BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150000165 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF __x______ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration . BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150000165 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring the applicant’s case to a physical evaluation board to determine if his chronic adjustment disorder was unfitting. In the event of a determination that this condition was unfitting, these proceedings will serve as the authority to void or amend his original discharge and to issue the appropriate separation retroactive to his original separation date. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without further evaluation under the Integrated Disability Evaluation System. ___________x______________ CHAIRPERSON 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. BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150000165 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired due to the following medical conditions that were not considered during his medical evaluation board (MEB) and physical evaluation board (PEB): * obstructive sleep disorder * adjustment disorder with anxiety and depression * gastroesophageal reflux disease (GERD) * hiatal hernia 2. The applicant states, in effect, that: a. At the time of his MEB and PEB, he was diagnosed with obstructive sleep apnea, anxiety and depression, GERD, hiatal hernia, and pseudo folliculitis, but only given an overall rating of 10 percent for lumbar spondylosis (a degenerative condition which affects the lower spine). b. Subsequent to his separation, he filed a claim for disability compensation with the Department of Veterans Affairs (VA) and was assigned a combined disability rating of 80 percent. c. It is his contention that all the above disabilities impaired his ability to perform his military duties on a daily basis and should have resulted in a higher overall evaluation being assigned by the MEB and PEB and that he should have been placed on the permanent disability retired list (PDRL). 3. The applicant provides: * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings)) * VA disability rating decision, dated 3 July 2013 * self-authored statements * VA medical records CONSIDERATION OF EVIDENCE: 1. On 27 April 2009, the applicant enlisted in the Regular Army. After initial training, he was awarded military occupational specialty (MOS) 92S (Shower/Laundry and Clothing Repair). 2. A medical progress report shows the injury took place in May 2011, while on active duty. He and other Soldiers had to lift a 650-pound water heater into the back of a light medium tactical vehicle (LMTV). In the process of lifting the water heater, one of the Soldiers dropped it, causing injury to the applicant’s back. 3. On 9 July 2012, the applicant was seen by a military health care physician at the Carl R. Darnall Medical Center, Ft Hood, TX, where he was referred into the Integrated Disability Evaluation System (IDES) for lumbar spondylosis. He was also seen and evaluated for: a. Lumbago with mild spondylosis and radicular pain – does not meet retentions standards. b. Headaches – meets retention standards. c. Nasal deviation status post-surgical repair – meets retention standards. d. Moderate obstructive sleep apnea – meets retention standards. e. Hiatal hernia – meets retention standards. f. GERD – meets retention standards. g. Pseudofolliculitis – does not constitute a physical disability. h. Bilateral Leg pain – meets retention standards. 4. On 12 July 2012, the applicant received a psychiatric evaluation at the Carl D. Darnall Army Medical Center, Hospital and Administrative Psychiatry Department, Fort Hood, TX. Specifically, the medical provider stated, “it is this examiner’s opinion that the service member’s current psychiatric status is 309.28 – ADJUSTMENT DISORDER WITH ANXIETY AND DEPRESSED MOOD. A diagnosis of Adjustment Disorder does not require disability rating by the PEB, in accordance with condition and circumstance not constituting a physical disability IAW [in accordance with] the Department of Defense Instruction (DODI) 1332.38 E5 [Enclosure 5] [Physical Disability Evaluation]. Therefore, a formal psychiatric addendum is not required for the purposes of the MEB.” 5. A MEB convened on 6 August 2012 for lumbar with mild spondylosis and radicular pain, which did not meet retention standards. After consideration of clinical records, laboratory findings, and physical examinations, on 10 August 2012, the MEB found the applicant as having a medically unacceptable condition of “Lumbar with mild spondylosis and radicular pain.” The MEB recommended the applicant's referral to a PEB. For unknown reasons, block 24 (action by patient) on the DA Form 3947 was not completed by the applicant. 6. On 9 August 2012, the applicant was placed on a permanent physical profile based on chronic lower back pain, abnormal breathing during sleep, and pseudofolliculitis. His PULHES factors were determined to be "213111." (PULHES is an acronym used in the Military Profile Serial System comprised of six factors, each of the letters standing for a specific medical area.) He was given a permanent serial factor of "2" in the "P” (Physical capacity or stamina), and a serial factor of “2” in the "L” (Lower extremities) components of his PULHES. 7. On 19 October 2012, six months prior to his separation, the VA rated the applicant for service-connected disabilities. He provided the applicable VA Rating Decisions and Decision Letter that show the VA awarded him a total combined rating of 80 percent for service-connected disability compensation for the following conditions: * 10 percent for thoracolumbar spine * 50 percent for sleep apnea syndrome * 30 percent for chronic adjustment disorder * 10 percent for GERD * 10 percent for temporomandibular articulation (limited motion) * non-compensable rating for dermatitis 8. On 28 December 2012, an informal PEB convened. The applicant was determined to be physically unfit for lumbar spondylosis; the board recommended a rating of 10 percent and that he be separated with severance pay. The proceedings also show: a. The applicant’s other medical conditions (headache, nasal deviation post-surgical repair, moderate obstructive sleep apnea, hiatal hernia, gastritis, and bilateral leg pain) are not associated with profile limitations and do not impact his ability to perform his duties. These conditions were not found unfitting. b. On 15 November 2013, the applicant signed the proceedings; electing that he concurs with the board results, waives his rights to a formal hearing, and does not request reconsideration of his VA ratings. 9. On 17 April 2013, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, disability, severance pay, non-combat (enhanced). 10. An advisory opinion was obtained on 10 September 2015 from the U.S. Army Physical Disability Agency (USAPDA). The advisory official stated: a. The applicant requests review of his prior military disability findings and requests that his sleep disorder and adjustment disorder with depression be found to have been unfitting at the time of his separation from the military and his separation be changed to permanent disability retirement. b. A MEB was completed on 6 August 2012 and listed only one condition that did not meet medical retention standards. The diagnosis of adjustment disorder was not included. Adjustment disorders were not considered disabilities in 2012 based on the DODI 1332.38 and could not be considered by the MEB/PEB. c. His physical profile had restrictions for his lower back pain (L3), but he received a profile of a P2 for his sleep apnea with the only restriction for that condition requiring the availability to electricity. The commander’s statement cited the applicants back pain and indicated that the applicant had no observable signs of any mental disorders. d. On 28 December 2012, an informal PEB found the applicant unfit for his lumbar spondylosis, rated him at 10 percent, and recommended that he be separated with severance pay. The PEB found the applicant’s sleep apnea was not unfitting. e. The PEB further found that the evidence did not support that the applicant’s condition of radiculopathy or that it was independently unfitting as there were no physical finds or evidence of any material interference with his military duties caused by the condition. On 15 January 2013, the applicant concurred with the PEB’s findings and waived his right to a formal hearing. f. On 10 April 2013, DODI 1332.38 (Change 2) established “chronic adjustment disorder” as a potentially compensable physical disability. g. On 17 June 2013, Army Directive 2013-12, Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder was published providing for the review and implementation of the new DOD guidance. Any cases that had been already adjudicated, but the Soldier still remained in the Army, needed to be reviewed to determine if they had a diagnosis of chronic adjustment disorder and whether it required any profile limitations. h. The PEB and MEB findings were in accordance with DOD and Army policy and guidance at the time of the applicant’s separation. There was no legal or regulatory error. It is recommended that no change to the applicant’s military records be approved in regard to his adjustment disorder. Further, even if the adjustment disorder had been considered, the PEB would not have found the condition unfitting at the time, since the commander noted no mental health symptoms interfered with his ability to perform military duties. Furthermore, the 12 July 2012 psychiatric status report indicated that the applicant’s condition was improving due to changes in his command structures, that he was able to adequately concentrate on taking and passing 12 college credits in the Spring with a grade point average of 3.4, and there were no counseling forms in his military files relating to any misconduct or inability to perform his duties. i. Subsequent VA ratings are not evidence of MEB or PEB error. 11. On 7 November 2015, the applicant was provided a copy of the advisory opinion for review and possible rebuttal. 12. On 1 December 2015, the applicant’s mother requested an extension regarding her son’s application since he was admitted into the Palo Alto, VA Hospital due to seizures and memory loss. The request was granted. 13. On 19 January 2016, the ABCMR requested another advisory opinion from the Office of the Surgeon General (OTSG) for clarification on the first advisory opinion. 14. On 26 April 2016, a second advisory opinion was obtained from an IDES MEB Physician, it stated: a. I have concluded that the applicant’s behavior health condition was adequately addressed and appropriately listed as meeting retention standards, pursuant to Army Regulation 40-501 (Standards of Medical Fitness) and that no further action is required for reassessment. b. The applicant came to the attention of behavioral health services on 27 September 2011 and throughout the ensuing course of all the Army Forces Health Longitudinal Technology Application (AHLTA) behavioral healthcare contacts until his last contact on 25 March 2013, it is noted that the applicant had only seven contacts, mainly by a social worker. c. The applicant had a total of 116 outpatient Army Substance Abuse Program (ASAP) visits for 8 months of substance dependence on “Spice” beginning in June 2011, as well as 5 weeks inpatient substance treatment at the Laurel Ridge Hospital. He was discharged from inpatient on 24 January 2012. d. He had six primary care behavioral health visits for stress management related to chronic back pain sustained in April 2011. e. It is noted the applicant had sleep difficulties that appear to stem from his insomnia and work-related stress while on profiles for his back pain. f. On 31 July 2012, the applicant was noted to feel angry, irritable, and expressed being outspoken. g. He lost 35 pounds of weight over a year or so and stopped playing video games. h. The applicant’s commander noted no mental health symptoms interfering with his ability to perform military duties that would be considered an unfitting condition; therefore, would not be compensable within the military disability system. i. It is the opinion of the undersigned that the applicant’s claimed behavioral health condition was appropriately listed as meeting retention standards at both the time of his separation and as well as by today’s standards pursuant to Army Regulation 40-501 and that no further action is required for reassessment. 15. On 13 May 2016, the applicant was provided a copy of the advisory opinion for review and possible rebuttal. 16. On 24 May 2016, the applicant responded to the advisory opinion stating: a. He contests the mental health advisory opinion which states that he met retention standards regarding his other medical issues. b. At the time, he was going through a lot of physical and mental health issues stemming from an initial work accident and treatment. c. His mental health issues have not gotten any better; they have only worsened. d. He will be seeking a psychologist who can write a letter saying as such and he will send it in as soon as possible. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 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 4-10 provides that MEB's 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. c. 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. In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEB Liaison Officer is primarily concerned with the Soldier's interests. The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability. 3. Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the IDES and states: a. The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES) Manual: IDES) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. d. If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA Regional Office of jurisdiction. 4. 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 at less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. 6. The 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. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. 7. DODI 1332.38, Physical Disability Evaluation, dated 10 April 2013 amends enclosure 5 and implements a policy change establishing “chronic adjustment disorder” as a potentially compensable physical disability. The effective date is for all MEBs 120 days after the date of instruction. 8. Department of the Army Directive, Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder, dated 17 June 2013, the Secretary of the Army established the standard for medical fitness for chronic adjustment disorder. He stated, a diagnosis of chronic adjustment disorder will cause a Soldier to be referred to a MEB when the Soldier exhibits persistent or recurring symptoms meeting the criteria detailed in the current edition of the Diagnostic and Statistical Manual for Mental Disorders. These symptoms must be directly caused by exposure to an enduring stressor and must last longer than 6 months. The standard is applied to Soldiers currently in the Army’s IDES. To that end, the Deputy Chief of Staff (DCS), G-1 will review any current case, including those pending separation, for which the VA has assigned a preliminary rating for chronic adjustment disorder. DISCUSSION: 1. The applicant requests correction of his MEB and PEB Proceedings to add certain medical conditions (sleep apnea, adjustment disorder with anxiety and depression, GERD, and hiatal hernia) as unfitting to show that he should have been medically retired. 2. 6 August 2012, an MEB convened and referred the applicant to a PEB. 3. On 19 October 2012, six months prior to his discharge from the Army, the VA awarded him service-connected disability ratings for numerous other conditions, including obstructive sleep apnea, adjustment disorder with mixed anxiety and depression, GERD, and for temporomandibular joint disorder. 4. On 28 December 2012, a PEB convened and found him unfit, assigned him a disability rating of 10 percent for lumbar spondylosis, and recommended separation with entitlement to severance pay. The applicant concurred with the PEB’s findings and did not elect a formal PEB. The PEB Proceedings were approved and he was discharged from the Army with entitlement to severance pay. 5. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the IDES. 6. The applicant contends that his additional medical issues (sleep apnea, GERD and hiatal hernia) should have been evaluated and rated. However, the PEB did address these conditions and found they were not unfitting and met retention standards. Additionally, the applicant concurred with the PEB’s findings. 7. It appears that the applicant met the criteria and should have been evaluated for his chronic adjustment disorder prior to his separation (17 April 2013). 8. On 10 April 2013, DODI 1332.38 was amended establishing “chronic adjustment disorder” as a potentially compensable physical disability. It is reasonable to presume the intent of the effective date was to allow the Secretaries of the Military Departments to establish standards and implement change for the operations of MEB’s and not preclude Soldier’s diagnosed with the condition from being referred and/or evaluated. 9. It appears that the applicant met the criteria for chronic adjustment disorder: a. He was seen at behavioral health in 2011 on several occasions; the evidence indicates that the stressor lasted longer than 6 months; and b. Although an award of different rating by the VA does not establish error in the rating assigned by the Army’s IDES, the VA did rate the applicant for chronic adjustment disorder at 30 percent six months prior to his separation. 10. On 10 April 2013, DOD recognized a change that needed to occur and amended DODI 1332.38 establishing “chronic adjustment disorder” as a potentially compensable physical disability. Notwithstanding the medical advisories or the effective date of DODI 1332.38 (change 2), a delay in administrative implementation should not be used to penalize a Soldier who was in fact diagnosed with chronic adjustment disorder prior to their separation. As a matter of equity, the chronic adjustment disorder should have been evaluated prior to the applicant’s separation on 17 April 2013. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000165 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000165 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2