IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20220011516 APPLICANT REQUESTS: in effect, a physical disability retirement in lieu of separation with severance pay. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision, 19 October 2021 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 is requesting a medical retirement based on his combat related disabilities. He was given a 20 percent rating by the Army at separation in December 2013. The VA granted him 100 percent permanent and total disability in April 2014. 3. The applicant underwent a medical examination on 3 June 2009 for the purpose of enlistment. He reported a history of a broken left arm requiring surgery with retained screws. He was granted a waiver, found qualified for service and assigned a physical profile of 3P11111. 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. 4. The applicant enlisted in the United States Army Reserve on 17 June 2009 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 4 years and 16 weeks on 4 August 2009. 5. The applicant was deployed in support of Operation Enduring Freedom (OEF) from 15 Sept 2011 to 26 July 2012. He was awarded the Combat Infantryman Badge, the Army Commendation Medal, and NATO Medal. 6. A Preseparation Counseling Checklist was prepared 15 February 2013. The applicant’s Medical Evaluation Board (MEB) proceedings and Physical Evaluation Board (PEB) proceedings are not in the applicant’s official military personnel record (OMPF). 7. Orders 282-0002, dated 9 October 2013, shows the applicant shows the applicant was authorized disability severance pay with a rating of 20 percent. 8. The applicant was honorably discharged on 24 December 2013 for disability, severance pay, combat related (enhanced). 9. The applicant provided a VA rating decision, dated 19 October 2021, showing the following service connected disabilities and ratings: * traumatic brain injury (TBI), 70 percent from 17 April 2014 to 1 June 2020 * post traumatic stress disorder (PTSD), 70 percent effective 17 April 2014 * sleep apnea syndrome, 50 percent, effective 25 December 2013 * headaches associated with TBI, 30 percent effective 17 April 2014 * degenerative disc disease of the thoracic and lumbar spine with degenerative changes, 20 percent effective 17 April 2014 * external hemorrhoids without residuals, 20 percent effective 17 April 2014 * left knee degenerative joint disease with decreased range of motion (integrated disability evaluation system), 10 percent effective 25 December 2013 * tinnitus, 10 percent effective 25 December 2013 * left knee instability, 10 percent 17 April 2014 * hiatal hernia with reflux and duodenitis (integrated disability evaluation system), 10 percent effective 1 April 2015 * right lateral epicondylitis with residual degenerative arthritis (integrated disability evaluation system), 0 percent effective 25 December 2013 * left elbow degenerative changes status post open reduction internal fixation (integrated disability evaluation system), 0 percent effective 25 December 2013 * dry eye syndrome (integrated disability evaluation system), 0 percent effective 25 December 2013 * bilateral cataracts (integrated disability evaluation system), 0 percent effective 25 December 2013 * surgical scars, status post left knee arthroscopic surgery (integrated disability evaluation system), 0 percent effective 25 December 2013 * sleep related movement disorder with periodic limb movement, left leg (integrated disability evaluation system), 0 percent effective 25 December 2013 * abdominal scar associated with hiatal hernia with reflux and duodenitis, 0 percent effective 29 January 2015 10. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 11. 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. 12. 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. 13. 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. 14. 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 (EMR) (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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting an increase in his military disability rating and change in his current disability separation disposition from separated with disability severance pay to permanent retirement for physical disability. The applicant states: “I am requesting a medical retirement base on my combat related disabilities. I was given a 20% rating by the Army at separation, 12/2013. The VA granted me 100% P&T [permanent and total] 4/2014.” c. He claims PTSD and TBI are related to this request on his DD form 293. d. The Record of Proceedings details the applicant’s service and the circumstances of the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 4 August 2009 and was separated with $27,658.80 of disability severance pay on 24 December 2013 under provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). e. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). f. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. g. On 12 February 2013, the applicant was referred to the IDES for “Lumbar Disc Degeneration.” He claimed 16 additional conditions on a Statement in Support of Claim (VA Form 21-4138) to include TBI and PTSD. A medical evaluation board (MEB) determined the referred condition failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined eighteen additional medical conditions met medical retention standards, including “mTBI” and “PTSD.” h. From the MEB narrative summary for these two conditions: “"mTBI with residuals specified in the neuropsychology evaluation" is not disqualifying per AR 40-501 Chapter 3-30j. As stated in Section 3c above, SM is currently in processing to receive a Purple Heart for this condition. Neuropsychological evaluation documented mild to moderate deficits in several facets of TBl-related cognitive impairment. SM has been seen several times at TBI clinic and is still undergoing cognitive rehab through speech pathology and occupational therapy. However, this same VA C&P report states that SM's "subjective symptoms: do not interfere with work" and, in the diagnosis section, that this condition has "no effects" on occupation. The most recent TBl-related AHLTA note (speech path - 20 MAR 2013) observes continued improvement in cognitive functioning, with ongoing treatment. There is no history of profile submission or MEB referral recommendation by any of SM's clinical providers for this condition up to this point. Additionally, the Commander's Statement makes no mention of this specific condition impairing duty performance, and states that SM "makes reasonable decisions, including complex or unfamiliar ones: Soldier's issues are physical not mental." Therefore, the balance of evidence at this time appears to indicate this condition still meets retention standards.” “PTSD is not disqualifying per AR 40-501 Chapter 3-33, Anxiety, Somatoform, or Dissociative Disorders. SM was diagnosed 30 AUG 2012 with PTSD but has received only episodic treatment for this condition. In 05 NOV 2012 Psychiatric Retention Evaluation, author Dr. M.T., Clinical Psychologist, noted that, "Records clearly indicate a lack of sufficient treatment to date ... he is highly resistant to treatment. Has not met MRDP" and, "Should not deploy until he has completed a course of BH treatment." And, as noted above, the Commander's Statement indicates that "SM "makes reasonable decisions, including complex or unfamiliar ones ... Soldier's issues are physical not mental." None of SM's BH providers have written an S-3 profile for PTSD. To date, there is no evidence to support that this condition materially impacts the performance of his duties.” i. On 8 April 2013, the applicant agreed with the board’s findings and recommendation and his case was forwarded to a physical evaluation board (PEB) for adjudication. j. The applicant’s informal PEB found his “Lumbar disc degeneration ” to be the sole unfitting medical condition for continued service. They determined the remaining twenty medical conditions were not unfitting for continued military service. The PEB applied the VBA derived rating of 10%, and because the applicant’s combined military disability rating was less than 30%, the PEB recommended the applicant be separated with disability severance pay. k. The applicant non-concurred with the PEB and requested that his left knee and PTSD also be found unfitting. These were the only two conditions to have received more than a 0% rating by the VA, with the PTSD at 50% and the left knee at 10%. He also requested that his lumbar condition be determined combat related. Upon informal reconsideration, the PEB agreed that his left knee condition was also unfitting and that it was combat related. They continued to find his PTSD not unfitting as seen in their email to his PEB counsel: “Can't agree to the PTSD portion of your request. 02 Aug 2013 R&R note from LISW reflects Soldier's multiple requests for P3 for PTSD to increase his ratings, which was not felt to be justified based on SW opinion or the opinion of the prior provider.” l. Review of his records are consistent with this finding. Though he did have PTSD and participate in induvial and group therapy over the summer of 2013, there was no probative evidence it interfered with his ability to Soldier. From the referenced 2 August 2013 AHLTA encounter: Focus of today's session was to establish the possible recommendation and evaluation to determine the need for a P3 rating for PTSD. SM [Service Member] was asked at last session to bring with him a list of his MOS [military occupational specialty] related duties and identify how PTSD has interfered in his ability to carry these out. SM stated that he had not found anywhere a list of MOS duties but that he knows that he can't re-deploy. SM is already in the MEB process for his physical issues, and it has been established that the diagnosis of PTSD exists, but not to the extent that would require a P3 profile. SM has on multiple occasions reported that he wants the P3 profile in order to bump up his ratings. In consulting with his previous BH provider, Ms. JS-D., it was established during her period of treatment with SM that he did not meet the criteria for a P3 for PTSD. There is no doubt that the diagnosis exists for this SM and that it has impacted and changed him from what he used to be, but in my clinical observations and interactions in therapy with this SM, not to the extent that a P3 is needed.” m. His commander stated on his Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement (DA Form 7652) he completed for the applicant: “Makes reasonable decisions, including complex or unfamiliar ones: Soldier’s issues are physical, not mental.” n. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.” o. The applicant accepted the findings of the informal reconsideration on 13 September 2013. On 23 September 2013, after receiving counseling on the board’s reconsidered findings by his PEB liaison officer, he concurred with the PEB, waived his right to a formal hearing, and delinked to request a VA reconsideration of his ratings. p. Review of the DES case file in ePEB and his records in the EMR show the findings throughout his DES process are consistent with the medical evidence in the case file. No material errors, discrepancies, or omissions were identified. q. There is no significant probative evidence the applicant had any additional medical condition(s) which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge; or which prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. r. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including ratings for PTSD (70%) and traumatic brain disease (70%). 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. s. 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 applicant’s contentions, military record, regulatory guidance and other supporting documentation as provided. Documentation available for review shows that the applicant was properly referred to the Integrated Disability Evaluation System. Documentation further shows that the applicant accepted the findings of the informal reconsideration and waived his right to a formal hearing. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a referral of his case back to the Disability Evaluation System. 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 Board determined 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 (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: 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. 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. 4. 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. 5. Army Regulation (AR) 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. 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. 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). 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. 7. Section 1556 of Title 10, U.S. 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. 8. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011516 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1