitted that the applicant should be directed to undergo an MEB and Physical Evaluation Board (PEB) in order to determine if he should be medically retired from the United States Army, retroactive to 9 November 2015. His military records demonstrate the long-term symptoms that he has suffered from since his time in the military, despite the failure to diagnose his dysthymic disorder, depressive disorder, and sleep apnea at the time of his discharge. He was discharged honorably for his years of dedicated service without a proper diagnosis, treatment, or process for medical retirement. Further, he presently suffers from depressive disorder and sleep apnea after his many years with the United States Army and seeks the opportunity to be heard through the MEB process. 3. 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 AR20160006243 on 20 March 2018. 4. The applicant enlisted in the Regular Army on 9 October 2012. He was awarded military occupational specialty (MOS) 19K (M1 Armor Crewman) upon completion of initial entry training. 5. The applicant served in Kuwait from 11 July to 28 October 2013. 6. On 10 February 2015, the applicant was issued a temporary physical profile for depression and recurrent suicidal ideation. On 27 March 2015, he was issued a second temporary physical profile for suicidal thoughts due to anxiety and depression. 7. On 9 July 2015, the applicant's commander completed a DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) pertaining to the applicant. The commander mentioned the applicant's physical limitations, such as unable to sit longer than 2 hours, no lifting over 15 pounds, no push-ups or sit-ups. The commander did not indicate that there were concerns regarding the applicant's behavioral health (BH). The commander recommended his separation from the Army based on his inability to perform duties to standards. 8. On 28 September 2015, the applicant was issued a permanent physical profile based on a diagnosis of thoracolumbar arthritis with muscle pain [L3] and sleep apnea. The physical profile issuing physician indicated the applicant required an MEB. 9. On 28 September 2015, and MEB diagnosed the applicant with degenerative arthritis of the thoracolumbar spine with myofascial pain, which was medically unacceptable per Army Regulation 40-501 (Standards of Medical Fitness). The MEB also diagnosed the applicant with the following medical conditions which were deemed to meet retention standards: * persistent depressive disorder with anxious distress * cervical strain with decreased lordosis * left knee patellofemoral pain syndrome * TBI * obstructive sleep apnea * tension headaches and migraine, including migraine variants * internal hemorrhoids, skin tags * right and left dry eye syndrome and allergic conjunctivitis * latent tuberculosis * allergic rhinitis * normal hearing with subjective tinnitus * right fourth metacarpal fracture prior to military, normal range of motion 10. The MEB recommended the applicant's referral to a PEB. 11. On 14 October 2015, the applicant indicated he did not agree with the MEB's findings and recommendations and submitted an appeal. In his appeal, he requested that the diagnosis of persistent depressive disorder with anxious distress be found to fail medical retention standards. The applicant's MEB counsel stated the following: [The applicant] has been issued temporary profiles for the BH concerns in the past. He attaches two of these to this appeal. The provider who issued these profile expressed concern over suicidal ideations. Currently, the Soldier is in treatment for his depression. He believes that his limitations due to the depression and suicidal ideations should cause this condition to fail medical retention standards. 12. On 14 October 2015, the MEB/Integrated Disability Evaluation System (IDES) Clinical Psychologist and the MEB Appellate Authority addressed the applicant's appeal. They determined the following: a. In evaluating the applicant's rebuttal, the examiner gave careful consideration to the information provided by the applicant including his temporary profiles for depression and recurrent suicidal ideation from February and March 2015. Additional records were reviewed including the VA Initial Mental Disorders Compensation and Pension (C&P) Examination, the MEB Narrative Summary (NARSUM), and BH records in AHLTA (specifically AHLTA note from Embedded Behavioral Health on 7 October 2015). b. The VA Initial Mental Disorders C&P examiner (27 July 2015) diagnosed the applicant with persistent depressive disorder with anxious distress. The VA Initial Mental Disorders C&P examiner concluded he would experience occupational and social impairment with reduced reliability and productivity. This was noted by the MEB physician in the NARSUM. c. In the commander’s statement (9 July 2015), the commander did not recommend the applicant be retained in military service due to impairment and limitations in duty from his medical conditions. The commander focused on the applicant's physical limitations and did not report any significant impairment or limitation in duty due to a BH condition. This was noted by the MEB physician in the NARSUM. d. The applicant did provide copies of his temporary profiles from February and March 2015 recommending limitations in duty due to depression and suicidal ideation. A review of the record shows he has not been on a profile with duty limitations for BH conditions since June 2015. This was noted by the MEB physician in the NARSUM. e. There is documentation in the record in the discharge note from May 2015 that the applicant denied he was suicidal and he was psychiatrically hospitalized for 2 days due to misunderstanding. This was noted by the MEB physician in the NARSUM. f. There is documentation in the record since the completion of the NARSUM that the applicant approached his therapist requesting a memorandum that he would fall below retention standards for a BH condition. According to this note, when his therapist informed him he would meet retention standards for his BH conditions, he began to argue and he was informed could obtain a second opinion. g. A review of the records does not show any significant change in the applicant's BH symptoms since the NARSUM was completed. The predominance of the evidence continues to support the conclusion of the NARSUM that the applicant's diagnosis of persistent depressive disorder with anxious distress per AR 40-501 would meet retention standards. 13. On 22 October 2015, an Informal PEB found the applicant unfit for continued military service for degenerative arthritis of the thoracolumbar spine with myofascial pain. The PEB recommended a disability rating of 20 percent and the applicant's separation with entitlement to severance pay. However, the PEB found the applicant fit for the following conditions: * persistent depressive disorder with anxious distress * cervical strain with decreased lordosis * left knee patellofemoral pain syndrome * TBI * obstructive sleep apnea * tension headaches and migraine, including migraine variants * internal hemorrhoids, skin tags * right and left dry eye syndrome and allergic conjunctivitis * latent tuberculosis * allergic rhinitis * normal hearing with subjective tinnitus * right fourth metacarpal fracture prior to military, normal range of motion 14. On 26 October 2015, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. He also elected not to request reconsideration of his VA ratings. 15. The DA Form 199 (Informal PEB Proceedings) contain the entries: * this case was adjudicated as part of the IDES * as documented in VA memorandum dated 21 October 2015, VA determined the specific Veterans Affairs Schedule for Rating Disabilities (VASRD) code to describe the Soldier's condition. The PEB determined the disposition recommendation based on the proposed VA disability rating in accord with applicable statutes and regulations 16. The applicant's DD Form 214 confirms he was discharged on 9 November 2015 by reason of disability of 20% with severance pay. 17. The applicant provided a 7-page self-authored statement, titled "My Daily Life is Hell" in which he narrates his journey from his time as a member of the Republic of South Korea Armed Forces to his enlistment in the U.S. Army and describes his daily struggles due to his service-connected disabilities. A copy of the complete statement was provided to the Board for their review and consideration. 18. During the processing of the applicant's previous case (AR20160006243), the Army Review Boards Agency (ARBA) Senior Medical Advisory provided a medical advisory opinion. The advisory found the applicant's medical conditions were duly considered during his separation processing. The ARBA's medical advisor also stated that a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, rating decision, or disability determinations for the discharge in this case. 19. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded and provided two self-authored statements. In his first statement, he stated he had a brain and neck MRI on 2 October 2017 and the primary diagnostic code indicated "abnormality, MD ATTN (medical attention) NEEDED." He sustained a brain injury in 2014 during a field exercise at Fort Carson, but never received treatment. He requests a review of his medical records so that, by getting a medical retirement, he can receive medical treatment in the future. 20. In his second statement, he stated he was providing new evidence consisting of medical findings of PTSD, an update on further evaluation that was conducted on his TBI, updates on his migraine condition, VA findings, his commander's assessment letter referring him to the MEB, command rehabilitative documentation, and letters from agencies that assisted me while on active duty. He also stated the following: It is well noted that I have presented concerns to agencies concerns about denial to attend sick call, seek medical treatment and make scheduled medical appointments. My concerns were minimized in order to deploy me or include me in unit field operation. My Army records did not contain any records for treatment that I was denied. The VA findings indicate further limitation and behavioral health issues after I was at liberty without hindrance to seek help. In your decision, please consider the potential of acts of discrimination, bullying and coercion I endured to the point that I actually felt fearful to go forward and formally report. Nonetheless, the VA findings were absent of discouraging factors. Please reconsider your decision with this in mind. My behavioral health record documents my encounters with the hindrance I've mentioned above. 21. The ARBA Medical Advisor provided the following opinion upon review of the available records in this case: a. The applicant met medical retention standards for Persistent Depressive Disorder and TBI at the time of his medical separation. On 28 Sept2015, the Medical Evaluation Board (MEB) determined degenerative arthritis of the thoracolumbar spine with myofascial pain did not meet retention standards. The MEB determined his TBI and Persistent Depressive Disorder with Anxious distress met retention standards. He appealed the MEB findings and on 14 Oct 2015, The MEB Psychologist and MEB Appellate Authority determined TBI and Persistent Depressive Disorder met retention standards and forwarded the MEB recommendations to the Physical Evaluation Board (PEB). The PEB also found him fit for duty with respect to BH diagnosis and TBI in addition to other physical conditions and recommended a disability rating of 20 percent. The applicant is rebutting the original medical advisory and asserting he did not receive treatment after a head injury in 2014 during a training exercise. TBI was reviewed by the MEB, MEB Appellate Authority and the PEB and determined to meet retention standards. A TBI evaluation in Feb 2016 found the severity of his previous head injury as mild. In Dec 2016, he completed a neuropsychological assessment. During this evaluation, he reported completing the English Second Language Program at Pike’s Peak Community College with As and Bs and intended to transfer to the University of Colorado in the Fall 2017. His BH diagnosis at the time was Major Depression and Psychosis. The neuropsychologist reported significant language barrier, emotional and psychological concerns “could easily account for the veteran’s cognitive difficulties with memory and focus.” He continues to experience anxiety and depression and some symptoms of psychosis. The provider concluded that “the applicant’s history of mild TBI/concussion is not likely playing a major role in his current level of functioning.” Neuropsychology testing completed at the University of Colorado, Colorado Springs did not identify any TBI impairment and recommended evaluation for PTSD. b. The applicant asserts a diagnosis of PTSD in the statement from his counsel. In the provider note from 8 April 2015, the provider reviewed symptoms for PTSD with the applicant. The applicant “reports nightmares related to old memories, nightmares have to do with wife sleeping with her ex-boyfriend, text messages and pictures that SM (service member) saw between his wife and her ex.” The provider diagnosed him with Anxiety, Adjustment Disorder with depressed mood, acculturation problem and marital problem. In an evaluation note from 5 September 2017, the provider indicated minor symptoms reported were associated with PTSD and a PTSD diagnosis is less likely. He diagnosed the applicant with Dysthymic Disorder and Sleep Disturbance. c. The applicant met medical retention standards for Persistent Depressive Disorder and TBI at the time of his medical separation. Both conditions were reviewed and considered by the MEB. Based on review of documentation, referral back to the MEB or PEB is not warranted or recommended. d. The applicant is 100% service connected for Dysthymic Disorder (70%), Sleep Apnea (50%), Degenerative Arthritis of the spine (40%), migraine headaches (30%), and multiple other physical conditions (0-20% each). e. It is acknowledged that the applicant has been diagnosed with and treated for Dysthymic Disorder at the VA and has a service-connected disability of 70%. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting at the time of separeation. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, medical records, and the character and reason for his separation. The Board noted the facts presented above. The Board noted that the PEB conducted through IDES found that he was unfit for retention due to degenerative arthritis of the thoracolumbar spine with myofascial pain rated at 20% in accordance with the VASARD. The PEB found that his other conditions including persistent depressive disorder with anxious distress, TBI, and tension headaches and migraine were not unfitting. The PEB did not find through the IDES with VA rating at the time of separation that the applicant had 30% or more disability that would qualify him for disability retirement. The applicant was apprised of these findings and determination to which he agreed. Subsequent degradation in any of these conditions after separation does not invalidate the findings at the time of separation. 2. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 3. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s disability separation with severance pay for 20% disability at the time of separation, found no basis for clemency, and found that relief is not warranted. 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. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Physical 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 or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. The version dated 20 March 2012 states in: a. Paragraph 3-1 provides that 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. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. c. Paragraph 4-17 provides guidance for PEBs. It states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 2. Directive-type Memorandum (DTM) 11-015 explains the IDES. It states: 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 DOD and 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 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 requirements promulgated in DODI 1332.18 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. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA C&P standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Board of Correction of Military Records (BCMR) procedures of the Military Department concerned, the former service member 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 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 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 desires to appeal a determination from the rating decision, the veteran 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 of jurisdiction. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent and 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 at less than 30 percent 4. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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) AR20180013324 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1