BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015012 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: 16 February 2017 DOCKET NUMBER: AR20150015012 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 his medical record, including the Office of The Surgeon General's advisory opinion, to a Physical Evaluation Board (PEB) for review to determine if post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) should be listed as unfitting conditions on his PEB Proceedings. 2. The Board further determined 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 to amending his PEB Proceedings to show PTSD and MDD as unfitting conditions without benefit of the review described above. ______________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: 16 February 2017 DOCKET NUMBER: AR20150015012 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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by showing post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) as unfitting conditions, and by adjusting the final percentage of his disability to reflect these added conditions. 2. The applicant states an injustice and error occurred by not taking into consideration extensive evidence from his unit commander and many medical professionals who treated him for years while he was on active duty. He contends that several comments made by the commander of the Community Based Warrior Transition Unit (CBWTU) on a DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) could have misguided the PEB decision process. He did not have knowledge of such comments until he recently obtained a copy of the DA Form 7652. There was no medical or professional interaction with the CBWTU commander during the time he was assigned there. 3. The applicant provides: * DA Form 199 * DA Form 2173 (Statement of Medical Examination and Duty Status) * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * DA Form 7652 * Psychiatric Narrative Summary (NARSUM) for MEB * DD Form 2808 (Report of Medical Examination) * Department of Veterans Affairs (VA) Rating Decision * retirement orders * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 January 2009 * DD From 214, for the period ending 17 October 2010 * 16 pages of 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. After a period of enlisted service in the U.S. Army Reserve, the applicant was appointed as a Reserve commissioned officer of the Army on 30 August 1986. He served in Southwest Asia in support of Operations Desert Shield and Desert Storm from 7 February through 18 May 1991. 3. The applicant's Psychiatric NARSUM for MEB shows he was diagnosed with PTSD and MDD. It further shows these conditions failed to meet retention standards. 4. An MEB diagnosed the applicant on 25 May 2010 with bilateral shoulder pain status post-SLAP repair; chronic PTSD; and MDD, recurrent, chronic, moderate. These conditions were deemed medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The MEB recommended his referral to a PEB. 5. The applicant's commander completed a DA Form 7652 on 27 May 2010 pertaining to the applicant's ability to perform his duties and indicated the following: "I am recommending this Soldier to remain in the system. Although the psychiatrist gave him a 4 in the mental area. He was being seen by a psychiatrist thru Telemedicine, within two hours the psychiatrist diagnosed the Soldier with chronic PTSD and major depressive disorder recurrent chronic moderate. However, his performance record (OER [Officer Evaluation Report]) demonstrated that the Soldier, despite this condition, performed in an excellent manner. He was mobilized since 2003 and never complained of having problems that interfere with his duties." 6. A PEB found him unfit on 2 August 2010 to perform the duties required by his grade and military specialty due to bilateral arm limitation of motion (bilateral shoulder arthropathy following SLAP repair) rated at 40 percent. The PEB also concluded that PTSD with comorbid MDD were not unfitting either separately or in combination with other conditions. The PEB further stated that: The officer reports symptoms since 2001 when the September 11th event reminded him of his experiences in Desert Storm in 1991. He has been on active duty continuously since 2003 and his OERs demonstrate excellent performance. His commander recommends retention. He also reports that the officer has performed in an excellent manner and it is important to realize that the PEB is a performance based system. His commander also notes that the officer has never complained of anything that interfered with the performance of his duties. The mere presence of a condition does not constitute an automatic unfit determination. 7. The PEB recommended his permanent disability retirement with a combined rating of 40 percent. The applicant concurred with the PEB findings on 13 August 2010 and waived a formal hearing of his case. He was retired on 17 October 2010. 8. The VA granted the applicant service-connection on 22 April 2013 for PTSD with depression rated at 70 percent. 9. During the processing of this case an advisory opinion was obtained from the U.S. Army Office of the Surgeon General (OTSG), Behavioral Health (BH) Division. The opinion states: a. The applicant requested the Board increase the percentage of his disability rating due to chronic PTSD and chronic MDD. The OTSG was asked by the Board to determine if the applicant's separation was due to PTSD or mental health disorders. This opinion is based on the information provided by the Board and records available in the Department of Defense electronic medical record (AHLTA). b. On 6 October 2009, the applicant reported symptoms of depression to his primary care provider and later that month he received a line of duty from his unit commander. He was assigned to the CBWTU in December 2009 and case management notes indicate continued improvement in mood. There is no mention of PTSD in AHLTA BH notes. A Psychiatric NARSUM dated 14 April 2010 concluded that he failed to meet retention standards for both PTSD and MDD, and in May an MEB recognized both as medical conditions. However, in August 2010, the PEB found neither condition to be unfitting but did grant a 40 percent service connection for other physical conditions. In April 2013, the VA granted service connection for PTSD with depression with a rating of 70 percent effective 18 October 2010. c. The PEB findings appear to rely significantly on the PDES Commander's Performance and Functional Statement which asserted he should be retained. The psychiatrist who evaluated him for the MEB as well as his BH care providers unanimously agreed he was functionally impaired due to his BH disorders and not suitable for military service. Despite his CBWTU commander's evaluation of his functioning, considerable evidence indicates he was seriously impaired by the symptoms of PTSD and, as documented by the MEB in May 2010, did not meet retention standards at the time of his discharge. 10. The advisory opinion was provided to the applicant to give him the opportunity to provide additional comments or a rebuttal. He responded and expressed his concurrence with the contents of the advisory opinion. 11. The applicant provided 16 pages of medical records confirming the OTSG assessment that the applicant was diagnosed with PTSD and MDD by multiple health care providers. These documents also show the BH conditions existed during his active duty service and did not meet retention standards at the time of his separation. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 MEB's which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). Disability compensation is not an entitlement acquired by reason of a 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 3-1 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 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Scheduled for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service DISCUSSION: 1. The applicant contends his records should be corrected to show PTSD and MDD were included in his PEB proceedings as unfitting conditions, and his final disability rating percentage should be increased to reflect the addition of these conditions. 2. The evidence shows the applicant underwent an MEB that diagnosed him with bilateral shoulder pain, PTSD, and MDD, which were deemed medically unacceptable for retention. The MEB recommended his referral to a PEB. 3. A PEB evaluated his medical conditions and found him unfit to perform the duties of his rank and military specialty due to bilateral arm limitation of motion (bilateral shoulder arthropathy following SLAP repair) rated at 40 percent. The PEB also concluded that PTSD with comorbid MDD was not unfitting. 4. The advisory opinion provided by the OTSG concludes that the PEB's assessment of the applicant's disabling BH conditions relied significantly on the PDES Commander's Performance and Functional Statement, in which the commander recommended the applicant's retention in service despite considerable evidence indicating he was seriously impaired by PTSD and MDD. The advisory opinion further concludes that there is considerable evidence indicating the applicant was seriously impaired by the symptoms of PTSD and did not meet retention standards for this condition at the time of his separation. The conclusions in the advisory opinion would support a recommendation to refer the applicant's records to a PEB for reconsideration of his fitness as it related to PTSD and MDD. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015012 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015012 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2