BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170008102 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ ___x__ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170008102 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Directing the Office of The Surgeon General to review the available records to determine if the applicant's Physical Disability Evaluation System (PDES) processing considered all possible diagnoses he may have had. If it is determined that he should have continued processing through the PDES prior to his discharge, these proceedings will serve as the authority to afford him that process. b. Should a determination be made that the applicant should have been discharged or retired due to disability, these proceedings will serve as the authority to void his administrative separation and issue the appropriate separation retroactive to the appropriate date, with entitlement to all pay and allowances that may be due as a result. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to showing he was medically retired or separated due to physical disability without benefit of the review described above. _________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: 28 November 2017 DOCKET NUMBER: AR20170008102 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 correction of his records to show he was medically discharged. 2. He states he believes the undiagnosed post-traumatic stress disorder (PTSD) was the primary reason he was discharged from the Army without completion of his medical treatment and a physical evaluation board (PEB). a. He was shot through the jaw, which resulted in the loss of one-third of his tongue, all of his gums, and 80 percent (%) paralysis through his mouth. He states he was kept on morphine for 8 months, which became an addiction and required extensive psychological and medical treatment. He adds he also sustained a dramatic weight loss and suffered from depression due to his inability to talk, eat, and his self-imposed isolation due to the knowledge that his entire team had been lost. b. He offers on 22 September 1966, he was unexpectedly discharged. He was told he was being allowed to go home and to check in with the veteran's hospital in New Orleans, LA, to receive the remainder of his medical treatment. He was still suffering from his injury, his jaw was wired shut, and he was unable to speak. He adds he was angry, depressed, confused most of the time, and he suffered from nightly dreams of combat. On 23 September 1966, the Department of Veterans Affairs (VA) doctors in New Orleans, LA, saw him. The VA doctors questioned how he had been discharged from a medical hospital given his physical and mental condition. 3. He provides: * self-authored statement * Standard Form 88 (Report of Medical Examination), dated 2 September 1966 * SF Form 89 (Report of Medical History), undated * Clinical Record document * Medical Board Proceedings (MEB), dated 8 September 1966 * VA Rating Decision, dated 10 November 2011 * U.S. Court of Federal Claims, dated 18 February 2016 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 (RA) on 8 June 1963. He was trained in and awarded military occupational specialty 91B (Medical Specialist). 3. His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 5 April 1965 to 14 January 1966. He was assigned to Company B, 5th Special Forces Group (Airborne), 1st Special Forces during his assignment to Vietnam and, on 16 November 1966, he sustained a gunshot wound in the jaw. 4. The MEB proceedings, dated 8 September 1966, show a board convened to consider the applicant's medical conditions and/or physical defects of: * wound, missile, gunshot perforating, lower face, with involvement of the inferior alveolar artery and nerve, bilateral * fracture, open, comminuted, body of mandible, bilateral, involving tooth number 31 with nerve and artery involvement and retained foreign body * avulsion, alveolar process of mandible, bilateral, and teeth numbers 19, 20, and 30 * amputation, traumatic, distal one-third of tongue, with moderate disturbance in speech and mastication and tongue mobility * scar of mandibular region, bilateral, due to trauma, minimal, non-disfiguring * scar of neck, hypertrophic, following tracheostomy, moderately disfiguring * periodontoclasia, area tooth number 29 * prostatitis, acute, minimal, organism unknown * coloboma of iris, partial, right, secondary to trauma in 1995 * corneal scar, right, secondary to trauma in 1955 5. The MEB recommended the applicant be returned to duty and given no assignments that require the use of field telephones or which require clear sound speech. Item 25 (action by the patient) shows that the applicant concurred with findings of the board as attested to by his initials showing he lined through the remark "I do not agree with the board's actions and desire to appeal." 6. The VA Rating Decision, dated 10 November 2011, shows the applicant was granted a combined disability rating of 90% as of 21 November 2003 for the following service-connected disabilities: * PTSD * Gunshot wound, lower face with loss of tongue musculature * Gunshot wound, face fracture, compound comminuted * Residuals of gunshot wound, face, loss of teeth * Gunshot wound, facial muscles left, with retained foreign body * Gunshot wound, facial muscles right, retained foreign body * Gunshot wound, facial scars * Left knee disorder * Tracheostomy scar 7. On 22 September 1966, the applicant was honorably released from active military service and transferred to the U.S. Army Reserve. The applicant completed 3 years, 3 months, and 15 days of creditable active service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Purple Heart. 8. The applicant requested medical/disability retirement through the ABCMR on two separate occasions. On 29 December 2009 and again on 21 September 2010, the ABCMR denied his requests. On 18 February 2016, the applicant appealed his case to the U.S. Court of Federal Claims citing that the ABCMR decision to deny his request for a medical retirement was arbitrary, capricious, and demonstrated a grave misinterpretation and failure to see the misleading statement contained in the administrative records. On 29 July 2016, the court found that the decision of the ABCMR was not arbitrary, capricious, or in violation of any applicable statue or law. 9. On 27 August 2017, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) clinical psychologist, who states there is evidence the applicant met the criteria for PTSD-like symptoms during his military service. Additionally, this psychologist states: a. Military records indicate the applicant served as a member of the 5th Special Forces Group and was wounded in action in Vietnam on 16 November 1965 while on a search and destroy mission. A 30 caliber round hit his mandible (jaw), entering on the right and exiting on the left, causing a through and through wound to the tongue and considerable destruction to the mandible. He was air evacuated to the continental United States and treated in several military hospitals over the course of 10 months, before ending up at Brooks Army Medical Center, Texas. The applicant acknowledged being a very difficult patient that at times required restraints and isolation. He attributed his difficulties to being angry, unable to talk or eat, experiencing dramatic weight loss, feeling depressed about losing members of his team, and experiencing psychological and medical effects from being on morphine; however, he contends that his misbehaviors, along with skin color, affected decisions made by others regarding his medical disposition. b. On 22 July 1966, the applicant signed an affidavit in which he indicated his desire to remain on active duty beyond his scheduled expiration of term of service (ETS) (8 June 1966) for the purpose of continuing medical care and/or disability processing, if applicable. On 8 September 1966, an MEB convened at Fort Sam Houston, TX, for the conditions/defects cited in paragraph four of these proceedings. c. The MEB recommended the applicant be returned to duty with certain limitations to include no assignments that required the use of field telephones and no assignments that required clear sound speech. Records indicated the applicant concurred with the findings and initialed and lined through the remark "I do not agree with the board's actions and desire to appeal.'' In accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) a PEB was not recommended since the applicant was determined to be medically qualified to perform duties and met medical retention standards. d. On 18 January 1967, he was seen by the VA for a Medical Examination for Disability Evaluation. The presenting complaint was a speech defect and difficulty eating. A post-service dental examination dated 27 January 1967, indicated he had abnormal findings to his lip and buccal mucosa, tongue and floor of mouth, investing tissues, alveolar ridges, masticatory function, and speech. e. On 3 June 1967, a service connection for a gunshot wound, lower face with loss of tongue musculature was granted and the applicant was assigned a disability rating of 30% effective 23 September 1966. In 1997, a service connection for PTSD was granted and he was assigned a disability rating of 30%, which was increased to 50% in 2001. Individual unemployability was granted on 1 April 2001. f. Based on the information provided by the Board and a thorough review of available medical records, there is evidence that the applicant met the criteria for a boardable medical condition (gunshot wound, lower face with loss of tongue musculature) during his time in service. Although an MEB found him fit for duty with limitations and he did not contest the board findings, there is evidence that at the time of discharge his medical condition limited his duty performance to the extent that warrants further evaluation for physical disability. It is more likely than not that he did not meet medical retention standards and he may not have been able to effectively perform his assigned military duties (medical specialist) given his reported pain, difficulty with speech, and issues with eating. g. Additionally, there is evidence that the applicant was experiencing a significant amount of stress and possibly PTSD-like symptoms following his return from Vietnam. PTSD-like symptoms appear to have negatively impacted his behavior, particularly during his course of medical treatment. Given that PTSD was not recognized as a diagnosis during his time in service, it is unlikely he or anyone else recognized and attributed his changes in mood and behavior to the effects of his combat experiences. Supporting post­ service medical documentation regarding PTSD and the gunshot wound was provided by the VA, where the applicant receives continued medical services. In summary, a review of the available documentation found evidence of a medical disability and a condition, which would support consideration for a medical retirement. 10. The applicant was provided a copy of this advisory opinion for his acknowledgement and/or response. On 15 September 2017, he stated that his position was outlined in the U.S. Court of Federal Claims, dated 18 February 2016. REFERENCES: 1. AR 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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. Only the unfitting conditions or defects and those which, contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. a. The disability system assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. b. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. AR 40-501 (Standards of Medical Fitness) 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. The VA Schedule of Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. Paragraph 3-8 (Dental Diseases and Abnormalities of the Jaws) states that diseases of the jaws or associated tissues when, following restorative surgery, there remain residuals which are incapacitating, or interfere with the individuals' satisfactory perform of military duty, or leave unsightly deformities require entry into the Disability Evaluation System. 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. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. DISCUSSION: 1. The applicant enlisted in the RA on 8 June 1963. He served in RVN from 5 April 1965 to 14 January 1966. On 16 November 1965, he sustained a gunshot wound to his mandible, entering on the right and exiting on the left, causing a through and through wound to the tongue and considerable destruction to the mandible. 2. On 8 September 1966, an MEB was convened and considered the applicant for 10 medical conditions and/or physical defects. The MEB recommended the applicant be returned to duty with certain limitations to include no assignments that required the use of field telephones and no assignments that required clear sound speech. The applicant concurred with the findings. 3. An advisory opinion from an ARBA clinical psychologist states there is evidence that the applicant met the criteria for a boardable medical condition (gunshot wound, lower face with loss of tongue musculature) during his time in service. Although an MEB found him fit for duty with speech limitations and he concurred with the board findings, there is evidence that at the time of discharge his condition limited his duty performance to the extent that warranted further evaluation for physical disability. It is more likely than not that he did not meet medical retention standards and he may not have been able to effectively perform his assigned military duties (medical specialist) given his reported pain, difficulty with speech, and issues with eating. 4. The clinical psychologist further said there is evidence that the applicant was experiencing a significant amount of stress and possibly PTSD-like symptoms following his return from Vietnam. Given that PTSD was not recognized as a diagnosis during his time in service, it is unlikely he or anyone else recognized and attributed his changes in mood and behavior to the effects of his deployment experiences. A review of the available documentation found evidence of a medical disability and condition, which would support reconsideration within the PDES for potential medical retirement. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170008102 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008102 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2