BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160000887 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: 30 May 2017 DOCKET NUMBER: AR20160000887 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: 30 May 2017 DOCKET NUMBER: AR20160000887 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, a review of his disability processing and the inclusion of traumatic brain injury (TBI) in his medical record. 2. The applicant states in 2004, during his deployment in Iraq, the vehicle he was driving - with the crew on board - struck a land mine. They were all evaluated and placed on 72 hours of rest. This was not documented in his medical records. He was seen by medical personnel at his brigade. The incident should have been recorded. The statements he provides verify his injuries. 3. The applicant provides three signed DA Forms 2823 (Sworn Statement). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 3 January 2003 and held military occupational specialty (MOS) 19D (Cavalry Scout). He served through multiple reenlistments or extensions and he attained the rank/grade of staff sergeant (SSG)/E-6. 2. His records show he served in a variety of stateside and overseas assignments, including Iraq from 11 February 2004 to 15 February 2005 and from 24 October 2007 to 5 December 2008 and Afghanistan from 25 February 2011 to 9 January 2012. 3. On 5 December 2012, he was referred to the Integrated Disability Evaluation System (IDES) for mid back pain. On 7 December 2012, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant with the conditions listed below and recommended referral to a physical evaluation board (PEB): Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Minimal mid back degenerative disc disease X 2. Anxiety Disorder X 3. Post-traumatic stress disorder (PTSD) X 4. Revolving right shoulder tendonitis X 5. Chronic cervical strain X 6. Erectile dysfunction X 7. Bilateral ulnar neuropathy X 8. Arachnoid cyst X 9. Obstructive sleep apnea X 10. Gastroesophageal reflux syndrome X 11. mild TBI X 4. On 20 December 2012, after having been counseled, the applicant indicated he reviewed the contents of the MEB and agreed with the findings and recommendations. He authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time 5. On 29 May 2013, a formal PEB convened, with the applicant and his counsel present, and found his medical conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to the conditions listed below. a. The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows: VASRD Code Condition Percentage 9411 PTSD 70 percent 5237 Minimal mid back degenerative disc disease 0 percent b. The PEB also considered his other medical condition, including mild TBI, which did not fail retention standards and were not found unfitting and therefore not ratable. c. The PEB recommended a 70 percent combined disability rating and placement him on the temporary disability retired list (TDRL) with future reexamination. d. Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process. His counseling culminated on 5 June 2013 when he was counseled by a PEBLO regarding his medical conditions, the findings of the MEB, the PEB process, and his rights under the law. He concurred and also indicated he did not want reconsideration of his VA rating. 6. On 13 June 2013, Headquarters, 1st Infantry Division, Fort Riley published orders releasing him from his assignment on 5 September 2013. 7. He retired on 5 September 2013 and he was placed on the TDRL in his retired rank/grade of SSG/E6 on 6 September 2013 in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 years, 8 months, and 3 days of active service. 8. Following his retirement, he underwent a TDRL examination. As a result, on 16 October 2015, a TDRL PEB convened and found the applicant remained medically unfit. The TDRL PEB determined that while on the TDRL, his unstable condition(s) (to include treatment) did not cause additional unfitting conditions. Upon reevaluation, although some change in his medical condition may be anticipated, for the purpose of adjudicating his disability compensation, his condition(s) were considered to have stabilized at a degree of severity that is equal to or greater than 30 percent. Therefore, permanent retirement was recommended. a. The TDRL PEB rated his PTSD at 50 percent and his minimal mid-back degenerative disc disease at 0 percent. The TDRL PEB determined his disposition as permanent retirement at a combined rating of 50 percent. b. Subsequent to his counseling, the applicant concurred with the PEB findings and recommendations and waived his rights to a formal hearing. 9. On 22 October 2015, the U.S. Army Physical Disability Agency published Orders D295-61 removing him from the TDRL and permanently retiring him with a combined rating of 50 percent. 10. The Case Management Division of the Army Review Boards Agency (ARBA) forwarded his case to the ARBA psychiatrist for review. As a result, the psychiatrist rendered an advisory opinion on 21 November 2016 in the processing of the applicant's case. The psychiatrist referenced the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Medical Fitness), with revisions, dated 4 August 2011, and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. The psychiatrist stated: a. The applicant entered active duty on 3 January 2003 in the MOS-19D30-Cavalry Scout. He deployed three times: Iraq, 11 February 2004 to 15 February 2005 and 24 October 2007 to 5 December 2008; and Afghanistan, 25 February 2011 to 9 January 2012. On 5 September 2013, he was honorably medically retired in accordance with AR 635-40, Chapter 4. At the time of medical retirement, his PTSD was rated at 50 percent. He is now contending that he developed TBI while deployed. He is requesting to have this diagnosis of TBI added to his military medical record and reviewed for additional disability retirement. b. The ARBA psychiatrist was asked to review this case. Documentation reviewed included applicant’s application, several sworn statements from fellow Soldiers, his informal PEB Proceedings, his Combat-Related Specialty Compensation (CRSC) letter and his VA rating decision letter. The military electronic medical record and the VA electronic medical record was also reviewed. In his personal statement, the applicant indicates that he suffered a TBI in 2004 when the vehicle he was driving struck a land mine. He states that he and his crew were evaluated on site and placed on 72 hours rest. According to the applicant, this was not documented in his medical records. The applicant has also included two sworn statements from his team mates attesting to this land mine detonation as well as his own sworn statement. c. The applicant's informal PEB Proceedings (DA Form 199, March 2012) dated 16 Oct 2015 were reviewed. The board found the applicant to be physically unfit and recommended a rating of 50 percent for PTSD. They also recommended his disposition be permanent disability retirement. An Army CRSC decision letter, dated 6 February 2014, was reviewed. This letter indicated the applicant’s total combat related disability was increased to 70 percent (70 percent for PTSD, 10 percent for Tinnitus) as of 13 October 2014. The applicant’s VA Rating Decision Letter, dated 13 December 2013, indicates the applicant has been rated as 70 percent service-connected for PTSD and zero percent service connected for TBI as of 6 September 2013. d. The applicant’s medical records indicate that he was diagnosed with mild TBI while on active duty. According to his medical records, in 2004, he experienced a brief loss of consciousness from driving over and detonating an antitank mine in Iraq during his first deployment. Also, while at the National Training Center (NTC), he reported he was hit in the head with a Bradley hatch resulting in a brief loss of consciousness. A medical note, dated 31 March 2012, stated the applicant’s “chronic back and neck pain” was resulting in daily headaches. An evaluation performed by the Fort Riley TBI Clinic, dated 24 April 2012, concluded “SM (service member) does have a history of two events in which he sustained a concussion, one in 2004/2005 and one in 2010 while attending NTC. SM does report symptoms of headaches at the time of each event; however, in each case he reports improvement. SM does not report his current headaches difficulties beginning until June 2011. SM reports noticing difficulty with forgetfulness/memory beginning approximately 4-5 months ago. Due to the timing of his onset of symptoms, these are not consistent with being a result of his head injuries.” e. A Neurology note, dated 19 June 2012, diagnosed the applicant with “Headache Syndrome, tension type with possible migraine exacerbation.” His neurological examination was within normal limits. A Magnetic Resonance Imaging (MRI) of his brain, dated 31 July 2012, was found to be normal except for some right maxillary sinus inflammation and a possible small arachnoid cyst in the posterior fossa. A brain Magnetic Resonance Angiogram (MRA), also performed in July 2012, was within normal limits. A sleep study, completed on 20 August 2012, indicated Obstructive Sleep Apnea, occasional. A Psychological Evaluation done on 31 October 2012 indicated the applicant’s symptoms of anxiety and depression “may be contributing to his somatic complaints (i.e., headaches…) or at least exacerbating them.” f. Contrary to the applicant’s contention that his mild TBI was not documented in his medical records, there is ample evidence that his mild TBI was recognized and comprehensively worked up while the applicant was on active duty. During his TBI workup, the applicant was evaluated by a variety of medical specialties to include a family practice, neurology, sleep medicine, psychology, and psychiatry. As part of his mild TBI workup, he underwent a complete neurological examination, brain MRI, a brain MRA and a Polysomnogram Sleep Study. There is no evidence in his medical records that shows his headaches or mild TBI caused him to fail to meet medical retention standards in accordance with AR 635-40. The applicant’s medical conditions were duly considered during medical separation processing. A referral of the applicant’s record for consideration of additional disability retirement for TBI is, therefore, not warranted. 11. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response/rebuttal. He did not respond. REFERENCES: 1. AR 635-40 establishes the Army 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. 2. AR 40-501 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 percent to 100 percent rising in increments of 10 percent. 3. 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. DISCUSSION: 1. The applicant was referred to the IDES due to mid back pain. He underwent an MEB which recommended referral to a PEB. He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty. It appears he did not concur with the informal PEB and requested a formal one. 2. The formal PEB found his medical condition(s) prevented him from reasonably performing the duties required of his grade and military specialty. The PEB rated his PTSD at 70 percent and his degenerative disc disease at zero percent, and recommended placing him on the TDRL. He agreed with the findings and recommendation. He was placed on the TDRL in September 2013, in the rank/grade of SSG/E-6. 3. Contrary to his contention that his mild TBI was not documented in his medical records, there is plentiful evidence that his mild TBI was recognized and comprehensively worked up while he was on active duty. During his TBI workup, he was evaluated by a variety of medical specialties to include a family practice, neurology, sleep medicine, psychology, and psychiatry. There is no evidence in his medical records that show his headaches or mild TBI caused him to fail to meet medical retention standards. 4. After his temporary retirement, he underwent a medical examination that led to a TDRL PEB. The TDRL PEB determined that while on the TDRL, his unstable conditions did not cause additional unfitting conditions. Upon reevaluation, although some change in his medical condition may be anticipated, for the purpose of adjudicating his disability compensation, his condition(s) were considered to have stabilized at a degree of severity that was equal to or greater than 30 percent. 5. The TDRL PEB rated his PTSD at 50 percent and his minimal mid-back degenerative disc disease at 0 percent. The TDRL PEB determined his disposition was permanent retirement with a combined rating of 50 percent. He was counseled, concurred with the findings and recommendations of the PEB, and waived his right to formal hearing of his case. 6. The evidence shows his physical disability evaluation was conducted in accordance with law and regulations and the applicant exercised his rights and options with respect to demanding a formal hearing of his case, representation by counsel, and the submission of all medical evidence. There does not appear to be an error or an injustice in his case. The medical review did not yield substantiating medical evidence that would show an error or injustice occurred. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000887 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000887 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2