IN THE CASE OF: 

		BOARD DATE:  14 October 2022

		DOCKET NUMBER: AR20220003487


APPLICANT REQUESTS: 

*	an increase in his disability rating 
*	a medical retirement
*	a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Enlisted Record Brief (ERB)
*	Excellence in Armor Program Selection, 30 May 2019
*	Excellence in Armor Program Enrollment, 3 June 2019
*	DD Form 649 (Individual Sick Slip), 23 October 2019
*	U.S. Equivalency Summary, 25 February 2020
*	Foreign Transcript Evaluation and Validation, 26 May 2020
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Disability Benefits Questionnaire (DBQ) Back Conditions, 25 April 2021
*	Medical Records (30 pages)
*	List of References
*	Character Statement, 19 May 2022
*	Disability Parking Permit, 23 May 2022

FACTS:

1.  The applicant states he is requesting an increase in his disability rating because of 
incorrect information annotated regarding his range of motion (ROM) by the Department 
of Veterans Affairs (VA) medical providers. Additionally, his intervertebral disc syndrome 
(IVDS) and radiculopathy were marked as nonexistent. The applicant is willing to return 
the severance pay should the Board change his status to medical retirement.

   a.  U.S. Army medical providers documented in his medical records that he suffered 
from IVDS and radiculopathy multiple times. The applicant did not notice the error until 
after he signed his DA Form 199 and returned to his home state on terminal leave. He 
agreed on 10% only because of his mental status and the pressure from his leadership 
due to his inability to perform duties, as well as his spouse’s adultery. He was placed on 
a profile for major depression resulted for suicidal ideations in April 2021 which 
remained in place until his discharge. The condition only worsened, and it became more 
evident the results were unfair once he reviewed his medical records while on terminal 
leave.

	b.  The applicant has a degree in General Medicine, recognized by the Army. As 
such, he is in a position to clarify his state of health. Radiological imaging was done 
incorrectly. The only way to perform a complete diagnostic requires examining the 
intravertebral discs in every angled position, flexion included. The imaging was only 
done in a horizontal position which would not show any direct compression on the nerve 
roots. Scientific literature supports his position that positional MR imaging more 
frequently demonstrates minor neural compromise than does conventional MR imaging.

	c.  Lumbosacral radiculopathy can also appear in the absence of actual lumbar pain 
because there are time intervals free from the symptoms in which the patient is 
asymptomatic or “paucisymptomatic.” During the flare-up phases, radiculopathy 
manifests the symptoms, causing functional impairment, sometimes even total. Lumbar 
radicular pain is, in fact, sharp, shooting, and lancinating. As a result, the applicant was 
hospitalized twice had urgent care visits annotated on his medical record. The VA did 
not take his records into account. His conditions continue to worsen with time. 
Furthermore, the PEB stated the injuries were not combat related although they took 
place during airborne operations. 

2.  The applicant provides:

a.	The below listed documents to be referenced in the service record:

*	ERB
*	DD Form 214 effective 15 November 2021

   b.  A letter, dated 3 June 2019, notified the applicant he was selected for the 
Excellence in Armor Program, placing him among a selected group of his peers.
   
   c.  A letter, dated 3 June 2019, notified the applicant his name was entered into the 
database because of his selection in the Excellence in Armor Program for future 
enrollment.

   d.  A DD Form 649, dated 23 October 2019, shows the applicant was seen for lower 
back and right heel pain following an airborne jump. He was placed on no physical 
training for 48 hours.
   
   e.  A U.S. Equivalency Summary, dated 25 February 2020, indicated the applicant’s 
first professional degree in medicine (Doctor of Medicine) was from a regionally 
accredited institution.
   
   f.  A Foreign Transcript Evaluation and Validation memorandum, dated 26 May 
2020, noted the applicant earned 180 semester hours awarded by Kharkiv National 
University, considered equivalent in level and purpose to those awarded by regionally 
accredited colleges and universities in the United States.
   
   g.  A DBQ for Back (Thoracolumbar) Conditions, dated 25 April 2021, shows the 
applicant was applying to the Department of Veterans Affairs (VA) for disability benefits.
   
   h.  His medical records (30 pages) for treatment received from approximately 2 
February 2020 through 14 September 2021.

   i.  A list of references with telephone numbers provided by the applicant as 
“witnesses” to his condition.

   j.  A character statement from Major (MAJ) dated 19 May 2022, noted the applicant 
has a strong work ethic, commitment to mission, attention to detail, concern for safety, 
and unparalleled thinking capability. He recommended the applicant serve in any 
capacity which enabled him to assist with Ukrainian asylum and refugee seekers; he 
would bring incredible value to any organization.

   k.  A Disability Parking Permit, dated 23 May 2022, shows the applicant was 
approved for a disabled parking placard due to his neurological and orthopedic 
conditions that limit his walking to no more than 200 feet without stopping to rest and 
walks with cane.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the regular Army on 28 January 2019.

   b.  The service record includes the applicant’s medical evaluations for the purpose of 
enlistment which indicated he had previously fractured his ulna and broke his hand 
which required surgery. The physician marked the applicant qualified for service.
   
*	DD Form 2807-1 (Report of Medical History) dated 11 March 2017
*	DD Form 2807-2 (Accessions Medical Prescreen Report) dated 29 June 2017
*	DD Form 2808 (Report of Medical Examination) dated 11 March 2017

   c.  His ERB, dated 16 November 2021, shows he completed airborne training in 
2019.
   d.  A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows 
on 11 August 2021 an informal PEB convened and found the applicant physically unfit.  
The PEB recommended a rating of 10% and that the applicant’s disposition be 
separation with severance pay. His sole unfitting condition was listed as lumbosacral 
strain, lumbar degenerative disc disease (DDD) other than intervertebral disc syndrome 
(VASRD Code 5242). Although the applicant stated to the Veteran's Affairs 
Compensation and Pension examiner that the onset of this condition was in 2019 
following a parachute jump, which ended with a violent landing due to the non-opening 
of the parachute, there is insufficient evidence in the Medical Evaluation Board case file 
to support this assertion. The Soldier first sought treatment for this condition on 13 
February 2020 while stationed at Grafenwoehr, Germany after experiencing mid and 
low back pain for a period of seven months prior to this visit reportedly from a ruck 
march. On 17 August 2021, the applicant concurred with the findings, waived a formal 
hearing of his case, and did not request reconsideration of his VA findings. Additionally, 
the PEB made the following findings in Section V (Administrative Determinations), the 
disability disposition was not based on disease or injury incurred in the line of duty in 
combat with an enemy of the United States and as direct result of armed conflict, and 
the disability did not result from a combat related injury as defined under the provision of 
26 USC 104 or 10 USC 10216. Additional conditions (Medical Evaluation Board (MEB) 
Dx 3-23) were considered by the Board; however, they were not listed and there was no 
evidence to indicate that performance issues, if any, were due to those conditions. The 
applicant was found fit for MEB Dx 3-23.
   
   e.  Orders 236-0003, dated 24 August 2021, discharged the applicant from active 
duty with an effective date of 15 November 2021 and a 10% disability rating.

	f.  He was honorably discharged from active duty on 15 November 2021. His DD 
Form 214 shows he completed 2 years, 9 months, and 18 days of active service. He 
was assigned separation code JEB, and the narrative reason for separation listed as 
“Disability, Severance Pay, Non-Combat Related.”

4.  On 16 August 2022, the U.S. Army Physical Disability Agency (USAPDA) legal 
advisor rendered an advisory opinion in the processing of his case. He opined:

	a.  On 26 April 2021, the VA examiner found that the applicant suffered from a 
lumbosacral strain and from DDD other than IVDS. The applicant never claimed to have 
IVDS or radiculopathy on his VA Form 21-526EZ. The NARSUM provider never found 
that he had IVDS or radiculopathy. On 2 June 2021, a MEB found that the applicant 
failed retention standards only for his lumbosacral strain and DDD other than IVDS. On 
11 August 2021, a PEB found the applicant unfit for his lumbosacral strain and DDD 
conditions. The conditions were rated together at 10% and he was recommended for 
separation with severance pay. The findings of the PEB, specifically, listed out all his 
other claimed conditions (minus IVDS and radiculopathy as those were not claimed) 
and stated that they were not unfitting. On 17 August 2021, the applicant reviewed and 
accepted the PEB's findings and recommendations. The effect was to forever waive his 
right to appeal and/or request a one-time VA rating reconsideration (VARR).

	b.  The applicant never claimed to have IVDS or radiculopathy to the VA. When he 
was examined by the VA, the examiner did not find IVDS or radiculopathy. The 
NARSUM provider did not find that he had either IVDS or radiculopathy. As a result, the 
PEB did not consider IVDS or radiculopathy. It does appear from the presented medical 
records that the applicant was beginning to be treated for sciatica, but that treatment 
was nascent to his board proceedings. Thus, it is highly unlikely that he would have 
been found unfit for a recently discovered and treated condition.

	c.  In this case, the examiner estimated his forward flexion to be 70 degrees. This 
equates to a 10% rating under the VASRD. The applicant did provide a medical record 
dated 19 July 2021 which was after the MEB, but before the PEB. It stated that his 
forward flexion measured 30 degrees. Unfortunately, the note did not state how the 
range of motion was measured. Therefore, it cannot be considered more reliable than 
the VA examiner's findings, especially, as the compensation and pension (C&P) exam is 
the exam of record. Based upon a review of the case file and submitted records, the 
matter is legally insufficient, and the recommendation is for no changes be made to the 
applicant's DES rating and military records.

5.  On 24 August 2022, the advisory opinion was forwarded to the applicant for 
acknowledgment and/or response. The applicant stated in his rebuttals, dated 31 
August 2022 and 5 September 2022, he believes the doctor that evaluated him made a 
mistake. He is in the process of being reevaluated by the VA and needs more time. He 
has also spoken to several doctors which confirmed the 70 degree forward flexion was 
clearly a mistake. He did not appeal the first decision because he was in a state of 
depression due to personal and professional challenges, to include the parachute fall 
that led to his MEB. The VA is working on the results of his last examination and the 
estimates, as he took from their recorded conversation, are 25 degrees forward, 15 
degrees backwards, and 10 degrees to the side. He has also consistently referenced 
his behavioral health issues and he is still a wreck. He continues to walk with a cane 
and has at least one radiculopathy episode a month. The pain is so intense he crawls to 
the bathroom. The applicant provided with his rebuttal:

	a.  A VA Form 21-526EZ (Application for Disability Compensation and Related 
Compensation Benefits), dated 26 August 2022, which shows he filed a claim with the 
VA for an increase of his benefits for DDD and a claim for radiculopathy due to his 
parachute fall.

	b.  A VA Form 21-4138 (Statement in Support of Claim), dated 26 August 2022, 
wherein the applicant reiterated an erroneous decision was previously made and he 
was seeking correction to receive benefits for radiculopathy.

	c.  A Notification of Appointment, dated 6 September 2022, indicated the applicant 
was pending an appointment on 9 September 2022 for examination.

6.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the 
ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of 
the ABCMR.  

7.  By regulation (AR 40-501), the 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.

8.  By regulation (AR 635-40), the Army disability system 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 or her office, 
grade, rank, or rating.  

   a.  The regulation states 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.  Paragraph 4-30 (Grade on retirement or separation for physical disability) states, 
the grade at which a Soldier is retired will be the grade to which the Soldier would have 
been promoted had it not been for the physical disability for which the Soldier was 
determined unfit. In general, this provision pertains to Soldiers on a promotion list.

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, United States 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, Code of Federal Regulations, 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/her 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:
  
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, and 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 an increase in his military 
disability rating with a subsequent change in his disability discharge disposition from 
separated with disability severance pay to permanent retirement for physical disability.   
He states:

“The applicant is asking the Board to Upgrade his disability rating because of 
incorrect Range of Motion results done by the VA medical provider, and IVD {sic} 
{intervertebral disc syndrome or IVDS} and radiculopathy were marked as 
unexisting {sic}.  An applicant has had ROM {range of motion} test done by US 
Army clinic medical provider and is in medical record, as well, as IVDS and 
radiculopathy were mentioned multiple times and are a suffering condition. 
However, the applicant realized that only after signing DA 199 and returning to 
his home state on terminal leave.”

    b.  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 28 
January 2019 and was separated with $14,698.80 of disability severance pay on 15 
November 2021 under provisions in paragraph 4-27c(3) of AR 635-40, Physical 
Evaluation for Retention, Retirement, or Separation (19 January 2017).  

    c.  A Soldier is referred to the Integrated Disability Evaluation System (IDES) when 
they have one or more conditions which appear to fail medical retention standards 
reflected on a duty liming permanent physical profile.  At the start of their IDES 
processing, a physician lists the Soldiers 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 other conditions they 
believe to be service-connected disabilities in block 8 of section II of this form, or on a 
separate Application for Disability Compensation and Related Compensation Benefits 
(VA Form 21-526EZ).   

    d.  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.  The 
medical evaluation board (MEB) uses these exams along with AHLTA encounters and 
other information to evaluate all conditions which could potentially fail retention 
standards and/or be unfitting for continued military service.  Their findings are then sent 
to the physical evaluation board for adjudication.  

    e.  All conditions, both claimed and referred, are rated by the VA using the VA 
Schedule for Rating Disabilities (VASRD).  The physical evaluation board (PEB), after 
adjudicating the case, applies the applicable ratings to the Soldier’s unfitting 
condition(s), thereby determining his or her 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.

    f.  On 26 February 2021, the applicant was referred to the IDES for lumbar 
degenerative disc disease.  The applicant claimed twenty-three additional conditions on 
a separate Application for Disability Compensation and Related Compensation Benefits 
(VA Form 21-526EZ).  None of his claimed conditions were related to or consistent with 
symptoms of a lumbar radiculopathy.

    g.  A medical evaluation board (MEB) determined his chronic lumbar condition failed 
the medical retention standards of AR 40-501, Standards of Medical Fitness.  The MEB 
determined twenty-one additional medical conditions met medical retention standards.  
None of these conditions were related to or consistent with symptoms of a lumbar 
radiculopathy.

    h.  On 7 June 2020, the applicant non-concurred with the MEB’s decision but 
declined an independent medical review of his MEB and did not submit a written appeal, 
so the reason(s) for his non-concurrence is unknown.  With nothing to address, the 
MEB forwarded to a physical evaluation board (PEB) for adjudication.

    i.  On 11 August 2021, the applicant’s informal PEB determined his “Lumbosacral 
strain; lumbar degenerative disc disease other than intervertebral disc syndrome” to be 
the sole unfitting for continued Service.  They applied the VA derived rating of 10% to 
his disability and recommended he be separated with disability severance pay.  

    j.  From the VA Disability Evaluation System Proposed Rating dated 4 June 2021:

(1)	Service connection for lumbosacral spine strain with degenerative disc 
disease (DDD) is proposed as directly related to military service. (38 CFR 
3.303, 38 CFR 3.304)

(2)	Please note: Initial range of motion (ROM) and observed repetitive use ROM 
measurements were unable to be tested during your most recent back 
(thoracolumbar spine) conditions examination because testing was not 
considered medically appropriate to verify the range of motion as it was 
potentially at risk of eliciting pain, worsening your condition, or triggering a 
flare, and you declined due to pain. Therefore, the VA examiner provided an 
estimated range of motion in degrees for your lumbosacral spine during flare-
ups based on a review of all procurable information including your statements 
during examination, case-specific evidence (to include your medical treatment 
records), and the examiner’s medical expertise.

(3)	The VA examiner estimated the range of motion for your lumbosacral spine 
during flare-ups to be 70 degrees in forward flexion, 20 degrees in extension, 
20 degrees in right lateral flexion, 20 degrees in left lateral flexion, 20 degrees 
right lateral rotation, and 20 degrees in left lateral rotation.

(4)	We have assigned a 10 percent evaluation for your lumbosacral spine strain 
with degenerative disc disease (DDD) based on:

• Combined range of motion of the thoracolumbar spine greater than 120 
degrees but not greater than 235 degrees
• Forward flexion of the thoracolumbar spine greater than 60 degrees but not 
greater than 85 degrees
• Localized tenderness not resulting in abnormal gait or abnormal spinal 
contour
Additional symptom(s) include:
• Objective evidence of flare-ups

(5)	The provisions of 38 CFR §4.40 and §4.45 concerning functional loss due to 
pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, 
as cited in have been considered and are not warranted.

(6)	A higher evaluation of 20 percent is not warranted for arthritis or other 
disease unless the evidence shows:

• X-ray evidence of involvement of two or more major joints or two or more 
minor joint groups, with occasional incapacitating exacerbations. (38 CFR 
4.71a)

(7)	Additionally, a higher evaluation of 20 percent is not warranted for diseases 
and injuries of the thoracolumbar spine unless the evidence shows:

• Combined range of motion of the thoracolumbar spine not greater than 120 
degrees; or,
• Forward flexion of the thoracolumbar spine greater than 30 degrees but not 
greater than 60 degrees; or,
• Muscle spasm or guarding severe enough to result in an abnormal gait or 
abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal 
kyphosis. (38 CFR 4.71a)

    k.  The applicant was informed “of the findings and recommendations of the Physical 
Evaluation Board and explained to the Soldier the result of the findings and 
recommendations and his/her legal rights pertaining thereto” by his PEB liaison officer 
(PEBLO) on 12 August 2021.  On 17 August 2021, the applicant concurred with the 
PEB’s findings and recommendation, waived his right to a formal hearing, and declined 
the opportunity to have the VA reconsider his disability rating.

    l.  Submitted documentation contains a 19 July 2021 evaluation by a physical 
medicine physician.  The ROM results are incomplete with the provider only 
documenting 2 of 6 lumbar motions; 30 degrees of forward flexion and 10 degrees of 
extension.  These do not appear to have been performed with a goniometer, a device 
used to measure joint ROM.  Her assessment was the applicant had “Chronic axial low 
back pain with intermittent right LS radiculopathy secondary to L4-S1 spondylosis.”  
Spondylosis is the medical term applied to osteoarthritis of the spine, and the term is 
often used more generally for degenerative changes of the spine.
    m.  While radiculopathy was mentioned in AHLTA, there is no evidence it was a 
significant issue at the time of his DES processing: It was neither claimed by the 
applicant or among the 23 conditions listed on his MEB findings.

    n.  Review of his records in JLV show him to have numerous VA service-connected 
disability ratings, including the 10% rating for degenerative arthritis of the spine.  He has 
no diagnoses of or ratings for lumbar radiculopathies.  

    o.  Given no evidence of error or injustice, it is the opinion of the Agency Medical 
Advisor there is insufficient probative evidence to warrant either an increase in his 
military disability rating or a referral of his case back to the DES.

BOARD DISCUSSION:

1.  The Board determined the evidence of record was sufficient to render a fair and 
equitable decision. As a result, a personal appearance hearing is not necessary to 
serve the interest of equity and justice in this case.

2.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
Board reviewed and concurred with the advisory official’s review that shows the 
applicant has numerous VA service-connected disability ratings, including the 10% 
rating for degenerative arthritis of the spine. However, he has no diagnoses of or ratings 
for lumbar radiculopathies. As such, there is no error or injustice. Given no evidence of 
error or injustice, the Board determined there is insufficient probative evidence to 
warrant either an increase in his military disability rating or 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

: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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

   a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

   b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions.  Additionally, it states in paragraph 2-11 the applicants do not have a right 
to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal 
hearing whenever justice requires.

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.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or 
Separation) establishes the Army Disability Evaluation System and sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his office, grade, rank, 
or rating. Only the unfitting conditions or defects and those which contribute to unfitness 
will be considered in arriving at the rated degree of incapacity warranting retirement or 
separation for disability.

	a.  Disability compensation is not an entitlement acquired by reason of service-
incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted 
and who can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in military service.

	b.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the 
following line-of-duty criteria to be eligible to receive retirement and severance pay 
benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  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 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.

5.  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.

6.  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.

7.  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.

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. The guidance further 
describes evidence sources and criteria and requires boards to consider the conditions 
or experiences presented in evidence as potential mitigation for misconduct that led to 
the discharge.

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)	 AR20220003487


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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