BOARD DATE: 7 January 2017 DOCKET NUMBER: AR20150015555 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: 7 January 2017 DOCKET NUMBER: AR20150015555 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: 7 January 2017 DOCKET NUMBER: AR20150015555 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 records to show he retired by reason of physical disability in lieu of separation with severance pay. He also requests correction of his disability findings to add post-traumatic stress disorder (PTSD) to his existing unfitting condition. 2. The applicant states he started having issues with PTSD after his last deployment and injury in 2012. He never mentioned it to anyone before or during his medical evaluation board (MEB) process or to any doctors fearing it would greatly alter his current status/image in the Army as well as his own personal life when he got out of the service. He was fast-tracking in promotions and did not want anything bad to happen to his career. 3. The applicant provides: * MEB Narrative Summary * DA Form 3947 (MEB Proceedings) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) documentation CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 8 November 2005 and trained as an infantryman. He served in Iraq from 6 August 2009 to 9 July 2010. He served in Afghanistan from 24 March 2012 until he was wounded in action on 11 April 2012 and transferred to the United States on 22 May 2012 for further medical treatment. 2. On 28 May 2013, an MEB diagnosed him with the medically unacceptable condition of chronic pain in his left ankle due to a gunshot wound. 3. The MEB further found the following conditions medically acceptable: * scars secondary to gunshot wound, left ankle * status post-left ankle and foot gunshot wound with retained metallic fragments * bilateral pes planus * left ankle tip avulsion with tear of anterior talofibular ligament * left ankle osteopenia/lateral malleolus fracture * maculopathy, right eye * recurrent tinnitus, both ears 4. The MEB recommended his referral to a PEB. He concurred with the MEB findings on 12 June 2013. 5. Item 30 (Continuation) of his DA Form 3947 states, in part: a. "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947." b. "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards." c. "I agree that this MEB accurately covers all my current medical conditions." 6. On 15 November 2013, an informal PEB found him physically unfit due to chronic pain in his left ankle due to a gunshot wound. 7. The PEB determined the following conditions were not unfitting and were therefore not rated: * scars secondary to gunshot wound, left ankle * status post-left ankle and foot gunshot wound with retained metallic fragments * bilateral pes planus * left ankle tip avulsion with tear of anterior talofibular ligament * left ankle osteopenia/lateral malleolus fracture * maculopathy, right eye * recurrent tinnitus, both ears 8. The PEB recommended a disability rating of 20 percent and his separation with severance pay. On 27 November 2013, he concurred with the PEB findings. 9. On 3 March 2014, he was honorably discharged by reason of disability with severance pay, combat zone (enhanced), with a disability rating of 20 percent. 10. He provided VA documentation, dated 18 March 2014, showing he was granted service-connected disability compensation for the following conditions and disability ratings with an overall or combined disability rating of 30 percent: * status post-left ankle surgery due to gunshot wound with retained metallic objects, muscle groups XI and XII (with VA diagnosis of left ankle tip avulsion with tear of anterior talofibular ligament and osteopenia, and pes planus, claimed as left foot pain) – 20 percent * tinnitus – 10 percent * pes planus, right – 0 percent * maculopathy, right eye (claimed as right eye condition) – 0 percent * status post-left ankle surgery due to gunshot wounds residual scars – 0 percent 11. He also provided VA documentation, dated 9 May 2015, showing he was assigned a 100-percent disability rating for PTSD. 12. An advisory opinion was rendered by the U.S. Army Physical Disability Agency Legal Advisor, dated 11 July 2016, wherein he stated: a. The applicant's MEB only listed one condition as not meeting medical retention standards. All other conditions met medical retention standards and had no physical profile restrictions. At the time of his MEB, he did not list or complain of PTSD or any behavioral health symptoms and the MEB did not list or diagnose any. The applicant concurred with the MEB findings. b. An informal PEB found him unfit for his ankle and recommended separation with severance pay. There were no listings or findings of PTSD. The recommended VA ratings for all conditions listed at that time did not include one for PTSD. He concurred with his PEB findings and waived his right to a formal hearing. c. The applicant has not presented any evidence that he had PTSD in 2013 or that it was affecting his ability to perform his assigned duties at that time. d. There is no evidence of any error or injustice in the applicant's military records. e. No changes to the applicant's military records are recommended. 13. A second advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 28 September 2016, wherein he stated: a. A review of the applicant's electronic medical records revealed clinical encounters between 10 November 2005 through 7 April 2014. b. A social work service intake evaluation, dated 30 April 2012, notes several risk factors (age and recent loss of significant friend) and states "SM [service member] is cleared from a behavioral health perspective to return to his unit. He is experiencing some survivors [sic] guilt related to combat trauma but appear [sic] to be coping well at this time. He is aware of support services available and has received support since the event. SM demonstrates ability to access support should safety needs arise." c. His MEB Narrative Summary noted "This member sustained an open fracture of his left ankle due to a gunshot wound. This happened in the deployed location. X-rays showed comminuted fracture. There were innumerable small shrapnel fragments noted, also on x-ray, in his ankle. An MRI [magnetic resonance imaging] of the left ankle done on 2 Feb [February] 2013 revealed fibular tip avulsion with moderate grade probable remote tear in the anterior talofibular ligament. No evidence of intra-articular debris." He concurred with the MEB findings on 12 June 2013 without appeal. d. A VA proposed rating, dated 25 October 2013, shows status post-left ankle surgery (20 percent); tinnitus (10 percent); pes planus right (0 percent); maculopathy, right eye (0 percent); and scar, left ankle (0 percent). Disabilities that were not service connected included right knee condition (claimed as bilateral knee pain), left knee condition (claimed as bilateral knee pain), hearing loss, and anxiety condition. It states service connection for anxiety condition is denied because the medical evidence of record fails to show this disability has been clinically diagnosed. No permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated on VA pre-discharge examination. The VA mental examiner did not provide a diagnosis for his anxiety condition. e. There was no diagnosis for a self-referral behavioral health evaluation, dated 14 November 2013, for intrusive memories and anxiety from deployment. It was noted he is currently S-1 worldwide qualified with no duty limitations from a behavioral health perspective. He is cleared to deploy. He has no behavioral health condition that would impair his judgment or adversely affect his clearance. f. The applicant did not meet medical retention standards for left ankle pain status post-gunshot wound per the MEB and PEB. g. The applicant met medical retention standards for all other conditions, including any mental/behavioral health conditions, per the MEB and PEB. h. His medical conditions were duly considered during medical separation processing (including the comprehensive Integrated Disability Evaluation System evaluations with both the Army and VA). j. A review of the available documentation found no evidence of any additional medical or behavioral/mental health disability or condition which would support a change to the character or reason for the applicant's discharge in this case. 14. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 2. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 3. Title 10, U.S. Code, 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. 4. 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. DISCUSSION: 1. The applicant contends PTSD should be added to his existing unfitting condition and his records should be corrected to show he retired by reason of physical disability in lieu of separation with severance pay. 2. His MEB did not list PTSD as a medical condition/defect and his DA Form 3947 states he agreed that the MEB accurately listed all of his current medical conditions. He provided no evidence showing this condition rendered him unfit to perform his military duties. As such, there is no basis to add this medical condition as unfitting. 3. The evidence shows the PEB found him physically unfit due to chronic pain in his left ankle due to a gunshot wound. He concurred with the PEB findings on 27 November 2013. 4. The Army Review Boards Agency Senior Medical Advisor confirmed that his existing medical conditions were duly considered during medical separation processing. 5. The VA documentation showing he was assigned a 100-percent disability rating for PTSD in May 2015 was noted. However, the rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015555 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015555 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2