IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150000421 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, consideration of his line of duty (LOD) documents, based on his diagnosed post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI), to determine his appropriate percentage of disability retirement. 2. The applicant states his LOD determination documents pertaining to his PTSD and TBI were not considered by his Medical Evaluation Board (MEB). The Physical Disability Board of Review (PDBR) noted that any conditions or contentions not requested in his application, or otherwise outside the PDBR's defined scope of review, remain eligible for future consideration. 3. The applicant provides: * numerous pre- and post-service medical documents * 3 DA Forms 2173 (Statement of Medical Examination and Duty Status) * National Guard Bureau Form 22 (Report of Separation and Record of Service) * DD Form 214WS (Certificate of Release or Discharge From Active Duty – Worksheet) * DD Form 215 (Correction to DD Form 214) * Record of Proceedings, PDBR * 3 letters 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 Army National Guard (ARNG) on 8 June 1982. 3. Evidence shows the applicant served in Iraq from 20 May 2003 to 20 May 2004. He was honorably discharged on 21 September 2004 and transferred to the U.S. Army Reserve Control Group (Retired Reserve). 4. The applicant provides and his records contain a Record of Proceedings, PDBR, dated 30 May 2012, which notes the applicant did not meet the physical requirements of his military occupational specialty as a military policeman and he was issued a permanent profile and referred to an MEB due to chronic neck and low back pain. * the MEB forwarded no other considerations for PEB adjudication * the PEB adjudicated the neck and low back conditions as unfitting, each rated 10 percent (%) with application of the Veteran's Affairs Schedule for Rating Disabilities (VASRD) and the U.S. Army Physical Disability Agency's (USAPDA) pain policy * the applicant did not concur with the PEB findings but he did not demand a formal PEB * the applicant elected Reserve retirement in lieu of severance pay 5. The PDBR convened to review the disability rating accompanying the applicant's medical separation from the U.S. Army. After carefully reviewing the application and medical separation case file, the PDBR recommended his separation be re-characterized to reflect permanent disability retirement with a combined disability rating of 30% rather than 20%. 6. On 14 June 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved the PDBR's recommendation to re-characterize the applicant's separation as a permanent disability retirement with a combined disability rating of 30%, effective the date of the applicant's original medical separation for disability with Reserve retirement. 7. His record contains a DD Form 215, dated 12 June 2013, which shows he was retired due to permanent disability. 8. The applicant further provides: a. DA Form 2173, dated 7 October 2003, which states the applicant was preparing himself for a mission while deployed to Iraq when he hit his head on the upper edge of the cabin of a HMMWV, resulting in a neck injury. b. Medical documentation dated 10 December 2003, which shows the applicant returned from Iraq and was receiving physical therapy for lower back and neck pain. It is also noted the applicant displayed symptoms of anxiety and depression since his return; however, he displayed good insight and judgment but had some periods of crying and feeling anxious. Evidence shows he was referred for a psychological evaluation. c. DD Form 2807-1 (Report of Medical History), dated 10 February 2004, that contains an annotation of PTSD from a family practice physician. d. DA Form 2173, dated 15 June 2004, that states the applicant was examined on 10 December 2003, and was treated for symptoms of anxiety upon returning from Iraq. e. DA Form 2173, dated 21 September 2004, that states the applicant served in Iraq and was subsequently diagnosed with PTSD on 21 July and 20 September 2004. f. Several post-service radiology reports pertaining to various imaging tests performed on the applicant's brain due to his claims of TBI based on previous head and neck trauma. A 13 November 2013, examination revealed a possible abnormal brain scan based on mild hypo-metabolism in the posterior-superior parietal lobes which could represent early Alzheimer's disease or the sequela of previous trauma. 9. During the processing of this case, on 9 September 2015, an advisory opinion was obtained from the USAPDA in reference to the applicant's request that his LOD documents be considered with regard to his diagnosis of PTSD and his past disability retirement. The advisory official recommended no change in the applicant's present Department of the Army disability findings and stated: a. The applicant's case file provided for review was incomplete and did not contain all of the MEB documents. The applicant was found unfit for orthopedic conditions in 2004 and separated with severance pay at 20%. This was recently changed by review of the PDBR and ARBA to 30% permanent disability retirement. The applicant's MEB and PEB findings did not include a listing of PTSD. b. The documents available for review contained a 10 February 2004 DD Form 2807-1, which did list a diagnosis of PTSD in response to the applicant's claim of nervous concerns on that form. The physician who reviewed that document completed his findings on DD Form 2808 and noted that, notwithstanding some treatment and a diagnosis of PTSD, the applicant's mental health at that time was considered "normal" and did not warrant inclusion on the applicant's physical profile or on the MEB. The LOD documents noted in the case file would likely have been included in the 2004 MEB case file and would have been considered at that time. The LOD documents only note that there was a diagnosis and treatment for PTSD. The LOD documents do not indicate that the PTSD was interfering with the applicant's performance of duty. The case file provided indicates that subsequent to the applicant's separation from the military in 2004, the Department of Veterans Affairs (VA) rated his PTSD at their lowest level of 10%, occupational and social impairment due to mild or transient symptoms. c. There is no error in the PEB's revised findings regarding the applicant's conditions listed on the MEB. The PEB is not authorized to add conditions to the MEB, which the applicant reviewed and appears to have concurred with. Even if the PTSD had been added to the MEB, the evidence available indicates that it would not have resulted in a finding of unfitness. The condition at that time appeared to be mild and the applicant has provided no evidence that it was interfering with his assigned military duties. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only conditions that are found unfitting can be compensable in the military disability system. 10. On 16 September 2015, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 12. Army Regulation 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. Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. 13. The VASRD, code 9411 (Mental Disorders), states that when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 14. 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. However, an award of a higher VA rating does not establish 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. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that his military disability records should be corrected to reflect his PTSD and TBI. 2. PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. 3. A PEB found the applicant unfit for duty and rated him with a combined disability rating of 20%. The PEB did not find any psychiatric condition unfitting or compensable. While it appears the applicant did not concur with the PEB findings, in June 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved the PDBR's recommendation to re-characterize his separation as a permanent disability retirement with a combined disability rating of 30% 4. The applicant now believes PTSD and TBI should have been included as unfitting conditions in his PEB Proceedings, due to the presence of LOD determination documents pertaining to his conditions of PTSD and TBI, which were not considered by his MEB. However, the PEB is not authorized to add conditions to the MEB. Even if PTSD and TBI had been added to the MEB, the available evidence indicates it would not have resulted in a finding of unfitness. The conditions at the time appear to have been mild and the applicant has provided insufficient evidence to show that the conditions interfered with his assigned military duties. 5. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability and only conditions that are found unfitting can be compensable in the military disability system. In addition, operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. 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. 6. There appears to be no error or injustice in this case. The documents submitted by the applicant do not provide sufficient proof that he had a diagnosed condition of PTSD or TBI at the time of his disability processing which materially affected his ability to perform his assigned military duties. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x___ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150000421 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000421 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1