BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150000828 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 BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150000828 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. BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150000828 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 reflect the proper diagnosis of post-traumatic stress disorder (PTSD) and not the misdiagnosis, given to him by military doctors, of intermittent explosive disorder and dissociative disorder. 2. The applicant states: a. The diagnosis of PTSD due to combat-related stress should be factored into his discharge rating. The rating given to him for his lumbar injuries sustained during service overseas in Baghdad, Iraq, should be increased to reflect his PTSD and full extent of his lumbar injuries. He believes his discharge rating is unjust and should be amended to include factors that were overlooked at the time of his discharge due to misdiagnosis and poor evaluation. He further believes the injustice occurred due to the overbooking of doctors while he was at the Warrior Transition Unit. His case was not given the proper amount of time or scrutiny resulting in his misdiagnosis and untreated PTSD that would have been a factor in his discharge rating had it been properly diagnosed at the time. b. The rating given to him for his lumbar injuries is inadequate and unjust as well. His injuries were sustained in Baghdad, Iraq, during his first deployment. This is why his status is incorrect and should be changed to combat-related. However, he was at the time only able to access an inadequate Army medic who had neither the skill nor equipment to properly ascertain his injuries. Thus, upon his return from both his first and second deployments he sought medical attention for his lumbar injuries. The Army concluded he was unemployable to their standards and sought to have him medically discharged. Yet he continued to remain unemployed due to his injuries and PTSD for which he was inadequately compensated. c. He was recently made aware that he belonged to a group of individuals that were rated purposely at 20 percent or less. He believes that is due to the propensity at the time to underrate individuals to avoid paying the full amount for injuries sustained. He was only given a 20-percent rating. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) records 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 period 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, and 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 on 23 January 2007 and he held military occupational specialty 11B (Infantryman). He was assigned to Fort Bliss, TX. On 27 October 2009, he underwent a medical examination following complaints of chronic low back pain. His narrative summary shows: a. He noted onset of low back pain approximately 4 years ago after attempting to do a back flip on rollerblades. He had no significant residual pain at that time. However, after coming on active duty and being stationed in Europe in January 2008 he began experiencing a chronic, deep, achy back pain with extreme muscle tension in the morning and at night. He would have back spasms intense enough that he would have to lie down or sit down in order to get relief. The pain would also be bad enough on occasion to make him "buckle at the knees." He denied any neurological symptoms such as numbness, tingling, weakness, and bowel/bladder difficulties. He had undergone conservative treatment with physical therapy, aquatic therapy, chiropractic therapy, pain medications, and modified duty. He had been seen in a civilian pain clinic and underwent bilateral L5/S1 transforaminal epidural steroid injections in September 2009. None of these measures provided significant relief. He was evaluated in the Neurosurgery Clinic at William Beaumont Army Medical Center (WBAMC) in July 2009 and again in September 2009. At that time, he noted he was unable to lift more than 40 pounds, run or stand for prolonged periods, or do any typical infantry duty. No surgery was found to be indicated, but he was deemed to not meet retention standards for his condition of chronic low back pain. b. He also noted that he injured his right knee in December 2008 while deployed to Kuwait. He was washing a vehicle at the wash rack when he slipped and his leg became entrapped and was severely twisted. He was treated conservatively at the time and the pain resolved. In April 2009, he injured his knee again when a 70-pound box fell on it. He was diagnosed with a knee sprain and again treated conservatively. He continued to have intermittent pain after prolonged walking or running, but that did not limit his activities. This condition met retention standards. c. In June 2008, the service member fell and landed on the third knuckle of his right hand, which was closed in a fist. Films were done and no fractures were noted. He was treated conservatively and his pain and swelling resolved without further problems. This met retention standards. d. He was noted on routine screening on 14 July 2009 to have excellent high-density lipoprotein and triglyceride levels but a low-density lipoprotein level was noted. He then completed nutritional counseling and was attempting to lose weight. He was being followed by his primary care manager for hyperlipidemia. This condition met retention standards. e. He first noted having headaches at age 17 following an accident on a BMX track in which he was clipped by another rider during a jump and struck his head when he fell experiencing a brief loss of consciousness. Since that time, he had headaches in either the occipital or the frontal region that could last from 15 to 90 minutes. Those headaches occurred approximately two to four times per month. He underwent screening for traumatic brain injury (TBI) on 21 August 2009 and was determined to not have signs of a TBI currently. He had recently started on lmitrex and Excedrin Migraine with good results. This had been diagnosed as post-concussion headaches and deemed to meet retention standards. f. He was air evacuated from Iraq to Landstuhl Regional Medical Center in July 2009 after less than 60 days in theater due to persistent homicidal ideations of wanting to "stab my platoon sergeant in the neck." He had noted a problem with anger management for many years. He had also noted an upbringing that was filled with neglect and pernicious influence. He exhibited features consistent with a conduct disorder prior to enlisting, but had also shown a desire to improve himself and a willingness to look critically at himself. He was evaluated by the mental health service at WBAMC on 1 October 2009. It was noted that although he displayed two prominent antisocial personality traits (irritability and aggressiveness, lack of remorse), no mental disorder was diagnosed. During his TBI evaluation noted above, he was given a diagnosis of adjustment disorder with anxiety. He was started on Risperidone, which had helped with his moods and temper. This condition met retention standards. g. His diagnoses were as follows: * chronic low back pain; this did not meet retention standards in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-39(h) * right knee sprain with intermittent mild pain; this met retention standards * right hand sprain/contusion now resolved; this met retention standards * hyperlipidemia treated with diet and weight loss; this met retention standards * post-concussion headaches currently managed with medications; this met retention standards * adjustment disorder with anxiety currently managed with medication; this met retention standards h. He was issued a P3 profile that indicated he could perform none of the activities of section 5, could not take the Army Physical Fitness Test, could not run, and could walk only at his own pace and distance. He was deemed to not meet Army retention standards. Therefore, the medical examiner recommended referral of his case to a physical evaluation board (PEB) for a determination of fitness for duty and adjudication IAW AR 40-501, paragraph 3-39(h). 3. On 27 October 2009, a medical evaluation board (MEB) convened. After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the conditions below. The MEB recommended referral to a PEB. He agreed. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Chronic low back pain X 2. Right knee with intermittent mild pain X 3. Right hand sprain/contusion X 4. Hyperlipidemia X 5. Post-concussion headaches X 6. Adjustment disorder with anxiety X 4. On 2 December 2009, a PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty. a. The PEB determined he was physically unfit due to degenerative disc disease (lumbosacral spine rated analogous to degenerative arthritis of the spine based on similar anatomy and/or symptoms of back pain). The PEB rated his disabling condition under the VA Schedule for Rating Disabilities (VASRD), VASRD Codes 5299/5242 and assigned a 20-percent rating. b. The PEB also considered his other conditions, but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable. c. The PEB assigned a combined disability rating of 20 percent and recommended his separation with entitlement to severance pay, if otherwise qualified. He was counseled, concurred, and waived his right to a formal hearing of his case. 5. On 4 December 2009, the U.S. Army Physical Disability Agency (USAPDA) reviewed his PEB processing and found it complied with the governing statutes and regulation. An official approved the PEB on behalf of the Secretary of the Army. The DA Form 199 noted the following entries: * The disability did not result from a combat injury as defined in 26 USC 104 * Disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act (NDAA) 2008, Section 1646) 6. On 21 December 2009, Headquarters, Fort Bliss, TX, published Orders 355-0023 ordering his discharge from active duty because of disability effective 29 January 2010. The orders stated: * Disability is based on 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 in the line of duty during a period of war as defined by law: NO * Disability resulted from a combat-related injury as defined in 26 USC 104: NO * Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008, Sec 1646): NO 7. On 29 January 2010, he was honorably discharged under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, because of disability with entitlement to severance pay (non-combat related). 8. On 23 January 2015, the VA issued him a summary of benefits letter indicating he was receiving 100 percent service-connected disability compensation. 9. The Board requested and the Office of The Surgeon General (OTSG) provided an advisory opinion on 1 June 2016 in the processing of this case. The OTSG official recommended no change to the applicant's records. The official referenced the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition; AR 40-501, dated 29 August 2003; and AR 635-200, Active Duty Enlisted Separations, dated 6 June 2005. a. The applicant entered active duty on 23 January 2007 as an 11B1O (Infantryman) and received an honorable discharge on 29 January 2010 in accordance with AR 635-40, paragraph 4-24b(i) (Disability, Permanent). On 20 December 2014, he requested that the Board correct his records to reflect the proper diagnosis of PTSD. Furthermore, he requested that the diagnosis of PTSD be factored into his discharge rating. OTSG was asked to determine if the applicant met criteria for a medical retirement due to PTSD. This opinion is based on the information provided by the Board and records available in the DOD electronic health record. b. The applicant deployed to Iraq twice (2008 for 6 months and 2009 for 2 months), the latter resulting in a medical evacuation due to homicidal ideations he had toward his platoon sergeant. He did not perform MOS duties during these deployments due to chronic low back pain and worked in non-combat support roles. c. He had extensive behavioral health treatment prior to enlistment, including inpatient hospitalization. He also received behavioral health treatment while on active duty and from the VA. In both the active duty and VA medical records, multiple providers consistently diagnosed him with intermittent explosive disorder and personality disorder. Additional diagnoses included adjustment disorder, mood disorder due to a general medical condition, and impulse control disorder. He was never diagnosed with PTSD while on active duty. While receiving care from the VA, he was initially diagnosed with PTSD, but this diagnosis was not confirmed in subsequent evaluations. d. There is insufficient evidence that he met the criteria for PTSD during or subsequent to his military service. There is no available documentation that he has received treatment for this disorder. The only mental health diagnosis adjudicated by the PEB was adjustment disorder with anxiety, which met retention standards. 10. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment or submit a rebuttal. However, he did not respond. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and AR 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB * receive a permanent medical profile, P3 or P4, and are referred by a Military Occupational Specialty/Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES 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 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 either are 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. d. 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 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. 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. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 4. Title 10, USC, 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 of less than 30 percent. 5. Title 38, USC, sections 1110 and 1131, permit 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 an error or injustice on the part of the Army. 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. 6. Title 26, USC, section 104, authorizes special rules for combat-related injuries for compensation for injuries or sickness. For purposes of this subsection, the term “combat-related injury” means personal injury or sickness (A) which is incurred (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. 7. Title 10, USC, section 1413a, states the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree determined under subsection (b). In this section, the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (A) as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D) through an instrumentality of war. DISCUSSION: 1. The applicant sustained a back injury in 2008. He continued to experience pain and discomfort during his service and at some point he was transferred from Kuwait through Germany back to the continental United States for evaluation and treatment. He was seen by various medical specialists and recommended for entry into the PDES due to chronic low back pain. He underwent an MEB, which recommended his referral to a PEB. 2. The informal PEB found his chronic low back pain prevented him from performing his duties and determined he was physically unfit for further military service. The informal PEB recommended his separation with entitlement to severance pay. He concurred. He was discharged by reason of disability on 29 January 2010. 3. With respect to his arguments: a. The reason for the applicant's entry into the PDES was his low back condition. This is the only condition that failed retention standards and was found unfitting. His disability rating was not intended to be a prediction of his future medical condition. The fact that he may have later developed new medical issues does not invalidate the PEB determination. b. The applicant was not diagnosed with PTSD at any time during his military service. He had noted a problem with anger management for many years. He has also noted an upbringing that was filled with neglect and pernicious influence. He exhibited features consistent with a conduct disorder prior to enlisting, but has also shown a desire to improve himself and a willingness to look critically at himself. The Mental Health Service at Fort Bliss evaluated him on 1 October 2009. It was noted that although he displayed two prominent antisocial personality traits (irritability and aggressiveness, lack of remorse), no mental disorder was diagnosed. During his TBI evaluation noted above, he was given a diagnosis of an adjustment disorder with anxiety. This condition met retention standards. c. A key element of the Army's disability system is the Soldier's condition at the time of separation. His contention that this or any other condition may have worsened with time is noted; however, conditions that worsen after a Soldier is separated may be treated by and are compensated for by the VA. 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. d. Aside from a diagnosis of an adjustment disorder with anxiety, there is no evidence in his records and he provides none that shows he suffered from and was diagnosed by competent medical authorities with any mental or behavioral health conditions, including PTSD. His contention that he suffered from PTSD is not supported by any evidence. e. The Army and the VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army. 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. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. f. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation. Only those conditions that render a member unfit for continued military duty at the time of separation will be rated. However, the VA could potentially rate all service-connected conditions. VA decisions are not within the purview of this Board. 4. The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated his condition 20 percent disabling. There is no evidence that he should have been awarded a higher rating. Since this rating was less than 30 percent, by law he was only entitled to severance pay. 5. The applicant's disability is service-related. His disability appears to be a result of the cumulative effect of his military service, but did not result from a combat-related incident. He has not submitted any evidence that shows his condition is combat-related. Nowhere in his available records is there confirmation that it was incurred during combat or under conditions simulating war. 6. The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. Aside from his dissatisfaction, he has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000828 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000828 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2