IN THE CASE OF: 
BOARD DATE:  19 August 2022
DOCKET NUMBER: AR20210015607 


APPLICANT REQUESTS: in effect, a physical disability retirement in lieu of his transfer to the retired reserve awaiting pay at age 60. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•ARBA Online Application

•Department of Veterans Affairs (VA) summary of benefits letter, 7 October 2021

•Orders 20-066-00019

•VA summary of benefits letter, 22 January 2022



FACTS: 

1.The applicant states he is an honorably discharged veteran of the Army and isentitled to disability compensation at the 100 percent rate due to service-connecteddisabilities. This total disability is considered permanent, and he is not scheduled forfuture examinations.

2.The applicant enlisted in the United States Army Reserve on 9 January 1995 for aperiod of 8 years. He underwent a medical examination and his Standard Form (SF) 88shows he no significant defects. He was found qualified for service and assigned aphysical profile of 111111.

A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES).  Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited.  Physical profile ratings can be either permanent or temporary. 

3.The applicant entered initial active duty for training (IADT) on 15 February 1995. Hewas trained in and awarded the military occupational specialty (MOS) 91B (medicalspecialist). He was released from active duty on 30 June 1995.

4.The applicant reenlisted in the Army Reserve for 6 years on 8 January 2001.

5.Orders M-064-0017 shows the applicant was ordered to active duty in support ofOperation Enduring Freedom effective 12 March 2003.

6.A DA Form 21473 (Statement of Medical Examination and Duty Status) shows theapplicant experienced an injury to the meniscus of his right knee while conductingcompany physical training (PT) at Landstuhl on 9 September 2003. He was seen at theorthopedic clinic and issued a temporary profile.

7.A. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows hewas honorably released from active duty on 18 March 2004.

8.The applicant underwent a medical examination for the purpose of retention on 18November 2005. His DD Form 2807 (Report of Medical History) shows he reportedexperiencing an ear perforation on 8 November 2004 and resulting ear surgery inFebruary 2005. He reported back pain with tingling of the left arm and left leg whiledeployed in 2003. The corresponding DD Form 2808 (Report of Medical Examination)shows he was found qualified for service and assigned a physical profile of 111211.

9.The applicant completed a SF 507 (Functional capacity Certificate) on 23 November2005, showing he answered yes to having a medical condition that might prevent himfrom deploying; a perforated ear drum. The examiner concurred with the applicant’sself-assessment.

10.The Result of Retention Physical Examination, dated 16 December 2005 show theapplicant was physically fit for retention under Army Regulation (AR) 40-501 (Standardsof Medical Fitness). He has one or more abnormal findings as indicated on the DD Form2808 and requires follow-up with a civilian medical provider. His physical abnormalitiesare noted, however, there are no documented limitations for profiling at this time. Hehas a history of left ear perforation with subsequent surgery to repair and reportsoccasional back pain. No limitations noted on SF 507. Examining physicianrecommended follow up with ENT for any further recommendations regarding left ear.

11.The applicant reenlisted in the Army Reserve for a period of 6 years on 20 May2006.

12.The applicant completed a SF 507 on 18 March 2006, showing he answered yes tohaving a medical condition that might prevent him from deploying; a perforated eardrum. He also answered yes to having a condition that prevents him from doing certainactivities; swimming. The examiner concurred with the applicant’s self-assessment andindicated the limitations were permanent.

13.The applicant underwent a medical examination on 1 April 2008. His DA Form
2807-1 shows he confirmed his hearing loss due to perforated ear drum and associatedsurgery and reported he was in good health. The corresponding 2808 shows he wasfound not qualified for service and assigned a physical profile of 111311. The physiciannoted a history of recurrent perforation of left ear drum.

14.A DA Form 3349 (Physical Profile), dated 19 June 2008, shows the applicant wasassigned a permanent profile of 111311 for perforated ear drum, left side with hearingloss. It included a note the applicant was to provide updated medical documentation tocommand and medical office following any surgical correction of the ear drum.

15.The applicant reenlisted in the Army Reserve indefinitely on 19 November 2014. Henotified on 12 February 2015 of his eligibility for retired pay at non-regular retirement
(20-year letter).

16.Orders 16-355-00014 show the applicant was ordered to active duty in support ofOperation Inherent Resolve effective 9 March 2017. He was honorably released fromactive duty on 6 March 2018.

17.The applicant provided:

a.Two VA summary of benefits letters showing he has a combined service-connected evaluation of 100 percent, is considered totally and permanently disabled due solely to his service connected disabilities effective 20 April 2019.   

b.Orders 20-066-00019 showing he was released from his current assignment andassigned to the Retired Reserve for completion of 20 or more years of qualifying service for retired pay at age 60 effective 6 April 2020.  

18.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability.

19.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor 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 ofthe Army.

20.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected 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. 

21.MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and/or the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   

a.The applicant is applying to the ABCMR requesting, in essence, a post non-regular retirement referral to the Disability Evaluation System (DES).  His states: 

“I am an honorably discharged veteran of the Army and is entitled to disability compensation at the 100 percent rate due to service-connected disabilities. This total disability is considered permanent and I am not scheduled for future examinations.” 

b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  Orders published on 6 March 2020 by Headquarters, 81st Readiness Division (USAR) show the applicant was transferred to the Retired Reserve effective 6 April 2020 after having completed 20 or more years of qualifying service for retired pay at age 60.  The applicant had received his Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter) five years earlier, on 12 February 2015. 

c.Review of the applicant’s records in MEDCHART show he was never placed on aduty limiting permanent physical profile which would have referred him to the DES.  His only permanent profile was a non-duty limiting H2 for hearing loss he received in 2010. 

d.The applicant’s final Periodic Health Assessment (DD Form 3024) was completedin December 2018 with the provider selecting the box “No issues or concerns identified.” 

e.The applicant’s final NCO Evaluation Report (DA Form 2166-8) was an annualwith a thru date of 28 October 2019.  The then staff sergeant was a company first sergeant during this rating period.  His rater blocked him as “Exceeded Standard” opining: 

“o  accomplished any tasks assigned; has served in multiple roles exceeding expectations in all assigned duties. 

ohighly motivated professional; always assumed greater responsibility whenneeded”

f.His senior rater blocked him as “Highly Qualified” stating:

“SSG {Applicant} is a leader who uses his experience and knowledge to directand motivate subordinates. SSG {Applicant} has shown potential for greater responsibility.” 

g.The DES compensates disabilities when they cause or contribute to careertermination.   
There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his voluntary retirement.  Thus, there was no cause for referral to the Disability Evaluation System.  Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his voluntary retirement. 

h.Review of his records in JLV and documentation submitted with the applicationshow he has been awarded multiple VA service-connected disability ratings.  However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service.  The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career.  These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 

i.It is the opinion of the ARBA Medical Advisor that referral to the DES is notwarranted. 

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation 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. 



Microsoft Office Signature Line...
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, USC, chapter 61, provides the Secretaries of the Military Departments withauthority to retire or discharge a member if they find the member unfit to perform militaryduties because of physical disability. The U.S. Army Physical Disability Agency isresponsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 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 medicalretention 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: theMEB 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 afinding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 

2.Title 38, USC, Section 1110 (General - Basic Entitlement) states for disabilityresulting from personal injury suffered or disease contracted in line of duty, or foraggravation of a preexisting injury suffered or disease contracted in line of duty, in theactive military, naval, or air service, during a period of war, the United States will pay toany veteran thus disabled and who was discharged or released under conditions otherthan 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. 
 
3.  Title 38, USC, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) 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. 
 
4.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2. Paragraph 3-39h states: nonradicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine, whether idiopathic or secondary to degenerative disc or joint disease, that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity. 
 
5.  AR 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 
 
 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. 
 
6.  Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
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