BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150018024 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: 25 October 2016 DOCKET NUMBER: AR20150018024 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: 25 October 2016 DOCKET NUMBER: AR20150018024 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 records to show his medical evaluation board (MEB), dated 25 May 2004, and his physical evaluation board (PEB), dated 21 June 2004, addressed and provided appropriate disability ratings for the following Department of Veterans Affairs (VA) service-connected disabilities: * headaches * temporomandibular joint syndrome (TMJ) * post-traumatic stress disorder (PTSD) 2. The applicant states neither the MEB nor the PEB addressed and gave appropriate disability ratings to the above-stated conditions at the time of his separation. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 31 October 2004 * 21 pages of documents associated with his MEB * 15 pages of documents associated with his PEB * 8 pages of documents associated with his application to the Physical Disability Board of Review (PDBR), dated in 2014 * two VA Rating Decisions, dated 2 August 2007 and 6 November 2008, respectively 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 September 2001. 3. During initial training, in or around October or November 2001, he sustained a lower back injury. Following initial training, he was assigned to a unit at Fort Stewart, GA. 4. On 19 September 2002, a vehicle struck the applicant's vehicle while it was in an intersection of the airfield parking lot. He sustained injuries to his back, neck, and left knee. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4 June 2004, found this accident to have been in the line of duty. 5. He deployed to Iraq in support of Operation Iraqi Freedom from 21 January 2003 to 10 August 2003. In or around June 2003, he was medically evacuated from Iraq because of persistent knee pain. 6. An MEB, dated 25 May 2004, found his conditions of left knee pain and chronic low back pain failed medical retention standards. The applicant concurred with the MEB's findings, and his case was referred to a PEB for a fitness determination. 7. On 21 June 2004, a PEB determined the applicant was unfit for continued military service. The PEB recommended separation with severance pay, and a combined disability rating of 10 percent (10 percent for chronic low back pain, and 0 percent for chronic left knee pain). a. On 19 July 2004, the applicant stated he did not concur, and requested a formal hearing. The PEB received the following additional information from the MEB: (1) An MEB Addendum, dated 13 August 2004, recommended the diagnosis of moderate patellofemoral instability (referring to instability related an injury to the cartilage under the kneecap) be added. (2) The applicant acknowledged this recommendation on 16 August 2004. b. On 17 August 2004, via memorandum, the PEB affirmed it had reviewed the additional information provided by the MEB and determined no change was needed to its original findings. The applicant's formal PEB was scheduled for 25 August 2004, and the memorandum indicated this information would be considered. c. On 25 August 2004, the applicant concurred with the original findings and recommendations of the PEB conducted on 21 June 2004. 8. He was honorably discharged on 31 October 2004. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 1 month, and 4 days of net active creditable service. The narrative reason for separation states: disability, severance pay. 9. On 21 January 2014, the applicant petitioned the Physical Disability Board of Review (PDBR) to reconsider the ratings he received. a. On 29 March 2015, the PDBR recommended the disability rating for the applicant's back be increased from 0 percent to 10 percent. b. The Deputy Assistant Secretary of the Army (DASA) (Review Boards) accepted the PDBR's recommendation. The DASA noted her approval did not mean either a change in his DD Form 214 or an increase in severance pay. An amendment to his separation orders, however, was required. c. The U.S. Army Physical Disability Agency notified the applicant via letter of the amendment of his original separation order to show a combined disability rating of 20 percent. The letter also noted no change was made to the amount of severance pay he had received, as this amount was not based on his disability rating. 10. The applicant provides two VA Rating Decisions, dated 2 August 2007 and 6 November 2008, respectively. * 2 August 2007 - 30 percent for PTSD (effective 27 July 2006), 0 percent for TMJ (effective 6 November 2006), 10 percent for left knee residuals, and 0 percent for chronic cluster headaches * 6 November 2008 - PTSD disability rating increased to 50 percent (effective 27 July 2006); chronic headaches increased to 30 percent (effective 27 July 2006) 11. On 23 May 2016, and official, on behalf of the Office of the Surgeon General (OTSG), provided an advisory opinion. a. Task: The Army Review Board Agency (ARBA) requested an advisory opinion to address whether the applicant required a correction of his military records, in the form of his MEB and PEB, for the diagnoses of PTSD, TMJ, and headaches. The official reviewed the following: * All medical records * copies of correspondence from VA * all records provided: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, section 1552) * PDBR Record of Proceedings, dated 14 November 2014 * VA Rating Decisions, dated 2 August 2007 and 6 November 2008 * DD Form 214 and DD Form 294 (Application for a Review by the PDBR of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the U.S.) * orders of transition, dated 2 October 2004 * memos for Review Boards * PEB Proceedings, dated 26 August 2004 [sic, 21 June 2004] * the MEB narrative summary (NARSUM), dated 13 May 2004, with addendum, dated 5 August 2004 * DA Form 3947 (MEB Proceedings), dated 25 May 2004 * report of medical examination, dated 9 March 2004 * DA Form 3349 (Physical Profile), dated 2 June 2004 * Commander's Statement, dated 9 March 2004 * DD Form 2173, dated 2 September 2002 * Enlisted Record Brief (ERB), dated 9 February 2004 * Armed Forces Health Longitudinal Technology Application (AHLTA) records from 19 February 2002 to 6 October 2004 * VA treatment records from 6 October 2006, March 2015, and 16 September 2015 * Army Regulation (AR) 40-501 (Standards of Medical Fitness), dated 19 February 2004 b. Background. The applicant served on active duty from 27 September 2001 to 31 October 2004. In 2006, he was awarded service-connected disability ratings of 30 percent for PTSD, 10 percent for TMJ, and 0 percent for chronic headaches. The records show he was awarded the Global War on Terrorism Expeditionary Medal and the Global War on Terrorism Service Medal. His unit was involved in combat. (1) Examination of his VA ratings shows his TMJ started, and that he received treatment, in September 2004 while he was still in the service. Of note, the provided records and AHLTA only showed a referral for being seen at behavioral health (BH), where it stated, "patient expressed that dental stated he had TMJ, and it was stress-related." Other than a referral to BH, the records do not show any specific treatment. There is no evidence of any maxillofacial surgical evaluation having been conducted. (2) In regard to his headaches, there is only evidence provided in the initial NARSUM, where it is mentioned as part of his past medical history. There is no further elaboration. Other references to headaches: * referenced only in VA ratings * states he suffers headaches, throbbing in nature; aggravated by noise and light; apparently occurring two or three times per week, and lasting 15 to 30 minutes * cited in imaging studies (magnetic resonance imaging of the brain), where it was interpreted as normal, and diagnosed as migraine, not intractable by the VA * records reviewed from 2002 to 2006 show no evidence of frequent emergency room visits, neurological evaluation, nor prostrating episodes due to this condition * VA decision review, dated 6 November 2008, states his headaches worsened, requiring frequent treatment; the disability rating was increased to 30 percent (3) As to PTSD, a report of medical examination on 23 March 2004 indicates a normal psychiatric review, and does not cite any PTSD-related symptoms, diagnosis, or treatment. The report of medical history form indicates the applicant had difficulty sleeping since his redeployment from Iraq, and states he "worries more since return." * no mention in the NARSUM, MEB, or PEB about PTSD * DA Form 3349 indicates a PULHES of 113111, with the P3 being for "L" (lower extremity) based on post-operative left knee pain [A physical profile is based on six body systems: "P" = physical capacity; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation, with "1" meaning a high level of fitness; and "3" indicating significant limitations. Profiles can either be permanent (P) or temporary (T).] * the Commander's Statement, by Captain WBG, describes the applicant's "persistent physical conditions" but does not attribute any limitations to PTSD * AHLTA records show only one BH-related entry dated 6 October 2004; it indicates the applicant was diagnosed with adjustment disorder; no mention of PTSD * the VA Rating Decision, dated 2 August 2007, states the applicant was awarded 30 percent for service-connected PTSD from 27 July 2006 (the date of his claim) * in stating this decision, the VA Rating Decision cites a VA Compensation and Pension (C&P) examination, dated 26 July 2006 * it also describes treatment reports from a Dr. JK, dated 9 May 2006 to 11 January 2007, as well as an outpatient VA treatment record, dated 20 October 2006 * the VA Rating Decision, dated 6 November 2008, shows the disability rating was increased to 50 percent, effective 27 July 2006 * this increase was based on "Orlando VAOPC treatment records from 2006 to August 2008" * VA records accessed via the Joint Legacy Viewer shows PTSD was first entered into the applicant's VA Problem List on 23 October 2006; his most recent appointment was 16 September 2015 (4) In the medical history, headaches are only mentioned in the NARSUM, but were not addressed as either meeting or failing medical retention standards. The diagnoses of headaches, TMJ, and PTSD were not included on the DA Form 3947 (MEB Proceedings). * the clinical evaluation of the applicant (DD Form 2807-1 (Report of Medical History)), dated 23 March 2004, reported a normal mouth, and did not show any severe tooth or gum trouble * frequent or severe headaches were reported, but not described in either sections 29 (Explanation of "YES" Answers) or 30 (Examiner's Summary and Elaboration of all Pertinent Data) * the entry concludes by noting these were resolved with Excedrin (pain reliever) as treatment * at present the applicant is being treated with NSAIDS (nonsteroidal anti-inflammatory drugs) and was being referred for Botox injections c. Discussion. (1) According to AR 40-501, paragraph 3-30(g) (Migraine, Tension, or Cluster Headaches) Soldiers will be referred to a neurologist when the symptoms are manifested by frequent incapacitating attacks. * if the neurologist feels a trial of prophylactic medicine is warranted, a 3-month trial of therapy can be initiated * if, after the trial, the headaches are not adequately controlled, the Soldier would be referred to an MEB * when the neurologist concludes a trial would not be beneficial, the Soldier can be referred directly to an MEB * the applicant's medical records show no evidence his conditions of chronic cluster headaches was followed by a neurologist (2) AR 40-501, Paragraph 3-41e (Miscellaneous Conditions and Defects) (e.g. TMJ), requires MEB referral under subparagraph (1) when the condition results in interference with satisfactory performance of duty, as substantiated by the Soldier's commander or supervisor. * any medical condition that prevents a Soldier from performing his functional activities will be listed under item 5 (Functional Activities for Permanent or Temporary Profiles), DA Form 3349 * paragraph 3-8 (Dental Diseases and Abnormalities of the Jaws), MEB referral is needed when the residual effects of jaw diseases, following restorative surgery, interfere with duty performance * there is no evidence the applicant was treated or referred for TMJ while on active duty, except for the referral to BH by dental to consider TMJ-related stress * the Commander's Statement makes no mention of TMJ interfering with his duty performance (3) AR 40-501, paragraph 3-33 (Anxiety, Somatoform, or Dissociative Disorders), subparagraphs a, b, and c state the causes for MEB referral are: * persistent or recurring symptoms sufficient to require extended or recurrent hospitalization * persistent or recurring symptoms necessitating limitations of duty or duty in a protected environment * persistent or recurring symptoms resulting in the interference with effective military performance (4) The records available for review indicated, at the time the applicant was separated in 2004, he had not be diagnosed with, nor treated for, PTSD. VA records indicate he was diagnosed and treated after he left military service. There is no evidence, however, that indicates he met any of the relevant causes for MEB referral while on active duty. d. Recommendations. (1) According to the evidence reviewed, the applicant is not eligible for an MEB for PTSD. Additionally, there is not sufficient evidence to support that he should have been evaluated for PTSD while still on active duty. (2) It is acknowledged he was diagnosed with, and treated for service-connected PTSD by the VA after separation from military service, but there is no evidence that any of the causes for referral to an MEB, as outlined in AR 40-501, were applicable at the time of his active service. (3) The applicant is also ineligible for MEB referral based on TMJ or headaches, and the evidence does not indicate he should have been evaluated for these conditions while he was still on active duty. (4) While it is acknowledged he has been diagnosed with both conditions, and that they have been recognized as being service-connected, there is no evidence these conditions met the requirements under AR 40-501 for MEB referral while he was still in the military. 12. The Case Management Division, ARBA, provided a copy of the advisory opinion to the applicant for review and comment. The applicant did not submit a response. REFERENCES: 1. AR 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 2 (Policies) states 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. b. Chapter 4 provides guidance on Soldiers being evaluated by a medical evaluation board (MEB) when a question arises as to his or her ability to perform the duties because of physical disability. Also described is the process by which Soldiers are referred to a physical evaluation board (PEB) for a fitness determination. c. Appendix A (Abbreviations and Explanation of Terms) provides a definition of physical unfitness. A Soldier is considered unfit for continued military service when, because of a physical disability or medical condition, they cannot reasonably fulfill the requirements of their rank as well as the purpose of their employment on active duty. 2. 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 error or injustice in the Army rating. a. 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. b. 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. c. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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, the amendment of his MEB and PEB to provide appropriate disability ratings for PTSD, TMJ, and headaches. He bases his request on the fact he has been awarded service-connected disability compensation for these medical conditions. 2. The applicant provides rating decisions from VA that address additional medical conditions he presumably contends should have been included in both his MEB and PEB. a. An award of a rating by the VA does not establish that the Army erred in his disability rating decision. (1) The findings of the VA as to disabling conditions are not binding on the Army and do not require a reassessment of earlier determinations. (2) 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. b. A review by an official representing OTSG found no basis for adding the contended conditions to the applicant's MEB and PEB. 3. Based on the foregoing, the applicant does not appear eligible for the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018024 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018024 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2