IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220007139 APPLICANT REQUESTS: physical disability retirement in lieu of physical disability separation with severance pay. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * 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, 24 March 2022 * VA letter, dated 25 March 2022 FACTS: 1. The applicant states he would like to request a review of his discharge and request a medical retirement, as per the included VA notification letter, dated 25 March 2022. Based upon his recent VA Rating Decision, he believes a more appropriate disability rating should have been a minimum of 30 percent, thus qualifying him for medical retirement. 2. The applicant enlisted in the Regular Army on 3 July 2018. 3. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), Medical Evaluation Board (MEB) Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), VA Compensation and Pension (C&P) Exam, or initial VA Proposed Rating Decision are not in his available records for review and have not been provided by the applicant. 3. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows the following: a. An informal PEB convened on 8 November 2021 where the applicant was found physically unfit with a recommended rating of 20 percent and that his disposition be separation with severance pay. b. The applicant’s unfitting condition is listed as left shoulder strain (MEB diagnosis (Dx) 1), with a rating of 20 percent. He first sought treatment for left shoulder strain pain on 14 November 2018 while stationed at Fort Lee, VA for Advanced Individual Training (AIT). The onset of this injury was 14 November 2018 when he was conducting a ruck march. The condition was aggravated by lifting weights and lying down. The applicant was unfit because his DA form 3349 functional activity limitations associated with this condition make him unable to reasonably perform required duties. c. The documents used in arriving at this decision were the NARSUM, DA Form 7652, DA Form 3349, DA Form 3947, VA C&P Exam, Clinical Note, dated 14 November 2018, Clinical Note, dated 8 June 2021, and VA Decision Rating. d. The PEB determined the applicant was fit for the conditions listed as MEB Dx 2-31. e. On 19 November 2021, the applicant acknowledged having been advised of the findings and recommendations of the Informal PEB and having received a full explanation of the results, findings, recommendations, and legal right pertaining thereto. He concurred with the findings and recommendations and waived a formal hearing of his case. He also indicated he did not request reconsideration of his VA Ratings. 4. Installation Management Command Orders 336-0030, dated 2 December 2021, honorably discharged the applicant due to disability with severance pay effective 22 February 2021, with a 20 percent disability rating. 5. The applicant’s DD Form 214 shows he was honorably discharged on 22 February 2022 due to disability with severance pay, non-combat related and credited with 3 years, 7 months, and 20 days of net active service. 5. A VA Rating Decision, dated 24 March 2022, shows the applicant was granted a 100 percent combined service-connected disability rating for the following conditions effective 23 February 2022: * sleep apnea, 50 percent * tension headaches, 50 percent * adjustment disorder with mixed anxiety and depressed mood, 30 percent * cervical spine (neck) strain, 20 percent * left ankle lateral collateral ligament sprain, 20 percent * left shoulder status/post labral tear (non-dominant) strain; glenohumreral joint dislocation, 20 percent * lumbosacral spine strain, 20 percent * right shoulder (dominant) strain, 20 percent * right wrist sprain (dominant), 10 percent * tinnitus; bilateral eustachian tube dysfunction, 10 percent * atherosclerotic cardiovascular disease; coronary artery disease, 0 percent * costochondritis, 0 percent * dry eye syndrome OU, 0 percent * gastroesophageal reflux disease (GERD), 0 percent * tinea cruris, 0 percent 6. A VA letter, dated 25 March 2022, informed the applicant of the above detailed VA Rating Decision and advised him that this decision represents a change to a rating originally assigned as part of the Integrated Disability Evaluation System (IDES). This decision could potentially warrant a change to his military record and/or an adjustment to the disability separation benefits he received from his service department. In light of the change in his VA disability rating, he was advised that it may be to his benefit to request a review of his discharge from the appropriate board using a DD Form 149. 7. 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. 8. Title 38, USC, 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. 9. 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. 10. 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 is applying to the ABCMR requesting an increase in his military disability rating with a subsequent change of his disability discharge disposition from separate with disability severance pay to permanent retirement for physical disability. He states: “Based upon my recent VA decision, I believe a more appropriate DoD disability rating should have been a minimum of 30%, thus qualifying me for medical retirement.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the Regular Army on 3 July 2018 and was honorably discharged with $20,659.20 of disability severance pay on 22 February 2022 under provisions provided 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 6 July 2021, the applicant was referred to the IDES for “Left shoulder pain (labral tear).” The applicant claimed twenty-four additional conditions on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). A medical evaluation board (MEB) determined his “Left shoulder strain” failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined twenty additional medical conditions met medical retention standards and there was no VA diagnosis for an additional ten claimed conditions. g. On 1 October 2021, the applicant concurred with the MEB’s decision and declined an independent medical review of his MEB. His case was subsequently forwarded to a physical evaluation board (PEB) for adjudication. h. On 8 November 2021, the applicant’s informal PEB found his “Left shoulder strain” to be the sole unfitting for continued military service. They found the remaining medical conditions not unfitting for continued service. The PEB applied the Veterans Benefits Administration (VBA) derived rating of 20% and recommended the applicant be separated with disability severance pay. On 19 November 2021, after being counseled by his PEB Liaison Officer (PEBLO) on the PEB’s findings and recommendations, the applicant concurred with the PEB’s finding, waived his right to a formal hearing, and declined a VA reconsideration of his disability rating. i. The 24 March 2022 VA rating decision submitted with the application shows his left shoulder condition remains rated at 20% by the Veterans Benefits Administration. j. Review of his PEB case file in ePEB along AHLTA records revealed no material inaccuracies in or discrepancies. k. There is no evidence the applicant had any additional medical condition(s) which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Furthermore, there is no evidence that any 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. l. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. However, the DES compensates an individual only 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. m. 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, a change of his disability discharge disposition, nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant had no conditions other than his shoulder that failed to meet retention standards, and the Board found his left shoulder strain was properly rated as 20% disabling. Based on a preponderance of the evidence, the Board determined the applicant’s discharge for disability with severance pay was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. 2. 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. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Title 38, U.S. Code, 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. 5. 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. 6. 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) AR20220007139 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1