IN THE CASE OF: 

		BOARD DATE: 21 July 2023

		DOCKET NUMBER: AR20220006025


APPLICANT REQUESTS:   in effect, reconsideration of his previous request to increase 
his disability rating from 20% to a higher rating that allows retirement. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Personal Statement
*	DA Form 2173, Statement of Medical Examination and Duty Status 
*	Medical Evaluation Board Proceedings, 16 February 2006
*	Physical Evaluation Board Proceedings, 8 March 2005
*	DD Form 214, Certificate of Release or Discharge from Active Duty
*	Department of Veterans Affairs (VA) Rating Decision
*	VA Progress Notes 
*	Chronological Records of Medical Care
*	DOD Manual 1332.18, Disability Evaluation System (DES) Manual: General 
Information and Legacy Disability Evaluation System (I.DES) Time Standards
*	M___t Diagnostics LLC Visit, 24 September 2019
*	Health S__ Chiropractic Visit, 23 October 2013
*	Jack Hu__ Memorial Hospital, 7 January 2009

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 AR2007, on 8 January 2008 and 
AR20180005166, on 7 May 2020. 

2.  The applicant states he has supporting documentation to add to this claim to assist 
the ABCMR in making a consideration in his favor. Originally when he went to the 
Medical Evaluation Board (MEB), he was told that he could claim one injury. His neck 
was/is the main issue that he has, which causes him the most issues. The VA rated him 
30% on his initial rating. Secondly, his back was and still is a major issue. He would 
have ranked his cervical spine injury first, lumbar spine injury second, and Ulnar nerve 
injury third. But the Army told him their way is going to be the way his disability is 
awarded. Their reasoning was that he had trouble firing with his weapon due to the 
ulnar injury. They deemed the ulnar injury more important than his cervical spine injury. 

	a.  At the time of the MEB/ PED board, he was so banged up physically, mentally, 
spiritually, and psychologically. He did not have the wherewithal energy to contest the 
findings from the MEB/PEB board. He pulled himself by the bootstraps and limped to 
the finish line, literally. He does not agree with the way the military chews us up and 
spits us out, after “we sign a blank check giving them our minds, body, and spirit. Once 
you get injured, they leave you with fear, rage, a sense of abandonment, betrayal, & 
uncertainty.”

	b.  His initial VA rating was 50% (30% for Cervical Lumbar Strain and 20% Lumbar 
Spine Strain). The Army rated him at 10%. That was a big discrepancy. That VA rating 
was given to him without his Traumatic Brain Injury (TBI) and the Post Traumatic Stress 
Disorder diagnosis he sustained during the ambush vehicle accident in Baghdad, Iraq in 
2003. The Army discharged him due to the lumbar spine injury and the ulnar injury. 
Since then, he has had back surgery in 2009 and diagnosed with Sciatica. He still 
receives continual treatment and injections to this present day. The ulnar injury still 
plagues him currently. He also has in correlation to the ulnar injury; he is diagnosed with 
Cubital tunnel Syndrome Disorder which led to his diagnosis of Carpal Tunnel 
Syndrome Disorder. His MEB/PEB decision was based on his disability that resulted 
from the ambush. He has nerve damage in his right arm which affected his trigger 
squeeze and his ability to move his fingers. He has numbness and tingling, presently 
with involuntary clenching with tremors. His neck injury still gives him discomfort, in 
which bi-lateral numbness in his upper extremities and cervical migraines.

	c.  He is confused: In January 2008, the ABCMR board returned his request 
for reconsideration without action. The reason of the denial is the ABCMR states they 
did not have the PEB Proceedings. The email from the Army liaison that was sent to 
DAV Rep. Ja__ Ma__, dated 22 April 2008 was forwarded to Congressman M__'s 
office, earlier this month forwarded from 27 Aug 2008 had the PEB findings attached. 
On February 23, 2011, he received Orders 054-0001 from the Department of the Army 
with a 20% disability rating up from 10% rating initially. Then he submitted supporting 
documents after he learned of the DOD directive 1332.18 in 2014 and he never 
received any feedback since then. So, he is trying to resolve the confusion. Was his 
claim denied just because or was it denied because they ABCMR states they did not 
have the PEB Proceedings. In all honesty, he is 100% sure that he had over a 20% 
disability rating when he was discharged from the Army, back in 2005. He is trying to 
get Tri-Care for his family. He has kids with special medical needs. He asks the Board 
to re-evaluate his claim and decide, based on the evidence.

3.  Review of the applicant’s service records shows: 

	a.  The applicant enlisted in the Regular Army on 1 October 1998. He held military 
occupational specialty 88M, Motor Transport Operator.

	b.  He served in Kuwait from 20 October to 19 November 2002, and in Kuwait/Iraq 
from 23 January 2003 to 19 January 2004.

	c.  On 16 February 2005, a medical evaluation board (MEB) determined his medical 
conditions of low back pain and right ulnar nerve compressive neuropathy failed medical 
retention standards. The MEB referred him to a physical evaluation board (PEB). 

	d.  On 8 March 2005, an informal PEB convened and found the applicant’s medical 
condition unfitting: Chronic tow back pain with a history of a motor vehicle accident in 
Iraq. Physical exam notes combined ranges of passive motion equal 170 degrees. 
Lower extremities muscle strength was 5/5. Gait was non-antalgic. Radiographs are 
non- contributory to the rating. The PEB rated his condition at 10% disability and 
determined his disposition as discharge with severance pay, if otherwise qualified. 

	e.  The applicant was discharged from active duty on 19 May 2005. His DD Form 
214 shows he was discharge by reason of disability in accordance with chapter 4 of 
Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation), paragraph 4-24B (3), with entitlement to severance pay. He completed 6 
years, 7 months, and 19 days of active service. 

	f.  The applicant previously provided VA rating, showing, effective 20 May 2005, he 
is receiving 30% service-connected disability rating for cervical spine strain, including 
disc bulge and 20% for lumbar spine strain, disc bulge.

	g.  On 8 January 2008, ABCMR denied the applicant's request for an increase of his 
disability rating. The Board explained that:

		(1)  The applicant’s DD Form 214 and separation orders that confirm the 
applicant was separated by reason of physical disability with severance pay based on a 
disability rating of 10%. These documents carry with them a presumption of regularity in 
the medical separation process. Absent evidence to the contrary, it is presumed the 
applicant was properly processed through the Army PDES and that he received a 10% 
disability rating based on his unfitting condition(s). Lacking evidence to the contrary, it is 
concluded that all requirements of law and regulation were met and that the rights of the 
applicant were fully protected throughout the separation process.

		(2)  The applicant's current medical condition is unfortunate, and his claim is 
understandable. However, the PEB, after reviewing all the available medical 
documents, concluded that the applicant's unfitting and ratable condition(s) did not 
support a disability rating above 10%. The VA Rating Decision provided by the applicant 
confirms he was awarded service-connection for several medical conditions and 
received a combined disability rating of 50% from the VA. However, while both the Army 
and the VA use the same VASRD, not all the general policy provisions set forth in 
the VASRD apply to the Army.

	h.  On 13 December 2010, the DOD Physical Disability Board of Review (PDBR) 
which made the following determination: 

		(1)  In the matter of the Chronic Low Back Pain condition, the PDBR unanimously 
recommends a disability rating of 20% coded 5243, IAW VASRD §4.71a.

		(2)  In the matter of the Lumbar radiculopathy, Ulnar Nerve Compressive 
Neuropathy, Neck pain, Neck strain, Cervical disc bulge, Arm pain, Knee pain & 
swelling, Hyperlipidemia, Teeth sensitivity, or any other medical conditions eligible for 
PDBR consideration; the PDBR unanimously agrees that it cannot recommend any 
findings of unfit for additional rating at separation.

		(3)  PTSD, rated by the VA, was not a matter of record in the Disability 
Evaluation System (DES) package and is therefore outside the scope of the Board. The 
applicant may request his service Board for Correction of Military Records (BCMR) to 
consider adding this condition as unfitting.

	i. On 16 December 2010, the Deputy Assistant Secretary of the Army, Review 
Boards (DASA/RB) informed the applicant that The DOD PDBR reviewed his 
application and found that his disability rating should be modified but not to the degree 
that would justify changing your separation for disability with severance pay to a 
permanent retirement with disability. The DASA (RB) reviewed the Board's 
recommendation and record of proceedings (copy enclosed) and accepted its 
recommendation. This will not result in any change to your separation document, or the 
amount of severance pay. This decision is final. Recourse within the Department of 
Defense or the Department of the Army is exhausted; however, he has the option to 
seek relief by filing suit in a court of appropriate jurisdiction.

	j.  On 7 May 2020, the ABCMR re-considered the applicant’s request to increase his 
disability rating. He argued that his PTSD and chronic back degenerative disc disease 
should have rated higher. 

		(1)  Prior to adjudicating his case, the ABCMR requested and received an 
advisory opinion from the U.S. Army Physical Disability Agency (USAPDA), Legal
Advisor, who stated: 

		(a)  The applicant cites his VA rating for his chronic lower back injury less than a 
month after his disability separation from the military. The rating increase from 2011 
was awarded by DOD PDBR, utilizing a different the VA Schedule for Rating Disabilities 
(VASRD) Code allowing for the higher rating. The VA rating the applicant was awarded 
for his cervical spine strain was not a condition which the PDBR considered in the 
determination to increase his rating. VA applies ratings based on service connection not 
on the service member's ability to perform military duties.

		(b)  Although he received an increased rating from VA and desires the Army to 
increase its rating. Only unfitting conditions are compensable. The applicant has not 
provided any new evidence to show this condition should have received a higher 
disability rating. The PEB findings were supported by a preponderance of the evidence, 
were not arbitrary or capricious, and were not in violation of any statute, directive, or 
regulation. Due to the above, we find the applicant's request to be legally insufficient. 

		(c) The applicant was provided a copy of the advisory opinion for comment or 
rebuttal. He did not respond.

		(2)  The Board carefully considered his request, supporting documents and 
evidence in the records. The Board considered the applicant’s statement, his record of 
service, the unfitting condition that resulted in his separation and the rating assigned, 
the review by the PDBR and subsequent increase in that rating, and the applicant’s VA 
ratings for service-connected conditions. The Board considered the distinct criteria for 
assignment of Army disability ratings for unfitting conditions and VA ratings for service-
connected conditions. The Board considered the review and conclusion of the USAPDA 
advising official. The Board found insufficient evidence of additional unfitting conditions 
and insufficient evidence to support further increase of the disability rating for the 
applicant’s unfitting condition. Based on a preponderance of evidence, the Board 
determined that the applicant’s current Army disability rating is not in error or unjust.

5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability.

6. 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%. 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%.

7.  MEDICAL REVIEW:

a.  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 and/or 
MHS Genesis), the VA electronic medical record (JLV), the electronic Physical 
Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness 
Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records 
Management System (iPERMS).  The ARBA Medical Advisor made the following 
findings and recommendations: 
    b.  The applicant is applying to the ABCMR requesting an increase in his military 
disability ratings with a subsequent change in his disability discharge disposition from 
separated with severance pay to permanent retirement for physical disability.  He 
states:
“On February 23, 2011, I received a disability rating of 20% from the Department 
of the Army, orders 254-11.  It was an increase from the 10% disability rating 
when I was medically discharged from the Army in May 2005 ... On the very next 
day, 20050520, I was awarded 50% overall rating form the VA.  I was rated 30% 
for cervical spine strain, 20% for lumbar spine strained, and 10% [for] TBI 
[traumatic brain injury] in my first initial rating from the VA.  I suffered a traumatic 
brain injury and from Post-Traumatic Stress Disorder for the ambush in Baghdad, 
Iraq in 2003.” 
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 shows he entered the regular Army on 1 
October 1998 and was discharged with $48,432.00 of disability severance pay on 19 
May 2005 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for 
Retention, Retirement, or Separation (1 September 1990).  
 
    d.  On March 2005, the applicant’s informal physical evaluation board (PEB) found 
his chronic low back pain to be his sole unfitting medical condition for continued military 
service and that his right ulnar neuropathy was not unfitting for continued service.  They 
applied a 10% rating to the disability and recommended the applicant be separated with 
disability severance pay.  

    e.  The applicant’s case was reviewed by the Physical Disability Board of Review 
(PDBR) in late 2010.  They reviewed the PEB’s finding that his chronic low back pain 
was unfitting for continued military service and rated at 10%; and that his right ulnar 
neuropathy was not unfitting for continued service.  The PDBR also considered the four 
additional conditions rated by the VA: cervical spine strain, right knee pain, PTSD, and 
teeth sensitivity.  The PDBR’s 13 December 2010 findings:

“BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military 
Department regulations or guidelines relied upon by the PEB will not be 
considered by the Board to the extent they were inconsistent with the VASRD in 
effect at the time of the adjudication. Furthermore, Army PEB reliance on the US 
Army Physical Disability Agency (USAPDA) pain policy (for rating the Low
back pain) may have been operant in this case.  The Cl's conditions were 
adjudicated independently of that policy by the Board.

In the matter of the Chronic Low Back Pain condition, the Board unanimously 
recommends a disability rating of 20% coded 5243, IAW VASRD §4.71a.  In the 
matter of the Lumbar radiculopathy, Ulnar Nerve Compressive Neuropathy, Neck 
pain, Neck strain, Cervical disc bulge, Arm pain, Knee pain & swelling, 
Hyperlipidemia, Teeth sensitivity, or any other medical conditions eligible for 
Board consideration; the Board unanimously agrees that it cannot recommend 
any findings of unfit for additional rating at separation.

PTSD, rated by the VA, was not a matter of record in the Disability Evaluation 
System (DES) package and is therefore outside the scope of the Board.  The Cl 
retains the right to request his service Board for Correction of Military Records 
(BCMR) to consider adding this condition as unfitting.

    f.  Their recommendation was approved by the Deputy Assistant Secretary of the 
Army Review Boards on 16 December 2010.  DoD PDBR decisions are final and the 
issues considered by the PDBR cannot afterward be considered by the Army Board for 
Correction of Military Records.  His disability discharge disposition of separated with 
severance pay remained unchanged as his new combined military disability rating of 
20% was below the 30% required for a permanent retirement for physical disability.

    g.  The applicant’s request for the ABCMR to have his PTSD determined unfitting for 
continued service was denied by the ABCMR on 7 May 2020 (AR20180005166).  This 
review will concentrate on new behavioral health and TBI related documentation 
submitted with the application.

    h.  No behavioral health or TBI related documentation was submitted with the 
application.  Review of his electronic records found only a single DoD encounter dated 
25 March 2005 which simply showed the applicant was being treated for PTSD.  No TBI 
related documentation was identified.

    i.  The applicant’s final NCO Evaluation Report with a thru date of 30 November 2011 
shows he was a successful Soldier.  His rater marked him as fully capable and his 
senior rater marked him a “2” on a scale of 1 t0 5 for both overall performance and 
overall potential, opining:

*	“ promote and send to BNCOC now

*	unlimited potential for increased responsibility

*	knowledge and expertise exceed his grade and position”

    j.  There is no probative evidence the applicant’s mental health condition / PTSD or a 
TBI would have failed the medical retention standards of chapter 3 of AR 40-501, 
Standards of Medical Fitness, prior to his discharge.  Thus, there was no cause for 
referral to the Disability Evaluation System.  

    k.  Review his records in JLV shows he has been awarded multiple VA service-
connected disability ratings, including a rating for PTSD.  However, the DES only 
compensates an individual 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.

    l.  It is the opinion of the ARBA Medical Advisor that neither an increase in his military 
disability rating nor a referral of his case back to the DES is warranted.

BOARD DISCUSSION:
 
After reviewing the application, all supporting documents and the evidence found within 
the military record, the Board determined that relief was not warranted. The Board  
carefully considered the applicant’s contentions, military record, regulatory guidance 
and supporting documentation as provided. In reviewing the request, the Board noted 
that the applicant references the variance in ratings from Veterans Affairs and the 
Department of Defense. Veterans Affairs and DoD operate under separate laws, 
policies and guidance. VA primarily assesses the degree of disabling conditions to 
determine compensation and employment potential; whereas, the Army assesses for 
fitness for duty.  As such, there is not necessarily a correlation between VA disability 
ratings and those of the Army. Based on the preponderance of evidence available for 
review, the Board determined the evidence presented insufficient to warrant a 
recommendation for relief and a referral to the Disability Evaluation System is not 
warranted.


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 
AR20180005166, on 7 May 2020. 
 

	 
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.

2.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness 
standards for enlistment, induction, appointment (including officer procurement 
programs), retention, and separation (including retirement). The Department of 
Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army 
and the VA as part of the process of adjudicating disability claims. It is a guide for 
evaluating the severity of disabilities resulting from all types of diseases and injuries 
encountered as a result of or incident to military service. This degree of severity is 
expressed as a percentage rating which determines the amount of monthly 
compensation.

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 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 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)	AR20220006025


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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