IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150012092 BOARD VOTE: ____X_____ ___X____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150012092 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant's diagnosis of post-traumatic stress disorder is combat related warranting entitlement to combat-related special compensation. _____________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: 15 September 2016 DOCKET NUMBER: AR20150012092 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 to his record to show his post-traumatic stress disorder (PTSD), obsessive-compulsive disorder (OCD), and major depressive disorder (MDD) are combat related disabilities thus allowing him to receive combat-related special compensation (CRSC). 2. The applicant states the three mental health conditions (PTSD, OCD, and MDD) were caused during his 15–month combat tour supporting Operation Iraqi Freedom from 2003 to 2004. The Department of Veterans Affairs (VA) granted him a 70 percent disability rating for PTSD due to the combat environment in Iraq. His medical records contain evidence that his PTSD was caused by the war in Iraq. The Physical Disability Review Board (PDRB) recently corrected his disability but did not include combat-related PTSD. 3. The applicant provides copies of – * Memorandum for Record, 2nd Armored Cavalry Regiment, dated 6 February 2004, subject: Proof of Service * 11 May 2004 DD Form 199 (Physical Evaluation Board (PEB) Proceedings) * Memorandum for the President, dated 20 July 2005, 6th U.S. Cavalry, PEB * 3 November 2005 U.S. Army Aeromedical Center Memorandum for U.S. Army Human Resources Command (HRC) Recommendation for Medical Disqualification * 28 January 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 21 August 2006 VA Rating Decision * 1 July 2013 Physical Disability Review Board (PDRB) Memorandum for the Deputy Assistant Secretary of the Army (DASA), Army Review Boards Agency (ARBA) * 19 July 2013 ARBA Memorandum for the Army Physical Disability Agency (PDA) * 19 July 2013 ARBA letter to the applicant * 13 August 2013 DD Form 215 (Correction to the DD Form 214) * 14 August 2013 PDA letter with orders attached * 20 August 2014 HRC Combat– Related Special Compensation (CRSC) letter * 18 March 2015 VA Rating Decision (two copies) * 23 March 2015 VA Rating Decision notification * 7 May 2015 VA Form 21-4138 (Statement in Support of Claim) * 6 May 2015 "Stressor Letter" * 19 May 2015 DD Form 2860 (Claim for CRSC) * 3 June 2015 HRC CRSC letter * 29 June 2015 "Stressor Letter" * 16 June 2016 VA Form 21-4138 * 4 letters of support * a unit history CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned a second lieutenant in the U.S. Army Reserve and entered active duty on 1 February 2000. He completed training and was awarded Army Career Field 15B (Aviation). He served in Iraq from 16 April 2003 to 15 July 2004. 2. On 5 December 2005, a PEB found the applicant unfit for duty due to OCD and MDD requiring psychotropic medication with a 10 percent disability rating. The applicant concurred with the PEB findings and determination. Based on the 10 percent rating, he was recommended for discharge with severance pay. 3. On 28 January 2006, the applicant was discharged for physical disability with severance pay. He had 5 years, 11 months, and 28 days of active duty service with 2 years, 4 months, and 19 days of prior inactive service. 4. On 21 August 2006 the VA issued the applicant a rating decision. a. Service-connected disability was established for the following medical conditions effective 29 January 2006: * 50 percent for PTSD/OCD * 0 percent for small effusion and degenerative changes of the posterior horn of the medial meniscus of the right knee and minimal small effusion of the left knee * 0 percent for a right shoulder impingement with rotator cuff degeneration tear * 20 percent for degenerative joint disease of the lumbar spine and discogenic disease L3-L4, L5-S-1 * 10 percent for hypertension * 0 percent for skin conditions (urticarial, perivascular, dermatitis and psoriasis) * 10 percent for tinnitus b. The following medical conditions were denied service-connected disability ratings: * left hand condition * sinus and throat condition * migraine headaches * loss of hearing 5. On 1 July 2013, the PDRB recommended the applicant's records be corrected to show he was placed on the Temporary Disability Retired List (TDRL) with a disability rating of 70 percent for 6 months and upon final disposition a permanent disability retirement of a combined rating of 30 percent. The 15 May 2013 Record of Proceedings states: Summary of Case Data extracted from the available evidence of record reflects that this covered individual (Cl) was an Active Reserve 1LT/0-2 (15AOO/B2 Aviation) medically separated for [OCD and MDD]. He began to develop obsessive behavior 6 months post-tour and became increasingly compulsive with recurrent suicidal ideation and insomnia. The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty. He was issued a permanent P2/S3 and temporary L3 profile and referred for an [MEB]. The OCD/MDD condition was forwarded to the [PEB in accordance with (IAW) Army Regulation (AR)] 40-501 [Standards of Medical Fitness]. The MEB also identified and forwarded two Axis Ill and one Axis IV condition (hypertension, psoriasis and post-war stress-unrelenting symptoms – imminent end to military career) judged to meet retention standards. The PEB adjudicated the OCD/MDD as one unfitting condition, rated 10 percent referencing AR 635-40 [Physical Evaluation for Retention, Retirement, or Separation] and citing criteria of the [Department of Defense Instruction (DoDI)] 1332.39 [Application of the Veterans Administration Schedule for Rating Disabilities]. The remaining Axis Ill conditions were determined to be not unfitting and therefore not ratable. The Cl made no appeals, and was medically separated with a 10 percent disability rating. Scope of Review The Board's scope of review is defined in DoDI 6040.44 [Physical Disability Board of Review (PDRB)], Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the Cl. The ratings for unfitting conditions will be reviewed in all cases. The hypertension, and psoriasis conditions, as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting OCD/MDD. The remaining conditions rated by the VA at separation and listed on the DA Form 294 are not within the Board's purview. Any conditions or contention not requested in this application, or otherwise outside the Board's defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records. ANALYSIS SUMMARY: The narrative summary (NARSUM) 20 June 2005 notes the Cl was a helicopter pilot deployed in Iraq between April 2003 and July 2004, though he had been removed from flight duties and relieved as a platoon commander prior to deployment. While deployed he developed a generalized skin rash and shortly after began to have obsessions regarding "germs" and compulsions of frequent hand washing and bathing. The Cl was able to complete his tour despite this behavior and returned to the US. Within the first 6 months after returning his obsessions and compulsions regarding cleanliness and orderliness became more severe. He spent hours per day washing his hands; cleaning his room; counting floor tiles; or counting the number of floors in a building. At the time of the NARSUM evaluation the Cl was spending the entire day obsessing or performing his compulsions. Notes in the service treatment record (STR) indicate the Cl first sought treatment for insomnia but on a follow-up visit 27 April 2005 reported difficulty with worsening OCD and [PTSD] symptoms. He reported lying in bed, feeling "like something will come from above." He reported anxiety about pictures not hanging straight and doors needing to opened and closed. He needed to fix the pictures multiple times per day, overused Lysol after every guest, and washed his hands constantly. A psychological evaluation 23 May 2005 noted that the Cl reported coming under fire as well as frequent mortar attacks in base camp, though he denied being involved in direct combat in both post-deployment health assessments. The Cl reported symptoms of intrusive memories and nightmares related to combat; feelings of distress and heightened arousal; suspiciousness and hypervigilance; a pre-occupations with germs, cleanliness and order; he thought he could predict or alter the future based on his dreams or thoughts; he thought he sometimes heard someone calling his name or heard things hitting his house. He reported spending a great deal of time cleaning his house, washing his hands, bathing, and being fearful of touching things. The mental status exam (MSE) showed an anxious and depressed mood. The Cl was fully oriented with normal speech and thought processes. The examiner noted suicidal ideation at times, without plans, and that the Cl denied homicidal ideation, but had thoughts of harming his former commander. Standardized testing indicated severe depression and anxiety, and PTSD. He was referred to a psychiatrist, diagnosed with PTSD 26 May 2005 and started on antidepressant, and antipsychotic medications. At the MEB exam, 20 June 2005, approximately 7 months prior to separation, the Cl reported being depressed, having decreased appetite and interest in activities, decreased concentration, with difficulty sleeping for several months. He reported being intermittently suicidal, with specific suicidal thoughts at times like "stealing a helicopter and crashing it into a building," but that he would never act on them. He reported stress about not being able to fly anymore which he loved and had wanted to do all his life. He also reported feeling isolated upon his return and having nightmares and flashbacks about his deployment. The Cl stated he had not had direct trauma in theater except for "being mortared frequently? and experiencing increased anxiety during the large number of convoys in which he participated. The MEB physical exam noted the Cl had good family relationships with a mother, father, older brother, and half siblings. He was single. He reported drinking heavily following his return from deployment but had discontinued that seven to 8 months earlier. The MSE noted the Cl was clean, well groomed, alert and oriented. He maintained good eye contact with slightly pressured speech. He appeared anxious and depressed. He denied any delusions or hallucinations, but did report nearly constant obsessions with contamination, orderliness, counting and sequencing. His thought process was linear and goal directed. The examiner noted his insight to be poor and judgment fair. The Axis I diagnoses were OCD and MDD, Axis IV diagnosis was post-war stress, unrelenting symptoms, imminent end to military career. The Global Assessment of Functioning (GAF) was estimated to be 55, (GAF 60-51 moderate symptoms OR moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning). The aeromedical summary 20 June 2005, the same day as the MEB NARSUM, noted the same history and recommended that the Cl be permanently disqualified from aviation duties due to his diagnoses of PTSD, OCD and generalized anxiety disorder (GAD) and the medications he required to treat them. The PEB combined and adjudicated the OCD and MDD as one unfitting condition for rating. The Board noted that the Cl contended PTSD which was not adjudicated by the PEB, in addition to OCD/MDD. PTSD was listed as a diagnosis on all treatment visits from 26 May 2005 up to and including the DD Form 2808 [Report of Medical Examination] exam and the last visit on post prior to separation, which listed diagnoses of PTSD and OCD. The aeromedical NARSUM 20 June 2005 listed disqualifying conditions of PTSD and OCD. Permanent profiles in the record 22 June 2005 and 11 July 2005 listed PTSD, OCD, and GAD. The Board upon review of the records unanimously agreed that the preponderance of the evidence supported that the Cl was diagnosed with PTSD while on active duty. The Board unanimously agreed that the Cl's PTSD was inextricably intertwined with the overall mental health impairment due to a mental health disorder. The PEB rating, as noted above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act 2008 mandate for DOD adherence to Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129. IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases), the Board is obligated to consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., "a mental disorder that develops in service as a result of a highly stressful event." Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states "mental disorder due to a highly stressful event," and its application is not restricted to PTSD. If the Board judges that application of §4.129 is appropriate, it must recommend a minimum 50 percent rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL). The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation. The Board first addressed if the tenants of §4.129 (mental disorders due to traumatic stress) were applicable. The Board considered the evidence of traumatic stressor and the relationship of the mental health condition to the traumatic stressor. The Cl noted stressors of frequent mortar fire and the increased anxiety during the many convoys in which he participated due to fear of improvised explosive devices. On both the post-deployment health assessments dated 28 March 2004 and 10 July 2004 the Cl indicated yes to the question "did you ever feel that you were in great danger of being killed?? The Board majority determined that the Cl's mental health condition was due to a "highly stressful event" as used in the VASRD, and that application of §4.129 is appropriate in this case. IAW VASRD §4.130 a service member can only be provided a single disability rating for mental health disorder and all the noted diagnoses are subject to rating according to the same VASRD guidelines. The Board also noted that relative contribution to impairment from the Cl's OCD, PTSD, depression, and anxiety disorders diagnosed could not be separated, therefore the Board considered the mental health conditions together in its deliberations. The Board reviewed to see if the rating criteria for a disability rating of greater than 50 percent for the 6 month TDRL period were met. Records available at the time of TDRL entry include the MEB NARSUM, aeromedical summary, both noted above, and post-separation VA treatment records. The VA treatment records indicated the Cl was hospitalized for a mental disorder 8 March 2006, approximately 2 months post-separation, because his mother had contacted a social worker regarding concerns that the Cl was isolated, depressed, manifesting aggressive behavior and making statements that concerned her that he might hurt himself. He was evaluated by a psychiatrist and voiced "fleeting" thoughts of harming himself or others, but the examiner noted no homicidal or suicidal plans. He did not have any delusions, or hallucinations; he was fully oriented. He was agitated, depressed, with impaired memory and concentration, but did have obsessions and compulsions. Judgment and insight were noted as poor, GAF was 30, (GAF 30-20 – Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment OR inability to function in almost all areas). He was admitted to inpatient care to avoid worsening of his condition. At discharge 16 March 2006 his mental status was improved with no psychotic symptoms, improved mood and OCD symptoms, no suicidal or homicidal ideas (SI/HI) and improving judgment and insight. GAF was 50. According to the NARSUM, the Cl was experiencing severe impairment due to obsessive compulsive rituals described as spending all day performing various compulsions. He was depressed and intermittently suicidal as well as having sleep difficulties with nightmares and flashbacks. VA treatment records indicate the Cl experienced post-separation worsening and was hospitalized for a mental disorder 2 months post separation due to family concerns about suicide in particular and depression, impulse control and aggressiveness in general. He improved during the hospitalization and was discharged with an estimated GAF of 50. The Board agreed that the §4.130 criteria for the 30 percent rating were met and exceeded and deliberated between the 50 percent rating (occupational and social impairment with reduced reliability and productivity) or the 70 percent rating (occupational and social impairment, with deficiencies in most areas, such work, school, family relations, judgment, thinking, or mood). The Board opined that the Cl's mental health condition at TDRL entry most nearly met the 70 percent rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 70 percent for the Cl's mental health condition at TDRL entry, coded as 9404 (OCD). Records available proximate to the end of the 6 month constructive TDRL period included the first VA Compensation and Pension (C&P) exam and VA psychiatric treatment records around the 6 months post separation timeframe of August 2006. At the C&P exam 17 April 2006, approximately 3 months after separation, and a month post hospital discharge, the Cl reported trouble sleeping with nightmares related to deployment, lack of concentration, anxiety, suspiciousness, and washing hands constantly. He talked about combat stressors described as daily mortar attacks and an accident involving harm to others. The VA examiner noted PTSD symptoms of recurring dreams, feeling or acting as if the traumatic event was recurring, efforts to avoid thoughts, or conversations associated with the trauma, concentration and sleep difficulties, exaggerated startle response. Family and social history was unchanged except the Cl he had reported no friends and no leisure pursuits. The examiner noted a history of the Cl trying to hang himself 3 weeks earlier after an argument with the neighbors due to loud noise. The exam noted the Cl appeared disheveled with an anxious mood and a constricted affect. Attention, concentration, and orientation were normal. His thoughts were obsessive, but without delusions, or hallucinations. Judgment and insight were appropriate. The examiner noted that the Cl washed his hands and bathed several times per day, arranged things around the house several times per day, and had poor impulse control. The examiner also noted no suicidal thoughts. The diagnoses were OCD and PTSD, GAF for each was 50. The Cl was unemployed and the examiner opined it was due to the mental health (MH) effects and that the Cl was severely impaired. The VA rated the Cl's MH condition of PTSD/OCD as [VASRD Code Number] 9411 at 50 percent based on this exam. At [a] VA psychotherapy visit [on] 22 June 2006 the Cl reported going to visit his brother because he was not doing anything at home. He wanted to get a job at an airport doing "anything." The Cl verbalized that he was now able to be woken up by thunder and realize he was not in Iraq. He was still washing his hands frequently, but said he was "used to that." At a psychiatric evaluation 9 August 2006, the Cl reported feelings of persecution and having OCD. He reported nightmares, not about service related incidents, but described as not being able to "read the clocks on a plane". He related an incident during deployment where, after a mortar attack, there was trembling, and a blackboard fell over on him and that he used to hear about things that happened to people because he was near a hospital. He reported hearing thunder and becoming anxious with a rapid heartbeat. On exam he was noted to be depressed, anxious, without delusions but with obsessive-compulsive behavior; no SI/HI were noted; memory, judgment, and orientation were normal. Insight was noted as good. Diagnoses were anxiety disorder and OCD. GAF was 55. At a psychiatric evaluation 15 August 2006 the Cl had returned from visiting his brother, where he had expected to have more job options. He reported socializing with cousins, hearing a firecracker and becoming anxious; the cousins helped him calm down, but they left the place. On exam he was somewhat anxious and depressed; his answers were coherent without psychotic symptoms and he was fully oriented. The examiner noted good judgment and fair insight. On psychiatric evaluation 29 September 2006 the Cl was unchanged. He was oriented, without suicidal thoughts, but longed to be back in the military as were his cousins, frustrated with the job prospects in the depressed economy. After his fluvoxamine was decreased he was having increased compulsions. His medications were increased and continued. At a VA exam in a new location 7 April 2007, the Cl reported anxiety, depression and OCD. The examiner noted that the Cl currently "ritualizes every day," characterized by counting, handwashing, and touching things. On exam the Cl was described as friendly and interactive, but slightly irritable. He was well groomed, alert and oriented, with normal thoughts and no evidence of psychosis. His mood was euthymic (not up or down, even). The Cl denied current SI/HI. The Cl was employed at a home security company for 2 months. He reported that the he had repeated conflicts with superiors in any job since the military. The Board directs attention to its recommendation for permanent rating at the time of removal from TDRL. In the 6 to 12 months post separation the records available indicate the Cl's mental health condition improved. The Board agreed that at the end of the 6 month TDRL period the Cl met the 10 percent rating criteria IAW §4.130 and reviewed it to see if the next higher evaluation of 30 percent (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) was met. The Cl, though still experiencing anxiety upon sounds he associated with war experiences, was able to realize he was not still in a combat situation and react appropriately. He was interested in obtaining a job, "anything" at an airport. He was socializing with family, feeling supported by them. He was not suicidal. His depression and anxiety were not as severe. He did continue with obsessive-compulsive behaviors on a daily basis. At the 6 months post TDRL entry the Cl was not employed, but from the evidence in the record, it was due in part to the economy and not the Cl's mental health condition. Approximately 8 months after the end of the TDRL period he was employed, despite continuing with daily OCD behaviors. The stress and anxiety symptoms had significantly improved. Although the OCD, depression and anxiety symptoms persisted in the 6 months post TDRL re-evaluation window, the Board opined that the Cl was significantly less impaired by them. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a permanent disability rating of 30 percent for the OCD/MDD condition at the end of TDRL. Contended PEB Conditions. The Board's main charge is to assess the fairness of the PEB's determination that the hypertension and psoriasis conditions were not unfitting. The Board's threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 "fair and equitable" standard. 1) Hypertension. Notes in the STR indicate the Cl was diagnosed with persistently elevated blood pressure (BP) without headaches or visual changes noted on 18 August 2005. An anti-hypertensive medication was prescribed. Five days of BP readings over a 2 week period from 20 September 2005 to 1 October 2005 showed a labile blood pressure with a median blood pressure in the borderline hypertensive category. There were no reported complications from this condition. 2) Psoriasis. The Cl woke up with a rash in November 2004 that was itchy located on his chest, back and arms. The rash was recurring despite treatment. A biopsy of a skin lesion 8 September 2005 did not provide a definitive diagnosis and treatment continued with steroids without complete resolution. At the C&P skin exam 21 April 2006 the Cl noted itching unrelieved by previous treatments. The VA exam showed a red rash around the waistline that covered less than 5percent of the skin. The VA examiner listed a non-specific diagnosis of perivascular dermatitis and noted no impairment of the Cl's activities. 3) The hypertension and psoriasis conditions were not profiled or implicated in the commander's statement and were not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions and so no additional disability ratings are recommended. Recommendation: The Board, therefore, recommends that the Cl's prior separation be modified to reflect that the Cl was placed on the TDRL at 70 percent for a period of six months and then permanently separated with a final disability rating of 30 percent as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: 6. The Acting DASA-RB approved the PDRB recommendations on 19 July 2013 and directed issuance of a DD Form 215. On 13 August 2013 a DD Form 215 was issued showing: * Retired List Grade 1LT * Retirement * AR 635-40, paragraph 4-24B * Disability, Temporary * Disability severance pay was deleted 7. On 20 August 2014, the applicant?s second application for CRSC was denied. Specifically, it was denied because he provided no new evidence linking his PTSD (VASRD Code 9411) to a combat-related event. 8. On 12 January 2015, the applicant requested reconsideration for CRSC based on his diagnosis of PTSD. Attached to his CRSC application is a letter from the applicant outlining his service in Iraq and the stressors that led to his developing PTSD. 9. On 18 March 2015, the VA granted the applicant a 70 percent rating for PTSD with no change to his other service-connection disability evaluations. 10. On 3 June 2015, the applicant received his final disapproval memorandum for CRSC entitlements from HRC. Specifically for PTSD, its states his PEB did not identify his PTSD as combat-related; thus there was insufficient evidence to grant CRSC. He was advised to apply to the Army Board for Correction of Military Records (ABCMR). 11. The applicant submitted several copies of a description of the incidents that he believes led to his mental health diagnoses. These submissions are titled ?Stressor Letter? statements in support of his claim to show his PTSD is combat-related. With minor differences in the different letters, the applicant essentially states: a. He was born on November 3, 1975 in Mayaguez, Puerto Rico, the second children born of his biological parents. His childhood seemed normal and untroubled. In elementary school he performed well academically. He had a few close friends and spent much of his time playing several different sports. He was never sick and was pretty much healthy. During high school he was actively involved in athletics and the school band. During college he expressed an interest in the Armed Forces and joined the Army Reserve Officer Training Corps (ROTC). He liked the uniforms. He seemed to have a very normal and awesome life with his friends and family. He graduated in December 1999 with a Bachelor's Degree in Music Education. Upon graduation, he joined the U.S. Army Reserve and was commissioned a second lieutenant (2LT) in the Aviation Branch. b. He entered active duty in January 2000. He was physically and mentally fit and did well in flight school. His aviation ratings include the TH-67 helicopter, OH-58 scout helicopter, and UH-60 helicopter. He was assigned to the 2nd Armored Cavalry Regiment (2nd ACR) at Fort Polk, Louisiana, where he mastered his skills as a UH-60 helicopter pilot and as an officer. In April 2003, he received orders to the 4/2 ACR in support of Operation Iraqi Freedom (OIF). His job was to pilot helicopters and serve as the Flight Operations Officer. When he got to Iraq, his initial impression was one of complete shock. The place smelled bad, looked bad, had many insects, terrible hot weather conditions, and was very dirty. During his combat tour in Iraq, he was involved in a number of stressful events. c. On 19 August 2003, a truck bomb exploded outside the United Nations Headquarters in Baghdad, killing or trapping many people inside the rubble of the damaged building. The explosion was powerful enough to break windows in his unit area, which was a few kilometers away near the Canal Hotel complex at the United Nations – Iraq headquarters. A wall fell near him and pieces of brick and shattered glass hit him. His aviation unit sent scout helicopters and air ambulances to evacuate the wounded. He was part of the Quick Reaction Force (QRF). He remembers flying a helicopter and saw bullet tracers flying around his helicopter. He remembers seeing dead people on the ground as he passed by. c. On 22 September 2003, the United Nations office in Iraq was attacked again by a suicide car bombing (the second time in a month). The blast killed and wounded many people. Again, the loud explosion ripped through his unit area, and reverberated around the capital. Then, his unit was constantly under incoming fire and enemy mortar rounds. d. On December 13, 2003, Saddam Hussein was captured and the entire Iraq population went crazy shooting bullets into the air all night. The entire sky was illuminated with bullets and our base was hit by a rain of random bullets. After the attack stopped, he remembers sitting in the bunker shaking badly for about 60 minutes. Three soldiers committed suicide because of the stress. In January 2004, he went on a patrol in a two vehicle convoy and got stuck in a bad traffic jam in the middle of a town. Insurgents attacked and he ordered the driver to drive through the traffic, hitting people and cars, trying to escape the attack. d. After these experiences he was afraid to die. In November 2003, he started to feel sad because it was his birthday. At Christmas he started to feel irritated because there was minimal or no communication with his family. Then, he got sick again with a virus infection and started to develop OCD and extreme anxiety. He was constantly washing his hands, counting buildings, and constantly on guard (hypervigilant). Moreover, he started to panic every time there was an explosion and during the countless attacks directed at the base. To ease his anxiety he started to smoke. He used to smoke about two packs a day. He also had a problem sleeping because of being afraid that a mortar round or an attack strike might impact their camp. e. In February or March 2004, he was awakened early in the morning to the sound of loud bangs. His camp area was under attack by insurgents (enemy forces). Small rockets and mortar rounds were landing all around them. He took cover. Minutes after the bombings were over, he surveyed the grounds, and came across several Soldiers who had been hit. Then, his commander decided to do a squadron run around the base just to give a message to the insurgents that we were strong. Morale was very low and he just wanted to kill himself with his weapon. f. On or about March-April 2004, his unit was redeployed to Kuwait to get ready to finish their combat tour and return to the United States but his tour in Iraq got extended for three more months. He had to return to Iraq with only two uniforms and two pairs of boots. He slept on the ground and was under constant enemy attacks. Insects were everywhere and food was about one meal a day, if they were lucky g. When his combat tour got extended for three additional months, for a total of 15 months in combat, he did not want to return because during the entire combat tour in Iraq (12-months boots on the ground), he remembered the insurgents using guerrilla tactics including using mortars, missiles, suicide attacks, snipers, improvised explosive devices (IEDs), car bombs, small arms fire (usually with assault rifles), and rocket propelled grenades (RPG), as well as sabotaging the water and electrical infrastructure. He remembers during the battle rhythm meeting seeing pictures of many dead people. Now he suffers because he cannot get the images of seeing dead Soldiers and dead innocent civilians out of his head. h. He spent a total of 15 months in combat operations with 4/2nd ACR, 2-6th Infantry. During this period he participated in numerous convoys and security operations where he saw dead people, numerous mortar attacks, suffered from the extreme heat, and on various occasion he had to shoot at different adversaries to avoid being killed. He states his fear of being killed lingers within him today. i. Upon his redeployment, he started to isolate himself from his friends and family. He had trouble sleeping because he had numerous nightmares with recurring explosions and death. He had problems concentrating affecting his ability to pilot. After seeking medical treatment, his psychologist and psychiatrist referred him to an MEB. Basically, his military career as an officer and as a helicopter pilot was over. He started to feel very angry and wanted to kill his senior officer by stealing a helicopter and crashing it into his house. He received a medical discharge in January 2006. j. After separating, he remembers being relieved and at the same time depressed and angry. He was glad to leave combat, where he saw horrible things that no one should be subjected too. He was extremely sad as well. He was sad that some of his buddies would never be returning to their families. He was really sad knowing that he left some of my buddies in harm's way. When he got back to the States, he was angry. People that knew nothing about the war thought he was a "hero" and it made him very angry. He went to visit his family in Puerto Rico. His depression worsened and he became very irritated and threatened to kill himself. He ended up at the VA hospital in San Juan, Puerto Rico. He was admitted to the mental health ward and was hospitalized for more than a week. Then, he got PTSD therapy for 1 to 2 months at Capestrano Clinic in Mayaguez, Puerto Rico. As a result, he found out that he could not tolerate being around people, not even his family. He moved away from his family because he cannot stand being with anyone. He moved to San Antonio, Texas, where he continued his mental health treatment at the local VA facility. k. After Iraq he could not attend any event where there were firecrackers. He remembers his first 4th of July activity after his redeployment. He was at an event and the firecrackers went off. He cowered down looking for cover next to a wall in the middle of the public area. Everybody looked at him. He panicked and started to cry. Now he panics every time there is a 4th of July event, New Year's Eve Celebration, or similar holidays where people use firecrackers. Every time there is a thunderstorm he freaks out because of the loud noise of the thunder to the point that he cannot breath. It reminds him of the explosions at night at his base in Iraq. He has a panic attack when he hears a car backfire or suddenly breaks, he think it is gunfire. Sometimes, he goes to bed angry and is afraid most nights. Angry that his military experience caused so many problems for him to include not being able to fly helicopters again and not being promoted. He is very depressed when he sees a helicopter flying around too. l. He is afraid of his boss and feels isolated at work most of the time. He avoids people. He checks his windows, door locks, and under his bed for intruders in a ritualistic pattern. Due to this pattern, many relationships ended because he gets so angry at his girlfriends that they get scared and they end up breaking off the relationships because they think he is crazy. He struggles to make and keep friends. These symptoms keep recurring and interfering with his personal life. Currently, his present state of mind is one of major depression, anxiety, hopelessness, and he doesn't care about anything or have any future plans. He has lost hope. His PEB should be changed to show his PTSD occurred as a direct result of combat 12. The letters of support from fellow service members attest to the applicant's exposure to traumatic events while in Iraq but do not give specific incident details. The letters of support post service attest to his changed behavior following his discharge. 13. On 10 May 2016, an advisory opinion was obtained from the Chief, Behavioral Health Division Health Care Delivery, U.S. Army Medical Command G-3/5/7. It states the Office of The Surgeon General was asked to determine if the applicant should have been evaluated at the time of separation for PTSD, OCD and MDD for combat-related disability. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). a. There is substantial evidence in AHLTA showing the applicant was evaluated and treated for OCD, PTSD and MDD for 8 months beginning in May 2005. The documentation consistently links his symptoms to his deployment. In January 2006, he was medically separated for OCD and MDD. In May 2013, a PDRB review recognized PTSD as a component of his original mental health condition, adding that the condition was due to a stressful event. In October 2006, the VA awarded service connection for PTSD with an evaluation of 50 percent, which was increased to 70 percent in March 2015. b. There is no question that the applicant received diagnoses of PTSD, OCD and MDD while still in service or that his symptoms developed during and following his deployment. An intake evaluation dated 23 May 2005 specified the connection between his symptoms and his combat experiences. Therefore, his disability should be considered combat-related and could have formed the basis for referral to an MEB. 14. A copy of the advisory opinion was forwarded to the applicant. He did not respond. REFERENCES: 1. CRSC, as established by Title 10, U.S. Code, section 1413a, 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 weren't 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability system. The regulation in effect at the time stated: a. Armed conflict and instrumentality of war. A member whose retirement or separation from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict, or caused by an instrumentality of war and incurred in line of duty during a period of war will have the block "is" checked in item 10 of the DA Form 199 (Physical Evaluation Board Proceedings). (1) Armed conflicts. A disability may be considered a direct result of armed conflict (Appendix A) if (a) It was incurred while the member was engaged in armed conflict or an operation or incident involving armed conflict or the likelihood of armed conflict, or while interned as a prisoner-of-war or detained against his will in the custody of a hostile or belligerent force or while escaping or attempting to escape from such prisoner-of war or detained status, and (b) A direct causal relationship exists between the armed conflict or the incident or operation and the disability. A determination that a disability resulted from injury or disease received in line of duty as a direct result of armed conflict will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit. (2) Instrumentality of war. A determination that a disability was caused by an instrumentality of war (Appendix A) and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law, i.e., (World War II, 7 December 1941 to 31 December 1946); any period of continuous service performed after 31 December 1946 and before 26 July 1974, if such period began before 1 January 1947; Korean War (27 June 1950 to 31 January 1955); and Vietnam Era (5 August 1964, and ending on such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress. b. Appendix A makes further definitions as follows: (1) Instrumentality of war. A device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury or a device not designed primarily for military service, but the use of or occurrence involving such device subjects the individual to a hazard peculiar to military service as distinguished from such use or occurrence under similar circumstances in civilian pursuits. (2) Armed conflict. An armed conflict may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action or insurgency, etc., in which American military personnel are engaged with a hostile or belligerent nation, faction or force. 3. Title 26 U.S. Code, section 104, states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. DISCUSSION: 1. CRSC is a form of concurrent receipt which is paid monthly. It restores military retired pay that is offset when a military retiree accepts compensation from the VA for a disability or condition that can be attributed to a combat-related event as defined by the Department of Defense program guidance. This allows eligible retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat-related. 2. 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. 3. The applicant was initially medically separated for OCD and MDD with a 10 percent disability rating in 2006. A review of his medical records shows he received medical treatment for PTSD while on active duty. However, PTSD was not rated by the PEB nor was it determined to be an unfitting condition. He sought treatment from the VA within 6 months of his discharge. Consequently, the VA granted him service connection for PTSD and OCD with a combined rating of 50 percent in 2006. 4. His PTSD with OCD diagnosis was affirmed by the PDRB in 2013. The Acting DASA-RB placed him on the TDRL with a disability rating of 70 percent for 6 months and then a final disposition of permanent disability retirement with a combined 30 percent disability rating retroactive to the date of his discharge (28 January 2006). 5. Based on the above the facts, the diagnosis of PTSD as a service-connected disability is clearly established. The applicant submitted multiple applications claiming CRSC for PTSD that may be subject to compensation. Officials at HRC denied his CRSC applications stating his PTSD did not meet the standards established by Title 26, U.S. Code, section 104 because his 2005 PEB said his OCD and MDD were not incurred from a combat-related injury. 6. While HRC officials correctly stated OCD and MDD were not combat-related injuries, it appears HRC did not take into consideration the 2013 PDRB findings which corrected his PEB by adding PTSD and then ultimately permanently medically retiring him. The PDRB did not review his file for compliance with Title 26, U.S. Code, section 104. However, in the applicant’s medical records it appears he repeatedly outlined his direct exposure to enemy fire from RPGs, IEDs, and other small arms fire both within his compound and while conducting convoy operations in and around Baghdad, Iraq. His personal written statements in support of his CRSC applications reiterated his exposure to indirect enemy fire. One has to ask the question if he had not deployed into a combat environment, would he have developed multiple mental health conditions which significantly affected his duty performance (i.e., as a pilot, he was grounded). It appears his direct exposure to armed conflict led to his diagnosis of PTSD while in a combat theater of operations which was found to be unfitting and he was subsequently permanently medically retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012092 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012092 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2