IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150011159 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: 25 October 2016 DOCKET NUMBER: AR20150011159 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: 25 October 2016 DOCKET NUMBER: AR20150011159 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, correction of his record to show he was retired for disability and eligible for Tricare benefits. 2. The applicant states, in effect: a. He received a 40 percent disability rating from the Department of Veterans Affairs (VA) and he believes he should have been medically retired from the U.S. Army. He served a total of 5 years in the Army, 2 and 1/2 years of which were in Iraq, and he was honorably discharged in 2009. b. He was in ten to twenty explosions during his first deployment in Iraq. During an explosion he was hit on the left side of his head behind his ear, leaving shrapnel, and a fellow Soldiers pulled it out with a Gerber (military knife.) c. After his first deployment, he experienced headaches which he had not experienced prior to the deployment. He was also having attention, concentration, and memory issues. A military doctor at Fort Carson, CO, had him get a CAT scan (commonly referred as a computed tomography (CT scan) and magnetic resonance imaging (MRI). He was given some caffeine pills and he was authorized to redeploy. d. He completed his second deployment in Iraq and got out of the military. Fort Carson, CO, was pushing a lot of Soldiers “out the door” and they were not properly evaluated. He did not get checked out for his TBI, nor did they check his medical records for a past TBI. Additionally, he did not receive a final dental examination. e. After he was discharged in 2009, the VA conducted a review of his medical records and rated him at 40 percent for TBI and 10 percent for tinnitus. He is now asking to be medically retired due to his TBI and to be eligible for Tricare since he moves around a lot. 3. The applicant provides: * Standard Forms (SF) 600 (Chronological Record of Medical Care) * Medical Record Progress Notes * DD Form 214 * VA disability rating decision, dated 28 October 2009 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. On 14 July 2004, the applicant enlisted in the Regular Army. After initial training, he was awarded military occupational specialty 19D (Calvary Scout). 3. An SF Form 600, dated 15 October 2007, shows: “HEAD CT. History headaches, possible shrapnel near left ear. FINDING: There is no mass, mass effect, bleed, or acute infarct seen. No midline shift is found. Ventricles and cisterns are unremarkable as are the visualized vascular structures. Pineal, sellar, and craniocervical junction regions are unremarkable in appearance. Extracranial soft tissues demonstrate no abnormality. Bones appear intact. No visible shrapnel fragments on the visualized soft tissue.” 4. On 5 June 2009, he was honorably released from active duty and transferred to the U.S Army Reserve Control Group (Reinforcement) upon completion of required active service. He had competed 4 years, 10 months, and 22 days of active military service. His DD Form 214 shows in item 18 (Remarks): * “SERVICE IN IRAQ 20051129 – 20061109” * “SERVICE IN IRAQ 20071206 – 20090214” 5. The applicant's complete medical records are not available for review. In addition, documentation showing the results of his MRI is not available. 6. The applicant provides a VA rating decision, dated 28 October 2009, that states he was found to have service-connected conditions related to his military service as follows: * TBI (claimed as head injury with headaches and memory loss), rated at 40 percent * tinnitus, rated at 10 percent * hearing loss, rated at 0 percent * shell fragment wound, behind left ear, rated at 0 percent 7. The applicant provides medical progress notes (one page) from the Sioux Fall, VA, dated 23 July 2013, which was conducted because the VA wanted them to provide a physical for the applicant. The report notes a military history of TBI, brain diseases due to trauma, exposure to toxic agents, and lists current medications as “occasional vitamin D/vitafusion and every other day energy drinks.” 8. An advisory opinion from the Department of the Army, Rodriguez Army Health Clinic, Fort Buchanan, PR, dated 24 August 2016, states: a. The applicant suffered a mild TBI, but there is not enough evidence to make a definitive conclusion that he required separation via the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process. b. His DD Form 214 shows he entered active service in July 2004 and served in a designated imminent danger pay area in Iraq from 29 November 2005 to 9 November 2006 and from 6 December 2007 to 14 February 2009. It also indicates he was honorably discharged on 5 June 2009 after completion of required active duty service. c. A review of available medical records shows that on 15 October 2007, the applicant’s medical provider documented results of a head CT scan (non-contrast) which was requested because of headaches and possible shrapnel in his left ear. Study diagnostic impression listed: * No acute intracranial process * He was diagnosed with post-concussion syndrome and headaches d. A head MRI was ordered for a diagnostic impression of TBI and headaches, but the results are not available for review. e. On 28 October 2009, the VA granted the applicant an overall service connected disability rating effective 6 June 2009 for 40 percent for TBI and 10 percent for tinnitus. The VA progress notes dated 23 July 2013 for a physical examination shows his military history as follows: * two tours to Iraq with exposure to dead bodies, casualties, toxic chemicals, blast ways from improvised explosive device (IED), depleted uranium, direct/indirect fire, vehicle born explosive devices, a suicide bomb exposure and injury with IED shrapnel behind left ear * a personal history of TBI, problems with memory and names * listed medications included vitamin D/vitafusion and use of energy drinks and caffeine f. The applicant pointed out that the VA uses Army records for rating determinations and this information was documented in his Army records when he got out. He further indicates that he did not make allegations earlier because it was not easy finding the right place to get this changed after he was discharged. g. It is the opinion of the undersigned that the applicant suffered a head injury with symptoms associated with mild TBI such as headaches, problems with memory, attention, and concentration. However, based on the medical records/reports provided, there is not enough evidence of residual symptoms and impairments after adequate treatment that significantly interfered with performance of duty. h. Further, this official recommended that the applicant submit additional documents to support his contention. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30j, specifically requests evidence of impairment of military duty performance secondary to residual symptoms such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, sensory disturbance, tremors, alteration of consciousness, personality, and mental functions, among other symptoms in order to determine a separation via the MEB/PEB process. 9. A copy of the advisory opinion was submitted to the applicant for response. 10. On 26 September 2016, the applicant responded, stating he disagrees with the decision to deny him Tricare. He believes that his case should have been reviewed in the United States and not at an Army base in Puerto Rico. He also believes the doctor who wrote the advisory opinion could not make an accurate decision without seeing the person face to face to make a determination on TBI. 11. The applicant has not submitted any additional documents to support his claim. REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the basic authority for the separation of enlisted personnel. Chapter 4 provides for separation of enlisted personnel by reason of completion of required active service. 2. Title 10, U.S.C, 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 U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense and service regulations Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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 disability system: * when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced by an MEB * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The disability 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. Members who are determined to be unfit for duty due to disability are either 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 service members who retire based upon disability receive monthly military retirement payments as allowed by law, 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. 3. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states 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 duties the Soldier reasonably may be expected to perform. b. Chapter 4 provides guidance on referring Soldiers for evaluation by a MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 4. 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, disabilities are rated using the VA Schedule for Rating Disabilities. a. Chapter 3 lists the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual were to remain in the military Service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB. b. Paragraph 3-30 (Neurological Disorders) includes any other neurologic conditions, regardless of etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, un-coordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty. 5. Title 38, U.S.C. permits the VA to award compensation for a medical condition that 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant, in effect, states he should have received an MEB/PEB for a TBI while on active duty and been issued a disability retirement with eligibility for Tricare benefits. 2. The applicant served on active duty from 14 July 2004 to 5 June 2009. He served in Iraq for two separate deployments. His record shows that after his first deployment ending in 2006, he was seen by a medical provider for a history of headaches, possible shrapnel near his left ear, and received a CT scan. He was diagnosed with post-concussion syndrome and a MRI scan was ordered. The results of his MRI are unavailable for review. 3. The advisory opinion notes that the applicant suffered a head injury with symptoms associated with mild TBI; however, based on the medical records/reports provided, there is not enough evidence of residual symptoms and impairments that significantly interfered with his performance of duty in order to definitively conclude he should have been referred to an MEB/PEB. Although an MRI was ordered for a diagnostic impression of a TBI and for headaches, the results are not available for review. 4. Army Regulation 40-501 states referral to an MEB requires a permanent profile at a level 3 or 4. Additionally, the profile must be signed by a physician designated as an approving authority. The applicant’s record does not show any documentation, nor does he provide any that he was given a permanent profile rating level of 3 or higher that would have warranted referral to a MEB/PEB. 5. On 28 October 2009, the VA provided a rating decision to the applicant showing he received a combined rating of 50 percent: 40 percent for TBI and 10 percent for tinnitus. The applicant claims the VA made their determination based on his military medical records. 6. The VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in of itself, establish physical unfitness for Department of the Army purposes. The applicant did not have any diagnosed medically unfitting conditions that required physical disability processing. 7. The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits, to include Tricare. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011159 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011159 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2