IN THE CASE OF: 

		BOARD DATE: 17 January 2024

		DOCKET NUMBER: AR20230007020


APPLICANT REQUESTS: in effect, her disability ratings be adjusted to match her 
adjusted Veterans Affairs (VA) ratings from 60% to 100%.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Statement in support of claim, 2 March 2023
*	VA disability rating decision, 31 October 2022
*	VA disability rating decision, 16 February 2023


FACTS:

1.  The applicant states, her original disability rating of 60 percent from the Department 
of Defense (DOD)/Army should be adjusted to match her current rating of 100 percent 
from the VA. Both her initial DOD/Army and VA disability percentages were based on 
the same Code of Federal Regulations (CFR) sections and ratings.

	a.  She contends her Medical Evaluation Board (MEB) process was hastily and 
incorrectly completed and included numerous errors, which she attributes to COVID and 
overworked doctors. The errors include her name being listed incorrectly on documents, 
doctors quitting before signing documentation, and having to undergo repeat 
examinations. She further states that during the processing she was subjected to sexist 
remarks regarding, "...my potential to raise children now that I'm old and won't have a 
job."

	b.  She requested the VA conduct a higher level review; she did not submit any 
additional documentation nor attend additional medical appointments for the review. 
The VA review applied the reasonable doubt rule, used the new CFRs, and pulled all 
the medical complaints from her record for consideration. After completing the review, 
the VA adjusted her rating from 60 percent to 100 percent. She requests that the DOD 
take a second look at her medical records an consider applying the correct CFRs to her 
case.

2.  The applicant completed enlisted service in the U.S. Army Reserves (USAR) as a 
Cadet prior to commissioning as a Reserve Commissioned Officer and entering onto 
active duty on 19 May 2015. 

4.  On 25 May 2022, a Physical Evaluation Board (PEB) convened and determined she 
was unfit and recommended a rating of 60% and that her disposition be permanent 
disability retirement. The medical condition determined to be unfitting was Antinuclear 
antibodies negative mixed connective tissue disease with polyarthritis and Raynaud’s 
syndrome rated at 60%.

	a.  This case was adjudicated as part of the Integrated Disability Evaluation System 
(IDES). 

	c.  The applicant concurred and waived a formal hearing of her case. She did not 
request reconsideration of her VA ratings.

5.  Orders 164-0171, issued by Joint Base Elmendorf-Richardson, Alaska, on 13 June 
2022, shows she was to be retired effective 6 September 2022, due to permanent 
physical disability with a rating of 60%. These orders were amended on 29 June 2022, 
by Orders 180-0175, changing her date to 21 October 2022.

6.  She was retired on 21 October 2022, due to disability, permanent IAW AR 635-40, 
chapter 4. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows she completed 7 years, 5 months, and 3 days net active service this period. Her 
separation code was SEJ.

7.  The applicant provides a:

	a.  VA disability rating decision, 31 October 2022, showing service connection for:

*	Raynaud’s syndrome due to mixed connective tissue disease (MCTD) (also 
claimed as ana negative MCTD and polyarthritis) is granted and rated at 60% 
effective 22 October 2022
*	Irritable bowel syndrome (IBS) due to MCTD is granted and rated at 0%
*	Pulmonary hypertension due to MCTD is granted and rated at 0%

	b.  VA disability rating decision, 16 February 2023, showing service connection for:

*	Evaluation of pulmonary hypertension due to MCTD, which is currently 0% 
disabling, is increased to 100 percent effective 22 October 2022
*	Evaluation of IBS due to MCTD which is currently 0% disabling, is increased 
to 30% effective 22 October 2022
*	Entitlement to special monthly compensation based on housebound criteria 
being met is granted from 22 October 2022
*	Basic eligibility to Dependents' Educational Assistance based on permanent 
and total disability status is established from 22 October 2022

8.  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.

9.  Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation 
for disabilities which were incurred in or aggravated by active military service. However, 
an award of a VA rating does not establish an error or injustice on the part of the Army.

10.  Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards 
disability ratings to veterans for service-connected conditions, including those conditions 
detected after discharge. As a result, the DVA, operating under different policies, may 
award a disability rating where the Army did not find the member to be unfit to perform 
his duties. Unlike the Army, the DVA can evaluate a veteran throughout his or her 
lifetime, adjusting the percentage of disability based upon that agency's examinations 
and findings.

11.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  
    b.  The applicant is applying to the ABCMR requesting an increase in her military 
disability ratings based on new VA ratings she received just after discharge.  
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  Her DD 214 for the period of Service under consideration 
shows she entered the regular Army on 19 May 2015 and was permanently retired for 
physical disability on 21 October 2022 under provisions in chapter 4 of AR 635-40, 
Physical Evaluation for Retention, Retirement, or Separation (19 January 2017).  
    d.  A Soldier is referred to the IDES when they have one or more conditions which 
appear to fail medical retention standards as documented on a duty liming permanent 
physical profile.  At the start of their IDES processing, a physician lists the Soldier’s 
referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board 
Claim (VA Form 21-0819).  The Soldier, with the assistance of the VA military service 
coordinator, lists all conditions they believe to be service-connected disabilities in block 
8 of section II or a separate Statement in Support of Claim (VA form 21-4138).  

    e.  Soldiers then receive one set of VA C&P examinations covering all their referred 
and claimed conditions.  These examinations, which are the examinations of record for 
the IDES, serve as the basis for both their military and VA disability processing.  All 
conditions are then rated by the VA prior to the Soldier’s discharge.  The physical 
evaluation board (PEB), after adjudicating the case sent them by the medical evaluation 
board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting 
condition(s), thereby determining their final combined rating and disposition.  Upon 
discharge, the Veteran immediately begins receiving the full disability benefits to which 
they are entitled from both their Service and the VA.

    f.  On 1 November 2021, the applicant was referred to the IDES for “ANA [anti-
nuclear antibody] negative mixed connective tissue disease and polyarthritis.”   The 
applicant claimed 2 additional conditions on her Application for Disability Compensation 
and Related Compensation Benefits (VA Form 21-526EZ): Raynaud’s Disease and 
irritable bowel syndrome (IBS).  

    g.  A medical evaluation board (MEB) determined the applicant’s “ANA negative 
mixed connective tissue disease with polyarthritis and Raynaud's syndrome” failed the 
medical retention standards of AR 40-501, Standards of Medical Fitness.  They 
determined her two remaining conditions - pulmonary hypertension and IBS - met 
medical retention standards.  On 14 April 2022, the applicant reviewed the approval 
authority’s final decision and her case was forwarded to a physical evaluation board 
(PEB) for adjudication. 

    h.  On 25 April 2022, the applicant’s informal PEB determined her “ANA negative 
mixed connective tissue disease with polyarthritis and Raynaud's syndrome” was the 
sole unfitting condition for continued service. They determined the remaining two 
conditions were not unfitting for continued service.  The PEB applied the Veterans 
Benefits Administration’s (VBA) derived rating of 60% and recommended the applicant 
be permanently retired for physical disability.

    i.  On 6 June 2022, after being counseled on the informal PEB’s findings and 
recommendation by his PEB Liaison Officer, the applicant concurred with the informal 
PEB’s findings, waived her right to a formal hearing, and declined to request a VA 
reconsideration of his disability ratings of her two spine disabilities.   

    j.  The applicant submitted a VA Rating Decision dated 16 February 2023.  It shows 
the disability rating for the two conditions found not to be unfitting were increased: That 
for her pulmonary hypertension from 0% to 100% and the rating for her IBS from 0 to 
30%.
The evaluation of pulmonary hypertension due to mixed connective tissue 
disease (MCTD) is increased to 100 percent disabling effective October 22, 
2022, the day following separation from active duty ...
The reasonable doubt rule was considered and applied to this evaluation issue. 
Despite limited respiratory impairment, a diagnosis of primary pulmonary 
hypertension, by regulation, warrants a total evaluation of 100 percent.”

The evaluation of irritable bowel syndrome due to mixed connective tissue 
disease (MCTD) is increased to 30 percent disabling effective October 22, 2022, 
the day following separation from active duty.
We have assigned a 30 percent evaluation for your irritable bowel syndrome due 
to mixed connective tissue disease (MCTD) based on:
• Abdominal distress
• Alternating diarrhea and constipation
    k.  Neither of these conditions was found to fail medical retention standards by the 
MEB or to be unfitting for continued service by the PEB.  The DES only compensates 
an individual for service incurred medical condition(s) which have been determined to 
disqualify him or her from further military service and consequently prematurely ends 
their career.  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.  It is the opinion of the ARBA Medical Advisor that an increase in her military 
disability rating to is 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 an increase in 
her military disability rating is not warranted. The Board noted in the medical opine the 
applicant’s two remaining conditions - pulmonary hypertension and IBS - met medical 
retention standards.  Evidence in the record show the applicant reviewed the approval 
authority’s final decision and her case was forwarded to a physical evaluation board 
(PEB) for adjudication. The Board agreed there is insufficient evidence in the record to 
support the applicant’s contentions for her disability ratings be adjusted to match her 
adjusted Veterans Affairs (VA) ratings from 60% to 100%. Therefore, the Board denied 
relief. 

2.  The Board agreed the VA applies its own polices and regulations to make service 
connection and rating determinations. It is not bound by determinations made by the 
Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory 
application of VA ratings is a snapshot in time whereas the VA can make service 
connection and rating determinations throughout the veteran’s life. The VA provides 
post-service support and benefits for service-connected medical conditions. The VA 
operates under different laws and regulations than the Department of Defense (DOD). 
In essence, the VA will compensate for all service-connected disabilities.


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 
(Disability 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.  38 CFR § 4.1 - Essentials of evaluative rating. This rating schedule is primarily a 
guide in the evaluation of disability resulting from all types of diseases and injuries 
encountered as a result of or incident to military service. The percentage ratings 
represent as far as can practicably be determined the average impairment in earning 
capacity resulting from such diseases and injuries and their residual conditions in civil 
occupations. Generally, the degrees of disability specified are considered adequate to 
compensate for considerable loss of working time from exacerbations or illnesses 
proportionate to the severity of the several grades of disability. For the application of this 
schedule, accurate and fully descriptive medical examinations are required, with 
emphasis upon the limitation of activity imposed by the disabling condition. Over a 
period of many years, a veteran's disability claim may require re-ratings in accordance 
with changes in laws, medical knowledge and his or her physical or mental condition. It 
is thus essential, both in the examination and in the evaluation of disability, that each 
disability be viewed in relation to its history.

3.  AR 40-501 provides information on medical fitness standards for induction, 
enlistment, appointment, retention, and related policies and procedures.  Soldiers  
with conditions listed in chapter 3 who do not meet the required medical standards  
will be evaluated by an MEB and will be referred to a PEB as defined in Army 
Regulation 635-40. 

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. 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. 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. 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. 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. 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.

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.  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)	AR20230007020


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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