IN THE CASE OF:  
 
  BOARD DATE:  8 August 2023 
 
  DOCKET NUMBER: AR20230001546 
 
 
APPLICANT REQUESTS, through counsel, in effect: 
 
• evaluation of his traumatic brain injury (TBI) by a Physical Evaluation Board (PEB) 

• he be retired due to disability 

• all back pay and allowances 

• entitlement to Combat-Related Special Compensation (CRSC) 


 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
• DD Form 149, Application for Correction of Military Record 

• Legal Brief 

• Standard Form 93, Report of Medical History 

• DA Form 199, PEB Proceedings 

• Orders 082-2211, Headquarters, U.S. Infantry Center 

• DD Form 214, Certificate of Release or Discharge from Active Duty 

• Civilian and VA Medical records 

• VA Rating Decisions 

• Expert Medical Opinion 

• DA Form 2860, Claim for CRSC  


 
FACTS: 
 
1.  The applicant did not file within the three-year time frame provided in Title 10, United States 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 request for entitlement to CRSC will not be considered as there is no evidence that he has exhausted his appeals with the U.S. Army Human Resources Command. 
 
3.  The applicant indicates that his request is related to post-traumatic stress disorder (PTSD), TBI, and other mental health conditions.  
4.  The applicant's counsel states, in effect, while serving in the U.S. Army the applicant suffered multiple medical injuries including a TBI, PTSD, migraines, and chronic ankle pain. He was medically discharged from the U.S. Army for chronic ankle pain on 27 April 1998. Counsel further states, in effect, that at the time of the applicant's medical discharge, the U.S. Army was aware of his TBI and migraines; however, these injuries were not evaluated or assessed during his medical discharge processing. The VA evaluated the applicant for PTSD with TBI, and on 14 April 2022, granted him a 100 percent disability rating. 
 
 a.  On 24 October 1996, the applicant was on a combat simulation training exercise and while exiting an up-armored tracked vehicle, the overhead hatch (weighing approximately 50 kilograms or 110 pounds) fell on his head. 
 
 b.  This incident caused the applicant to lose consciousness and he was immediately transported to Martin Army Community Hospital on Fort Benning, GA. He was admitted for overnight observation and discharged the next day. He was diagnosed with: 
 
• mild concussion with brief loss of consciousness 

• occipital laceration 

• neck sprain 


 
 c.  Shortly after this incident, he developed headaches and migraines, and clearly through the VA determination, a severely debilitating TBI that he deals with to this day. 
 
 d.  This incident and subsequent medical treatment was never considered or evaluated in his PEB even though it was listed on his Report of Medical History, 8 December 1997. 
 
 e.  A medical expert's opinion provides greater detail to the applicant's TBI diagnosis. 
 
 f.  A PEB found that the applicant's chronic knee pain prevented him from performing the duties of his military occupational specialty 12B, combat engineer. The PEB granted his knee condition a 20 percent disability rating. 
 
 g.  In 2013, Congress finally addressed the growing concerns of TBIs within the U.S. Military or better the lack of TBI diagnosis. Within the report to Congress, they estimated hundreds of thousands of U.S. Service Members were diagnosed with a TBI. They believe this is a low estimate, to say the least. 
 
 h.  Unfortunately, the applicant was underdiagnosed with a "mild concussion", returned to duty, and was not provided adequate treatment for over 20 years; the VA has only recently acknowledged this fact. Counsel contends the applicant has been denied the rights and privileges of a medical retirement. 
 
 i.  If the applicant was separated through a PEB today, he surely would be diagnosed with PTSD with severe TBI and granted a significantly higher disability rating. Clearly surpassing the 30 percent requirement for a medical retirement. 
 
5.  The applicant enlisted in the Regular Army on 28 December 1995. 
 
6.  The applicant provides: 
 
 a.  A Report of Medical History, 8 December 1997, completed in conjunction with his medical board processing wherein he indicated he was in good health but had very unstable ankles and suffered a head injury when he was hit by a track hatch. 
 
 b.  A DA Form 199, showing on 20 February 1998, the applicant underwent a PEB for his chronic ankle pain. This form does not list any other medical conditions. The PEB found the applicant was physically unfit and recommended a combined disability rating of 20-percent for his chronic ankle pain. The applicant concurred with the recommendation on 20 February 1998. 
 
 c.  Military Treatment Records. These documents show, in part, that the applicant was diagnosed with a mild concussion with brief loss of consciousness, occipital laceration, and neck strain on 24 October 1996 after being struck in the head by the hatch of a track vehicle. 
 
7.  Orders 082-2211, published by Headquarters, U.S. Infantry Center, Fort Benning, GA, 23 March 1998, show the applicant’s discharge date as 27 April 1998 and that he was entitled to severance pay based on a disability rating of 20-percent. 
 
8.  The applicant was discharged on 27 April 1998. His DD Form 214 shows: 
 
• no awards for valor or deployments 

• he received disability severance pay of $4,551.60 

• the separation authority is shown as “AR 635-40, CHAP 4-24B(3)” 

• the narrative reason for separation was “DISABILITY, SEVERANCE PAY 


 
  
9.  The applicant also provides: 
 
 a.  VA Progress Notes which contain neurology reports and show the applicant had a history of PTSD, TBI, and multiple other issues, among which were headaches, tremulousness, pain, and neuropathy. 
 
 b.  Imaging reports, 24 February 2022, which show the applicant underwent an MRI. The Prescription History section of this report states the "Patient suffered blunt force trauma to the head during active duty military and is suffering with chronic headaches, vestibular dysfunction and cognitive deficits." 
 
 c.  An Independent Expert Medical Opinion (Nexus), 24 March 2022, completed by a Doctor of Nursing Practice, Board Certified Family Nurse Practitioner with over 28 years in the medical field and healthcare. This medical professional stated that it was "medically reasonable to opine that the Veteran's complicated head injury with a loss of consciousness in 1996, directly caused a TBI and because this injury was 17 years prior to a call to action by the CDC and Congress, it was not identified at that time. This rationale more appropriately answers the question of "why" there was an absent diagnosis of TBI for this Veteran in 1996. Interesting enough, it is estimated that more than 430,000 U.S. Service Members were diagnosed with a TBI from 2000 to 2020, (imagine how many Veterans suffered a TBI prior to 2000) and research studies suggest that Service Members and Veterans who have sustained a TBI may have ongoing neurological symptoms and experience co-occurring health conditions such as post-traumatic stress disorder (PTSD), anxiety and depression. The medical literature shows that impaired neurological functioning occurs in individuals with complicated head injuries (CHI)."  
 
 d.  VA Rating Decision, May 2022, which shows the applicant is receiving disability compensation for TBI, which was granted an evaluation of 100 percent. 
 
 e.  DA Form 2860, 24 October 2022, which shows the applicant made an application for his claim on his service-connected PTSD with TBI. His injury occurred during a simulation of war (training exercise) on 24 October 1996 when he was struck in the head by the overhead hatch while exiting a track vehicle. 
 
10.  Regulatory guidance states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 
11.  The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 
 
12.  The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  
 
13.  MEDICAL REVIEW: 
 
    a.  The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), the applicant’s records in the Interactive Personnel Electronic Records Management System (iPERMS), and the applicant's available electronic medical records.  The applicant was separated with severance pay for his bilateral ankle condition.  Through counsel, he requests medical retirement.  He stated that his TBI and Migraine conditions were not evaluated.  In his application, he also selected that PTSD, TBI, and Other Mental Health conditions were related to his request.  And finally, he is in pursuit of CRSC (combat related special compensation) benefits. 
 
    b.  The applicant’s military records (and others) were summarized in the ABCMR ROP.  Of note, the applicant served in the Regular Army from 19951228 to 19980427 with MOS 12B10 Combat Engineer.  He was medically discharged for a bilateral ankle condition. 
 
    c.  Bilateral Ankle condition 
 
• 06Jun1997 left ankle film taken after a basketball injury revealed marked tissue swelling lateral malleolar area.  There was no dislocation or fracture. 

• 19Nov1997 right and left ankle films showed evidence consistent with possible ligament injury or instability in both ankles. 

• 20Feb1998 Formal PEB (Physical Evaluation Board) found the Bilateral Chronic Ankle Pain, Secondary to Ligamentous Instability condition unfitting for continued service and applied 20% rating under DC 5299-5003.  His disposition was separation with severance pay.  The bilateral ankle disability was determined to not be a combat or combat related injury.  The Formal PEB narrative did not indicate where the injury was incurred.  

• In the 08Dec1997 Report of Medical History (for MEB processing), the applicant did report having unstable ankles and indicated that he had a P3 profile. 

• Two years after discharge from service the applicant began being seen at the VA for his ankle condition.  The applicant was reporting pain and instability.  Bilateral ankle films were negative for an acute process—there was no fracture, subluxation, dislocation, or soft tissue swelling (08Aug2000 bilateral ankle films).  During the in-processing physical by a VA primary care physician, there was pain 


and popping during examination of the left ankle; and ROM was decreased (the ROM was not documented.)  Orthopedics was consulted, and to whom he reported that he experienced recurrent bilateral ankle sprains while in service.  The examination revealed overall ligament laxity in both ankle joints (this is reflected in the 10Sep2010 VA Compensation & Pension (C&P) Exam).  In addition, the orthopedist noted that the applicant could hyperextend both of his elbows.  Hypermobility in joints increases susceptibility to injuries.  The applicant was sent for ankle orthotics to protect from injury, and he was sent for physical therapy for strength training as well (17Oct2000 Orthopedic Surgery Consult).  The applicant was working at grocery store and his job required heavy lifting (08Sep2000 Primary Care Physician Outpatient Note).  He was reporting bilateral ankle pain and back pain. 

• 10Sep2010 VA C&P Exam.  The exam showed the following ROM:  Dorsiflexion to 10 degrees (normal is 20 degrees) and plantar flexion to 60 degrees (normal is 45 degrees). 


 
    d.  TBI, PTSD, Migraine and Neck conditions 
 
    e.  On 24Oct1996, the applicant was admitted to Martin ACH after sustaining a head injury with brief loss of consciousness (LOC) after being hit on the head by the hatch of an M113 vehicle.  He was discharged the following day.  Discharge diagnoses included:  Mild Concussion with Brief LOC; Occipital Laceration; and Neck Strain. The immediate symptoms included LOC less than 1 minute.  He was in and out of consciousness and disoriented for about 3 minutes.   He provided a history of a previous head injury sustained due to car accident 2 years prior when he struck his head on the windshield.  He had brief LOC (less than 5 minutes) at the time.  Currently, he had mild nausea and a headache.  There were no visual changes.  His Glasgow Coma Scale (GCS) score in the emergency room was 15 (out of 15), normal—no deficits.  His neurologic exam while admitted remained normal.  Cervical spine film and skull film were negative.  A dime sized laceration to the top of the head (superior occiput area), was stapled (x 3) in the emergency room.  The 11:25 am discharge note on 25Oct1996 indicated there was no headache or visual changes and no change in mental status/cognition at the time.  He was prescribed quarters for 48 hours and Tylenol 325mg as needed for headaches.  
 
Concerning the severity of the applicant’s TBI:  “TBI has traditionally been classified using injury severity scores; the most commonly used is the Glasgow Coma Scale (GCS)” ...“The term ‘mild TBI’ should be reserved for patients with a GCS score of 14 or 15 who have no major intracranial pathology on imaging” (Craig Williamson, MD, MS, Venkatakrishna Rajajee, MBBS, Traumatic brain injury: Epidemiology, classification and epidemiology, UpToDate, last updated 16May2023).  A head CT was not completed during the initial evaluation of the applicant’s head injury.  Per VA/DoD Clinical Practice Guideline for the Management and Rehabilitation of Post-Acute Mild Traumatic Brain Injury Version 3.0 June 2021, the applicant’s TBI would be classified as mild due to 
LOC less than 30 minutes, alteration of consciousness less than 24 hours, no amnesia, and GCS 15/15. 
 
f.  08Dec1997 Report of Medical History (for MEB processing).  The applicant reported the October 1996 head injury.  Of note, he denied the following: Frequent or severe headaches; dizziness or fainting spells; eye problems; depression; loss of memory or amnesia; and nervous trouble of any sort. 
 
• Two years after discharge, in September 2000, the applicant presented to establish care with the VA.  During processing, his depression screen and alcohol screen were negative.  (08Sep2000 VAMC Nursing Outpatient Note). He was single and working at grocery store.  The neurologic examination showed no focal deficits. 

• Eight years post discharge, the 27Jun2006 Mental Health Note indicated that the applicant had been discharged the previous day from an inpatient psychiatric hospitalization for a suicide attempt by overdose ingestion of Tylenol the prior week. The diagnosis was Major Depressive Disorder.  Records indicated that the surrounding circumstances were due to relationship issues, childcare issues, and the death of his grandfather.  He wasn’t seen again until September 2009, when he was under significant stress dealing with authorities and the child welfare system as well as bereavement because his 4 year child had died a month earlier under unexplained circumstances while in his custody (04Sep2009 Mental Health Note).  His diagnosis was Adjustment Disorder with Anxiety.  He was laid off from Waste Connections since May 2009 collecting unemployment.  He had not had problems maintaining employment.  He denied combat exposure while in the military. 

• 10Sep2010 VA Compensation & Pension Exam.  He reported a tank accident while driving in a M113 without helmet, the hatch struck the top of head during stopping. 

• Thirteen years after discharge, in 2011 neurosurgery was consulted due to leg pain thought to be related to his back condition.  He was status post lumbar fusion surgery in the community in February 2010.  Headaches were not mentioned. 

• 26Feb2013 VA Neurology Consult.  The applicant was first seen at the VA for headache complaints.  He reported that symptoms were present for the past several months and were accompanied by severe light and sound sensitivity and of late they were also accompanied by daily nausea and vomiting.  He did not have a previous headache condition.  Of note, he also reported severe anxiety symptoms (untreated) including daily panic attacks and intermittent sudden onset weakness in arms and legs, progressive peripheral sensory loss, and confusion and memory problems.  Brain MRI showed enlarged ventricles and prominent cisterna magna with some vermis hypoplasia and other changes largely thought 


to be congenital by VA neurology and radiology (27Sept2021 Neurosurgery Consult).   

• In 2016, the applicant suffered several losses which lead to the first consideration of his PTSD diagnosis: In May 2015 he and his wife found his stepdaughter dead from an apparent suicide by hanging; a friend overdosed and died, and his grandfather died.  The applicant also recalled the death of his 4 year old son from accidental strangulation during the visit. 

• 23Jan2020 UCHealth Primary Care Clinic.  This outside note indicated that the applicant had been diagnosed with PTSD due to having flashbacks related to the hatch hitting his head.   

• 21Oct2021 VA Neurology Consult.  The applicant reported being hit on the head with a heavy metal object and “whiplash” type torsional neck injury in October 1996.  The neurologist assessed the applicant had post-concussive headaches (from traumatic brain injury) with features of migraine and tension headache with cervicogenic process.  He also had tremulousness (beginning in 2019) likely related to anxiety (as opposed to the remote TBI); and distal prominent sensory polyneuropathy of unverified etiology.   

• 24Feb2022 Penrad Imaging Brain MRI findings:  Generalized cerebral volume loss, subjectively advanced for age; Focus of susceptibility within the right parietal deep white matter, compatible with a focus of hemosiderin deposition. This was nonspecific but was also noted that it could represent possible sequela of remote trauma.  A signal abnormality in the right lateral ventricular atrium, may be incidental, or could also serve as an epileptogenic focus. 

• 22Mar2022 VA Neurology Telephone Contact. The neurology attending opined that the applicant’s head trauma in service (1996) with loss of consciousness (“severe concussion”) resulted in numerous somatic, cognitive, and psychiatric symptoms including panic attacks, nightmares, PTSD, migraines, neuropathy, and pain; and that this was consistent with a history of TBI. 

• 24Mar2022 Independent Expert Medical Opinion by Doctor of Nursing Practice opined that the applicant’s TBI is more likely than not service-connected caused by blunt force trauma to his head, documented as a "complicated head injury (CHI) with loss of consciousness" during an active-duty military training exercise on 24Oct1996.   

• 27Sep2022 Neurology Telephone Encounter Note.  The neurology attending noted that applicant had developed numbness in his arms and legs, recurrent muscle twitching in leg, arm, neck at different sites that come and go; worsening balance; and extreme chest heaviness that had prompted several calls for ambulances (without etiology found).  He also had a worsening tremor (starting in 2019) which was entrainable, suggestible, variable and distractable which suggested the tremor was functional (not organic, not due to pathology related to traumatic brain injury).  It was unclear which of his post-concussive symptoms including headache and memory loss were also functional.  The specialist ultimate determined that the post-concussive symptoms were likely multifactorial 


and the applicant likely had a functional neurological disorder.   A functional neurological disorder is diagnosed when symptoms apparently arise from abnormal nervous system functioning in the absence of discernible structural pathology. 

• 29Sep2022 Mental Health Consult.  The attending neuropsychiatrist concurred with the TBI diagnosis but endorsed that his current physical problems were not related to structural pathology illness/injury.  They concurred with neurology’s assessment that the applicant had a functional neurological disorder.  During a video call, the specialist observed the applicant walking about his home (to relocate to better lighting) without appreciable difficulty.  He was moving all extremities symmetrically.  The specialist sought to guide the applicant into focusing on enhancing his independence and confidence that he was physically capable of completing showering and bathing independently (for example).  The applicant was applying for the VA caregiver program benefit to help him with activities of daily living (ADLs). 


 
    g.  Summary/Rationale 
 
    h.  The military entrance exam was not available for review.  The 08Dec1997 Report of Medical History completed for MEB processing showed that the applicant endorsed good health; however, he did report both the unstable ankles, and the head injury.  There were no further in-service treatment records after this date.  In 2000, he was seen for a fair number of visits each related to the ankles, upper respiratory infections, and gastrointestinal symptoms; however, there were no complaints of headaches, memory issues, depression, PTSD symptoms etc.; and providers did not document observations of such.  Two years after service, the applicant developed chronic back pain thought to be due to his work in the grocery store.  In 2013, he developed a migraine headache condition thought to be due to his in-service traumatic brain injury.  He developed PTSD symptoms in 2016 and chronic neck pain after 2019.  In 2022, he was diagnosed with a functional neurologic disorder attributed largely to his severe, undertreated, and uncontrolled anxiety.  In that year, he was rated by the VA at 100% for PTSD (with TBI); 30% for Migraine Headaches; and 20% each for Left and Right Limited Motion of Ankle.  Based on documentation that is currently available for review for the applicant’s medical conditions that were present at the time of discharge; evidence was insufficient to support that the severity of the TBI or PTSD conditions at the time of discharge failed medical retention standards of AR 40-501 chapter 3.   Recommendation:  Referral for MEB/PEB processing is not warranted for the TBI or PTSD conditions.  Evidence does not support that the Migraine Headache and Neck conditions had developed by the time of discharge and thus also did not warrant referral for MEB/PEB processing.  
 
    i.  The bilateral ankle condition was already found unfitting by the FPEB and rated at 20%. Twelve years after service, the applicant completed VA C&P examinations in 2010 and was subsequently rated at 10% each for the Left and Right Ankles.  Combining 
both 10% ratings using VASRD principles (§4.25 Combined ratings table and §4.26 Bilateral factor), the rating applied by the FPEB for the bilateral ankle condition, matched the VA’s initial rating for the right and left ankle conditions.  The 08Dec1997 Report of Medical Examination for the MEB process was not available for this review.  A VA examination completed close to the time of separation from service was not found.  Therefore, there was no foundation on which to base any different rating for the bilateral ankle condition than that applied by the FPEB.  Recommendation:  No change is warranted to the current 20% rating for Bilateral Chronic Ankle Pain, Secondary to Ligamentous Instability condition and separation with severance pay disposition.    
 
    j.  CRSC benefits eligibility 
 
    k.  In his 24Oct2022 claim for CRSC application, the applicant reported that the October 1996 head injury occurred during a combat simulation training exercise.  The applicant’s mild TBI reportedly sustained during combat simulation training exercise would be classified as having been incurred or service aggravated by an instrumentality of war due to the accident involving a uniquely military vehicle (corroborated by contemporaneous medical records).  However, concerning the unfitting bilateral ankle condition, evidence was insufficient to endorse that the condition was a combat or combat related injury or that it was incurred in a combat zone. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence shows a formal PEB found the applicant’s chronic knee pain prevented him from performing the duties of his 12B MOS. The PEB assigned a 20% disability rating for the condition found unfitting. Some 12 years after service, the applicant completed VA C&P examinations in 2010 and was subsequently rated at 10% each for the Left and Right Ankles. Combining both 10% ratings using VASRD principles, the Board agreed that the rating applied by the formal PEB for the bilateral ankle condition, matched the VA’s initial rating for the right and left ankle conditions. The Board reviewed and was persuaded by the medical reviewer’s finding no foundation on which to base any different rating for the bilateral ankle condition than that applied by the formal PEB. The Board determined there is no probative evidence to change the current 20% rating. The Board also determined the contested medical condition brough by the applicant in this petition was not found unfitting. Therefore, there is no reason to change his separation with severance pay disposition.  
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: DENY APPLICATION 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
The 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. 
 
  8/8/2023

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, United States 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 Army Board for Correction of Military Records (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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of 
the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army  Regulation 635-40. 
 
 a. The objectives of the system are to: 
 
• maintain an effective and fit military organization with maximum use of available manpower 

• provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability 

• provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected 


 
 b. Soldiers are referred to the PDES: 
 
• 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 

• receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board 

• are command-referred for a fitness-for-duty medical examination 

• are referred by the Commander, Human Resources Command 


 
 c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees.  
 
 d. 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) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 
 
4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. 
 
 a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 
 
 b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. 
 
 c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he 
or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 
 
 d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 
 
 e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 
 
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. 
 
5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 
 
6. 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//