IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20140019748 BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20140019748 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the Army Board for Correction of Military Records decision in Docket Number AR20130015153, dated 7 May 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DA Form 199, dated 1 October 2001, and U.S. Army Physical Disability Agency Orders D162-09, dated 11 June 2013, to show his disability is based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred during a war period as defined in Title 26, U.S. Code, section 104. ____________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. IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20140019748 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 reconsideration of the applicant's earlier request to correct his military records to show his post-traumatic stress disorder (PTSD) is a combat-related disability. 2. Counsel states: a. The applicant seeks to have the Army recognize his PTSD as combat-related from his service in the first Gulf War. The request for relief is grounded in the clear and unmistakable error of the attending medical personnel at the time of his initial PTSD diagnosis to correctly identify this condition as combat-related. This initial error was compounded by subsequent health care providers simply assuming the record was complete and accurate as to the applicant's exposure to traumatic stress during combat in the first Gulf War. b. The applicant served in a combat zone. His medical records clearly describe his PTSD as stemming from the trauma he experienced during Operations Desert Shield/Desert Storm in 1990-1991. c. The advances in understanding PTSD diagnoses since his service illuminated the judgment of health care providers and leaders in the Army and at the Department of Defense. Notably, the Secretary of Defense promulgated new policy guidance to correct mistakes concerning PTSD and Soldiers' benefits. d. In light of new policy guidance and the circumstances that lead to the applicant's diagnosis of PTSD and in light of his combat service during Operations Desert Shield/Desert Storm and his honorable service record, it would be a continued injustice to deny the obvious connection between his PTSD and his combat duty. 3. Counsel provides 12 exhibits outlined on page 3 of his legal brief. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records in Docket Number AR20130015153 on 7 May 2014. 2. Records show the applicant's initial entry date as 1 June 1988 and his basic active service date as 5 October 1989. However, his official military personnel file does not contain any records from this period of service. 3. The Gulf War Deployment Roster shows the applicant served in Southwest Asia from 15 December 1990 to 28 April 1991. 4. After having prior enlisted service, the applicant enlisted in the Regular Army on 4 October 1993 and served through a series of reenlistments. He served in a variety of assignments, held military occupational specialties 31U (Signal Support Systems Specialist) and 63D (Self-Propelled Field Artillery Systems Mechanic), and attained the rank/grade of sergeant. 5. His records contain a medical evaluation board (MEB) narrative summary (NARSUM), dated 18 May 2001, which shows he was assigned a permanent physical profile rating of 3 under the psychiatric (S) factor due to complaints of panic attacks, nightmares, anger, anxiety, and depression. The NARSUM stated: a. The applicant was deployed with his unit to Saudi Arabia from 15 December 1990 until June 1991 to provide corps fire support for the 2nd Cavalry and 1st Infantry Divisions. During this period he was involved in a number of life-threatening situations, including an incident where he had to drive a truck through a mine field with black smoke all around, episodes of seeing fellow Americans in body bags, 2 days of shelling followed by a drive through the region where his unit had just been doing the shelling, and rides in trucks with gunfire exchange occurring. The physician concluded the applicant was exposed to multiple traumatic events during his service in Saudi Arabia that caused him to experience fear for his life; he witnessed others dying and the results of destruction to which he felt he had contributed. He was fearful and hopeless during much of this time. b. He reported that after his service in Saudi Arabia, he began pulling away from others and not desiring to discuss what happened to him. He began living in the cab of his truck about 3 months after his return from Saudi Arabia and continued to live there for a period of about 6 months. After his service in the Regular Army, he served in the National Guard for 14 months and during this period he began having nightmares and would awaken in cold sweats. However, he wished to continue serving on active duty. c. Once he was back on active duty, he found it difficult to return to his old duties. He became angry and intense at times and decided it would be best to remove himself from leadership positions. He also began drinking to alleviate his anxiety, but he was able to control the condition prior to requiring formal treatment. He limited his options for career advancement because of fears about combat. d. In late 1996, he received an Operation Desert Storm physical and was found to have symptoms consistent with PTSD. Since that time he had been followed in a clinic at Fort Polk, LA, and continued to serve in an active duty capacity. He continued to limit his duties and advancement attempts in an effort to avoid stressors. He was able to work well in the jobs he did perform which limited command knowledge of his condition. He continued to have difficulties with active duty service and experienced extreme anxiety with formations; the presence of military symbols, including uniforms; and being around large crowds of people, especially if these people were in uniform. He found dental appointments and barber shops particularly stressful due to the symbolic helplessness involved in such procedures. He would avoid appointments and formations or simply leave in the middle of them because of feelings of panic. e. During his treatment, the applicant brought in a qualitative journal listing times and severity of his panic attacks. During a 15-day period he noted only 2 days without attacks. These days were both noted to be on the weekends while he was at home and he, in fact, felt "uneasy" during the second of these 2 days, which prompted him to retire early and go to bed. His attacks were mostly related to being around many people with qualitative measurements given about 4-6 on the scale from 1-10 during these attacks. Some attacks were related to very large numbers of people, resulting in 7's on that same scale. One attack while he was getting his hair cut was rated at 9 and he wrote, in addition, "really bad." f. Most recently he served as a web page designer and had little contact with the rest of the military. Despite his low contact he continued to have anxiety attacks, nightmares, and distressing recollections of the events in Saudi Arabia. He also complained of difficulties concentrating, recurrent depression, and anxiety. In 1998 and 2000, he began drinking alcohol uncontrollably. He did not receive formal treatment but was able to eventually recover on his own and was alcohol free at the time the NARSUM was completed. Although he has been able to perform limited duties, the anxiety which he experiences when exposed to military symbols and unit activities has created a tense atmosphere which greatly disabled him at work. He had irritability, difficulty sleeping, and difficulty concentrating since serving in Saudi Arabia. g. Based on these symptoms, the applicant meets the criteria for a diagnosis of PTSD. In addition, he has been anxious, worried, and irritable with restlessness and difficulty sleeping. These symptoms have persisted for over a year, causing both occupational and personal problems. As such, he suffers from generalized anxiety disorder as well. h. He was diagnosed with a generalized anxiety disorder and PTSD and the diagnosing physician indicated these conditions did not exist prior to service and were incurred in the line of duty (LOD). 6. His records contain a DA Form 3947 (MEB Proceedings), dated 24 July 2001, showing the MEB considered his diagnosis of PTSD and determined it occurred while he was entitled to basic pay, that it had not existed prior to service, and that it had been permanently aggravated by service. He was referred to a physical evaluation board (PEB) and the applicant agreed with the MEB findings and recommendations. The DA Form 3947 does not contain a section identifying whether a medical condition is combat-related. 7. His records contain a NARSUM addendum, dated 10 September 2001, wherein the applicant's physician stated the applicant had been followed in the Fort Polk clinic since 1997 and had been given various treatments for his PTSD. His treatments included the use of individual supportive therapy, group therapy in a PTSD group, and eye movement desensitization and reprocessing. Additionally, medication therapy had been used for various symptoms related to the disorder, including anxiety, insomnia, and depression. Attempts had been made at using trazodone (antidepressant) and Serzone (nefazodone – antidepressant) as well as selective serotonin reuptake inhibitor agents (antidepressants). The applicant had shown some improvement over time with these treatments; however, he continued to suffer from the manifestations of PTSD. His physician noted that it was likely that he would continue to require treatment for these symptoms throughout his life. 8. His records contain a DA Form 199 (Physical Evaluation Board Proceedings), dated 1 October 2001, which shows the PEB considered his condition of generalized anxiety disorder with associated PTSD. The PEB determined the applicant was physically unfit and recommended a combined disability rating of 10 percent. a. The PEB indicated the condition was incurred or aggravated while he was entitled to basic pay and was considered to be in the LOD. The PEB also determined his condition was not based on a disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law. The PEB further determined his disability did not result from a combat-related injury as defined by Title 26, U.S. Code, section 104. b. The applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing. 9. Headquarters, Joint Readiness Training Center, Fort Polk, Orders 323-0001, dated 19 November 2001, show the applicant's scheduled date of separation was 12 December 2001. The additional instructions stated, in part: * disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred during a war period as defined by law – no * disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104 – no 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 December 2001 shows he was honorably discharged from active duty by reason of disability with severance pay. 11. Counsel provided numerous service personnel records and service medical records pertaining to the applicant. He also provided a Department of Veterans Affairs medical record, dated 30 July 2009, which shows the applicant was under psychiatric care for PTSD. 12. His records contain a Physical Disability Board of Review (PDBR) Record of Proceedings, dated 1 November 2012, which shows the applicant contended the PEB should have rated him as 30-percent disabled with entitlement to medical retirement. a. The record of proceedings outlined the information contained in the NARSUM and stated, "The PEB adjudicated the disability as generalized anxiety disorder with associated PTSD, coded as 9411-9400, and rated at 10%. It is unclear why the PEB proceedings document annotates that the CI's [covered individual's] disability did not result from a combat related injury." b. The PDBR recommended re-characterizing the applicant's separation to reflect he was placed on the Temporary Disability Retired List (TDRL) with a disability rating of 50 percent for a period of 6 months followed by permanent disability retirement with a disability rating of 30 percent effective the date of his prior medical separation. 13. Headquarters, Joint Readiness Training Center, Fort Polk, Orders 081-0319, dated 22 March 2013, rescinded Orders 323-0001, dated 19 November 2001. 14. Headquarters, Joint Readiness Training Center, Fort Polk, Orders 086-0325, dated 27 March 2013, as amended by Orders 161-0322, dated 27 March 2013, show the applicant was placed on the TDRL effective 13 December 2001. The additional instructions state, in part: * disability is based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred during a war period as defined by law – no * disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104 – no 15. U.S. Army Physical Disability Agency Orders D162-09, dated 11 June 2013, show he was removed from the TDRL and permanently retired effective 12 June 2002 with a 30-percent disability rating. These orders state: * disability is based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred during a war period as defined by law – no * disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104 – no 16. On 11 June 2013, he was issued a DD Form 215 (Correction to DD Form 214) which shows he retired by reason of temporary disability. 17. On 7 May 2014, the Army Board for Correction of Military Records denied the applicant's request to show his PTSD was a combat-related disability. The Board concluded there was insufficient evidence to show he met the criteria to have PTSD listed as combat-related or as a result of an instrumentality of war. 18. Counsel also provided the Secretary of Defense memorandum, dated 3 September 2014, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD. This memorandum pertains to discharge upgrades based on claims of previously unrecognized PTSD. 19. An advisory opinion was obtained from the Chief, Behavioral Health Division, Health Care Delivery, Medical Command, Office of the Surgeon General (OTSG), dated 16 March 2016. The advisory official states: a. The applicant entered active duty on 4 October 1993. He was discharged on 12 December 2001 in accordance with Army Regulation 635-40, paragraph  4-24b(3), by reason of disability with severance pay. He participated in Operations Desert Storm/Desert Shield from 15 December 1990 to June 1991. b. The applicant, through counsel, appealed the Board's denial of his request to have the Army recognize PTSD as combat-related from his service in the first Gulf War. c. Documentation strongly supports both the diagnosis of PTSD and its connection to the applicant's combat deployment. d. The OTSG recommends the applicant's request be granted. 20. The advisory opinion was furnished to the applicant for comment. On 29 March 2016, he responded and concurred with the advisory opinion. REFERENCES: Title 26, U.S. Code, section 104, states 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 under conditions simulating war, or caused by an instrumentality of war. DISCUSSION: 1. Counsel requests correction of the applicant's military records to show his PTSD is a combat-related disability from his service in the first Gulf War. 2. Counsel contends the attending medical personnel at the time of the applicant's initial PTSD diagnosis failed to correctly identify this condition as combat-related. 3. Although counsel contends new policy was promulgated to correct mistakes concerning PTSD and Soldiers' benefits, the Secretary of Defense memorandum he provided pertains specifically to discharge upgrades based on claims of previously-unrecognized PTSD. 4. The applicant's MEB NARSUM stated the applicant was exposed to multiple traumatic events during his service in Saudi Arabia that caused him to experience fear for his life; he witnessed others dying and the results of destruction to which he felt he had contributed. He received an Operation Desert Storm physical in late 1996 and was found to have symptoms consistent with PTSD. Based on these symptoms, the applicant met the criteria for a diagnosis of PTSD. He was diagnosed with a generalized anxiety disorder and PTSD. The diagnosing physician indicated these conditions did not exist prior to service and were incurred in the LOD. The MEB considered his diagnosis of PTSD and determined it occurred while he was entitled to basic pay, that it had not existed prior to service, and that it had been permanently aggravated by service. 5. The PEB considered his condition of generalized anxiety disorder with associated PTSD. The PEB determined the applicant was physically unfit and recommended a combined disability rating of 10 percent. The PEB indicated the condition was incurred or aggravated while he was entitled to basic pay and was considered to be in the LOD. The PEB also determined his condition was not based on a disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law. The PEB further determined his disability did not result from a combat-related injury as defined by Title 26, U.S. Code, section 104. 6. The PDBR outlined the information contained in the MEB NARSUM and stated it was unclear why the PEB proceedings annotated that the applicant's disability did not result from a combat-related injury. The PDBR recommended re-characterizing the applicant's separation to show he was placed on the TDRL with a disability rating of 50 percent for a period of 6 months followed by permanent disability retirement with a disability rating of 30 percent effective the date of his prior medical separation. 7. The evidence clearly shows the applicant's disability is based on an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred during a war period as defined in Title 26, U.S. Code, section 104. 8. Based on the foregoing evidence, his DA Form 199, dated 1 October 2001, and U.S. Army Physical Disability Agency Orders D162-09, dated 11 June 2013, should be corrected to show his disability is based on an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred during a war period as defined in Title 26, U.S. Code, section 104. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140019748 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2