IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150000570 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: 7 June 2016 DOCKET NUMBER: AR20150000570 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: 7 June 2016 DOCKET NUMBER: AR20150000570 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, that his previous separation be voided and that he be referred to the Integrated Disability Evaluation System (IDES) for disability evaluation by a medical evaluation board (MEB) and a physical evaluation board (PEB). 2. The applicant states: a. While on active duty and following his last combat tour, he was diagnosed with an adjustment disorder. On 4 June 2014, after a special review of his medical file, the Department of Veterans Affairs (VA) changed his adjustment disorder diagnosis to post-traumatic stress disorder (PTSD). The VA rated him at 70% disabled for PTSD, retroactive to 17 July 2014 (just a few months after his discharge). These findings show his PTSD resulted from multiple combat tours to Iraq. Therefore, he believes the Army physician made an error while he was on active duty and misdiagnosed him with an adjustment disorder when it should have been PTSD. b. As a result, he was not treated for PTSD and he suffered tremendously over the last few years, impacting his mental and physical well-being. This was an injustice done to him because he was discharged without being treated for PTSD and he was given an honorable discharge for completion of service. The Army did not consider his severe medical conditions resulting from multiple combat tours. He did not have the opportunity to present his case to a medical review board for consideration of a medical discharge or retirement. 3. The applicant provides copies of his: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 January 2012 * numerous Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care) * VA decision letter, dated 5 June 2012 * VA Decision Review Officer Decision, dated 4 June 2014 * VA decision letter, dated 26 July 2014 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 24 August 2004. 3. He served in Iraq from 10 August 2006 through 24 October 2007 and from 8 November 2008 through 23 October 2009. 4. He was honorably released from active duty on 14 January 2012 at the completion of his required active service. The DD Form 214 he was issued shows he completed 7 years, 4 months, and 21 days of net active service. 5. The applicant's medical record is not available for review in this case and his available personnel record is void of documentation that indicates he was suffering from any unfitting conditions, including PTSD, during his period of active duty service. In addition, there is no evidence that shows he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his release from active duty. 6. The applicant provides: a. Numerous pages of medical treatment records, with dates ranging from 17 November 2004 to 30 December 2011, which show he was seen on various dates for different maladies or ailments on a walk-in or follow-up basis. (1) Included in this documentation is an SF 600 that shows he was first evaluated for an adjustment disorder on 26 August 2011. (2) Subsequent SF 600s, dated between September 2011 and December 2011, include "adjustment disorder" as a noted condition. (3) None of the included SF 600s reference either the severity of this condition (as an unfitting condition), its impact on his ability to perform the duties of his grade and military occupational specialty (MOS), or his need for referral to an MEB. b. A VA decision review letter, dated 5 June 2012, which shows he was granted service-connected disability for: * Adjustment disorder with depressed mood, 30% * Lumbar strain, 10% c. A VA Rating Decision, dated 4 June 2014, which shows his previous diagnosis of "adjustment disorder with depressed mood" was changed to "PTSD" and increased to 70% disabling, effective 17 July 2012. 7. In connection with the processing of this case, an advisory opinion was obtained from the Army Review Board Agency's (ARBA) Clinical Psychologist. The medical advisory opinion states: a. The applicant submitted an Application for Correction of Military Records, wherein he requested correction of the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge From Active Duty) to show he was medically retired. He alleges that while on active duty, he was diagnosed and treated for adjustment disorder following his last combat tour. He also asserts that on 4 June 2014, the VA conducted a special review of his medical file and changed his adjustment disorder diagnosis to PTSD, granting him disability for PTSD just a few months after his military discharge. Consequently, he believes the Army misdiagnosed him with adjustment disorder when he should have been diagnosed with PTSD. As a result, he claims he was not treated for PTSD and suffered significantly the last few years, which impacted his mental and physical well-being. b. Taking into consideration the information available for review at this time, the VA awarded the applicant 30% service-connected disability for adjustment disorder with depressed mood, effective one day following his release from active duty service (15 January 2012). Six months later, on 17 July 2012, the VA awarded him 70% service-connected disability for PTSD with major depressive disorder (previously rated as adjustment disorder with depressed mood). c. Based on the available documentation, there is one behavioral health note in the applicant's medical record dated 22 September 2011, in which he is diagnosed with adjustment disorder. Approximately three additional notes document insomnia on or about 2011 and 2012. No additional behavioral health information is available during his time in service. d. The applicant received service-connected disability for adjustment disorder from the VA one day following his discharge. It is reasonable to conclude, based on the information available at this time, that adjustment disorder that failed medical retention standards existed at the time of the applicant's military service (emphasis added). Service-connected disability for PTSD was received six months later. It appears, based on the information available at this time, that following his release from active duty, his condition became worse over time and PTSD developed. 8. On 19 May 2016, the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He replied and stated: a. He was pleased to see that the clinical psychologist recognized the existence of his condition while in service. However, there was a miscarriage of justice by not affording him the opportunity to appear before the Army Medical Review Board for proper retirement. b. It is sensible to conclude that his adjustment disorder was misdiagnosed by the Army. He undoubtedly suffered while in service from PTSD and still is suffering from PTSD. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. 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 for a medical evaluation board that 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, chapter 3. 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 (Medical Fitness Standards for Retention and Separation, Including Retirement). If an 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. 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 explains the IDES. It states, the IDES is the joint 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 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 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. 4. 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. 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. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant's request that his separation from the Army be voided and that he be referred to the IDES for disability evaluation by an MEB and PEB was carefully considered. His request is based on the fact that the VA granted him service-connected disability compensation for an adjustment disorder, which they later upgraded to PTSD. 2. Referral into the IDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. 3. The applicant's medical record is not available for review in this case and his available personnel record is void of documentation that indicates he was suffering from any unfitting mental health condition, including PTSD, during his period of active duty service or at the time of his release from active duty. 4. Additionally, there is no evidence that shows the applicant was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his release from active duty. 5. The applicant provides numerous pages of medical treatment records, dated between August and December 2011. a. A behavioral health note in the applicant's medical record, dated 26 August 2011, references an adjustment disorder. Subsequent SF 600s, dated between September 2011 and December 2011, include "adjustment disorder" as a noted condition. b. None of the SF 600s he provides reference either the severity of this condition (as an unfitting condition), its impact on his ability to perform the duties of his grade and MOS, or his need for referral to an MEB. c. The provided medical documentation does not sufficiently show that he suffered from unfitting PTSD during his period of active duty service or at the time of his release from active duty. 6. The ARBA Clinical Psychologist opined that, in the applicant's case, it is reasonable to conclude, based on the information available at this time, that adjustment disorder that failed medical retention standards existed at the time of his military service. It appears, based on the information available at this time, that following his release from active duty, his condition became worse over time and PTSD developed. 7. Notwithstanding the ARBA Clinical Psychologist's advisory opinion, neither the evidence of record nor the applicant's provided documentation support the conclusions reached in the advisory opinion. There is no evidence that he was suffering from an unfitting mental health condition at the time of his military service. 8. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 9. The applicant appears to have been physically or medically fit at the time of his release from active duty. Neither the evidence of record nor the evidence he provides establishes his entitlement to retirement because of PTSD. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000570 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000570 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2