BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160000017 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: 4 May 2017 DOCKET NUMBER: AR20160000017 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: 4 May 2017 DOCKET NUMBER: AR20160000017 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 (Physical Evaluation Board (PEB) Proceedings), item 10 (If Retired Because of Disability, The Board Makes the Recommended Finding That:), to show his condition of low back pain is combat related. He also requests correction of his DA Form 199 to add his condition of post-traumatic stress disorder (PTSD). 2. He states his DA Form 199 denies the fact that his back injury resulted from combat. He adds the medical form from Iraq simply states he fell from the top of a military vehicle. He states he was on a military vehicle doing his job and lost his footing after a rocket attack on his position. He explains he was in enemy territory and rocket attacks were a daily occurrence. He also states he did not receive a mental evaluation prior to his discharge. However, he is currently rated at 100 percent service-connected by the Department of Veterans Affairs (VA) for PTSD. 3. He provides: * DA Form 199 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Documents 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 22 February 1996. He was awarded military occupational specialties 13B (Cannon Crewmember) and 15T (UH-60 Helicopter Repairman). 3. He served in Kuwait/Iraq from 1 March 2003 to 18 February 2004. 4. The applicant's record is void of medical forms showing he received medical treatment in Iraq or a line of duty (LOD) determination showing he was injured during combat or combat simulation training. 5. On 27 January 2005, a PEB convened and considered the applicant's condition of chronic subjective low back pain, secondary to degenerative disc disease (DDD), lumbar region without neurologic abnormality, and full range of motion thoracolumbar region. He was determined to be physically unfit to perform the duties of his grade and military specialty. The PEB determined he was physically unfit and recommended his separation with severance pay based on a 10 percent (%) disability rating. Item 10 of his DA Form 199 states: a. The Soldier's retirement is not based on disability from an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in LOD during a period of war as defined by law. b. The evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the National Oceanic and Atmospheric Administration or the U.S. Public Health Service on 24 September 1975. c. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and for purposes of Title 10, U.S. Code, section 10216(G). 6. He initialed the PEB proceedings in block 13 (Election of Member) indicating, "I concur and waive a formal hearing of my case." He signed the form on 1 February 2005. Additionally, the counselor signed this form on the same date indicating that she had counseled the applicant concerning the findings and recommendations of the PEB and explained the results of the findings and recommendations and his legal rights pertaining thereto. The counselor confirmed the Soldier had made the election shown on the form. 7. On 28 February 2005, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay. His DD Form 214 shows he completed 9 years and 9 months of service and he received $41,936.40 in disability severance pay. 8. The applicant provides: a. A document titled "Rated Disabilities" (presumably from the VA) that shows he received the following service connected disability ratings with the effective date as follows: * irritable bowel syndrome and gastroesophageal reflux disease, 30%, 23 February 2011 * degenerative joint disease, DDD of lumbar spine with spondylosis, 20%, 27 November 2013 * radiculopathy of left lower extremity, 20%, 27 November 2013 * tinnitus, 10%, 4 October 2007 * PTSD, 100%, 4 December 2012 b. A VA Decision Review Officer Decision document, dated 15 August 2016, states "We have continued the currently assigned 100% evaluation for service connected PTSD and have granted entitlement to a permanent and total disability rating for this issue." It further states evaluation of PTSD with panic disorder, which is currently 100% disabling, is continued. Permanent and total evaluation is assigned. 9. On 20 October 2013, the applicant applied to the Physical Disability Board of Review (PDBR). He said he received a 10% rating for his lower spine, referred to as DDD. However, he felt the PDBR should change his 10% rating because his condition was more than simple DDD. He added he received impact trauma to his lower spine while in Iraq in 2003. By the time he returned stateside, he was put on convalescent leave for 6 months, four of which he could not walk. The condition continued to worsen and he is now unemployable due to his back injury. 10. On 24 July 2014, the PDBR convened to review the applicant's disability rating accompanying his medical separation. After carefully reviewing the applicant's application and his medical separation file, the PDBR recommended no re-characterization of the separation or modification of the disability rating previously assigned. 11. On 10 February 2017, the ABCMR obtained an advisory opinion from a psychologist, Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request to list his condition of low back pain as combat related or to add PTSD to his DA Form 199. a. He reiterates the applicant's military history, and adds that since leaving the Army, the applicant received a 100% service-connected disability rating for PTSD. There is reference to a concussion in the VA rating, but his medical records showed no mental health visits or concussion during his deployment to Kuwait/Iraq from 1 March 2003 to 18 February 2004 as a helicopter repairer. b. In the applicant's first visit to a VA provider on 4 December 2012, the provider described him as a having an abusive alcoholic father. The provider mentioned the applicant spent his time in Iraq very afraid especially while on convoys, but it was unclear if this constant fear was due to pre-existing PTSD that the deployment was aggravating or if events of the deployment were inducing PTSD in a vulnerable person. After his discharge, the provider said the applicant worked as a contractor for 5 years in Afghanistan, finding it appealing because he lived in a small room where he could control everything. c. A review of the applicant’s Noncommissioned Officer Evaluation Reports (NCOERs) prior to his discharge, shows he was functioning well as an NCO. In his last available NCOER, October 2003 through July 2004, he received a 1 (Successful/Superior) rating from his senior rater in overall performance/potential. In any case, his mental-health problems escalated since his discharge. There is simply insufficient evidence to conclude his PTSD, even if it existed during his service, affected his functioning during his active duty service. If anything, his NCOERs shows him to be a good Soldier. No mental-health problems were in evidence in the record at the time of his discharge. d. The applicant’s medical records do not reasonably support him having a boardable medical condition at the time of his discharge. There is no evidence of a mental health condition that would cause him to fail the medical retention standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time. His mental health problem did not become evident until after service, though at least one VA provider reported him being traumatized as a child. The crucial fact is that the Army focuses on a Soldier's functioning as a Solider, not solely on a diagnosis when reaching decisions about disability ratings and medical retirement. e. The applicant failed to meet medical retention standards in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable at the time, but not because of mental-health problems. His medical condition was considered at the time of his discharge. This case did not involve mitigation issues and his discharge, from a behavioral-health perspective, was accomplished properly. 12. On 28 February 2017, the applicant responded to the advisory opinion. He states while he does not completely disagree with all of the opinions rendered by the ARBA Psychologist, he offers his PTSD was in no way inflicted by his father. He adds his PTSD stems from constantly being afraid for his life while deployed in Iraq. He describes incidents that occurred during his deployment and maintains he was told he had no medical records from his period of service in Iraq. He reiterates that he did not receive a mental evaluation before his discharge from the Army and only found out later that he suffers from PTSD, severe anxiety, panic disorder, and severe memory problems. REFERENCES: 1. AR 635-40 establishes the Army Physical Disability Evaluation 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 office, grade, rank, or rating. a. The regulation defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service. b. The regulation states the findings and recommendations of the informal PEB are recorded on a DA Form 199. Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include the following: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the Soldier's reasons for nonconcurrence and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded * soldiers indicate their elections by checkmark in block 13 and sign and date the original and the MTF(Medical Treatment Facility) copies c. The same regulation states the PEB liaison officer will counsel the Soldier and make him or her fully aware of the election options available, the processing procedures, and the benefits to which he/she will be entitled if separated or retired for physical disability. 2. Title 26, U.S. Code, section 104 states that for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war, or which is caused by an instrumentality of war. 3. Department of Defense Instruction 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 states that combat-related covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed below: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 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 higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. DISCUSSION: 1. The evidence of record shows the applicant underwent a PEB. The PEB determined he was physically unfit due to chronic subjective low back pain secondary to DDD, lumbar region without neurologic abnormality, and full range of motion thoracolumbar region. The board recommended separation with severance pay based on a 10% disability rating. 2. The applicant's LOD investigation, if completed at the time of his fall, is not available. However, item 10, of his DA Form 199 clearly states, "The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and for purposes of Title 10, U.S. Code, section 10216(G)." On 1 February 2005, he concurred with the PEB findings and recommendations and waived his right to a formal hearing. 3. There is no evidence and he has not provided any to show that his back condition was the direct result of armed combat, caused by an instrumentality of war or caused during simulation of war. Service in a combat zone is a prerequisite; however, the evidence must show an injury was incurred and documented showing an instrumentality of war caused the injury. While the applicant argues there were incoming rockets and he lost his footing while on top of a military vehicle, he provides no evidence to support his statement. 4. There is also no evidence and he has not provided any evidence to show he received a diagnosis of PTSD while on active duty or that the condition ever rendered him unable to perform his duties. An ARBA Psychologist stated his medical records do not reasonably support him having a boardable behavioral health condition at the time of his discharge. His mental health conditions apparently did not become evident until after service. His case does not involve mitigation issues and his discharge, from a behavioral-health perspective, was accomplished properly. 5. Further, AR 635-40 provides that the U.S. Army rates only conditions determined to be physically unfitting that a Soldier incurred or aggravated during their period of service. The VA, on the other hand, provides compensation for disabilities, which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning. Moreover, the law requires that the VA must give the veteran the benefit of any reasonable doubt. The fact that the VA awarded him a 100% disability rating for PTSD does not mean that the PEB should have evaluated this condition, especially since the condition presented itself post-service. 6. An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000017 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000017 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2