IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220007691 APPLICANT REQUESTS: in effect: * reconsideration of his previous request for a physical disability retirement in lieu of separation with severance pay or, * referral to the Disability Evaluation System (DES) to have all of his conditions evaluated and, * a personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney brief (8 pages), 12 May 2022 * Attorney supplemental brief, 6 March 2021 * Respiration Report, 10 October 2020 * Department Veteran Affairs (DVA) letter, 14 January 2021 * Email, 7 March 2021 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190013890 on 25 February 2021. 2. The applicant states his disabilities were severely under appreciated at the time of his separation, the PDBR (Physical Disability Board of Review) was unable to consider all of his conditions due to the limited scope of their purview, and this board reached a decision without the benefit of exhibits submitted but not relayed to the board prior to its decision. He suffered from several injuries which contributed to his unfitness which were either ignored or under-evaluated by his physicians. His command also downplayed his injuries since he was filling an administrative role at the time this occurred, and he was never truly evaluated for his ability to perform the duties of his Military Occupational Specialty (MOS), grade, and position. He also suffered from mental health conditions which went undiagnosed or were misdiagnosed during his service. In addition, when considering his original position, the Board relied upon medical advice of which he was neither aware nor permitted to respond. 3. The applicant’s counsel states the applicant was medically discharged in 2007; however, because he was discharged overseas and remained there to maintain custody rights over his child, he did not get to undergo his initial VA examinations until approximately 19 months after his discharge. His initial ratings were higher than those issued by the PEB; however, the applicant did not initially seek correction to his record, as he was still struggling with mental health issues stemming from his service and discharge. His PTSD (post-traumatic stress disorder) rating was automatically increased in 2010 based upon the outcome of a class-action lawsuit wherein it was acknowledged that countless veterans had been unjustly underrated. This led to the creation of the Physical Disability Board of Review (PDBR). a. The applicant sought correction of his records through the PDBR in 2014; however, he was denied relief in 2016 based largely upon the fact his VA examinations were not within one year of his discharge. No advisory opinions were issued in the subject case, or at least, no opinions were provided to counsel or the applicant for response. b. In October 2020, the applicant underwent additional medical testing through the Veterans Administration to further assess his condition(s). The results of these medical tests and his revised VA Disability Rating were received in March 2021. A supplemental memorandum with enclosures was prepared and mailed to the Board for consideration on 6 March 2021 (Enclosure 1). The packet was confirmed as being received and added to the case file that was still under review on 7 March (Enclosure 2). Unbeknownst to counsel, these materials were never considered, as the Board had already met on 25 February 2021. The Board decision cited to a medical review as an evidentiary basis for denying relief, the details of which will be discussed below. No information from the Medical Advisor, aside from the references in the decision, were provided to the applicant or his counsel. The Board relied upon medical advice of which we were neither aware nor permitted to respond, counsel respectfully request that this Board reconsider the applicant’s petition and afford him the due process he should have received in his initial petition c. As discussed in the original petition and the supplemental materials, the applicant was denied appropriate consideration of the severity of his injuries at the time of his MEB, PEB, and PDBR review. In addition to the undervaluation of his injuries was the lack of proper inquiry into his mental health condition and sleep apnea. At the time of his discharge, his sleep problems were wholly ignored, as they were presumed to be side effects from his medication. Because the applicant was left with an underdiagnosed mental health condition, all of his major symptoms were disregarded during the referral process and where thereby absent from his separation and disability rating percentage. The applicant should have been diagnosed with, and retired as a result of, Major Depressive Disorder (MDD)/PTSD and sleep apnea, as he displayed all of the required symptoms for his providers to have reached this diagnosis and presented with such severity that had his condition been properly classified, would have resulted in a referral to an MEB. New medical records provided with this petition support this position. d. Counsel continues stating beyond those facts previously discussed, it should be noted that the applicant has struggled with his mental health conditions and sleep problems for years, beginning shortly after his first deployment. Because of lack of access to proper facilities due to his overseas residency (throughout his time since separation), COVID limitations (recent impact), and other factors, he was not able to get these issues fully evaluated until October 2020. At that time, he was able to have a sleep study conducted during which it was determined he had Severe Obstructive Sleep Apnea (OSA) requiring him to utilize a CPAP machine to manage his condition (Enclosure 1). This condition was added to his VA disability rating resulting in him receiving a permanent disability rating of 100%. e. Counsel argues relevant headings are noted to assist in reviewing the present arguments in the proper context. * the initial evaluation was incomplete and inaccurate * the MEB/PEB used the applicant’s performance evaluations without regard to the duty changes * the MEB/PEB placed too much emphasis on Commander's Statement * the PEB limited its inquiry to the incomplete and inaccurate records from the MEB * the PDBR relied heavily upon the inaccurate records and limited scope of purview and disregarded reliable medical information due to arbitrary guidance on timelines * the applicant’s overall fitness was improperly assessed, as the full evaluation of his conditions indicate he is 100% disabled * providers failed to conduct even a cursory inquiry to verify the cause of his sleep issues, denying him proper consideration of his severe OSA * the applicant is effectively being punished for remaining OCONUS after his discharge, which precluded the proper evaluation of, and disability ratings for, his pre-discharge medical conditions * the applicant’s claim is further supported by evidence not yet considered by this Board * due process rights were denied when the board considered medical evidence amounting to an advisory opinion, which was never provided to the applicant or his counsel f. For the reasons set forth above, they respectfully request the Board overturn the medical discharge of the applicant and order his medical disability retirement as of 10 March 2007 for his numerous physical injuries and his PTSD/MDD, all of which were incurred during his service and interfered with his ability to perform the duties of his rank, grade, and position. Alternatively, they request that the Board direct the Army to reconsider the applicant for retirement through the DES assessing all conditions that were known, or should have been known, to the Army in 2007 rather than just the one that was deemed most significant at that time. g. Counsel states in a supplemental statement in additional to the undervaluation of the applicant’s injuries was the lack of proper inquiry into the applicant's mental health condition and sleep apnea. At the time of his discharge, his sleep problems were disregarded, as they were presumed to be side effects from his medications. Because he was left with an underdiagnosed mental health condition, all his major symptoms were effectively ignored in his separation and disability rating percentage. The applicant should have been diagnosed with, and retired because of, MDD/PTSD and sleep apnea. (The entire 11 page brief is available for the Board’s review). 4. The applicant enlisted in the Regular Army on 26 October 1999. He deployed to: * Iraq from 15 March 2003 to 13 March 2004 * Afghanistan from 12 February 2005 to 2 November 2005 5. He was issued a permanent profile on 15 February 2006, for lower back pain – L5- S1 disc protrusion impinging left S1 nerve root. 6. A DA Form 3947 (Medical Evaluation Board Proceedings) shows the following: a. An MEB convened on 19 October 2006 and found the following conditions medically unacceptable: * lumbago * herniated nucleus pulposus * lumbar degenerative disk disease * testicle pain b. The following conditions were determined to be medically acceptable: * right ankle pain * left ankle pain * adjustment disorder with anxiety * tinnitus bilateral * moderate high frequency sensorineural hearing loss c. The applicant was referred to a PEB. d. On 20 October 2006, the applicant signed the form indicating he did not desire to continue on active duty and, having been informed of the approved findings and recommendation of the MEB, agreed with the MEB’s findings and recommendations. 7. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 24 January 2007, where the applicant was found unfit for chronic back pain with a history of a herniated disc (MEB diagnoses 1-4). The PEB stated the following regrading the applicant’s unfitting condition: The pain radiates to the testicular area. The pain increased while deployed to Afghanistan. Soldier denies any bowel or bladder symptoms. Soldier does report infrequent right foot tingling especially with prolonged standing, relieved with moving about. While an MRI showed a disc protrusion, there was no neurosurgical indication. The left hydrocele was thought to be asymptomatic. Soldier's symptoms increased and lead to hospitalization in a local Italian hospital in August 2006. Soldier recovered fully as assessed by neurology, again with no surgical indication. Physical exam notes a normal gait with painful active ranges of motion, can forward flex to 80 degrees with pain. Ranges of passive motion are limited by pain. Spinal tenderness is noted. The genital exam was normal except for right testicular tenderness although the exam of three days prior does not indicate any tenderness or problems. Straight leg raising causes back pain; Soldier did walk with a cane. The neurological exam was nonfocal. The Soldier did have an Airborne accident where he fractured his right ankle in 2002. After surgery and rehabilitation he went back to jump status six months after the accident and continued in jump status until early 2005. b. The PEB determined MEB diagnoses 5-9 met medical retention standards because they were not listed on the physical profile as limiting any of the Soldier’s functional activities, were not commented on by the commander as hindering the Soldier’s performance, and the case file contained no evidence that these diagnoses independently, or combined, rendered the Soldier unfit for his assigned duties. c. The PEB recommended a combined rating of 10% and that the applicant’s disposition be separation with severance pay. d. The PEB further determined: * the Soldier's retirement was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law * evidence of record reflected the Soldier was not a member or obligated to become a member of an armed force or reserve thereof, or the NOAA or the USPHS on 24 September 1975 * The disability did not result from a combat related injury as defined in 26 USC 104 e. On 5 February 2007, the applicant signed the form indicating that having been advised of the findings and recommendations of the PEB, he did not concur and submitted a rebuttal statement. 8. In his rebuttal he stated: On 24 January 2007 he went through a PEB in WRAMC. The board had found him unfit for duty with a disability rating of 10% and separation with severance pay. He is appealing this finding based on the board's argument that his parachute Jump injury happened in March 2002 and that his MEB started in 2005, and that he continued to jump and perform his duties to the best of his abilities. Yes, he did go back to duty after six months of rehabilitation, however it is noted that he started to complain of hip pain/discomfort immediately. He was given 1000mg Motrin and told to drive on. He deployed to Iraq and yet in pain and suffering he did his duty. He deployed to Afghanistan and when his lower back and hip pain started to protrude to his right testicle, he could no longer bear the hardship of driving on. Once all tests were done at Landstuhl Medical Center, the full picture of his situation appeared a lot clearer. His right leg was shorter than his left leg, his hips were shifted, and he had a herniated disc at L-5, S-1, and a restriction of his spinal canal. Obviously throughout time subconsciously correcting his walking posture because of the shorter leg has brought on other illnesses. He is a Soldier, and his job is to do his duty, a doctor's job is to find out what is wrong with him, not administer pain medication like if it was candy. He was not accusing anyone of wrongdoing, but he is convinced that if a doctor would have done all the testing possible back when, he would not be in this position today. For the Army to say that his illness/injury is not derived from his parachute malfunction is a blatant lie. To hold him responsible for his physical condition because he "drove on" with selfless service is just outright despicable. He is not the same man physically/mentally that he was when he joined the Army. He has always accepted his responsibilities; he believes very strongly that the Army needs to face theirs. You cannot ask a man to lay his life on the line to defend his country and then once he is broken discard him like a piece of scrap metal. He is asking that he at least receive a rating of 30% disability, which will allow him to receive medical help and provide for his daughter. He visited with Behavioral Health today 05 February 2007 at Health Clinic. She will write an addendum for his mental conditions that were not properly inserted on his narrative summary. Having to review his files and information she will need a few days to complete that, he asked the board that time to be able to send it forward. 9. On 8 February 2007, the U.S. Army Physical Evaluation Board responded to the applicant’s rebuttal stating: a. The PEB carefully reviewed all the information he submitted with his rebuttal of 5 February 2007. In making a decision on separation and assigning compensation ratings, the PEB follows the guidelines of Veteran's Administration Schedule for Rating Disabilities, several Department of Defense Instructions, and Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, or Separation). These documents provide very specific guidance on what ratings must be used, and how to determine the severity of an ailment or affliction when determining a compensation rating. His condition as severe as it seems to him, and as unfitting as it is, was appropriately rated. b. His rating for his back was based on his ability to forward flex to 80 degrees and that was limited by pain. He was rated at 10% because his spine is tender to palpation. c. His medical record reflects that he injured his ankle in a parachute jump. The Board concluded that continued service in general and not specifically an injury secondary to a failed parachute landing fall was the cause of his chronic back pain. 10. On 12 February 2007, the United States Army Physical Disability Agency (USAPDA) stated: a. The USAPDA has noted his disagreement with the findings of the PEB and has reviewed his entire case. The Agency's conclusion is that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination. The findings and recommendations of the PEB are supported by substantial evidence and are therefore affirmed. His case has now been forwarded to the Physical Disability Branch for final disposition. b. He may be eligible for medical care through the DVA if they determine that his illness or injury is service connected. Furthermore, he may apply for a disability rating through the DVA for any of these service-connected illness or injuries. The DOD PDES however, operating under a different set of laws than the DVA, may only compensate Soldiers for any service-connected or permanently aggravated condition(s) that caused their separation and only for the degree of impairment at the time of separation. 11. On 10 March 2007, the applicant was honorably discharged due to Disability, severance pay in accordance with (IAW) of AR 635-40, paragraph 4-24B (3). He completed 7 years, 4 months, and 15 days of net active service this period. 12. On or about 20 May 2016, the PDBR convened regarding the applicant’s contention that his adjustment disorder adjudicated by the service should have been PTSD. The rating comparison showed: a. Service PEB with a combined rating of 10% on 24 January 2007 as: Chronic back pain with a history of a herniated disc Rated at 10% Adjustment disorder with anxiety Not unfitting b. VA Rating Disability with a combined rating of all VA conditions of 30% on 18 June 2008 as: Degenerative Disc Disease of the lumbar spine with radiation to the right testicle area and right lower extremity Rated at 10% Adjustment disorder with anxiety Rated at 10% c. The PDBR found in the matter of the back pain condition and IAW VASRD §4.71a, the Board unanimously recommended no change in the PEB adjudication. In the matter of the contended adjustment disorder with anxiety condition, the Board unanimously agreed that it could not recommend it for additional disability rating. There were no other conditions within the Board's scope of review for consideration. The Board, therefore, recommended that there be no recharacterization of the applicant’s disability and separation determination. 13. As a result of the finality of the PDBR’s decision, the scope of the current Board’s review is limited to those conditions which were not considered by the PDBR. 14. In his previous request (AR20190013890) on 25 February 2021, the Board considered his application under procedures established by the Secretary of the Army and determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. 15. The applicant provides: a. A Respiration Report, dated 10 October 2020, which shows the impression of severe obstructive sleep apnea. b. A DVA letter, dated 14 January 2021, which shows he has a combined evaluation of 100 percent. 16. 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. 17. 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. 18. 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. 19. 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 reconsideration of their prior denial of his request for referral to the DES and/or that his disability discharge disposition be changed from separated with disability severance pay to permanent retirement for physical disability. He indicated on his DD 149 that PTSD, TBI, and other mental health issues are related to his request. b. The Record of Proceedings and prior denial detail the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 26 October 1999 and was discharged with $35,271.60 of disability severance pay on 10 March 2007 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). c. The applicant’s case was reviewed by the Physical Disability Board of Review (PDBR) in May 2016. Issues addressed included the applicant’s lumbar spine condition and adjustment disorder with anxiety. PDBR’s findings dated 20 May 2016: “BOARD FINDINGS: In the matter of the back pain condition and IAW VASRD §4.7la, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended adjustment disorder with anxiety condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. There were no other conditions within the Board's scope of review for consideration. The Board, therefore, recommends that there be no recharacterization of the Cl's {covered individual disability and separation determination.” d. Their recommendation was approved by the Deputy Assistant Secretary of the Army Review Boards on 22 June 2016. DoD PDBR decisions are final and the issues considered by the PDBR cannot afterwards be considered by the Army Board for Correction of Military Records. e. This request was previously denied in full on 25 February 2021 (AR20190013890). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. f. The only new/reviewable issue addressed by counsel is the applicant’s obstructive sleep apnea. Counsel states: “In October 2020, Mr. {Applicant} underwent additional medical testing through the Veterans Administration to further assess his condition(s). The results of these medical tests and his revised VA Disability Rating were received in March 2021. A supplemental memorandum with enclosures was prepared and mailed to the Board for consideration on 6 March 2021 (Enclosure 1 ). The packet was confirmed as being received and added to the casefile that was still under review on 7 March (Enclosure 2). Unbeknownst to the undersigned, these materials were never considered, as the Board had already met on 25 February 2021. Although the Board's decision is dated 24 June 2021, it was not mailed until 9 November and was received on 15 November. (Enclosure 3). The Board decision cited to a medical review as an evidentiary basis for denying relief, the details of which will be discussed below. No information from the Medical Advisor, aside from the references in the decision, were provided to Mr. {Applicant} or his counsel. g. A 10 October 2020 polysomnography (aka sleep study) report revealed the applicant to have to have severe obstructive sleep apnea. This appears to be a significant worsening of his condition after his separation from service. From the prior medical advisory: “Sleep Apnea/Sleep Disorder. The applicant contends this condition should have been documented as service-disabling. However, Polysomnography in August 2006 showed excellent sleep efficiency at 94%. There was no significant hypoxia. The applicant’s sleep issues were considered to be secondary to his mental health diagnosis, and in addition, he did at one point suffer excessive daytime sleepiness thought to be due to his medication(s). Conservative remedial measures were not exhausted.” h. For reference, paragraph 3-41c of AR 40-501, Standards of Medical Fitness (29 August 2003), states: “c. Sleep apnea. Obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, surgery, or oral prosthesis. The diagnosis must be based upon a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a provider with expertise in sleep medicine. A 12-month trial of therapy with nasal continuous positive air pressure may be attempted to assist in weight reduction or other interventions, during which time the individual will be profiled as T3. Long-term therapy with nasal continuous positive air pressure requires referral to an MEB.” i. There is no evidence the applicant’s obstructive sleep apnea met the requirements for an MEB, i.e., failed medical retention standards, prior to his separation from the Army in March 2007. j. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including one for PTSD, with his first ones awarded upon discharge from the Army as is standard. He does not have a service-connected disability rating for obstructive sleep apnea. k. 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. l. Given no evidence of error or injustice, it is the opinion of the ARBA Medical Advisor that both an increase in his military disability rating and/or a referral of his case back to the DES remain unwarranted. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that both an increase in his military disability rating and/or a referral of his case back to the DES remain unwarranted. The medical review noted there is no evidence the applicant’s obstructive sleep apnea met the requirements for an MEB, i.e., failed medical retention standards, prior to his separation from the Army in March 2007. Based on a preponderance of evidence, the Board determined there is insufficient evidence to amend the previous Boards’ decision. Therefore, relief was denied. 2. The Board determined DES compensates an individual only for service incurred 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20190013890 on 25 February 2021. 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 (AR) 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 that 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. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Paragraph 4-24b (3) states separation for physical disability with severance pay (10 USC 1203 or 1206). a. Paragraph 3-1 states that 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance and have not interfered with the Soldier's performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a 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 service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 3. 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. 4. Army Regulation 40-501, governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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. The Department of Veterans Affairs Schedule of Rating Disabilities (VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition. 9. Department of Defense Instruction (DODI) 6040.44 (Physical Disability Board of Review (PDBR)) designates the Secretary of the Air Force as the lead agent for the establishment, operation and management of the PDBR for the DOD. a. The PDBR reassesses the accuracy and fairness of the combined disability ratings assigned former service members who were separated, with a combined disability rating of 20% or less during the period beginning on 11 September 2001 and ending on 31 December 2009, due to unfitness for continued military service, resulting from a physical disability. b. The PDBR may, at the request of an eligible member, review conditions identified but not determined to be unfitting by the PEB of the Military Department concerned. c. As a result of a request for PDBR review, the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary of the Military Department concerned. 10. 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) AR20220007691 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1