BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150010155 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: 1 November 2016 DOCKET NUMBER: AR20150010155 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 to amend the decision of the Army Board for Correction of Military Records (ABCMR) set forth in Docket Number AR20150005736 on 12 May 2015. ___________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: 1 November 2016 DOCKET NUMBER: AR20150010155 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 reconsideration of his previous request for a review of the military disability evaluation documents pertaining to a mental health (MH) condition (post-traumatic stress disorder (PTSD)). 2. The applicant states, in effect: a. The Physical Evaluation Board (PEB) failed to address his complete medical records. The PEB did not have all of his files or the proper staff to evaluate the huge wave of Soldiers with issues like him. The issue is whether in 2006 his psychiatrist failed to properly diagnose him as having PTSD during his stay at Fort Benning, GA. The PEB failed to provide a clear definition of PTSD. Army standards changed several times and he fears the Army standards stateside between 2005 and 2006 were inconsistent with the standards in Germany (Landstuhl). He believes each hospital had their own standards. b. He contends the documentation he provided will clearly show his rating should be changed to reflect PTSD. His PEB rating needs to be changed as it relates to his claims. There are no correlations between traumatic brain injury (TBI) and PTSD. The Board also failed to realize or address and define what test was administered to determine inappropriate changes in his diagnosis of a MH condition. He contends that when the Board reviews his new information they will understand they should have addressed MH doctors who failed to render a PTSD diagnosis, even though the symptoms were present and should have been documented as PTSD. 3. The applicant provides: * 50 Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care) * DA Form 199 (PEB Proceedings), page 1 * DA Form 18 (Revised PEB Proceedings), page 1 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders Number D171-09 * Certificate of Retirement * 2008 Department of Veterans Affairs (VA) Rating Decision * letter from the VA * Make the Connection information on PTSD * previous Record of Proceedings with attachments 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 (ABMCR) in Docket Number AR20150005736 on 12 May 2015. 2. The applicant submitted several SFs 600, which included a number of duplicates, a 2008 VA Rating Decision, and information relating to PTSD. These documents are new evidence and will be considered by the Board. 3. He enlisted in the North Carolina Army National Guard (NCARNG) on 17 March 1994. He served on active duty from 20 June to 16 August 1995. He was released from the NCARNG on 16 March 2000 and was transferred to the U.S. Army Reserve. He completed 6 years of net active service. 4. He entered active duty on 10 November 2004 in support of Operation Iraqi Freedom. He held military occupational specialty 74D (Chemical Operations Specialist). He served in Iraq from 29 December 2004 to 19 November 2005. 5. His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 February 2006, showing he was mobilized in November 2004 and in March 2005. He was involved in a motor vehicle accident in Kuwait when the vehicle he was riding in hit an improvised explosive device (IED) hole. He was knocked unconscious when his head and neck were jammed into the top of the truck. The injury was determined to be in the line of duty. 6. He provided SFs 600 showing he received treatment on: * 1 December 2005, for neck pain * 2 December 2005, for a head injury * 5 December 2005, for neck and lower back pain * 6 December 2005, for anxiety and depressive disorder * 7 December 2005, for papilledema of the left eye * 12, 20, 22, and 27 June 2006, for depression, post-concussion syndrome, and lumbago 7. His records also contain: a. A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) showing a board convened on 6 May 2006 and determined his medical conditions of post-concussion syndrome, neck pain, lumbago, mood disorder due to TBI, and depression were medically unacceptable and failed to meet retention standards in accordance with chapter 3 of Army Regulation (AR) 40-501 (Standards of Medical Fitness). The MEB found his intervertebral disc degenerative and Psuedopapillidema were medically acceptable. He was referred to a PEB. He concurred with the MEB findings and stated that he did not desire to continue on active duty. He also certified that his medical board accurately covered all of his medical conditions. The MEB's recommendations and findings were approved on 25 May 2006. b. A DA Form 199 showing an informal PEB convened on 13 June 2006 and considered his medical conditions of post-concussion syndrome (status post being knocked unconscious after striking his head against the top of the car while riding as a restrained passenger in a 5-ton truck wearing body armor and a Kevlar helmet when the vehicle struck a large pothole in March 2005), neck pain, and lumbago. The PEB found him physically unfit and recommended his placement on the Temporary Disability Retired List (TDRL). He concurred with the findings and recommendations of the PEB on 15 June 2006 and waived his right to a formal hearing. The PEB was approved on 19 June 2006. c. A DA Form 18, showing an informal PEB convened on 26 June 2006 and considered his medical conditions of post-concussion syndrome, neck pain, and lumbago. The PEB found him physically unfit and recommended his placement on the TDRL. 8. He was retired on 7 July 2006 by reason of temporary disability. He completed a total of 2 years, 5 months, and 7 days of active service. He also provided the resulting certificate. 9. He further provided SFs 600 showing on: * 25 October and 14 November 2007, he received treatment for common migraine headaches, neck strain, back ache, and post-concussion syndrome * 19 December 2007, he had a PEB examination 10. His records further contain a DA Form 199 showing an informal TDRL PEB convened on 6 June 2008 and found him unfit for duty due to: * post-traumatic migraine headaches (onset following head injury in March 2005) – rated at 30 percent (%) * low back pain without neurologic abnormality – rated at 20% * cervical pain with neurologic abnormality – rated at 20% * mood disorder due to post-concussive syndrome (status post being knocked unconscious after striking his head against the top of the vehicle while riding as a restrained passenger in a 5-ton truck wearing body armor and Kevlar helmet when the vehicle struck a large pothole in March 2005) – rated at 10% * bilateral hip pain – rated at 0% 11. The DA Form 199 also shows: a. The PEB noted the psychiatrist indicated the Soldier had chronic PTSD. The PEB received no evidence to corroborate his current report that his condition was directly related to an IED explosion. His emotional ability was consistent with the psychiatric diagnosis of mood disorder due to general medical condition associated with alcohol dependence. The PEB found that the additional diagnosis of PTSD represented inappropriate pyramiding of symptoms and was not independently ratable. b. The PEB recommended his separation with a combined rating of 60%. He concurred with the findings and recommendations of the PEB on 10 June 2008 and waived his right to a formal hearing. The PEB was approved on 13 June 2008. 12. Orders Number D171-8, issued by the U.S. Army Physical Disability Agency on 19 June 2008, removed him from the TDRL for permanent disability retirement rated at 60% effective the same date. 13. A DOD memorandum, dated 27 February 2013, directed the Service Secretaries to conduct a review of MH diagnoses for service members completing a disability evaluation process between 11 September 2001 and 30 April 2012, to determine if service members were disadvantaged by a changed diagnosis over the course of their physical disability process. 14. He submitted an application through the DOD Physical Disability Board of Review MH Special Review Panel (SRP). The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the applicant's MH condition during processing through the Disability Evaluation System (DES). The available evidence showed the diagnoses of mood disorder secondary to TBI, cognitive disorder not otherwise specified (NOS) and depression, atypical psychosis and chronic PTSD were rendered during processing through the DES. The chronic PTSD diagnosis was not recorded at the time of TDRL placement; however, was addressed at TDRL exit. All other conditions were addressed by the PEB at TDRL entry. Therefore, no MH diagnosis was eliminated or changed during that process. Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project. 15. The SRP noted the PEB determined that the condition of depression, atypical psychosis, recorded on the general narrative summary, should not have been adjudicated since it was not included on the psychiatry narrative summary and the cognitive disorder NOS was secondary to the TBI. The SRP agreed that although the applicant had depressive symptoms the preponderance of evidence at the time of TDRL entry did not support a separate depression diagnosis. The applicant underwent two mental evaluations, neuropsychological and psychiatric, and major depressive disorder was not diagnosed. 16. The SRP noted there were no recorded PTSD related symptoms prior to the VA compensation & pension examination and members acknowledged the applicant reported significantly more and incongruent symptoms than recorded in all other treatment records. The applicant's account of the details of the motor vehicle accident and other trauma exposure were inconsistent with the evidence. 17. The SRP concluded there was insufficient evidence to support a PTSD diagnosis. At the time of separation, the VA also noted there was insufficient evidence to support the PTSD diagnosis and therefore, agreed with the diagnosis of mood disorder due to TBI. The SRP noted the MH condition adjudicated by the PEB was recorded as post-concussions syndrome manifested by mood disorder and cognitive disorder NOS. All Panel members agreed this was an adequate representation of the diagnosed condition of mood disorder secondary to TBI, since post-concussion syndrome (TBI) is manifested clinically by mood and cognitive symptoms. The SRP determined by unanimous vote that there should be no change to the applicant's disability and retirement determination. 18. He also provided: * VA Rating Decision, dated 9 July 2008, showing he was awarded an increased 100% rating for PTSD, previously rated as mood disorder due to TBI with cognitive disorder not otherwise specified (claimed as depression. * Letter from the VA, dated 30 September 2010, wherein he was advised of his 100% service-connected disability rating * Make the Connect information on PTSD that featured articles on shared experiences and support for Veterans with PTSD * previous Record of Proceedings with attachments 19. On 18 August 2016, an advisory opinion was provided by Chief, Behavioral Health (BH) Division, Health Care Delivery, Office of The Surgeon General (OTSG). The OTSG official referenced the Diagnostic and Statistical Manual (DSM), 5th Edition; AR 40-501 (Standards of Medical Fitness), dated 4 August 2011; and AR 635-200, dated 6 September 2011. The OTSG official stated: a. The applicant entered active duty on 10 November 2004 and received an honorable discharge on 7 July 2006 in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(2) (Disability Temporary). He deployed to Iraq from December 2004 to November 2005. b. The applicant requested that the Board rerate his PTSD. The OTSG was asked to determine if the information provided regarding PTSD was duly considered during his medical separation processing. This opinion was based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). c. Upon his return from deployment in November 2005, the applicant was diagnosed with post-concussion syndrome, secondary to a head injury incurred in a March 2005 vehicle accident. He was treated for that condition through October 2007 and referred to a MEB in March 2006. His initial contact with BH was on 5 December 2005 and he was diagnosed with Depression and Anxiety Disorder, NOS. His MEB psychiatry addendum, based on evaluations performed from December 2005 to May 2006, concluded that he did not meet retention standards for Mood Disorder due to TBI and Cognitive Disorder secondary to post-concussion syndrome. The final BH entry in AHLTA, dated 14 November 2007, concluded that the applicant failed retention standards for PTSD, chronic and Mood Disorder due to a general medical condition. That was the only mention of a PTSD diagnosis in his medical record. d. The applicant was originally awarded a 30% service-connected disability for PTSD. A VA Rating Decision, dated 9 July 2008, increased that to 100% for "PTSD previously rated as mood disorder due to TBI with cognitive disorder NOS (claimed as depression)." The applicant's failure to meet medical retention standards due to BH conditions was well-documented prior to his separation. Therefore, OTSG concluded that PTSD was duly considered during his medical separation processing. 20. The advisory opinion was provided to the applicant on 22 August 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 40-501, chapter 3, provides that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating. Members with conditions listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing. 2. AR 635-40 establishes the DES 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. Separation by reason of disability (i.e., a "medical discharge") requires processing through the DES. a. 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. b. Chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. c. This regulation further provides that to be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more. 3. Title 38, U.S. Code, 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 medically unfitting 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. Title 38, Code of Federal Regulations sets forth the Veteran’s Schedule for Rating Disabilities. a. Section 4.3 provides that when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that doubt will be resolved in favor of the claimant. Section 4.7 provides where there is a question as to which of two evaluations shall be applied the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. b. Section 4.129 covers mental orders due to traumatic stress. When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50% and schedule an examination within the six-month period following the Veteran’s discharge to determine whether a change in evaluation is warranted. c. Section 4.130-3 provides the General Rating Formula for Mental Disorders: (1) A 100% rating is appropriate when total occupational and social impairment exists, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. (2) A 70% rating is appropriate when an occupational and social impairment exists, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsession rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. (3) A 30% rating is appropriate when occupational and social impairment exists with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. DISCUSSION: 1. Following the applicant's deployment, he was initially diagnosed with depression and anxiety disorder, NOS. Military physicians then diagnosed him with post-concussion syndrome, secondary to a head injury incurred in a March 2005 vehicle accident. He was treated for that condition through October 2007 and referred to an MEB. Evaluations performed from December 2005 to May 2006, concluded that he did not meet retention standards for mood disorder due to TBI and Cognitive Disorder secondary to post-concussion syndrome. The final BH entry in AHLTA, dated 14 November 2007, concluded that he failed retention standards for chronic PTSD and a mood disorder due to a general medical condition. That was the only mention of a PTSD diagnosis in his medical record. 2. The evidence also shows that while his chronic PTSD was not recorded at the time of his TDRL placement, it was addressed at TDRL entry. Therefore, his chronic PTSD was considered during his processing through the DES. There is no also evidence showing he should have been assigned a disability rating for PTSD at the time of separation. He provided no evidence showing his PTSD was unjustly or erroneously not rated by the PEB. The available medical evidence shows all of his medical conditions were considered throughout his medical disability processing. 3. The evidence clearly shows that the applicant participated in his Army disability processing, concurred with the findings and recommendation of the MEB, and the informal PEBs disability recommendations and ratings regarding his MH conditions to include PTSD. His failure to meet medical retention standards due to BH conditions was well-documented prior to his separation. 4. He was subsequently awarded a 30% service-connected disability by VA for PTSD (previously rated as mood disorder due to TBI with cognitive disorder NOS (claimed as depression) that was increased to 100% in July 2008. 5. A disability rating assigned by the Army is based on the level of disability at the time of Soldier's separation. The PEB grades determination of fitness and disability based on the information at hand. The fact that the VA awarded him a service-connected disability rating for any condition the Army did not find unfitting is not evidence of any error in his military disability process. The Army’s rating is dependent on the severity of the unfitting condition at the time of separation or discharge. 6. One common misconception is that all veterans can receive both a military retirement for physical unfitness and VA disability compensation. By law, most veterans are compensated only from one source for a disability. An award of a VA rating does not establish entitlement to an Army rating. He was evaluated and is being compensated for PTSD by the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010155 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010155 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2