IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210007282 APPLICANT REQUESTS: reconsideration of his prior request for physical disability Retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Department of Veterans Affairs (VA) Rating Decision, dated 15 August 2019 * VA letter, dated 16 August 2019 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 AR20160015129 on 18 July 2019. 2. The applicant states: a. He is introducing a new medical record that documents clear and undeniable evidence of a significant increase in the level of severity of his in the line of duty (LOD), service-connected major depression disorder, now rated 70%, which the medical evaluation board (MEB) diagnosed as service aggravated post-traumatic stress disorder (PTSD), and its corresponding corrected date of onset to 17 November 2011. At the time of this date of onset, he was still on the Temporary Disability Retired List (TDRL). b. The new evidence presented is his VA Rating Decision, dated 15 August 2019, and the corresponding VA letter, dated 16 August 2019, both of which rebut the prior Board decision that there was no evidence of an increased severity in his disability that would have resulted in a change to his disability separation at the time he was removed from the TDRL. While on the TDRL, he developed a new condition or an old condition, that was not previously found unfitting, worsened. Conditions diagnosed in the TDRL examination that were not found to be unfitting in the original physical evaluation board (PEB) decision may be compensable when the condition is unfitting and the condition was wither caused by the condition for which you were placed on the TDRL or is directly related to its treatment or the evidence of record establishes the condition was incurred in the LOD prior to placement on the TDRL and was in fact unfitting at the time of placement. This is the case with him and his PTSD diagnosis. c. The VA Rating Decision of 15 August 2019 clearly disproves the PEB’s conclusion that his major depression disorder was permanent and stable at a 10% rating by both granting him an earlier effective date for his service-connection of major depressive disorder to 17 November 2011, while he was on the TDRL, as well as by increasing the rating to 70%. He does not believe the Board reviewed the 15 August 2019 VA Rating Decision in coming to their prior decision. 3. A National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) shows the applicant enlisted in the Florida Army National Guard (ARNG) on 6 August 1993 and was honorably released from the ARNG on 29 May 1997, after 3 years, 9 months, and 24 days of net service. 4. A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant subsequently enlisted in the U.S. Army Reserve (USAR) on 30 May 1997. 5. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty as a member of his USAR unit in support of Operation Iraqi Freedom on 7 February 2003. He served in Iraq from 13 April 2003 through 5 April 2004 and was honorably released from active duty due to completion of required active service on 3 May 2004, with transferred back to his USAR unit. He was credited with 1 year, 2 months, and 27 days of net active service this period. 6. Headquarters, 81st Regional Readiness Command Orders 05-006-00020, dated 6 January 2005, honorably discharged the applicant from the USAR effective 5 February 2005. A DD Form 4 shows the applicant again enlisted in the USAR 6 months later on 11 July 2005. 7. A DD Form 2807-1 (Report of Medical History), dated 24 October 2008, shows the applicant underwent medical evaluation on the date of the form for the purpose of Regular Army enlistment and indicated a history of asthma or breathing problems and bronchitis. He annotated being diagnosed with pulmonary restrictive lung disease in 2004 after his deployment to Iraq, for which the VA had awarded him 30% service- connected disability compensation. 8. A DD Form 2808 (Report of Medical Examination), dated 24 October 2008, shows the applicant underwent medical examination on the date of the form for the purpose of Regular Army enlistment and was found qualified for retention under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, with a physical profile rating of “1” in all categories. 9. The applicant enlisted in the Regular Army on 29 December 2008. 10. U.S. Army Human Resources Command (AHRC) Orders D-01-900062, dated 6 January 2009, honorably discharged the applicant from the USAR effective 28 December 2008. 11. A DA Form 3349 (Physical Profile), dated 21 January 2010, shows the applicant was given a permanent physical profile rating of “3” in the categories of P (Physical capacity or stamina) and S (Psychiatric) for difficulty breathing due to restrictive lung disease, obstructive sleep apnea, right hip pain, and PTSD, requiring an MEB. 12. A DA Form 3947 (MEB Proceedings), shows the following: a. A MEB convened on 20 May 2010, finding the following conditions failed to meet retention standards: * restrictive lung disease; approximate date of origin 2003; not existed prior to service (EPTS) * PTSD, chronic; approximate date of origin 1983; EPTS; permanently aggravated by service b. The following conditions were found to meet retention standards: * major depressive disorder, moderate, recurrent, with atypical features, in full remission * obstructive sleep apnea syndrome * right hip pain of unknown etiology * cold weather injury * left elbow dislocation * chronic lumbosacral sprain * degenerative joint disease right knee c. The applicant was referred to a PEB and on 1 July 2010, the applicant acknowledged having been informed of the approved findings and recommendation of the MEB and agreed with the findings and recommendations. 13. A DA Form 199 (PEB Proceedings), shows an informal PEB convened on 10 August 2010, with the following findings: a. The applicant was found unfit for restrictive lung disease, MEB diagnosis 1. This is not a battle injury or caused by an instrumentality of war and onset did not occur in a combat theater. While a member of the USAR in 1995, the applicant had chest pain and passed out, after which an x-ray showed a right upper lobe swelling. In March 2003, prior to deployment, he experienced shortness of breath and chest pain when running. He entered active duty on 29 December 2008 and on 30 July 2009 had a P3 profile for asthma. On 10 August 2009, he reported dyspnea since his return from deployment in 2004. Pulmonology found his pulmonary function studies consistent with mild restrictive lung disease. Condition is unfitting as he cannot wear the protective mask and chemical defense equipment or run/pursue suspects as required by his Military Occupational Specialty (MOS). b. PTSD, MEB diagnosis 2, was not unfitting and not rated. The applicant’s physical profile allowed him to carry and fire his assigned weapon. The Compensation and Pension (C&P) examiner noted the applicant does not meet criteria for a diagnosis of PTSD; however, the MEB determined the applicant had PTSD related to childhood abuse which was aggravated by military service. This condition was not commented on by his commander and the records do not reflect this condition has impacted his ability to perform his MOS. c. MEB diagnoses 3-9 meet medical retention standards. d. The applicant’s final disposition, be it separation without benefit, separation with severance pay, placement on the TDRL, or permanent disability retirement (PDRL) would be determined by the PEB upon receipt of the VA disability percentages and was pending. 14. A VA Disability Evaluation System (DES) Proposed Rating Decision, dated 10 November 2010, shows the VA recommended the following: a. For DES (Disability Evaluation System) purposes, a 50% evaluation was proposed for obstructive sleep apnea and restrictive lung disease (PEB referred as restrictive lung disease). b. For purposes of VA (Service-Connected Benefits), it was proposed to establish service-connection for the following conditions with the following ratings: * sleep apnea and restrictive lung disease, 50% * chronic lumbosacral sprain without evidence of radiculopathy, 20% * major depressive disorder (claimed as anxiety disorder, PTSD), 10% * right hip strain, 10% * status post dislocation of the left elbow, 10% * chronic right knee strain, 10% 15. A DA Form 199 shows a PEB convened on 21 January 2011, finding the following: a. The applicant was found unfit for restrictive lung disease with obstructive sleep apnea (MEB diagnosis 1). Obstructive sleep apnea was medically acceptable and not unfitting. The VA noted they are not allowed to separately rate co-existing respiratory conditions; however, based on the pulmonary function test, a 10% evaluation would have been provided for restrictive lung disease if they were able to rate separately; 10%. b. PTSD, MEB diagnosis 2, was not unfitting and not rated. The applicant’s physical profile allowed him to carry and fire his assigned weapon. The Compensation and Pension (C&P) examiner noted the applicant does not meet criteria for a diagnosis of PTSD; however, the MEB determined the applicant had PTSD related to childhood abuse which was aggravated by military service. This condition was not commented on by his commander and the records do not reflect this condition has impacted his ability to perform his MOS. c. MEB diagnoses 3-9 meet medical retention standards. d. The PEB found the applicant physically unfit and recommended a combined rating of 10 percent and that his disposition be separation with severance pay if otherwise qualified. 16. A DA Form 7652 (Commander’s Performance and Functional Statement), dated 2 March 2011, shows the applicant’s immediate commander indicated in his remarks that the applicant’s physical limitations and PTSD rendered him unable to perform his MOS functions, restricted him from deployment and participation in training, as well as limited him to a 12-hour work day. His obstructive sleep apnea prevented his deployment to austere environments and his restrictive lung disease prevented strenuous activity. 17. A USAPDA memorandum, dated 8 March 2011, shows the applicant’s case was returned to the PEB for reconsideration as he disagreed with the PEB findings and submitted an appeal packet with an updated Commander’s Performance and Functional Statement. The PEB found the applicant fit for PTSD, while the MEB found this condition did not meet medical retention standards. The PEB’s rationale for why this condition was not unfitting appears to be his physical profile allows him to carry and fire his assigned weapon and his commander did not indicate the condition interfered with the performance of his MOS. It is unclear how the PEB considered the applicant did not meet the criteria for a diagnosis of PTSD in this fitness determination. The PEB is to reconsider whether the applicant is unfit for one or more mental health disorders. 18. A third DA Form 199, shows the applicant’s case was informally reconsidered on 5 April 2011, coming to the same conclusions it arrived at in previous adjudications. a. The applicant was fund unfit for restrictive lung disease with a 10% rating, the applicant was unfit for EPTS PTSD with a non-compensable rating, and the additional MEB diagnoses were not unfitting. b. The PEB found the applicant physically unfit with a recommended combined rating of 10% and that his disposition be separation with severance pay if otherwise qualified. c. On 7 April 2011, the applicant indicated he had been advised of the findings and recommendations of the PEB and did not concur, but waived a formal hearing. He attached a written appeal. 19. A DA Form 18 (Revised PEB Proceedings), dated 25 May 2011, shows the following: a. The applicant was found unfit for the following conditions: * restrictive lung disease (MEB diagnosis 1); not a battle injury and not caused by an instrumentality of war, but did occur in a combat theater; EPTS; currently a 10 percent rating is supported but the VA rated this condition at 30% and a reduction based on any one examination is not allowed; 30 % * major depressive disorder; MEB found this condition meeting medical retention standards, however a history of mental health suggests he is vulnerable to significant mood or anxiety exacerbations in or out of the military; 10% * PTSD (MEB diagnosis 2); EPTS; unfitting based on risk to his health for future deployment and return to his MOS; he met the requirements for 0% rating because the condition was diagnosed, but symptoms were not severe enough to interfere with functioning or require continuous medication; because [the applicant’s] PTSD met the requirements for 0 percent and because the condition was found to be EPTS this was the clear and unmistakable evidence that there had been no permanent service aggravation; non-compensable b. MEB diagnoses 4-9 were not found unfitting. c. The PEB found the applicant physically unfit with a combined rating of 40% and that his disposition be placement on the TDRL with reexamination during November 2012. 20. A USAPDA memorandum to the applicant, dated 25 May 2011, informed him of an administrative change to his DA form 199, as reflected on the attached DA Form 18, showing his rating was changed to 40 percent. 21. U.S. Army Installation Management Command Orders 154-1001, dated 3 June 2011, released the applicant from assignment and duty because of physical disability incurred while entitle to basic pay. His effective date of retirement was 1 August 2011 and his placement on the TDRL was 2 August 2011, with a 40 percent disability rating. 22. A DD Form 214 shows the applicant was retired effective 1 August 2011, after 2 years, 7 months, and 3 days of net active service this period, due to temporary disability (enhanced). 23. A General Medical TDRL Summary, completed by the MEB/TDRL physician at Winn Army Community Hospital, Fort Stewart, GA, on 11 March 2016, shows the applicant’s restrictive lung disease (MEB diagnosis 1) no longer failed retention standards and was resolved. His obstructive sleep apnea was not fund unfitting or unstable, but the VA would not separate the ratings for the obstructive sleep apnea and the lung disease so he was rated for both at the time with reevaluation to occur in 18 months. A new diagnosis considered was low back pain, not due to the unfitting conditions; however, the applicant states he would be unable to perform military duties due to back pain. 24. On 17 March 2016, the applicant responded to the Winn Army Community Hospital TDRL Summary, stating his non-concurrence. a. He stated did not agree that his prognosis improved to permit full duty performance. During the reevaluation, he was not given a stress test which would have demonstrated the degree of his restrictive lung disease during exertion and his inability to perform his Army duties such as ruck marching, runs, combat maneuvering. b. He reiterated he did not agree with the PEB findings that his PTSD diagnosis was not service-connected and the MEB examining psychiatrists both concurred he met the criteria for PTSD and that is was EPTS but permanently aggravated by service, despite the VA’s diagnosis of his condition as major depressive disorder. 25. The Winn Army Community Hospital, MEB Physician responded on 22 March 2016, indicating the applicant’s rebuttal of his TDRL Summary was reviewed. He agreed it might be helpful to have the restrictive lung disease tested with exercise, the test was unavailable and he was doubtful it would make a difference in the retention determination. Any discussion of behavioral health diagnoses was out of his lane and a records review of the behavioral health conditions would be requested. There were no changed indicated in the TDRL summary. 26. On 21 March 2016, the applicant’s MEB Counsel provided a memorandum to the Winn Army Community Hospital rebutting the applicant’s TDRL evaluation, indicating the applicant had concerns with portions of the exam as well as some of the conclusions reached, requesting a thorough review of the examination report be conducted and that a new examination take place if necessary. 27. An advisory opinion was provided by an IDES psychiatrist to the U.S. Army PEB on 25 April 2016, after request was made to review the applicant’s medical records for behavioral health conditions. The medical provider/psychiatrist concluded the applicant should have been discharged from the military as his major depressive disorder did not meet retention standards and his PTSD likewise did not meet retention standards and was service aggravated. It was the provider's opinion, based on the applicant’s history, that his PTSD was erroneously considered EPTS and at the time of his separation in 2011 should have been considered not meeting retention standards and was incurred on active duty. Additionally, his condition has not improved and was not likely to improve enough to permit eventual return to duty based on his PTSD symptoms. 28. A DA Form 199 (Informal PEB Proceedings), shows the following: a. An Informal PEB convened on 12 May 2016, wherein the applicant was found physically unfit for major depressive disorder with a recommended rating of 10% and that his disposition be separation with severance pay. b. PTSD was found to have been unfitting, but was EPTS, not service-aggravated, and remained noncompensable. c. Restrictive lung disease was no longer found unfitting based on TDRL evaluation. d. The applicant was advised of the findings and recommendations of the Informal PEB and did not concur, submitting a written appeal. 29. On 23 May 2016, in coordination with his MEB Counsel, the applicant appealed the informal PEB, stating he agreed he was unfit for major depressive disorder, but believed he continued to be unfit for restrictive lung disease and that his PTSD was erroneously determined to be an EPTS, non-service aggravated condition. He requested the PEB reconsider his Informal proceedings and find him unfit for restrictive lung disease and PTSD as service-aggravated. a. He argued that physical exertion continued to cause his restrictive lung disease condition to flare and since he was not recently engaging in activities that would exacerbate his condition, he did not require recent medical treatment for that condition. Additionally, his evaluation should have included an exercise stress test. b. His PTSD was originally found unfitting by the MEB as well as for major depressive disorder; however, those two conditions were separated with the major depressive disorder being found service-connected and the PTSD as EPTS. He contends the original EPTS determination is inaccurate and should have been considered service incurred or service aggravated. 30. The U.S. Army PEB responded to the appeal via memorandum dated 25 May 2016, indicating the applicant’s appeal was carefully considered and his case reviewed and the Board adhered to the original findings and recommendations. a. According to the TDRL evaluation, the applicant’s lung disease was no longer unfitting, as he had not been treated for that condition since being placed on the TDRL, he was still using the same inhalers previously prescribed in 2011, and his chest x-ray and pulmonary function tests done on 10 March 2016 were normal. b. With regard to his PTSD, the USAPDA determined at the time of his original PEB that his PTSD was EPTS, was not permanently service aggravated, and was therefore non-compensable. Therefore, the PEB carried this determination forward to his current Informal PEB. The applicant did not request a formal hearing; therefore, his case would be forwarded to the USAPDA for final processing. 31. USAPDA Order D 148-03, dated 27 may 2016, removed the applicant from the TDRL and discharged him from the service effective 27 May 2016, with a 10% disability rating and entitlement to severance pay. 32. The applicant provided additional statements addressed to the USAPDA, then subsequently also addressed to the ABCMR, dated 6 June 2016 and 8 August 2016, both of which have been provided in full to the Board for review. He reiterated his disagreement with the decisions that his restrictive lung disease was no longer unfitting and that his PTSD was EPTS, not service-aggravated, and non-compensable. He requested administrative correction to the most recent PEB proceedings reflecting a 30% disability rating. 33. On 14 September 2016, the applicant applied to the ABCMR, requesting correction of his records to reflect physical disability retirement in lieu of physical disability separation with severance pay. 34. In the adjudication of his case, an advisory opinion was provided by the Army Review Boards Agency (ARBA) senior medical advisor, on 16 April 2019, which has been provided in full the Board for review. The ARBA senior medical advisor provided an advisory opinion, dated 16 April 2019, which has been provided in full to the Board for review, wherein he stated in pertinent part the applicant’s medical conditions were duly considered all phases of his medical separation processing. After comprehensive review of all available records, the ARBA senior medical advisor concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so additional disability ratings were recommended. 35. The applicant was provided a copy of the advisory opinion and submitted a rebuttal dated 22 April 2019, stating he was devastated by the opinion’s conclusions. He felt he was being penalized for having gaps in his VA behavioral health appointments from 2011 through 2016 and that fact that he did not have prescribed medications for his mental health conditions. He declined to take medications on multiple occasions due to fear of regrettable side effects. He requests the Board disregard the opinion, as he suffers from service-aggravated PTSD. 36. On 18 July 2019, the Board denied the applicant’s request for permanent disability retirement, determining the evidence presented did not demonstrate the existence of a probable error or injustice. 37. A VA Rating Decision, dated 15 August 2019, shows: a. The applicant’s entitlement to an earlier effective date for service-connection of his major depressive disorder with unspecified anxiety was granted because a clear and unmistakable error was made; therefore, a 70% evaluation was assigned effective 17 November 2011. a. It further states a clear and unmistakable error was found in the assigned effective date of the 70% evaluation by the Rating Decision, dated 25 November 2016. The prior Rating Decision erroneously established an increase of his service connected major depressive disorder with unspecified anxiety (previously rated as major depressive disorder, recurrent moderate with anxious distress) from 2 June 2016, which is the date the VA received his formal application for increase in compensation benefits. However, when there is a VA examination report from a VA outpatient facility dated prior to 24 March 2015, without regard to the date the evidence is incorporated in the claims folder, the VA may potentially accept the VA examination report as an informal claim if the evidence shows an increase in evaluation. The Rating Decision, dated 25 November 2016, failed to review and consider the applicant’s VA Medical Center Treatment Records from Orlando, FL that dated back to 3 October 2011. His VA Medical Center treatment records are considered evidentiary records available to the rating board and in this case the failure to review these records has resulted in necessity change of the original rating decision. b. Since the VA examination report, dated 17 November 2011, supports findings of increased symptomatology of his service-connected major depressive disorder that would warrant a 70% evaluation and the date of this report was prior to 24 March 2015, the VA examination report must be accepted as an informal claim for increase in his service connected major depressive disorder. Therefore, they have corrected this error and changed the effective date of the assigned 70% evaluation from 2 June 2016 to 17 November 2011, which is the date of his VA outpatient treatment record showing a worsening in the level of impairment of this condition. 38. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 39. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 40. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 41. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The applicant asserts since the VA increased his service connected rating for Major Depressive Disorder from 10% to 70% he is entitled to retirement due to MDD at 70%. A review of JLV indicates the applicant completed his initial Compensation and Pension (C&P) examination for PTSD on 1 Apr 2010. He reported significant physical and mental abuse as a child. The examiner noted the applicant was going through a MEB for Restrictive Lung Disease and PTSD not related to combat. The applicant reported a positive response to treatment. He reported obsessive thinking in conflict situations and compulsive behaviors (rearranging furniture for 2 hours because he couldn’t make up his mind). He reported suffering from anxiety and bouts of major depression over the years. He denied any significant distress or impairment in social occupational or other important areas of functioning. He reported that PTSD symptoms were not current but can be rekindled under stressful environment. He reported episodic periods of stress in which old dynamics of anger, depression and anxiety play a prominent role. He reported that with therapy and stress reduction, he improves rapidly. The provider noted that the applicant “has vulnerabilities of past abuse treatment which leave him vulnerable to recurrent depression, anxiety, loss of self-confidence, and bitter/angry response to perceived unfairness. At this time no major symptoms of major distress noted, mood is euthymic and cognition is clear with no disturbances of thought or perception.” The examiner determined he did not meet diagnostic criteria for PTSD but met criteria for Major Depressive Disorder, recurrent in remission. The examiner noted occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks with general satisfactory functioning. The applicant returned to the VA for treatment and was evaluated on 17 November and 2 December 2011. The applicant reported increasing depressive and anxiety symptoms that were impacting his ability to work. He reported frequently feeling overwhelmed and frustrated when he does not get support from supervisors at the call center. He requested a reevaluation for PTSD and completion of ADA paperwork for his job. The provider diagnosed him with MDD. He had 5 follow-up sessions between 2 Dec 2011 and April 2012. On 17 Apr 2013, he returned to the clinic and reported improvement in his anxiety with a reduced work schedule and taking college classes. The provider noted that the applicant did not meet PTSD criteria and diagnosed Anxiety Disorder, not otherwise specified (NOS) in addition to MDD. He did not return to the clinic for treatment until 22 Feb 2016. On 25 Apr 2016, a psychiatrist at Ft Stewart recommended reconsideration by the PEB for the applicant’s PTSD not meeting fitness standards. There is no documentation of symptoms or impairment to justify a PTSD diagnosis. It is acknowledged that the commander stated the applicant’s PTSD was interfering with his work performance. However, a review of his treatment records shows he did not meet criteria for PTSD and was being treated for MDD. The PEB maintained his MDD was unfit for duty with a 10% rating. They stated that his PTSD was EPTS and not service aggravated. He did not return to the VA for follow up care. On 25 Oct 2016, he completed a Compensation and Pension Examination for PTSD. He reported working in customer service for a tax software agency and had been employed there since 2011 working 32 hours per week. He was working on his associate degree in criminal justice and has a 2.9 GPA. He was not enrolled in therapy and did not take psychotropic medication. The C&P psychologist noted that the applicant did not meet the criteria for PTSD and continued to meet criteria for MDD. Effective 25 Nov 2016, the VA increased his service connected disability rating to 70%. On 15 Aug 2019, the VA granted 70% for MDD effective 17 Nov 2011. The applicant was placed on TDRL due to Restrictive Lung Disease. He was evaluated for PTSD and MDD and rated at 10% (eligible for severance pay at that rating but not TDRL). The initial rating for MDD was appropriated based on his functioning at the time of his C&P. His MDD was not cause by the Restrictive Lung Disease nor related to treatment for his TDRL condition. Based on his medical records he did not need medical treatment for his lung disease which was subsequently found to meet retention standards. The VA has its own rules/regulations governing increased ratings. The original rating (10%) was an accurate reflection of his functioning and not change is warranted. No changed to the disability rating for MDD is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, and evidence in the records. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. Consistent with the medical review and based on a preponderance of evidence, the Board found insufficient evidence to support a grant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: 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 to amend the decision of the ABCMR set forth in Docket Number AR20160015129 on 18 July 2019. 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 (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. a. 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. 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. c. 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. These ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). (1) 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 their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. (2) 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. d. 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. The percentage assigned to a medical defect or condition is the disability rating. e. The Temporary Disability Retired List (TDRL) is used in the nature of a “pending list.” It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him/her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. f. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his/her office, grade, rank, or rating at the time of the evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service. In addition, the condition must be determined to be temporary or unstable. g. Soldiers will be placed on the TDRL when they would be qualified for permanent disability retirement and the preponderance of evidence indicates one or more conditions will change within the next 5 years so as to result in a change in rating or a finding of fit. The Army Disability Evaluation System will re-evaluate each Soldier placed on the TDRL at least once every 18 months. Evaluation may be sooner. Once the PEB finds each condition is stable upon evaluation, the PEB will assign a final rating that includes the ratings for the disabilities determined to be permanent and stable when the Soldier was placed on the TDRL or during preceding TDRL adjudications. When the PEB rates the case, the ratings will be under the VASRD in effect at the time of the current TDRL adjudication. Soldiers who fail to complete a physical examination when ordered will have their disability pay suspended. h. A final determination of the case of each Soldier on the TDRL will be made at the latest upon the expiration of 5 years after the date when the Soldier was placed on the TDRL. If, at the time of that determination the physical disability for which the Soldier was placed on the TDRL still exists, it will be considered to be permanent and stable. Placement on the TDRL confers no right to remain on the TDRL for the entire 5-year period. i. If upon reexamination, Soldiers whose disabilities have stabilized and who are not determined fit for duty and meeting medical retention standards for the conditions for which they were placed on the TDRL will be removed from the TDRL and placed on the PDRL if the physical disability rating remains 30 percent or greater. If upon reexamination, the Solider is found unfit for duty and not meeting medical retention standards but the stabilized physical disability percentage is rated at below 30 percent, the Soldier will be removed from the TDRL and separated with severance pay if the Soldier has less than 20 years of active Federal service. j. Appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)) provides special guidance concerning Army use of the VASRD. (1) B-10 (Rating of Disabilities aggravated by active service) states when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time. Therefore, it is necessary to deduct from the present degree of disability, if ascertainable, the degree of disability existing at the time of entrance into active service and also the natural progression that has occurred during active service in terms of the rating schedule. (2) B-11 (Existed prior to service – not service aggravated) states If the disability at the time of evaluation is not greater than the EPTS, the condition cannot be considered service aggravated and will be listed as (NR) (not ratable). Zero ratings do not apply in this instance. 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. 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. 4. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007282 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1