IN THE CASE OF: BOARD DATE: 11 May 2023 DOCKET NUMBER: AR20220010167 APPLICANT REQUESTS: in effect, physical disability separation or retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * NGB Form 22 (Report of Separation and Record of Service) * Retirement Credit Record * Department of Veterans Affairs (VA) Disability Rating * VA Form 26-1880 (Request for Certificate of Eligibility) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he wants his hearing loss reflected in his discharge records. His hearing loss and tinnitus were recorded in his military medical records, but he was not awarded disability [compensation] for his condition until he requested his medical records showing the condition caused by his military career. 3. The applicant provided: * DD Form 214 showing he served in an active-duty status from 25 June to 15 December 1961 * NGB Form 22 showing he served in the Missouri Army National Guard (ARNG) from 24 March 1975 to 1 February 1976 * Retirement Credit Record documenting his ARNG service from 24 March 1975 to 1 February 1976 * VA Disability Rating (page 1), dated 1 November 2021, showing a combined rating of 30% (percent) 4. On 12 June 1961, the applicant enlisted in the United States Army Reserve (USAR) for 8 years. a. USAR Letter Orders 6-298, VIII United States Army Corps, dated 14 June 1961, show the applicant was ordered to active duty for training, effective 25 June 1961. b. On 15 December 1961, the applicant was honorably released from active duty to the USAR under the provisions of Army Regulation (AR) 635-200 and AR 140-220, due to expiration of term of service, in pay grade E-2. He was awarded the military specialty of supply clerk. He was credited with completing 5 months and 21 days of net service this period. c. On 16 December 1961, he was assigned to Headquarters and Headquarters Service Company, 871st Engineer Battalion, Austin, Texas. 5. Medical statements, dated 12 August 1962 and 9 June 1963, show the applicant acknowledged in writing that he considered himself sound and well and physically able to perform military duty. He was considered physically qualified for military service at the time of accomplishment of his last physical examination. 6. The applicant’s DA Form 20 (Enlisted Qualification Record) shows his PULHES in item 14 (Physical Status) as 111211. It further states in item 15 (Assignment Limitations) “Deafness high freq- left ear.” A physical profile, as reflected on a DA Form 3349 (Physical Profile), SF 88, 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. 7. The applicant's service record was void of documentation showing he was treated for an injury or an illness that warranted entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 8. The applicant’s VA Disability Rating (page 1), dated 1 November 2021, shows he received a combined rating of 30% (percent) for unspecified conditions. 9. 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. 10. Title 38, U.S. Code, 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. 11. 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. 12. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests medical disability for his hearing loss. b. The applicant’s first period of active service was from 25Jun1961 to 15Dec1961. He was enlisted in the USAR from 12Jun1961 to 11Jun1969. He had another period of service from 24Mar1975 to 01Feb1976 which showed his military occupational specialty was Clarinet Player. He was discharged from Reserve of the Army due to incompatible occupation effective 01Feb1976. His service was characterized as honorable. c. Medical records while in service d. The Enlisted Qualification Record revealed that on 24Nov1961, the applicant’s physical status was PULHES 111211, code B. He was designated H2 due to high frequency deafness in the left ear, and he was given assignment limitations which was intended to protect against further physical damage/injury. His main civilian job was listed as stock clerk (clerical).In the Statement of Physical Condition, the applicant endorsed that he was sound, well, and physically able to perform military duty. He was not suffering any disability, defect, or illness (12Aug1962 and 09Jun1963). e. Medical records and related after discharge f. 11Aug2009 Audiology Consult. The applicant reported difficulty hearing. He also reported difficulty understanding speech particularly in noisy environments. He stated that he had 6 years of noise exposure in the military. He denied recreational and civilian exposure to noise. The audiologist noted testing showed slightly asymmetric sensorineural hearing loss in both ears. They assessed that the applicant’s Cochlear Hearing Loss was likely the origin of the tinnitus. They also suggested noise and aging as possible contributing etiologies. g. 24Aug2009 Audio C&P Exam. He reported being a supply clerk during his military service and exposure to gunfire during training exercises. As a civilian he was employed as a school teacher and claims adjustor. He reported use of hearing aids since 2002. The percent right ear speech recognition score was 98% and for the left 94%. Results of diagnostic and clinical tests that were conducted revealed the following diagnoses: Right Ear, Moderate Sensorineural Hearing Loss from 2000-4000 Hz. Left Ear, Mild to Moderately Severe Sensorineural Hearing Loss from 1000-4000 Hz. The hearing loss was much greater in the higher frequencies (above 2000 Hz). The VA C&P examiner reviewed the applicant’s service treatment records (not available for direct review by the ARBA Medical Reviewer): His exit physical from active duty service indicated a hearing loss at 3000 Hz in the right ear. This frequency was not tested during his enlistment physical. Testing showed a hearing loss in the left ear during his entry and exit physicals at 2000 Hz. However, the VA C&P examiner essentially surmised that the applicant’s hearing loss in both ears was at least as likely as not attributable (at least in part) to his military service since hearing loss from noise exposure usually affects both ears. h. 01Nov2021 VA letter regarding benefits showed combined disability ratings at 30% total, with Impaired Hearing at 20% and Tinnitus at 10%. VA benefits record dated 07Nov2008 showed total combined disability rating at 10% with the Tinnitus rating at 10% and Impaired Hearing rating at 0% effective 07Nov2008. i. The applicant had left ear hearing loss that was documented during his entry examination. His exit physical reportedly showed hearing loss in both ears presumed to be due to noise exposure in the military, as the applicant denied civilian occupational and recreational sources. Other than the entry level H2 physical profile, no other profile history was available for the hearing condition. Based on records available for review, evidence was insufficient to support the bilateral hearing loss condition failed medical retention standards of AR 40-501 chapter 3 at the time of separation in June 1969 or at the time of discharge from the military in February 1976. Referral for medical discharge processing is not warranted. ? BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant’s record does not indicate that he had a duty-related medical condition that failed medical retention standards prior to his discharge in 1976. Based on a preponderance of the evidence, the Board determined the applicant’s discharge was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active Reserve status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve Component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 5. 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. 6. 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. 7. 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. 8. Title 10, U.S. Code, section 1332 defines a qualifying year of service for retired pay as one in which a Reservist is credited with at least 50 retirement points. Section 273c states while in an Inactive status, a Reserve member is not eligible for pay or promotion and cannot earn retirement points. 9. Section 1556 of Title 10, United States Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010167 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1