IN THE CASE OF: BOARD DATE: 13 September 2016 DOCKET NUMBER: AR20150005837 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: 13 September 2016 DOCKET NUMBER: AR20150005837 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: 13 September 2016 DOCKET NUMBER: AR20150005837 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 correction of his Integrated Disability Evaluation System (IDES) records to show, in effect, the conditions and disability rating reflected in his Department of Veterans Affairs (VA) records. 2. The applicant states he believes the percentage reflected and the cited medical ailments that led to his medical discharge are not accurate. The extent of his service-connected and aggravated injuries are reflected better in the VA's most recent decision. a. He believes for various reasons his records are incorrect. Among them are the fact that the writer for his mental health condition disregarded both the 2nd and 3rd opinion of other mental health professionals (both of whom were of more experience and higher education levels). Another reason was the fact that he was being medically discharged at Fort Benning, GA. This large installation unfortunately has to do such discharges at a much higher rate due to the fact it is primarily a "rest stop" for combat arms Soldiers between deployments as well as the fact that some join and decide they cannot hack the military way of life during basic training and seek a way out. This overloads the system and overworks the minimal number of physicians assigned to handle such cases. b. He was in for life. He did not want to leave the infantry. He had just graduated from Ranger School and Airborne School within two years of completing a 15-month deployment to Iraq during the surge. He was fast-tracking through promotion and on his way to selection for Special Forces or the 75th Ranger Regiment. That was taken from him. He believes his records deserve a second look. The impending mission he lived with kept many of his issues, mentally and physically, at bay or buried, and when he discovered there were no more missions, he could no longer lie to himself and others about what hurt, didn't work, or didn't work right. 3. The applicant provides: * October 2014 VA rating decision * statements in support of VA claim * parachute duty orders and diploma * Ranger Tab orders and diploma * Combat Infantryman Badge orders 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 19 October 2005 and he reenlisted on 16 July 2008. He held military occupational specialty (MOS) 11B (Infantryman). 3. He served in Iraq from 9 August 2007 to 27 October 2008. Following his redeployment, he completed the Ranger Course in May 2010 and the Airborne Course in September 2010. 4. His narrative summary shows he entered the IDES on 28 July 2011 following a medical examination that diagnosed him with various ailments as shown on his medical evaluation board (MEB) when he failed to meet retention criteria in accordance with Army Regulation (AR) 40-501 (Standard of Medical Fitness). 5. On 10 November 2011, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended for referral to a PEB. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Psoriatic Arthritis X 2. Psoriasis, generalized X 3. Lumbar spondylosis, degenerative disc disease X 4. Atrial fibrillation, recurrent X 5. Polysystic kidney disease X 6. Sensorineural hearing loss with intermittent tinnitus X 7. Anxiety disorder, not otherwise specified X 8. Chronic right hand strain X 9. Scars X 6. On 16 November 2011, after having been counseled, the applicant indicated he reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time 7. On 26 January 2012, an informal PEB convened and found his conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit. The PEB rated the applicant's conditions under the VA Schedule for Rating Disabilities (VASRD): * Code 7806, psoriasis with generalized arthropathy, (existed prior to service but exacerbated by service), rated at 60 percent * Code 5237, lumbar degenerative disc disease, rated at 10 percent * Code 7010, atrial fibrillation, rated at 0 percent 8. The PEB considered his other conditions (numbered 5 through 9 on the MEB) and indicated that since the MEB found those conditions met retention standards, they were not ratable. The PEB recommended a 60 percent combined disability rating and permanent disability retirement. The applicant was counseled and he concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case. 9. On 29 April 2012, the applicant was retired from active duty under the provisions Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, and on 30 April 2012, he was placed on the retired list in his retired rank/grade of sergeant/E-5. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 6 years, 6 months, and 11 days of net active service this period. 10. On 9 May 2013, he petitioned this Board to review his disability processing for inclusion of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). The Board forwarded his case to the DOD Physical Disability Board of Review - Special Review Panel (PDBR-SRP). The SRP conducted a thorough mental health disability review of his case and determined there was insufficient evidence to recommend a change in the PEB adjudication for a mental health condition. 11. On 31 July 2014, the Board advised the applicant that the ABCMR adopted the SRP's recommendation and denied the applicant’s request. 12. He provides a VA rating decision, dated 21 October 2014, that shows the VA awarded him service-connected disability compensation for PTSD at the rate of 10 percent as of 30 April 2012 and 50 percent as of 9 August 2013, in addition to TBI at the rate of 0 percent as of 9 August 2013. 13. The Board forwarded his medical documents to the Office of The Surgeon General (OTSG) for review. An OTSG official rendered an advisory opinion on 15 July 2016 in the processing of this case. The official stated: a. The applicant entered active duty on 19 October 2005 and he was honorably discharged on 1 April 2012 in accordance with chapter 4 of AR 635-40 by reason of permanent disability (enhanced). He deployed to Iraq from August 2007 to October 2008. In July 2015, he requested that the Board increase the percentage reflected and the cited medical ailments that led to his medical discharge. OTSG was asked to determine if applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). b. On 29 January 2009, the applicant met with a psychiatrist who gave him a diagnosis of PTSD with onset during his 2008 deployment. He was seen twice by this provider and chose not to continue treatment at that time. During his 3 June 2011 MEB evaluation, the applicant denied significant social or occupational impairment related to his psychiatric symptoms and was diagnosed with anxiety disorder, not otherwise specified. In October 2014, the VA established service connection for PTSD (also claimed as anxiety) with a 50 percent evaluation, effective 9 August 2013. c. There is no question that the applicant has met criteria for PTSD at times, perhaps even during his military service. However, there is no documentation that his condition caused him to fall below medical retention standards as outlined above. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal but he did not respond. REFERENCES: 1. AR 635-40 establishes the Army disability 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. 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. Under IDES, the VA examines the Soldier and rates all identified conditions. The PEB then determines, based on all available evidence, which conditions render a Soldier unfit for continued military service. The PEB applies the rating assigned by the VA for each unfitting condition and recommends a combined rating and the appropriate disposition (generally separation with disability severance pay or retirement). 3. 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 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. DISCUSSION: 1. The available evidence shows the applicant underwent a medical examination that led to a finding of conditions that failed to meet retention standards and warranted his entry into the disability evaluation system. He underwent an MEB which recommended his referral to a PEB. The PEB found his medical conditions of psoriasis, lumbar degenerative disc disease, and atrial fibrillation prevented him from reasonably performing the duties required of his grade and military specialty. He was determined to be physically unfit for further military service. 2. The PEB recommended his permanent retirement with a 60 percent combined disability rating. The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case. 3. There is no evidence in his records indicating any additional conditions, including PTSD, failed to meet retention standards and/or prevented him from performing his military duties while he was on active duty. A disability rating assigned by the Army is based solely on conditions found to be unfitting while the Soldier is on active duty. 4. An award of a different rating by another agency does not establish error in the rating assigned by the Army. Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because a medical condition related to service (service-connected) affects the individual's civilian employability. 5. The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005837 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005837 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2