IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140021108 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 IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140021108 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. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140021108 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 her DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 2 May 2006, and her DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 11 July 2006, to add the following conditions as unfitting: * joint stiffness of the right ankle/pain * bursitis trochanteric (bilateral) * plantar fasciitis/stress fractures * tendonitis posterior tibial * joint pain localized in the hip * sprained ribs * post-traumatic stress disorder (PTSD) 2. The applicant states the injuries she sustained in a motor vehicle accident in Iraq were properly diagnosed; however, they were not added to her MEB and PEB Proceedings. She was discharged with 10 percent (%) disability for her spinal fusion of the L5-S1 vertebrae but other diagnosed conditions should have been considered unfitting. Additionally, her PTSD was never properly acknowledged or treated. She believes she suffered an injustice. Because these conditions were omitted from her MEB and PEB Proceedings, they were neither considered nor included in the determination of her percentage of disability. 3. In a self-authored statement, the applicant contends: a. As a truck driver in the Army, her sprained ribs did not allow her to put on her protective gear, which was mandatory for her safety. Her bilateral bursitis of the hips also limited her ability to sit for long periods of time and caused her pain. The amount of weight added from the protective gear during driving, as well as the uneven surfaces that caused the vehicles to jump, rendered her unfit to continue with her duties and she could not continue to properly serve as a Soldier. Her right ankle, which she used to drive for long periods of time, suffered joint instability and stiffness and the radiating pain diminished her driving skills. b. She hopes the Board will consider her PTSD as a neglected diagnosis during her medical hold period and during her MEB and PEB. She believes the MEB and PEB process only furthered aggravated her PTSD by making her even angrier and more frustrated at the fact that she couldn't continue to serve her country. c. The injuries she sustained in Iraq from a motor vehicle accident in July 2014 (sic) have yet to heal. Also, she was diagnosed with her injuries prior to her referral to the MEB and PEB. She sincerely hopes the Board will consider her case a great injustice that can be corrected, so she can properly move on and not feel so angry at the injustice she suffered. She is honored to have been able to serve in the Army and fight for her country. 4. The applicant provides: * DA Form 2173 (Statement of Medical Examination and Duty Status), documenting an injury that occurred on 28 July 2002 * Orders 03-338-00028, issued by the 208th Transportation Company of the U.S. Army Reserve (USAR) on 4 December 2003 * DA Form 638 (Recommendation for Award), dated 20 August 2004 and annotated as Permanent Order Number 305-030, issued by Headquarters, 13th Corps Support Command (COSCOM) on 31 October 2004 * DA Form 2173, documenting an injury that occurred on 31 July 2004 * Standard Form 600 (Medical Record – Chronological Record of Medical Care), with most recent entry dated 25 August 2004 * Standard Form 513 (Medical Record – Consultation Sheet), dated 13 September 2004 * an extract (pages 1 and 3) of DA Form 2823 (Sworn Statement), dated 20 November 2004 * Standard Form 600, with most recent entry dated 22 November 2004 * Standard Form 513, dated 2 December 2004 * Standard Form 600, with most recent entry dated 13 December 2004 * DA Form 3349 (Physical Profile), dated 16 November 2004 * Standard Form 600, with most recent entry dated 7 February 2005 * an extract (page 1 of 7) of DD Form 2766 (Adult Preventive and Chronic Care Flowsheet), documenting chronic illnesses that occurred between 4 March 2005 and 6 February 2006 * Standard Form 600, with most recent entry dated 12 April 2006 * Standard Form 600, with most recent entry dated 2 May 2006 * DA Form 3947, dated 2 May 2006 * DA Form 199, dated 11 July 2006 * Orders 249-0004, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas on 6 September 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 September 2006 * a copy of her VA disability claim packet, submitted on 28 December 2006 * various VA Rating Decisions, dated 24 April 2007, 29 April 2009, 22 October 2010, and 15 August 2012 * various VA Decision Letters, dated 10 May 2007, 30 April 2009, 26 October 2010, and 20 August 2012 * Physical Disability Board of Review (PDBR) Record of Proceedings (ROP), dated 5 December 2012 * a letter from the President, PDBR, to the Director, Army Review Boards Agency (ARBA) [interpreted to be the Deputy Assistant Secretary of the Army (Review Boards) (DASA-RB)] * a letter from the DASA-RB to the Commander, U.S. Army Physical Disability Agency (USAPDA), dated 11 January 2013 * a letter from the DASA-RB to the applicant, dated 11 January 2013 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR on 11 June 2002. 2. She entered active duty for training on or about 28 June 2002. After completing her initial entry training, she was awarded military occupational specialty (MOS) 88M (Motor Transport Operator) and was released from active duty to the control of her USAR troop program unit. 3. Her unit was mobilized in support of Operation Iraqi Freedom. She entered active duty on 7 December 2003 and deployed to Kuwait and Iraq on 22 February 2004. 4. She was promoted to the rank/grade of specialist/E-4 on 23 June 2004. 5. She was involved in a motor vehicle accident on 31 July 2004 while serving in Iraq, which resulted in injuries to her left arm, back, hip, left leg, and ribs. Her record contains five separate, corresponding, and approved Statements of Medical Examination and Duty Status, which note the respective injuries. In each instance, the profiling physician notes the respective injury was not severe enough to warrant hospitalization; however, it could result in temporary disability. 6. She was placed on a temporary physical profile on 16 November 2004, based on the muscular-skeletal strain she suffered during her motor vehicle accident. The profiling physician established her profile expiration date as 1 March 2005. Her PULHES factors were determined to be "212121," meaning she was given a temporary serial factor of "2" in the "P” (Physical Capacity), "L” (Lower Extremities), and "E” (Vision–Eyes) factors of her PULHES, the six factors comprising the Military Physical Profile Serial System. 7. She provided a sworn statement she completed on 20 November 2004, in which she detailed the motor vehicle accident and her subsequent injuries. a. She was driving a "pls" [believed to be a Palletized Load System] with a trailer carrying water. During a turn, the load shifted and caused the vehicle to flip over. As the driver, she was tossed around in the vehicle's cab, ultimately landing on her neck and back on the passenger side. b. She lacerated her left shin, bruised her right calf and left middle thigh, sustained bruises on her right gluteus and the left triceps area of her arm, hit her rib cage several times, and had pain in her hips, groin area, lower back, and both shoulders. c. As of the date she completed the sworn statement, she was still experiencing pain in all of the bruise locations, as well as throughout her entire torso region and her lower back, hips, and ribs. Her shin remained swollen. 8. She redeployed from Iraq on 23 March 2005. It appears she was extended on active duty to allow sufficient time for the treatment of her medical injuries and/or her processing through the Physical Disability Evaluation System (PDES). 9. It appears she underwent surgery in January 2006 for a herniated lumbar disk in her back, after which she was referred to an MEB. 10. An MEB convened on 2 May 2006. After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of intervertebral disc degeneration, lumbar. No other condition was diagnosed. The MEB recommended the applicant's referral to a PEB. She was counseled, she agreed with the MEB's findings and recommendation, and she indicated her desire to continue on active duty. 11. An informal PEB convened on 11 July 2006 and found that her condition prevented her from performing the duties required of her grade and MOS. The PEB determined she was physically unfit due to chronic low back pain following her back injury sustained in a tactical vehicle motor vehicle accident, in July 2004, while deployed to Iraq. 12. She was rated under the VA Schedule for Rating Disabilities (VASRD) code 5241 and granted a 10% disability rating. The PEB did not consider any other conditions since no other conditions were found to be unfitting. The PEB recommended that she be separated with entitlement to severance pay if otherwise qualified. She did not sign the PEB Proceedings; therefore, her concurrence or non-concurrence with the PEB findings and recommendation cannot be determined. 13. She was honorably discharged on 6 September 2006, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability with entitlement to severance pay. The DD Form 214 she was issued shows she received severance pay. 14. Her service medical records are not available for review and her available personnel records do not contain sufficient clarifying documentation regarding the injuries she suffered in the previously mentioned motor vehicle accident on 31 July 2004 to ascertain the impact of her injuries on her ability, or lack thereof, to perform her duties within the scope of her MOS. 15. She was rated by the VA for service-connected disability on numerous occasions between 24 April 2007 and 15 August 2012. She provides the applicable VA Rating Decisions and Decision Letters that show: a. The VA awarded her service-connected disability compensation on 24 April 2007, effective 7 September 2006, in the amount of 30% based on five conditions: bilateral plantar fasciitis (10%); fusion, lumbar spine (10%); residual, rib strain (10%); right ankle arthralgia (0%); and gastroesophageal reflux disease (0%). b. The VA increased her percentage of service-connected disability compensation on 29 April 2009, effective 26 September 2008, based on their increase in her previous award for right ankle arthralgia from 0% to 10%. As a result, her overall combined disability percentage increased to 40%. c. The VA increased her percentage of service-connected disability compensation on 22 October 2010, effective 17 September 2009, for one new condition (PTSD) in the amount of 30%. As a result, her overall combined disability percentage increased to 60%. d. The VA awarded her service-connected disability compensation on 15 August 2012, effective 11 January 2007, for two new conditions: trochanteric bursitis, left hip (10%) and trochanteric bursitis, right hip (10%). However, her overall combined disability percentage remained 60%. 16. The PDBR convened on 5 December 2012 to review the applicant's disability rating accompanying her medical separation from the U.S. Army. The PDBR ROP informed the applicant that: a. In accordance with Department of Defense Instruction 6040.44 (PDBR), Enclosure 3, paragraph 5.e.(2), the scope of the PDBR review was limited to those conditions that were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the applicant, those condition(s) "identified but not determined to be unfitting by the PEB." b. The ratings for unfitting conditions are reviewed in all cases. The applicant's rated condition of chronic lower back pay was the only condition that met the PDBR's purview for review. However, other conditions remain eligible for future consideration by the Army Board for Correction of Military Records (ABCMR). c. The PDBR unanimously recommended no change in the PEB's previous adjudication. 17. The President of the PDBR forwarded the PDBR's ROP to the DASA-RB on 28 December 2012, with his recommendation that she accept that board's proposed decision. 18. The DASA-RB reviewed the PDBR ROP and accepted the board's recommendation on 11 January 2013, thereby denying the applicant's request for relief. The applicant was notified that the decision was final. 19. An advisory opinion was obtained on 12 April 2016 from the Medical Director, Integrated Disability Evaluation System (IDES), U.S. Army Medical Department Activity, Joint Base Langley-Eustis. The advisory official stated: a. An advisory opinion was requested to address whether the applicant requires correction of her military records in the form of an MEB and PEB for additional conditions not noted in her original MEB/PEB. b. The applicant completed the PEB and was found unfit for chronic low back pain with a disability rating of 10%. No other conditions were listed on either the DA Form 3947 or DA Form 199. It is her contention that other conditions should have been added to the DA Form 3947/MEB submission dated 2 May 2006 for consideration by the PEB for rating purposes. Of special note, this appears to be a legacy IDES case – VA Compensation and Pension (C&P) exams were completed independent of the MEB/PEB. c. The DA Form 3947 listed only chronic low back pain. In Block 24, the applicant initialed the block "I agree with the Board's findings and recommendations." That condition was the only condition the PEB adjudicated. d. The applicant notes she was originally rated by the VA (7 September 2006) for the additional conditions of bilateral plantar fasciitis (10%) and residual rib strain (10%). Her subsequent VA Rating Decision in 2009 added bilateral trochanteric bursitis (10%) and right ankle arthralgia (10%). In 2010, the VA added the condition of PTSD (30%). e. There were no medical records or previous profiles submitted with this packet. There are no medical records in the current Electronic Health Record or E-Profile for review. f. The original findings of the PEB should be upheld. It is reasonable to assume the applicant had the opportunity to review the Narrative Summary (NARSUM) and DA Form 3947 prior to submission to the PEB. She appears to have done so and elected to agree with the content of the MEB submission and DA Form 3947. The fact that she later claimed several conditions in the VA system does not contradict the findings of the MEB/PEB – that the only medically unacceptable/unfitting condition at time of separation was the chronic low back pain. The applicant did not provide any evidence to support her claim that these other conditions significantly impacted her ability to perform her duties at the time of the MEB submission. 20. The applicant was provided a copy of the advisory opinion on 13 April 2016 for review and possible rebuttal. 21. An advisory opinion was obtained on 18 April 2016 from the Chief, Behavioral Health Division, Health Care Delivery, Medical Command (MEDCOM) G-3/5/7, Office of The Surgeon General (OTSG). The advisory official stated: a. The applicant entered active duty on 7 December 2003 and was honorably discharged on 6 September 2006 in accordance with Army Regulation 635-40, paragraph 4-24b (3). She deployed to Kuwait and Iraq from February 2004 to March 2005. b. In December 2014, the applicant requested that certain diagnoses be added to the MEB and PEB process, to include PTSD, which she contends "was never properly treated and or not acknowledge[d]." The OTSG was asked to determine if the information contained in the applicant-provided documentation was duly considered during her medical separation processing. This opinion is based on the information provided by the Board and records available in the Department of Defense (DoD) electronic medical record (AHLTA). c. There is no record in AHLTA of behavioral health problems or treatment during the applicant's period of military service. In October 2010, a VA psychiatric evaluation, referenced in the file but not provided, established the presence of a qualifying stressor but did not address the remaining criteria for PTSD. Service-connection for PTSD was granted with an evaluation of 30%, effective 17 September 2009. d. There is no evidence the applicant met the criteria for PTSD at the time of her discharge nor did she provide additional information to support her assertion. 22. The applicant was provided a copy of the advisory opinion on 20 April 2016 for review and possible rebuttal. 23. The applicant provided a rebuttal to the 12 April 2016 advisory opinion, wherein she stated her disagreement with the advisory opinion provided in her case. She further stated: a. She provided her VA ratings for background information. Independent of her VA ratings she is requesting consideration of the onset dates of her various medical conditions based on her line of duty (LOD) investigations and medical records from the Army Medical Center where she was treated. b. She stated in her application for correction of her records that the diagnoses for rib sprain, joint pain localized in the hip, and bilateral fasciitis were diagnosed by doctors at the William Beaumont Army Medical Center while she was on active duty, before she underwent her MEB and PEB. She had no control over what was entered on her DA Form 3947, which is why she stated in the original application for correction of her records that she was submitting her request to correct an injustice. c. The onset dates of her various medical conditions corresponded with the date she was injured in Iraq, 31 July 2004, as shown in the attached Statements of Medical Examination and Duty Status. The onset date given to her by a military provider was between March 2005 and July 2005, which was before she was even considered by an MEB on 2 May 2006. She was given profiles for her back only, but she was told that those profiles would cover her other injuries as well. She is not arguing her case because of the VA rating she received; rather, she is arguing that her other diagnoses should have been submitted along with her chronic lower back pain because she was being treated for them concurrently, prior to her MEB. The injuries she sustained in Iraq were diagnosed prior to her referral to an MEB and should have been reviewed by the MEB. 24. Submitted with her rebuttal were 33 documents, many of which were included in her application and documented above. However, several new documents were included, including nine separate Physical Profiles she received between 6 March 2005 and 15 May 2006, which were issued based on her lower back pain, chronic lower back pain, disc herniation, spinal fusion, or other back-related issues. No other injuries or medical conditions were referenced on these profile forms. REFERENCES: 1. Army Regulation 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 using the VASRD. Ratings can range from 0% to 100%, rising in increments of 10%. 2. Army Regulation 635-40 establishes the Army 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. a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition that is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 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%. 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%. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions, determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. 5. The VASRD 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. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. DISCUSSION: 1. The applicant requests correction of her MEB and PEB Proceedings to add certain medical conditions (including PTSD) as unfitting. 2. The applicant was involved in a motor vehicle accident on 31 July 2004 while serving in Iraq. She sustained several injuries as a result of that accident; however, it appears her lower back injury, which eventually required surgical fusion, was the most serious. 3. As a result of the injury she sustained to her lower back and the resulting lower back pain she experienced, she was referred to an MEB for a determination of her fitness for further service. The MEB found her unfit for further service and referred her to a PEB. The PEB found her unfit for further service, assigned her a disability rating of 10% for chronic low back pain, and recommended her separation from service with entitlement to severance pay. The PEB Proceedings were approved and she was discharged from the Army by reason of disability with entitlement to severance pay. 4. Following her discharge from the Army by reason of disability, the VA awarded her service-connected disability ratings for numerous other conditions, including PTSD. 5. The PDBR reviewed her disability separation; however, the scope of its review was limited to her low back pain and did not address any of the other injuries she received on 31 July 2004. 6. She now contends her MEB and PEB Proceedings should have addressed the other injuries she sustained in the motor vehicle accident on 31 July 2004, including joint stiffness of the right ankle/pain, bursitis trochanteric (bilateral), plantar fasciitis/stress fractures, tendonitis posterior tibial, joint pain localized in the hip, sprained ribs, and PTSD. 7. Notwithstanding her contentions, there is no indication, based on the available medical documentation, that the injuries outlined above were severe enough to render her unfit to reasonably perform the duties of her office, grade, or rank, given proper treatment and rehabilitation. Additionally, there is no evidence that either her previous commander or the medical officials who treated her determined her injuries were severe enough to warrant her referral to an MEB. Lastly, there is no evidence she suffered from PTSD while serving on active duty. 8. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. It appears the applicant was properly rated at 10% and there is no evidence to support a higher rating for her condition. The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated her condition at 10% disabling. 9. An award of a different rating by the VA does not establish error in the rating assigned by the Army's PDES. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. 10. Lacking evidence to the contrary, it appears her MEB and PEB were conducted in accordance with law and regulation. She concurred with the recommendation of the MEB and, although the PEB Proceedings included with her application do not contain her signature acknowledging her acceptance of the PEB findings and recommendation, government regularity can be presumed as there is no evidence that shows otherwise. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140021108 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2