BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150015924 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 BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150015924 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. BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150015924 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 DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) to show post-traumatic stress disorder (PTSD) was included as an unfitting condition, with an appropriate adjustment in his combined disability rating. 2. The applicant states the Department of Veterans Affairs (VA) diagnosed him with PTSD, based on his deployment to Afghanistan from 16 February 2010 to 28 March 2011. He suffers from nightmares, has to sit with his back to the wall so he can see what is going on around him, swerves when he drives, and becomes alarmed/paranoid when another vehicle approaches him from the rear. Just because he maintains employment does not mean he doesn't have PTSD. His wife, friends, and battle buddies have all seen how he has become, compared to how he was before his deployment. He respectfully asks the Board to reconsider the PEB findings and grant him the requested relief. 3. The applicant provides: * VA Rating Decision and Decision Letter, dated 15 July and 17 July 2014, respectively * a third-party letter of support, dated 5 March 2015 * DA Form 199-1, dated 16 June 2015 * Order Number D 188-94, issued by the U.S. Army Physical Disability Agency (USAPDA), Arlington, VA on 7 July 2015 * a letter from the Director, Sexual Assault Prevention and Response Office, Office of the Under Secretary of Defense, dated 8 September 2015 * a letter from the VA, dated 10 December 2015 * 78 pages of electronic medical documentation, printed from the Veterans Information Systems and Technology Architecture (VistA) system on 10 December 2015 * an undated VA Form 21-4138 (Statement in Support of Claim), submitted by his wife * VA Form 4107 (Your Rights to Appeal Our Decision) * VA Form 21-686c (Declaration of Status of Dependents), blank * VA Form 28-1900 (Disabled Veterans Application for Vocational Rehabilitation), blank * VA Form 21-8764 (Disability Compensation Award Attachment Important Information) * VA Form 28-8890 (Important Information About Vocational Rehabilitation Benefits) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 16 October 2007. He entered active duty on 21 November 2007, completed his initial entry training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator), and was released from active duty (REFRAD) on 17 April 2008. 2. The applicant was mobilized and ordered to active duty on 16 February 2010, in support of Operation Enduring Freedom. He served in Afghanistan from 11 April 2010 to 13 February 2011. He was REFRAD on 28 March 2011 and returned to the control of his USAR troop program unit of assignment. 3. Permanent Order Number 13-163-12, issued by Headquarters, 373rd Quartermaster Battalion, awarded the applicant the Army Achievement Medal on 12 June 2013, for meritorious service while assigned as a heavy wheeled vehicle operator in support of the 2013 Annual [Quartermaster Liquid Logistics Exercise] QLLEX petroleum mission at Fort Bragg, NC. 4. The applicant's medical records are not available for review in this case; however, it appears that at some point in or around the 2013-2014 timeframe, his medical fitness was questioned by members of his chain of command and he was referred to an MEB for further evaluation based on the following conditions: * lumbar spondylosis * asthma * right thigh radiculopathy * allergic rhinitis * PTSD * bilateral sensorineural hearing loss * gastroesophageal reflux disease (GERD) 5. An MEB convened on 28 August 2014 at Eisenhower Army Medical Center, Fort Gordon, GA. a. After consideration of clinical records, laboratory findings, and physical examinations, the board diagnosed the medically acceptable or unacceptable conditions listed below. * lumbar spondylosis, failed retention standards, incurred while entitled to base pay * asthma, failed retention standards, existed prior to service, not service-aggravated * PTSD, met retention standards b. The applicant's DA Form 3947 (MEB Proceedings) shows the board recommended his referral to a PEB. c. The board's findings and recommendation were approved on 2 September 2014. d. The applicant disagreed with the findings and recommendation on 17 September 2014, and affixed his initials next to the statement "I do not agree with the board's findings and recommendation." e. The applicant affixed his signature in block 30 (Continuation), indicating his understanding and concurrence that: (1) The PEB would only consider and review those conditions listed on the DA Form 3947; (2) The DA Form 3947 included all of his current medical conditions, whether or not they met medical retention standards; (3) The conditions that did not meet medical retention standards were properly listed on the DA Form 3947, the Narrative Summary, and the Physical Profile (DA Form 3349); (4) The MEB accurately covered all of his medical conditions; and (5) If he did not agree with any of the statements and/or did not agree with the contents of the MEB as reflected in his previous election [to concur or non-concur with the findings and recommendation], he had provided all of his disagreements and concerns in his appeal. f. Documents related to the applicant's appeal of the MEB findings and recommendation are not available for review. g. The MEB approval authority considered the applicant's appeal and confirmed the original findings and recommendation on 24 September 2014. 6. The applicant's informal PEB Proceedings are not available for review in this case. However, his record contains his Formal PEB Proceedings that document the results of his first VA reconsideration, which occurred on 16 June 2015. a. During these proceedings, the PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the conditions below (each disability is listed as it appears on the applicant's DA Form 199-1, prefaced by the corresponding VA Schedule for Rating Disabilities (VASRD) code): * VASRD Code 6602, Asthma, 30 percent * VASRD Codes 5242, Lumbar Spondylosis, 10 percent b. The PEB also considered his other conditions, but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable. These conditions included: * right thigh radiculopathy * allergic rhinitis * PTSD * bilateral sensorineural hearing loss * GERD c. The board found the applicant physically unfit and recommended a combined rating of 40% and that his disposition be permanent disability retirement. d. The board addressed the applicant's contention that his PTSD was unfitting, stating: Based upon a review of the objective evidence of record, including the Soldier's testimony and exhibits provided during Formal Board proceedings; and considering the physical requirements for reasonable performance of duties required by rank and military specialty, the PEB finds this condition not unfitting. The Soldier testified that he deployed to Afghanistan in 2010, first sought treatment in 2012, receives monthly counseling, and has not required psychotropic medication or psychiatric hospitalization. He attends weekend Battle Assembly, FTXs and AT and his is employed full time as a truck driver. The MEB did not find that this condition fails medical retention standards and does not require permanent physical profile limitations. The presence of a condition does not constitute a disability, nor does it result in an automatic unfit determination by the PEB (DoDI 1332.18, E2.1.25). Therefore, the PEB finds insufficient compelling medical evidence to reverse the findings of the Informal Board. e. The applicant concurred with the PEB's findings and recommendation on 22 June 2015 and elected to not request reconsideration of his VA findings. The applicant's formal PEB was approved by an official at the USAPDA, on behalf of the Secretary of the Army, on 13 July 2015. 7. The applicant was honorably retired on 11 August 2015, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), by reason of disability, permanent (enhanced). 8. The applicant provides numerous documents that support the VA's decision to grant him service-connected disability for PTSD, effective 24 August 2012. 9. In the processing of this case, an advisory opinion was provided by the Army Review Boards Agency Staff Psychiatrist on 27 October 2016. This advisory official recommended disapproval of the applicant's request, stating: a. The applicant reports the VA found him to be 30% service-connected for PTSD. He is now applying to the ABCMR requesting reconsideration of his previous PEB findings in light of this VA rating. b. The Army Review Boards Agency Psychiatrist was asked to review this case. Documentation reviewed included applicant's ABCMR application, VA medical documentation and PEB documentation. The military electronic medical record was also reviewed. No hard copies of his military medical records are available for review. c. Review of the military electronic medical record indicates that the applicant screened negative for PTSD on 14 February 2011 during his post-deployment assessment after serving in Afghanistan. There is no documentation of any other Behavioral Health related appointments in the applicant's military electronic medical records. Review of the applicant's VA documentation dated 15 July 2014 indicates that the VA has rated the applicant as 30% service-connected for PTSD. Review of the applicant's formal PEB proceedings dated 16 June 2015 indicates that the applicant's asthma and lumbar spondylosis were found to be unfitting and were rated as 30% and 10%, respectively. d. The PEB addressed the applicant's contention that his PTSD was unfitting. They stated that the MEB did not feel that the applicant's PTSD failed medical retention standards. The PEB, after reviewing all of the objective evidence of record, found that the applicant's PTSD was not unfitting. They report that the applicant's PTSD has not required psychotropic medications or psychiatric hospitalization and, in fact, has required only monthly counseling. e. It is important to understand that the VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD, however, does not compensate for unsuiting conditions. It only compensates for unfitting conditions. The applicant's condition was not felt to be unfitting when he was on active duty as indicated by the fact he was found to meet military medical retention standards by the PEB. It is also important to note that the DoD does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. This is a role reserved for the VA. f. Based on the information available for review at this time, there is no new evidence to support the applicant's contention that his PTSD was medically unfitting. Review of the available documentation indicates that the applicant met medical retention standards at the time of his separation from the military with respect to his PTSD diagnosis. Accordingly, a referral of his case back to the PEB for reconsideration of military medical discharge/retirement is not warranted. 10. The applicant was provided a copy of the advisory opinion on 27 October 2016, for information and to provide him an opportunity to provide comments and/or his rebuttal. He did not respond. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) 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% to 100%, rising in increments of 10%. 2. Army Regulation 635-40 establishes the Army DES 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 office, grade, rank, or rating. It states, in part: a. Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension. 3. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It 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 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. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in Department of Defense Instruction (DODI) 1332.18 (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. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with fitness/unfit determinations. d. Upon separation from military service for medical disability and consistent with Boards for Correction 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 results in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. 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 or retirement, 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 applicant requests, in effect, correction of his Formal PEB Proceedings to show PTSD was included as an unfitting condition, with an appropriate adjustment in his combined disability rating. 2. The applicant was mobilized and ordered to active duty on 16 February 2010, in support of Operation Enduring Freedom. He served in Afghanistan from 11 April 2010 to 13 February 2011. He was REFRAD on 28 March 2011 and returned to the control of his USAR troop program unit of assignment. His record shows he continued to serve satisfactorily in the USAR, as evidence by his award of the Army Achievement Medal for meritorious service while assigned as a heavy wheeled vehicle operator in support of the 2013 Annual QLLEX petroleum mission at Fort Bragg, NC 3. It appears that at some point in or around the 2013-2014 timeframe, the applicant's medical fitness was questioned by members of his chain of command and he was referred to an MEB for further evaluation. After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant unfit because of two medically unacceptable conditions; specifically, lumbar spondylosis and asthma. The MEB considered his PTSD but found it not unfitting. 4. The MEB referred the applicant to a PEB. After consideration by an informal PEB, the applicant's case was reconsidered by a Formal PEB at Eisenhower Army Medical Center, Fort Gordon, GA. The PEB determined he was physically unfit due to asthma and lumbar spondylosis; the same conditions identified by the MEB. As was the case with the MEB, the formal PEB considered his PTSD but found it not unfitting. The applicant concurred with the PEB's findings and recommendation on 22 June 2015 and elected to not request reconsideration of his VA findings. His formal PEB was approved by the USAPDA, on behalf of the Secretary of the Army, on 13 July 2015. 5. The applicant contends his PTSD is of such severity that it should have been considered unfitting. While that may be true today, it does not prove an error or injustice in the processing of his medical separation at the time it occurred. 6. As stated in the provided advisory opinion, it is important to understand that the VA operates under different rules, laws and regulations when assigning disability percentages than the DoD. In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD, however, does not compensate for unsuiting conditions. It only compensates for unfitting conditions. The applicant's PTSD was not felt to be unfitting when he was on active duty, as indicated by the fact he was found to meet military medical retention standards by the PEB. It is also important to note that the DoD does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. This is a role reserved for the VA. 7. Based on the information available for review at this time, there is no new evidence to support the applicant's contention that his PTSD was medically unfitting. Review of the available documentation indicates he met medical retention standards at the time of his separation from the military with respect to his PTSD diagnosis. 8. The evidence of record does not show that either his MEB or PEB were faulty or misrepresented his medical condition at the time. His PEB was conducted in accordance with laws and regulations and the findings were supported by a preponderance of the evidence, were fully reviewed and approved by the applicant, were not arbitrary or capricious, and were not in violation of any statute, directive, regulation, or written policy. Consequently, there does not appear to be an error or an injustice in this 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) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015924 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2