BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160000240 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: 22 August 2017 DOCKET NUMBER: AR20160000240 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: 22 August 2017 DOCKET NUMBER: AR20160000240 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 her records to show a combined service-connected physical disability rating of 30 percent (%) or more. 2. The applicant states a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB) evaluated her in 2007 based on a diagnosis of celiac disease. a. She states she was not assigned to a Warrior Transition Unit nor was she assigned a case manager, which would have given her access to additional information that was not provided to her by doctors or her commander. She also states the disability evaluation process was rushed and she was medically discharged in December 2007 without a diagnosis of traumatic brain injury (TBI). b. She was not evaluated by a medical unit until she returned to the United States in 2010 and was diagnosed with TBI; however, she was not aware she could request a change to her medical discharge proceedings. c. In 2013, her MEB and PEB were reviewed; however, only the original information in her medical records was considered. She now has all of her records and supporting documents for consideration by the Board. 3. The applicant provides copies of her military medical records, MEB and PEB proceedings, discharge documents, Department of Veterans Affairs (VA) medical treatment records, and the Physical Disability Board of Review (PDBR) decision. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) and entered active duty on 13 November 2000. She was awarded military occupational specialty 42A (Human Resources Specialist). a. Through a series of reenlistments in the RA she continued to serve on active duty. b. She served in: * Germany from 26 November 2001 to 20 October 2003 * Iraq from 20 October 2003 to 18 July 2004 * Germany from 20 July 2004 to 20 December 2007 c. She attained the rank of sergeant/pay grade E-5 on 1 June 2006. 2. A DA Form 3947 (MEB Proceedings) shows an MEB convened on 6 September 2007 at Landstuhl Regional Medical Center (Germany). a. The applicant did not present views in her own behalf. b. Item 13 (Diagnosis) lists the following conditions/defects: * nontropical celiac sprue (origin 2007) * right knee pain status post surgical repair (origin 2004; permanently aggravated by service) c. After consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant unfit for duty under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and referred her to a PEB. d. On 19 September 2007, the findings and recommendation were approved. e. On 21 September 2007, the applicant was informed of the MEB’s findings and recommendation and she agreed with the board's findings and recommendation. She also indicated that she did not desire to continue on active duty. 3. A DA Form 199 (PEB Proceedings) shows a PEB convened on 9 October 2007, in Washington, DC. a. The applicant’s following conditions were found unfitting: VA Code 5257 – chronic right knee instability (MEB Diagnosis 2) following a fall while running to a bunker in Iraq (in March 2004) for which the Soldier had surgery in 2006. The PEB considered the MEB diagnosis, Narrative Summary, and the applicant's health records and recommended a 10% disability rating. b. The PEB also considered the applicant's MEB diagnosis of nontropical celiac sprue (MEB Diagnosis 1) and did not find it to be unfitting (independently or in combination with any other listed diagnosis). c. The PEB recommended a combined rating of 10% and separation with severance pay. d. The PEB President signed the PEB proceedings on 9 October 2007. e. The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of her case. f. On 5 November 2007, the Chief, Operations Division, Physical Disability Agency, Alexandria, VA, affirmed the applicant’s PEB proceedings and discharge with severance pay. 4. A "Corrected Copy" of Headquarters, Wiesbaden Transition Center, Wiesbaden Army Air Field (Germany), Orders 310-003, dated 6 November 2007, discharged the applicant from the RA, effective 20 December 2007, based on disability (10%) with severance pay. 5. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 13 November 2000 and she was honorably discharged under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures), paragraph 4-24b(3), based on physical disability with severance pay on 20 December 2007. She had completed 7 years, 1 month, and 8 days of net active service this period that included 6 years and 25 days of foreign service. 6. On 11 December 2012, the applicant petitioned the PDBR for review of her MEB and PEB proceedings. The basis of her application, in pertinent part, was the MEB was rushed and "missed that [she] had a TBI." a. On 5 September 2013, the PDRB considered the applicant's contention. The record of proceedings show the board's scope of review is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the applicant. b. It shows the applicant's contentions regarding (left) knee, wrist, anxiety, and TBI conditions were not considered by the MEB or PEB; therefore, the conditions were not within the purview of the PDRB. c. The PDRB unanimously recommended no change from the PEB determination. The board also noted there were no other conditions within the board's scope of review for consideration. 7. On 8 January 2014, the Deputy Assistant Secretary (Army Review Boards), affirmed she had reviewed the PDRB's recommendation and record of proceedings, and accepted the recommendation pertaining to the applicant. The applicant was informed her application was denied. 8. In support of her request the applicant provides, in pertinent part, copies of her military medical records (approximately 370 pages that include records of treatment, physical profiles, and MEB and PEB proceedings), VA medical treatment records ( approximately 190 pages), and the PDBR decision. a. The applicant's MEB and PEB proceedings, and the PDRB decision were previously summarized. b. A review of her military medical records, in pertinent part, revealed a: (1) DD Form 689 (Individual Sick Slip), dated 8 March 2004, that shows she sustained a knee injury while serving in Iraq. (2) No record of medical consultation/treatment as a result of sustaining a head injury while serving in Iraq during the months of March through July 2004. (3) An SF 600 (Chronological Record of Medical Care) shows she was seen at the medical treatment clinic, on 12 July 2004, for a migraine headache. It shows she reported frontal headache (1–2 times a month) and "no head trauma." c. Detailed information pertaining to a review of the applicant's medical records by a medical professional is provided in paragraph 9 (below). 9. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 13 February 2017. a. The ARBA senior medical advisor reviewed the applicant's military personnel records, service treatment records (STR), including paper and electronic (AHLTA) records, and medical records provided with her application. (1) The senior medical advisor provided an extensive description of the applicant's clinical encounters, physical profiles, and medical examinations. He noted she was issued multiple physical profiles regarding the knees or lower extremity problems, temporary profiles for abdominal wall pain, pregnancy, and status post refractive eye surgery. He also noted she was diagnosed with celiac disease. (2) The senior medical advisor provided a summary of her MEB and PEB proceedings, and the PDBR decision (all previously summarized in this Record of Proceedings). He reviewed the MEB Narrative Summary, dated 30 August 2007, and noted, "Past mild history of depression and anxiety as a teenager, with ongoing intermittent treatment." He also noted, "No history of blast exposure or TBI noted (either Yes or No)." b. He reported the applicant's VA Compensation and Pension (C&P) Examination, dated 6 July 2012 (entered 13 July 2012), revealed a notation: "As related to TBI issues, the veteran stated in Iraq in 2004, she was walking from her tent to her office. She heard a whistling sound. An RPG [Rocket Propelled Grenade] landed in a tent approximately 15 meters away from the veteran. She was knocked off her feet during the blast. She stated that she immediately got up and ran back to her tent. She stated when she was knocked to the ground, she was wearing a helmet. She may have hit her head on the ground and the ground was dirt. She is unsure of any loss of consciousness; there may [have] been seconds. She reported ringing in her ears and feeling confused. She had headaches that were preexisting to this event, but they worsened following this event. She reported the above symptoms lasted for approximately 10 minutes. She did not receive medical treatment and was returned to duty. The veteran stated she has been exposed to approximately 10 mortar and rocket explosions, all approximately 100 meters away…" "The veteran scored in the normal range on the SLUMS [Saint Louis University Mental Status examination] with a 29 out of 30 points. Due to the veteran's normal cognitive functioning, testing was discontinued at this time." c. The senior medical advisor found the applicant did not meet medical retention standards for celiac disease and right knee pain status-post surgical repair in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. d. He also found the applicant met medical retention standards for her other diagnosed conditions, including low back pain, De Quervains tenosynovitis (right hand/wrist), adjustment disorder with anxiety and depressed mood, depression (treated with antidepressant), non-cardiac chest pain, anxiety (treated with anxiolytic medication), sinusitis, right ovarian cyst (ruptured)/folliculitis (of the follicle(s)), myopia, left pyelonephritis (kidney infection), folliculitis (of the skin), anterior uveal cyst (left eye), migraine and other headaches (associated with minor acute illnesses, sinusitis, and/or upper respiratory infections), allergic rhinitis, and wisdom teeth (extraction) IAW AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. e. The senior medical advisor concluded the applicant's medical conditions were duly considered during her medical separation processing. He added, "No medical record documentation of TBI or blast exposure found in available STR copies provided by applicant or AHLTA. The only reference noted was in the VA C&P note July 2012 with normal cognitive screening evaluation. None during the applicant's era of military service." f. He found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 10. On 14 February 2017, the applicant was provided a copy of the ARBA advisory opinion to allow her the opportunity to submit comments or a rebuttal. 11. On 17 February 2017, the applicant provided her response. She noted the PDBR could only look at the original MEB/PEB proceedings; it did not consider new evidence, and found the MEB and PEB were properly conducted. a. The applicant noted the PDBR advised her that she could apply to the Army Board for Correction of Military Records if there were conditions that were not originally considered by the MEB/PEB. After reviewing the advisory opinion, she still believes her MEB was rushed and she was not properly evaluated. (1) She commented on the ARBA advisory official's reference to, "No history of blast exposure or TBI noted (either Yes or No)" and offered, "this is because I was not asked if I had been exposed." (2) She stated, in retrospect, her visit to the theater clinic on 12 July 2004 for migraine headaches was due to the fact that she was knocked to the ground (around May–June 2004) while running from an RPG that landed in the area. She added that she also ran from a mortar attack in March 2004, landed on her knees, and she hit her head on a step. (3) She also stated, knowing Soldiers who were deployed were starting to be diagnosed with TBI around that time, she believes the doctors should have asked her more questions pertaining to the injuries she sustained. b. She disagrees with the ARBA medical advisory opinion and requests the Board consider "what [her] evaluation would have been if a TBI had been acknowledged during the original MEB process." REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the disability evaluation system. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that 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. Any non-ratable defects or conditions will be listed on the DA Form 199, but will be annotated as non-ratable. 2. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30% * section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30% DISCUSSION: 1. The applicant's request for correction of her records to show a higher physical disability rating based on an unfitting condition (TBI) and permanent disability retirement was carefully reconsidered. 2. Records show an MEB considered the applicant's medical conditions. a. The MEB recommended referral to a PEB. b. The applicant agreed with the board's findings and recommendation. 3. Records also show a PEB considered all the medical conditions listed on the applicant's MEB. The PEB found her right knee instability (following a fall while running to a bunker in Iraq in March 2004) was unfitting and rated at 10%. a. The PEB found the applicant physically unfit, recommended a combined rating of 10%, and separation from the service with disability severance pay. b. The applicant concurred with the results of the PEB. 4. The applicant's MEB/PEB proceedings were reviewed by the PDRB in 2013. The PDRB unanimously recommended no change from the PEB determination. a. It is noted the PDRB did not consider any other condition(s) (i.e., TBI) that the applicant raised as it was not within that board's scope of review. b. On 8 January 2014, the Deputy Assistant Secretary (Army Review Boards) denied the applicant's petition. 5. The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the disability evaluation system process. The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing. 6. The applicant's contends she sustained a TBI in Iraq, which should be considered in correcting her MEB/PEB proceedings. a. The applicant's military medical records, in pertinent part, show the following: (1) On 8 March 2004, she was treated for a knee injury sustained while serving in Iraq. (2) On 12 July 2004, she was seen at the medical treatment clinic for a migraine headache. At that time, she denied having sustained a head injury (i.e., "no head trauma"). It is noted that this information refutes the applicant's contention that medical personnel did not inquire into matters relating to TBI. (3) The applicant’s medical records fail to reveal evidence of a medical consultation or treatment as a result of the applicant sustaining a head injury while serving in Iraq during the months of March through July 2004 (or at any time). b. At a VA C&P examination (on 13 July 2012), the applicant reported that she was knocked off her feet as a result of an RBP blast (i.e., May–June 2004, date not specified). She stated that she may have hit her head and that she was unsure if she lost consciousness. (1) The VA medical record also shows that she had headaches that were preexisting to this event. (2) She was tested and displayed normal cognitive functioning. (3) There is no diagnosis of a TBI. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000240 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000240 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2