BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160000018 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: 11 May 2017 DOCKET NUMBER: AR20160000018 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: 11 May 2017 DOCKET NUMBER: AR20160000018 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's records to show he was medically retired with a 30-percent disability rating for olecranon bursitis (inflammation of small sacs of fluid in the elbow joint) and post-traumatic stress disorder (PTSD). 2. Counsel states a.  As an Iraq campaign combat veteran, the applicant's conditions of olecranon bursitis and PTSD should have been considered at the time of his discharge. b.  His mental health condition was not rated at the time of his separation and both of his conditions totaled at least a 30-percent disability rating. c.  On 30 November 2009, the Department of Veterans Affairs (VA) rated his right elbow condition as 10-percent disabling at the time of his discharge. d.  According to his 5 October 2010 and 20 November 2012 medical examinations, he had symptoms for the 30-percent disability rating at the time of his discharge from the Army, including occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). e.  The 12 October 2010 examination shows he had a Global Assessment of Functioning score of 60, which is indicative of "moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." f.  On 7 December 2012, he was granted a 30-percent disability rating for PTSD retroactive to 16 July 2010. The medical records show his disability had started and existed from the time of his discharge from the service, which was only 7 months before the effective date of the VA disability rating of 30 percent for PTSD. 3. Counsel provides: * brief, dated 10 November 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * three VA Rating Decisions * six VA Compensation and Pension Examination Reports * Medical Evaluation Board (MEB) Narrative Summary, dated 25 September 2009 * VA Form 21-0819 (VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim), dated 18 June 2009 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 26 September 2007 for a period of 5 years and 21 weeks. 3. Headquarters, Joint Readiness Training Center and Fort Polk, Orders 100-085, dated 9 April 2008, deployed him to Iraq in support of Operation Iraqi Freedom for a period of 455 days effective on or about 15 April 2008. 4. Counsel provided a copy of the applicant's MEB Narrative Summary, dated 25 September 2009, which shows the applicant initially injured his elbow in May 2008. a.  After loading a casualty onto a helicopter, he turned to run away and tripped and fell on his elbow. His pain was mild, so he did not seek care. It only bothered him if he put weight on it. However, in September 2008, he injured the elbow again during combatives training. He presented to the aid station and he was diagnosed with a strain. His pain gradually decreased and his range of motion increased. He did not seek further care. b.  He redeployed in January 2009 and reported the elbow pain at the Soldier Readiness Processing site. He was referred to the orthopedic clinic for further evaluation and x-rays revealed a fracture of the proximal ulna. He was sent for further x-rays, which indicated the fracture had begun healing. c.  He could not lift or carry a load. While deployed, he learned to put on body armor using one arm. He learned to perform more activities using the left arm; for instance, driving using the right arm to steer caused elbow pain. Putting any pressure on the elbow continued to cause pain; for instance, assuming a kneeling or prone position. Carrying or firing an automatic weapon caused pain. d.  In April 2009, he was sent for occupational therapy. While therapy increased his arm strength, he continued to experience pain with certain movements, including lifting any weight. When he returned to the orthopedic clinic in May 2009, the orthopedist decided further improvement was unlikely and he could not perform his duties as an infantryman. e.  He was diagnosed with the following conditions which met or did not meet standards as follows: * olecranon bursitis – fails to meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 * refractive error, myopia – meets retention standards * bilateral patellofemoral syndrome – meets retention standards * left ankle joint pain – meets retention standards f.  His commander recommended his separation and indicated he could not perform the duties of his military occupational specialty. g.  His physical profile rating was listed as: * P – physical capacity or stamina – 1 * U – upper extremities – 3 * L – lower extremities – 1 * H – hearing and ears – 1 * E – eyes – 2 * S – psychiatric – 1 h.  On 16 June 2009, he was referred to a physical evaluation board (PEB). 5. The applicant's DA Form 199 (PEB Proceedings), dated 27 October 2009, shows his case was processed as part of the Integrated Disability Evaluation System. a.  The PEB found him unfit due right elbow olecranon bursitis and recommended a 10-percent disability rating and separation with severance pay. b.  The PEB found his refractive error, myopia; bilateral patellofemoral syndrome; and left ankle pain met retention standards and were not unfitting, either independently or in combination with other conditions, as the preponderance of the evidence supported they were not a significant limitation on his ability to perform his primary military occupational specialty. 6. On 28 October 2009, he concurred with the findings and recommendation of the PEB and waived his right to a formal hearing of his case. 7. On 30 October 2009, the findings and recommendation of the PEB were approved. 8. On 25 November 2009, he was discharged accordingly. His DD Form 214 shows he was awarded severance pay. His narrative reason for separation was listed as disability, severance pay, combat related (enhanced). 9. Counsel provided a copy of the applicant's VA Rating Decision, dated 30 November 2009, that shows he was granted a 10-percent disability rating for right elbow olecranon bursitis effective 26 November 2009, 10. Counsel also provided the following documentary evidence: a.  The applicant's Compensation and Pensions Capri Examination Report, dated 6 October 2010, shows the applicant indicated he was bullied, teased, and tormented by other members of his unit while serving in Iraq. He had to clean up blood when his platoon sergeant was blown up and another man injured his foot during an explosion and he had to clean up their gear. He was not a witness to the actual explosion and he was not a witness to others being killed, but he did help in the evacuation of wounded Soldiers. He did not receive any help or talk to anyone afterwards. He did not have any significant response to the stressors at the time of the trauma, such as fear of death or physical injury, intense fear or horror, feeling helpless, or being stunned or in shock. He was diagnosed as follows: * Axis I – adjustment disorder with anxiety and depressed mood * Axis II – personality disorder narcissistic and obsessive compulsive features * Axis III – previously broken elbow, no other medical complaints b.  The applicant's Compensation and Pension Capri Examination, dated 17 November 2012, shows in paragraph 8 (Remarks) that he had a previous Compensation and Pension Examination and he was diagnosed with an adjustment disorder. The examiner did not believe his symptoms met all of the requirements for a diagnosis of PTSD c.  The applicant's VA Rating Decision, dated 7 December 2012, shows he was granted a 30-percent disability rating for PTSD (also described as adjustment disorder with depressed mood) effective 16 July 2010 and a non-compensable evaluation was assigned from 17 November 2012. d.  The applicant's VA Rating Decision, dated 8 March 2015, shows his evaluation of PTSD with other specified depressive disorder, which was rated as 0-percent disabling, was increased to a 30-percent disability rating effective 30 September 2014. 11. On 22 November 2016, the Army Review Board Agency Clinical Psychologist provided an advisory opinion wherein she stated that based on a thorough review of available medical records, there was no evidence indicating the applicant met the criteria for PTSD during his military service. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for his discharge in this case. This observation does not negate the applicant's post-service diagnosis of PTSD from the VA; however, the VA conducts evaluations based on different standards and regulations. In summary, there is no evidence showing the applicant's post-service diagnosis of PTSD warranted medical retirement. 12. On 5 December 2016, the Army Review Boards Agency Senior Medical Advisor provided a secondary advisory opinion wherein he stated: a.  The applicant did not meet medical retention standards for right elbow olecranon bursitis in accordance with Army Regulation 40-501, chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. b.  The applicant met medical retention standards for refractive error myopia (existed prior to service), left ankle joint pain, and right and left patellofemoral syndrome in accordance with Army Regulation 40-501, chapter 3, and following the provisions set forth in Army Regulation 635-40 that were applicable to his era of service. c.  The applicant's medical conditions were duly considered during medical separation processing. d.  A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the applicant's discharge in this case. 13. On 7 December 2016, the advisory opinions were sent to the applicant for review and for an opportunity to provide a response. He did not respond within the suspense period. REFERENCES: 1. Army Regulation 635-40 establishes the 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 or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. c.  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. d.  Recommendations of the informal PEB are recorded on a DA Form 199. Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * 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 e.  Soldiers indicate their elections by placing a checkmark in item 13 and by signing and dating the original and the medical treatment facility copies. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 3. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 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 of less than 30 percent. 5. 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 on the part of the Army. 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 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. Furthermore, unlike the U.S. 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. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. Counsel contends the applicant's PTSD and right elbow olecranon bursitis should have been included in his PEB evaluation and these conditions would have received a disability rating which would have raised his overall rating within the range for medical retirement. 2. The applicant screened negative for PTSD in August 2009 and a non-compensable evaluation was assigned from 17 November 2012 because evidence showed his symptoms were not severe enough to interfere with occupational and social functioning. Although the applicant later received a 30-percent disability rating for PTSD, his records are void of and counsel failed to provide evidence showing the applicant's PTSD condition fell below medical retention standards, required duty limitations, or impaired his social or occupational functioning. 3. The PEB considered only his conditions of right elbow olecranon bursitis; refractive error, myopia; bilateral patellofemoral syndrome, and left ankle joint pain. a. The PEB recommended his separation with severance pay and assigned a 10-percent disability rating for his unfitting condition of right elbow olecranon bursitis. b. His conditions of refractive error, myopia; bilateral patellofemoral syndrome; and left ankle joint pain were not found unfitting, either independently or in combination with any other conditions, as the preponderance of the evidence supported that they were not a significant limitation on his ability to perform his primary military occupational specialty. 4. The evidence of record shows he concurred with the findings and recommendation of the PEB which were subsequently approved. 5. Since he had less than 20 years of active service and his medical condition was rated less than 30-percent disabling, he was discharged by reason of disability with severance pay. 6. 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. An award of a higher VA rating does not establish error or injustice on the part of the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000018 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000018 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2