IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220005455 APPLICANT REQUESTS: in effect, a medical retirement based on his Veterans Affairs (VA) 100% rating or placement on the temporary disabled retired list (TDRL) and all related back pay. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel brief (24 pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Report of Medical Examination, 3 February 2007 * Orders 015-0290, 15 January 2013 * Orders BG-003-0139, 3 January 2012 * Orders 197-693, 16 July 2009 * Physical Profile, 7 January 2012 * DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement) * Medical Evaluation Board NARSUM * DA Form 199 (Informal Physical Evaluation Board Proceedings), 24 October 2012 * Medical records o Proposed rating, 28 September 2012 o DVA letter, 21 June 2013 o Rating Decision, 5 August 2015 o Rating Decision, 14 May 2018 * Award certificates * DVA letter * Photos * Enlisted Record Brief 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’s counsel states in pertinent parts: a. It took several years after the applicant’s discharge in 2013 for him to receive the necessary care through the VA which allowed him to come to terms with the effects of his military service and his physical and mental health and understand why he had felt unfairly treated by the military during his medical separation. b. Counsel provides a timeline of the applicant’s service to include his medical conditions. Counsel also provides a personal and military background of the applicant. He further details the applicant’s heat related injuries, neck and back injuries, and combat experiences. c. Counsel argues that the applicant’s medical evaluation board (MEB) which was initiated in 2011 following the heat casualty incident during the battalion run. Despite suffering multiple back and neck injuries, during training as well as deployments, he was referred only for his heat injury condition. Counsel states the Army had notice of the seriousness of the applicant’s conditions but did nothing, the severity of the condition was ignored, causing it to worsen over time. d. Prior to Discharge in 2011, the applicant had symptoms that met all the criteria for post-traumatic stress disorder (PTSD). He had been through two combat theater deployments in Iraq where he faced the worst brutality of war and human destruction. He saw countless bodies, participated in killings and the destruction of enemy fighters, had a close friend shot inches from him and die in his arms while frantically trying to stop the bleeding and save him. e. The MEB missed the mark clinically. The MEB ignored combat related injuries to his back and neck. The applicant suffered an inequitable outcome when he was medically separated without proper assessment and rating of his PTSD, back and neck injuries, and unstable thermoregulatory disorder. f. While the applicant does request backpay and is entitled to concurrent receipt for his combat-related injuries, he expressed over and over that the most important part of this process would be to properly acknowledge the toll that his years of service took, not only on him, but also on his family, who served right alongside him for nearly a decade and suffered through his multiple deployments and the effects of his injuries. 3. The applicant enlisted in the Regular Army on 23 July 2002. He held military occupational specialty 11B (Infantryman). He had several periods of reenlistment throughout his career as well as leadership positions. 4. He served in Iraq from 12 November 2003 – 28 October 2004 and again in Iraq from 19 June 2006 – 22 September 2007. 5. The applicant provided a DA Form 3349 (Physical Profile) showing he was issued a permanent profile for a heat injury on 7 January 2012. Occupational Medicine recommends MEB. Unable to participate in any vigorous physical activities in temperatures over 85°F for more than 15 minutes per day. No running or jumping. May use indoor gym tor upper extremity body strengthening exercises as tolerated. No rucking or airborne operations. 6. On 29 March 2012, a MEB Narrative Summary shows the applicant was diagnosed with multiple heat injuries which did not meet medical retention standards. He had other medical diagnosis which met medical retention standards to include: * gastroesophageal reflux disease (GERD) controlled with Nexium * adjustment disorder with anxiety and depressed mood * low back pain (lumbar degenerative disc disease (DDD)) for eight years with no injury * intermittent neck pain if he keeps his neck in the "wrong position * intermittent knee pain with popping and stiffness 7. The applicant provided DA Form 7652 (Physical Disability Evaluation System Commander’s Performance and Functional Statement) showing: a. Section III (Performance Information): * Soldier performs duties in MOS (to include assigned MOS duties in unit)- No * Soldier's medical conditions/limitations affect unit accomplishing mission- No * Recommended retaining this Soldier- Yes b. Section III D (Comment Section) his commander stated due to the applicant’s recurring heat injuries he cannot perform the duties of an 11B; however he is most certainly a contributing member of our team. He is the operations non-commissioned officer for Headquarters and Headquarters Company (HHC), 4th Brigade (BDE) Combat Team. This allows him to remain indoors for most of the day while still teaching, training, and mentoring paratroopers. He works approximately 40-50 hours per week and has never let his profile limit his work ethic or accomplishment of the mission. He maintains personnel records, manages training of new paratroopers and is responsible for approximately one third of the property within HHC BDE (Rear Detachment). 8. On 24 October 2012, an Informal Physical Evaluation Board convened and found the applicant physically unfit and recommended a rating of 0% and that his disposition be separation with severance pay. a. The sole unfitting condition was listed as multiple heat injuries with rhabdomyolysis (PEB referred as multiple heat injuries). The applicant had at least eight episodes of heat exhaustion since 2002 and possibly one heat stroke in 2007 while deployed to Iraq. Despite extensive treatment, the condition had not improved sufficiently to allow participation in such functional activities such as wearing body armor or load bearing equipment (LBE) for at least 12 hours per day. The condition was considered stable for disability rating purposes and rated at 0%. b. The following conditions were found not to be unfitting because the MEB determined that they meet medical retention standards; they were not listed on the Physical Profile as limiting any of the Soldier's functional activities; they were not commented upon by the commander as hindering the Soldier's performance of assigned duties; continued service did not put the Soldier's health at risk from them; and the conditions individually or in combination with the Soldier's other conditions did not put an undue burden on the military to protect the Soldier in performance of his duties: * GERD * lumbar DDD * cervical DDD (per VA) * thoracic strain (per VA) * bilateral knee strain * right tinnitus (per VA)) c. Adjustment disorder with anxiety and depressed mood did not constitute a physical disability and was not ratable in the absence of an underlying ratable causative disorder in accordance with DoDI 1332.38 (Physical Disability Evaluation), E5 .1.3 .9.4. d. The applicant concurred and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 9. On 8 January 2013, the applicant was counseled in accordance with ALARACT message 188/2007 dated 28 August 2007 pertaining to his election of separation date to medically separate from the Army. He understood that DVA service connection for disability incurred in or aggravated by military service may be established from the day following his date of separation from the Army. By law entitlement to payment is not authorized until the first of the month following the month in which service connection is established. DVA compensation is pay, like military pay, in arrears. Because of these rules, he understood that electing a separation date earlier in the month will result in a corresponding delay in receipt of DVA payments and must plan accordingly. He requested to be separated on 17 February 2013. 10. Orders 015-0290, issued by US Army Installation Management Command, Fort Bragg, NC, on 15 January 2013, shows the applicant was to be discharged on 17 February 2013. Additional Instructions shows: * his percentage of disability was 0% * he was authorized disability severance pay * disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: No * disability resulted from a combat related injury as defined in 26 USC 104: No * member of an Armed Force on 24 September 1975: No * disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008 Sec 1646): Yes 11. On 17 February 2013, he was honorably discharged in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, or Separation) chapter 4, for Disability, Severance Pay, Combat Related (Enhanced). His DD Form 214 shows he completed 10 years, 6 months, and 25 days of net active service this period. It also shows he was paid severance pay in the amount of $67,003.20. 12. The applicant provided: a. Medical records to support his claim. b. DVA Disability Evaluation System Proposed Rating Decision, dated 28 September 2012, which shows the DVA assigned a noncompensable evaluation for the applicant’s multiple heat injuries with rhabdomyolysis. The DVA further proposed the following ratings: * anxiety disorder not otherwise specified (also claimed as PTSD), 10% * GERD (also claimed as acid reflux), 10% * lumbar spine DDD with thoracic spine strain (also claimed as low and middle back condition), 10% * cervical spine DDD (also claimed as neck condition), 10% * tinnitus (also claimed as right ear ring in the ear), 10% * right knee strain, noncompensable * left knee strain, noncompensable * alopecia, noncompensable c. DVA letter, 21 June 2013, which shows he had an overall rating of 40% effective 18 February 2013 for the following: * cervical spine DDD (also claimed as neck condition), 10% * lumbar spine DDD with thoracic spine strain (also claimed as low and middle back condition), 10% * tinnitus (also claimed as right ear ring in the ear), 10% * GERD (also claimed as acid reflux), 10% * anxiety disorder not otherwise specified (also claimed as PTSD), 10% * multiple heat injuries with rhabdomyolysis, 0% * left knee strain, 0% * right knee strain, 0% * alopecia, 0% c. DVA rating decision, 5 August 2015, which shows he had an overall rating of 90% effective 22 December 2014 for the following: * sleep apnea, 50% effective 22 December 2014 * left lower extremity radiculopathy, 10% effective 22 December 2014 * anxiety disorder, PTSD, nightmare disorder, increased to 50% effective 22 December 2022 * left knee strain, increased to 10% effective 22 December 2014 * GERD (also claimed as acid reflux), continued at 10% * tinnitus (also claimed as right ear ring in the ear), continued at 10% * cervical DDD (also claimed as neck condition), continued at 10% * lumbar spine DDD with thoracic spine strain (also claimed as low and middle back condition), continued at 10% * right knee strain, continued at 0% * service connection for bilateral hearing loss was denied d. DVA rating decision, 14 May 2018, which shows the following rating adjustments effective 28 March 2018: * anxiety disorder, PTSD, nightmare disorder, increased to 70% * lumbar spine DDD with thoracic spine strain (also claimed as low and middle back condition), increased to 40% * left lower extremity radiculopathy increased to 20% e. Awards he received while in service, photos from a desert location, and a DVA letter which shows he is 100% combined service-connected disabled. 13. 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. 14. 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. 15. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings 16. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant has applied to the ABCMR requesting additional medical conditions be determined unfitting for continued military service, with a subsequent 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. He states through counsel: “Mr. {Applicant} suffered an inequitable outcome when he was medically separated without proper assessment and rating of his PTSD, back and neck injuries, and unstable thermoregulatory disorder. He respectfully requests that he be medically retired based on his VA rating, or alternatively, placed on the Temporary Disabled Retired List so that he can be properly and thoroughly re- evaluation for his medical evaluation board and referred conditions.” b. 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 23 July 2002 and was separated with $67,003.20 of disability severance pay on 17 February 2013 under provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). c. 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). 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. 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. e. On 18 May 2012, the applicant was referred to the IDES for “Heat Injury.” He claimed six additional conditions on his VA/DOD Joint Disability Evaluation Board Claim (VA form 21-0819), including PTSD, chronic neck pain, and chronic low back pain. A medical evaluation board (MEB) determined his “Multiple heat injuries” failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined seven other medical conditions met medical retention standards, including cervical degenerative disc disease (DDD), lumbar DDD, and “Adjustment disorder with anxiety disorder and depressed mood. f. From his MEB narrative summary (NARSUM) for the three medical conditions in question: 2) He has had mild depression and insomnia; in 2003 he took Ambien and received psychotherapy. On 25 January 2012, Psychiatry at WAMC {Womack Army Medical Center}, stated a diagnosis of "Adjustment disorder with anxiety and depressed mood" (not disqualifying). On 29 May 2012, Dr. reviewed the Army Psychiatry and VA Psychology consultations. He determined that the diagnosis to be placed in the NARSUM and on DA Form 3947 should be "Adjustment disorder with anxiety and depressed mood". 3) He has had low back pain (lumbar DDD) for eight years with no injury. He has seen chiropractors and has used Flexeril but has had no physical therapy or referrals to the Pain Clinic. He continues to have daily low and mid-back pain without radicular symptoms. On 07 March 2012, an MRI of the lumbar spine showed a large left paracentral disc protrusion with significant central canal stenosis, impingement on the central nerve roots, contact of the left exiting S1 nerve root, and moderate bilateral neural foraminal narrowing. There was a moderate central disc protrusion at the L4-5 level with moderate bilateral neural foraminal narrowing. On 13 March 2012, Dr. Orthopedics at WAMC, stated that SM had had low back pain for 9 years which had not severely affected his function for several years (not disqualifying per AR 40-501, para 3-39h). 4) He has intermittent neck pain if he keeps his neck in the "wrong position"; he saw a chiropractor in 2003. The condition is not duty limiting and not disqualifying per AR 40-501, para 3-39h.” g. Review of the applicable VA Compensation and Pension Examinations and AHLTA shows the MEB narrative summary findings were based on this examination of record as well as his AHLTA records. Mental health: Applicant was being seen for adjustment disorder and amphetamine use disorder, both treated with counseling. His last visit was a mental status evaluation for a possible misconduct discharge under paragraph 14-12c of AR 635-200. The provider documented a normal examination and cleared the applicant for any administrative action deemed appropriate by command. Neck: There are two AHLTA encounters for this condition with the latter occurring on 14 March 2011. The applicant presented with a two-day history of right neck pain stating he believed he had “slept on it wrong.” The provider documented a normal examination, radiographs revealed mild degenerative changes, the applicant was diagnosed with a strain, provided conservative treatment, and released without limitations. Back: The applicant was seen and treated on multiple occasions for low back pain. On 13 March 2012, he was evaluated by an orthopedic surgeon to see if the condition failed medical retention standards and required an MEB. The surgeon documented midline tenderness to palpation but an otherwise normal examination with a full range of lumbar motion and no neurological deficits. He went on to opine: “Staff Sergeant {Applicant} has chronic low back pain which has not severely affected his function for several years. I mentioned to him that he has a fairly large disk herniation that can cause neurologic symptoms. As long as he has does not have any neurologic symptoms, we can continue to observe for now. It is possible with time the herniation may recede on its own. He was advised to seek medical attention if he should develop radicular pain, numbness or weakness of his lower extremity, loss of bowel/bladder control, or saddle anesthesia. He has been able to maintain satisfactory level of function despite the low back pain. He is still able to wear his heavy combat gear. He can sit in military vehicle for long duration. It does not severely impair his ability to run. He can still fire his weapon. I feel he meet retention criteria, and therefore the back pain is not a disqualifying condition.” h. The applicant’s final NCO Evaluation Report (DA Form 2166-8) was an annual with a thru date of 30 September 2012. It shows the applicant was successful in all evaluated Values and responsibilities, passed his Army Physical Fitness Test on 24 July 2012, blocked as “Fully Capable” by his rater, and blocked 2 out of 5 by his senior rater for both overall performance and overall potential. The senior rater opined: o promote with peers o send to SLC o extremely capable, competent, and resourceful NCO o displays potential to serve in positions of increased responsibility i. The applicant declined an Independent Medical Review of his case and concurred with the MEB’s findings and recommendation on 11 June 2012. The case was forwarded to a physical evaluation board (PEB) for adjudication. j. On 24 October 2012, the applicant’s informal PEB found his “Multiple heat injuries with rhabdomyolysis” to be the sole unfitting medical condition for continued service. They determined the remaining six medical conditions were not unfitting for continued military service. k. The PEB applied the VBA derived rating of 0% to this condition. From the 28 September 2012 VA rating decision: “We have assigned a non-compensable evaluation based on multiple heat injuries with rhabdomyolysis without incapacitating episodes. Note: In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. {38 CFR §4.31}.” l. Because the applicant’s combined military disability rating was less than 30%, the PEB recommended the applicant be separated with disability severance pay. On 29 October 2012, after being counseled on the informal PEB’s findings by her PEB Liaison Officer (PEBLO), the applicant concurred with the informal PEB’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability rating. m. There is insufficient probative evidence the applicant had additional medical conditions which failed the medical retention standards of chapter 3, AR 40-501 and thus would have been subject to a potential finding of unfitness for continued service and compensable prior to his discharge. Furthermore, there is no evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. n. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including PTSD, and ratings related to his neck and back. His rating for the unfitting condition of multiple heat injuries remains at 0%. o. 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. p. Given no evidence of error or injustice, 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: 1. 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, counsel’s petition, a medical advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the advisory official finding insufficient probative evidence the applicant had additional medical conditions which failed the medical retention standards of chapter 3, AR 40-501 and thus would have been subject to a potential finding of unfitness for continued service and compensable prior to his discharge. The Board further noted there is no evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a medical retirement was warranted during his period of active service. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. Variance in ratings do not indicate an error on the part of either entity. 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 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 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 3-4 states 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. c. Paragraph 3-9 states the TDRL is used in the nature of a “pending list”. It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. (1) Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, United States Code, Section 1208, (10 USC 1208). In addition, the condition must be determined to be temporary or unstable. (2) A Soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the Soldier to remain on active duty for a period of time. 5. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the raring using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 6. Department of Defense (DoD) Instruction (DoDI) 1332.38 (Physical Disability Evaluation), in effect at the time, implements policy, assigns responsibilities, and prescribes procedures for retiring or separating Service members because of physical disability, making administrative determinations for Service members with Service- incurred or Service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty. a. Enclosure 5 states certain conditions and defects of a developmental nature designated by the Secretary of Defense do not constitute a physical disability and are not ratable in the absence of an underlying ratable causative disorder. Such conditions should be referred for appropriate administrative action under other laws and regulations. b. Paragraph E5.1.3. lists developmental defects and other specific conditions that do not constitute a physical disability. This list includes adjustment disorders. 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 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. 9. 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. 10. Title 10, U.S. Code, section 1556 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) AR20220005455 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1