IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20140021142 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: 26 May 2016 DOCKET NUMBER: AR20140021142 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: 26 May 2016 DOCKET NUMBER: AR20140021142 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 military records to show the U.S. Army rated him as unfit for duty due to anxiety and post-traumatic stress disorder (PTSD) based on his medications and a flight surgeon’s recommendations. 2. The applicant states he was a helicopter pilot for about 23 years and a maintenance test pilot since 1993. Recently he was a Soldier in the Warrior Transition Unit (WTU) at Fort Leonard Wood, MO, where he underwent a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB) prior to his discharge in November 2014. Throughout the MEB/PEB process, the board members failed to recognize the standards and criteria used to determine medical fitness and capability of satisfactory performance of duties for pilots are different from those used to determine the fitness of Soldiers in most other military occupational specialties (MOSs). With the help of other aviation authorities, he has tried to convince the medical boards that aviators fall under different standards and criteria. However, due to the fact that Fort Leonard Wood has a limited number of aviation assets, his efforts fell on deaf ears. 3. During his appeal of the formal PEB he suggested that the board include a flight surgeon. However, this did not happen. Aviation professionals were witnesses at the formal PEB. They cited the aviation regulation and aeromedical factors; however, they failed to convince the PEB of his military aviation grounding limitations. It is his understanding that none of the PEB members were former or current flight physicians or aviators. Army flight physicians and those with aviation experience are the subject matter experts. The Army aviation flight physician is the final authority when it comes to decisions involving Army aviator's and flight crewmember's fitness for duty. He is the person who recognizes and understands the physiology and medical effects on aviators and flight operations. When an aviator, civilian or military, has a medical concern, they don't see an ordinary doctor; they consult their flight physician. The flight physician determines and approves or disapproves fitness for duty, grounding limitations and flight status of the aviator or flight crewmember. After meeting with his military assigned attorney, and exhausting all MEB/PEB resources, he now files this application for correction of his military record. His attorney suggested that for the formal PEB appeal process, he should obtain another letter from an aviation flight surgeon stating the medications he is currently taking for PTSD symptoms are not compatible with flying. 4. As you can see in the U.S. Army Sustainment Command memorandum, dated 8 September 2014, the command surgeon reiterated that the applicant’s psychiatric diagnosis of PTSD and PTSD-associated sleep disorder currently requires three medications, all of which are mandatory disqualifiers, making him unfit for duty. This documentation, along with the other attached memoranda and his military health records should provide more than enough support to show he is unfit due to PTSD symptoms. He may be one of the first, if not the first, aviator to go through the MEB process at Ft. Leonard Wood. He was also told the MEB process would have probably been less difficult if he had been processed at a military post having more aviation assets. This is not a process that he wants other Soldiers to endure. However, there are currently other Soldiers at Fort Leonard Wood having issues and seeking Congressional assistance with the process. He was hoping to get his issue resolved before it got to a higher level. 5. He understands that the military is going through drastic budget cuts, but does not think those cuts should be at the expense of Soldier's health and wellbeing. 6. The applicant provides copies of: * Comprehensive Transition and Care Plan, Fort Leonard Wood, dated 17 September 2013 * Memorandum for Record, “IMR” Conducted on Applicant, dated 18 November 2013 * An email, subject: Professional Opinion on MEB, dated 16 December 2013 * An email, subject: WTU Patient, dated 10 January 2014 * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 3 February 2014 (7 pages) * SF 600, dated 19 March 2014 (8 pages) * Two Warrior in Transition Treatment Plan documents, dated 19 March 2014 and 27 March 2014 * Memorandum for President, PEB, Joint Base Lewis McChord, dated 28 July 2014 * Two letters of support from friends, dated 27 August 2014 and 28 August 2014 * DA Form 199-1 (Formal PEB Proceedings), dated in September 2014 * Memorandum for PEB, dated 8 September 2014 * Memorandum for PEB Appeal Representative, dated 12 September 2014 * Memorandum for the U.S. Army Physical Disability Agency (USAPDA), dated 19 September 2014 * A Medical Record, Previous Encounters, created on 24 November 2014 (5 pages) * Memorandum for the applicant from the U.S. Army PDA, dated 24 November 2014 7. On 15 December 2015, the applicant submitted a second application wherein he amended his original request to have his military records corrected to show he incurred injuries that were aggravated in the line of duty and that his unfitting physical conditions were incurred in the line of duty as a direct result of armed combat or caused by an instrumentality of war. The new issue was incorporated into his initial application and the subsequent applicant was administratively closed on 3 May 2016. The applicant provided the following additional documents which are incorporated into this case: * Orders 316-1304, Fort Leonard Wood, dated 12 November 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 29 January 2015 * Letter from the Office of the Chief of Legislative Liaison to a Member of Congress, dated 23 July 2015 * An Initial PTSD – DSM V Disability Benefits Questionnaire, dated 16 October 2015 (10 pages) * Letter from Department of Veterans Affairs (VA), Decision Regarding Entitlement to VA Benefits, dated 25 November 2015 (16 pages) CONSIDERATION OF EVIDENCE: 1. On 5 September 2014, a formal PEB convened to determine the applicant’s physical fitness. The applicant appeared before the PEB and was represented by regularly appointed counsel. The PEB found him to be physically unfit with a combined disability rating of 51 percent. The case was adjudicated as part of the Integrated Disability Evaluation System (IDES). The specified VA Schedule for Rating Disabilities (VASRD) codes describing the applicant’s condition and disability rating percentage were determined by the VA in a document dated 6 June 2014. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). The PEB was authenticated on 5 September 2014. 2. On 19 September 2014, the PEB Liaison Officer informed the applicant of the PEB findings and explained the result of the findings and recommendation. On that same date, the applicant indicated his non-concurrence and attachment of his written appeal. He further requested the VA reconsider his disability ratings. 3. Orders 316-1304, dated 12 November 2014, as provided by the applicant, show he was released effective 29 January 2014 from assignment and duty due to physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. The orders directed that he be placed on the retirement list effective 30 January 2014 in the rank/pay grade of chief warrant four/W4 with a 50 percent disability rating. 4. A DD Form 214, ending 29 January 2015, shows the applicant retired under the provisions of Army Regulation 635-40, (Personnel Separations: Physical Evaluation for Retention, Retirement, or Separation), paragraph 4 (Disability, Permanent, Enhanced). 5. A VA decision, dated 25 November 2015, states the VA adjusted the applicant’s disability rating to 70 percent based on his PTSD effective 21 September 2015, the date his claim was received by the VA. The VA further adjusted his combined rating to 80 percent effective 30 January 2015 and to 90 percent, effective 21 September 2015. 6. In the processing of this case, a medical advisory opinion was obtained. In summary, it states the applicant served in the U.S. Army as a helicopter pilot until his retirement on 29 January 2015 under the provisions of Army Regulation 635-40. a. He submitted this request because he wants the Army to grant him a physical disability rating showing he is unfit due to PTSD in accordance with Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3, as supported by documentation from U.S. Army and civilian doctors, and the VA. b. He further requests correction of DD Form 199-1, DD Form 214 and other records to reflect that his injuries were incurred and aggravated while he was in the line of duty and in a duty status authorized under Title 10 USC (10 USC) 1201 or 10 USC 1204. He further wants the record to show his unfitting conditions were incurred in the line of duty as a direct result of armed combat or caused by instrumentality of war. c. He alleges the MEB, PEB, and the USAPDA failed to acknowledge and rate his PTSD diagnosis. He attests the VA awarded him 70 percent service-connected disability for PTSD, effective 21 September 2015, approximately 8 months following his military retirement. He further claims that a 70 percent disability rating should have been assigned for his PTSD by the U.S. Army, which would have resulted in further disability and VA benefit qualifications. d. Correspondence from a behavioral health provider, dated 10 January 2014, who treated the applicant for PTSD for approximately 2 years during his time in the military service, documents his meeting the diagnostic criteria for PTSD, and that his condition was a direct result of his 20+ years in the U.S. Army and his Iraq and Afghanistan missions. The provider further recommended revisiting this aspect of his care through another review of facts as he seeks medical retirement. A similar professional opinion was submitted for consideration from another healthcare provider. e. Additionally, a memorandum for the PEB from a command surgeon, dated 8 September 2014, documents that his PTSD and PTSD-associated sleep disorder currently requires three medications, all of which are mandatory disqualifiers based on the medication itself and/or its intended use. Although on rare occasions a waiver can be granted, but only typically in cases for which a pilot requires a single medication for control of symptoms, the odds of his being granted a waiver for control of his psychiatric condition is extremely poor. Consequently, the command surgeon neither supported nor encouraged his return to flight status. f. On 5 September 2014, a formal PEB was convened and the applicant was found physically unfit for the following physical conditions: * intervertebral disc syndrome and degenerative arthritis changes * chondromalacia patella, medial meniscus degenerative disease, lateral meniscus tear, right knee * left knee strain post traumatic arthritis, limitation of flexion of the leg * chondromalacia patella, lateral meniscal tear and medial meniscal degenerative disease of right knee, instability g. The formal PEB recommended a rating of 50% and permanent disability retirement. The Board concluded that the applicant’s anxiety disorder not otherwise specified, a subthreshold form of PTSD, met medical retention standards, as the case file contained no evidence that this condition independently, or in a combination with other conditions, rendered him unfit for assigned duties. Accordingly, the PEB found anxiety disorder not otherwise specified not to be unfitting and therefore not ratable. h. Having applied to the VA for PTSD disability benefits, he received a Compensation and Pension (C&P) examination on/about 16 October 2015. The evaluating behavioral health provider diagnosed him with PTSD, documenting his exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Medical records from his military service were also reviewed as part of his C&P examination. These records supported diagnoses of PTSD and major depressive disorder. There was no evidence of behavioral healthcare prior to his entry into the military. The evaluating provider concluded his PTSD was at least as likely as not due to or was incurred in the military. i. Taking into consideration the available documentation at this time, it is reasonable to conclude that at the time of retirement from active duty, the applicant had a diagnosis of PTSD that failed medical retention standards in accordance with AR 40-501, chapter 3, thereby warranting disposition via medical channels. REFERENCES: 1. Title 10 USC, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling. 2. Army Regulation 40-501 provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this regulation should be referred for disability processing. 3. Title 38 USC, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 4. Army Regulation 635-40, appendix B, Army Application of the VASRD, paragraph B-3f, provides that conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness. 5. Combat-Related Special Compensation (CRSC), as established by section 1413a, Title 10 USC, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it was not for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10 percent disabling. Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree. DISCUSSION: 1. The applicant contends that his military records should be corrected to show at the time of retirement, in addition to other unfitting conditions, he also suffered from an unfitting condition due to PTSD. He further contends that his injuries were incurred and aggravated while he was in the line of duty and as a direct result of armed combat or caused by an instrumentality of war. 2. The evidence shows the applicant disagreed with the findings of the formal PEB and he requested reevaluation by the VA. 3. The applicant, through counsel, contends that he did not receive a proper or complete examination for his medical conditions. He bases this contention on the VA rating decision made a few months after his discharge. a. The VA rated the applicant's low back pain at 10-percent disabling, which is the same rating rendered by the Army. The other three conditions were not rated by the Army because they were not found to be unfitting. The fact that the VA gave these conditions a rating and service connection does not mean any of the conditions were misdiagnosed by the Army. b. Counsel places great emphasis on the fact that in November 2015 the VA doctors rendered a diagnosis of PTSD with an effective date of 21 September 2015, 8 months after his separation. However, this only indicates the applicant’s anxiety disorder not otherwise specified may have worsened. Otherwise, the VA decision would have been retroactive to the day after his separation. There is no convincing evidence showing he was psychologically unfit for duty at the time of separation. 4. The applicant's physical disability evaluation appears to have been conducted in accordance with law and regulations. There does not appear to be an error or an injustice in his case. The argument and documentation he provided does not support his belief and allegation that either the MEB or PEB failed to consider all relevant medical data. 5. The VA has neither the authority nor the responsibility for determining medical unfitness for military duty. The VA awards ratings for medical conditions that are connected to military service and affect the individual's civilian employability. The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon their examinations and findings. 6. It appears the applicant believes he is, or may be, entitled to receive CRSC; and therefore is requesting that his physical disabilities be linked to his service in combat. The CRSC criteria are specifically for those military retirees who have combat related disabilities. Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving. 7. The applicant has submitted evidence to show that his PTSD is service related. However, he has not submitted any substantive evidence to show his PTSD is combat-related. The fact that he was in a theater of operations is insufficient, in and of itself, to warrant approval of CRSC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140021142 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140021142 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2