IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150000166 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150000166 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. _____________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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150000166 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 disability findings to add the following medical conditions to his existing unfitting condition and increase his disability rating for medical retirement: * post-traumatic stress disorder (PTSD) * depression * headache syndrome * hypertension * bilateral pes planus with over-pronation * degenerative disc disease for L5-S1 2. The applicant states: a. He requests a review of his medical discharge. b. In October 2009, a physical evaluation board (PEB) found him unfit for degenerative left knee, but found him fit for duty for headache syndromes, hypertension, bilateral pes planus with over-pronation, degenerative disc disease in the L5-S1, right knee patellar tendonitis, and cervicalgia. He was released from duty for transition leave on 9 December 2009 and he was discharged on 4 February 2010. c. He suffered from PTSD and depression while serving on active duty from May 2005 until he was discharged and he still suffers today. The medical condition was not documented in his medical evaluation board (MEB) or PEB proceedings and should have been. At the time, Army leadership did not actively encourage service members to seek assistance with post-deployment mental health issues. In fact, during that period, it was commonly known that your career, and by proxy your livelihood, were in dire jeopardy if you did seek mental health treatment. This was especially true for a military police investigator with a Top Secret clearance. d. He now wishes he had spoken up and sought treatment sooner, but because of the stigma and certain career damage, he suffered in silence. He dares not recall how many suicides, assaults, child abuse, and drug and alcohol-related cases he investigated while serving on active duty that he suspects may have never occurred if the service member had only sought or been encouraged to seek mental health treatment. e. After his discharge, the Department of Veterans Affairs (VA) diagnosed him with PTSD and granted him a disability rating of 80 percent. f. The PEB determined his diagnosis of headache syndrome met retention standards. Again, after his discharge the VA diagnosed him with migraine headaches and granted him a disability rating of 30 percent. The VA currently notified him that his percentage might be decreased, which is completely in error. Without a doubt, the VA is troubled and plagued by serious dysfunction. If the VA had examined his medical records instead of relying on a single examination, they would understand that migraine headaches are a constant and disruptive factor in his life. He undergoes regular treatment and takes daily medication for severe migraine headaches. The VA has resorted to treating him with non-traditional methods, to include alpha stem stimulators and Botox injections. These headaches were first documented in his post-deployment health screening in February 2006, which clearly demonstrates he has suffered from severe headaches for at least 9 years. g. The PEB determined his diagnosis of hypertension met retention standards. Again, after his discharge the VA diagnosed him with hypertension and granted him a disability rating of 30 percent. A physician in Germany first diagnosed him with high blood pressure, but medication was not needed for control. Immediately following his deployment from Afghanistan, he was prescribed daily medication for blood pressure control. h. The PEB determined his diagnosis of bilateral pes planus with over-pronation and degenerative disc disease for the L5-S1 met retention standards. After his discharge, the VA diagnosed him with these conditions and granted him disability ratings of 10 and 30 percent, respectively. His VA medical records show he currently undergoes treatment for both issues. He has been fitted with custom insoles for bilateral foot pain and injections for back pain. i. He prays the Board undertakes a thorough review of his records and finds that medical retirement is appropriate in this matter. He was actively pursuing an appointment as a special agent with the U.S. Army Criminal Investigation Command and that is another reason why he did not seek mental health treatment. j. Now with a diagnosis of PTSD and a host of other physical ailments, there is no possibility of ever continuing his law enforcement career. He believes he has invested substantial effort trying to start a career and overcome his disabilities. He graduated from college in 2013, he has continued to serve his community, and he founded the first student veterans' association at St. Edward's University. k. He resigned his position as Constituent Services Representative for a Congressman due to PTSD, depression, migraine headaches, and other diagnosed service-connected disabilities on 31 August 2014. l. He requests a determination by the Board whether PTSD, depression, headache syndrome, hypertension, bilateral pes planus with over-pronation, and degenerative disc disease should have been considered separately unfitting and factored into his overall disability rating. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * MEB proceedings * PEB proceedings * retirement orders * VA documentation * VA medical records CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 27 January 2004. He served as a military policeman in Afghanistan from 9 March 2005 to 1 March 2006. 3. On 8 September 2009, an MEB diagnosed him with chronic left knee pain with partial thickness patellar tendon tear superimposed on chronic patellar tendonopathy with patellar chondromalacia. The MEB further found the following conditions met retention standards: * degenerative disc disease L5-S1 * hypertension * headache syndromes * bilateral pes planus with over-pronation of both feet * cervicalgia * patellar tendonitis right knee 4. The MEB recommended his referral to a PEB. 5. On 23 October 2009, an informal PEB found him physically unfit due to left knee degenerative arthritis. The PEB determined the following conditions were not unfitting and were therefore not rated: * degenerative disc disease L5-S1 * hypertension * headache syndromes * bilateral pes planus with over-pronation of both feet * cervicalgia * patellar tendonitis right knee 6. The PEB found these conditions to be not unfitting and not ratable as they were not listed on the physical profile as limiting any of the applicant's functional activities, the commander did not consider the conditions to hinder his performance, and the case file contained no evidence that these diagnoses, independently or combined, rendered the applicant unfit for assigned duties. 7. The PEB recommended his separation with severance pay (10 percent). He did not concur with the findings and demanded a formal hearing. On 30 October 2009, he elected to waive his formal board hearing, he agreed with the original PEB findings, and stated he did not wish to contest them. 8. On 5 November 2009, the U.S. Army Physical Disability Agency approved the PEB findings. 9. On 4 February 2010, he was honorably discharged by reason of disability with severance pay, non-combat related, with a disability rating of 10 percent. 10. There is no evidence of record showing he was diagnosed with PTSD or depression prior to his discharge. 11. In 2014, the VA awarded him service-connected disability for: * migraine headaches – 30 percent * PTSD – 70 percent * hypertension – 0 percent REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 2. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required 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's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant contends his disabilities were not properly rated and he should have been medically retired with addition of the following medical conditions to his existing unfitting condition and an increase in his disability rating: * PTSD * depression * headache syndrome * hypertension * bilateral pes planus with over-pronation * degenerative disc disease for L5-S1 2. There is no evidence of record and the applicant provided no evidence showing he was diagnosed with PTSD or depression prior to his discharge. There is insufficient information to reasonably conclude that he had a diagnosis of PTSD or depression that failed to meet medical retention standards, thereby warranting disposition via medical channels at the time of his discharge. 3. The evidence shows the MEB diagnosed him with chronic left knee pain with partial thickness patellar tendon tear superimposed on chronic patellar tendonopathy with patellar chondromalacia. The MEB further found the following conditions met retention standards: * degenerative disc disease L5-S1 * hypertension * headache syndromes * bilateral pes planus with over-pronation of both feet * cervicalgia * patellar tendonitis right knee 4. The MEB did not list any other conditions/defects. 5. The evidence shows the PEB found him physically unfit due to left knee degenerative arthritis. The PEB determined the following conditions were not unfitting and were therefore not rated: * degenerative disc disease L5-S1 * hypertension * headache syndromes * bilateral pes planus with over-pronation of both feet * cervicalgia * patellar tendonitis right knee 6. In 2009, the PEB found these conditions to be not unfitting and not ratable because they were not listed on the applicant's physical profile as limiting any of his functional activities, the commander did not consider the conditions to hinder his performance, and the case file contained no evidence that these diagnoses, independently or combined, rendered him unfit for his assigned duties. He concurred with the PEB findings and recommendations on 30 October 2009. 7. His contentions and the VA documentation he provided were carefully considered. There is insufficient evidence with which to add PTSD, depression, headache syndrome, hypertension, bilateral pes planus with over-pronation, and degenerative disc disease for L5-S1, as unfitting medical conditions at the time of his discharge. 8. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. 9. There is insufficient evidence showing the unfitting condition of left knee degenerative arthritis was improperly rated by the PEB in 2009. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000166 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000166 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2