BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20150018985 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: 12 September 2017 DOCKET NUMBER: AR20150018985 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 to amend the decision of the ABCMR set forth in Docket Number AR20120000776 on 1 March 2012. _____________ _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: 12 September 2017 DOCKET NUMBER: AR20150018985 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20120000776 on 1 March 2012. Specifically, he requests correction of his records to show an increase in his physical disability rating in order to qualify for a medical disability retirement. 2. The applicant states he has injuries that were never evaluated by the Army, specifically post-traumatic stress disorder (PTSD). He states he is uncomfortable being around fireworks and other loud noises such as thunderstorms, often seeking protection in his home. The exposure to loud noises reminds him of his experiences with rocket-propelled grenades and improvised explosive devices in Iraq. He was evaluated by the Army and received a 10 percent disability rating for his left knee; however, both of his knees give him pain as well as his back and right foot which he injured in Iraq. 3. The applicant provides a decision letter from the Department of Veterans Affairs (VA), dated 9 September 2014, and a two-page document from the VA and Department of Defense (DOD) titled "Dashboard – Disabilities." CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120000776 on 1 March 2012. 2. The applicant provides new evidence in the form of VA documents, which he submitted in support of his contention that he suffers from PTSD and other injuries as a result of his military service. His request is being reconsidered based on this new argument and/or contention and the VA documents he submitted in support of his request. 3. The applicant enlisted in the Regular Army on 22 December 2005. He completed military training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist). 4. DA Form 3349 (Physical Profile), dated 6 July 2010, shows he received a permanent rating of 3 (P3) for his lower extremities for the medical condition of bilateral chronic knee pain with the limitations of no running, jumping, prolonged standing, no ruck marching, and no impact activities. It also stated he needed a medical evaluation board (MEB)/physical evaluation board (PEB). 5. VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim), dated 4 March 2010, was filed as part of a Physical Disability Evaluation System (PDES) Pilot Program, a joint venture between the DOD and VA. This document shows he was being evaluated for the medical condition of chronic knee pain for a fitness for duty determination. Further, it listed his additional conditions of lower back pain, left ankle sprain, and closed fracture middle proximal phalanx third finger with decreased range of motion. He was exposed to Gulf War environmental hazards. 6. On 12 April 2010, he was given a compensation and pension physical examination by the Denver VA Medical Center as part of the PDES Pilot Program. It states the applicant listed several complaints, however, only his right and left knee would be examined and he lacks full extension of his third right finger but without other symptoms. Also, the applicant noted all other problems (left ankle sprain and low back pain) had been resolved. He had not missed work for any of his noted medical conditions. There were no documented hospitalizations or surgeries nor was he taking any medications. The examination revealed the following diagnoses: a. chronic left knee retropatellar pain syndrome with occasional popping/crepitus and normal range of motion; b. low back strain, resolved with no residuals; c. left ankle sprain, resolved with no residuals; d. right patellofemoral syndrome with normal range of motion and clinical examination, intermittently symptomatic mostly on running; and e. malunion of the right third proximal interphalangeal joint due to an avulsion fracture; lacks full extension at joint by 10 degrees with all other normal range of motion; examination unremarkable and x-rays are normal. 7. On 7 July 2010, an MEB convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant failed medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) due to chronic left knee retropatellar pain syndrome with occasional popping/crepitus with normal range of motion and right patellofemoral syndrome with normal range of motion. The MEB also considered three additional diagnoses of low back strain, left ankle sprain, and malunion of right hand third proximal interphalangeal joint due to avulsion fracture and found them to be medically acceptable. 8. The MEB recommended his referral to a PEB. He was counseled and agreed with the MEB's findings and recommendation and indicated the MEB accurately covered all his current medical conditions on 26 July 2010. He also did not request an impartial medical review of his MEB. 9. On 9 August 2010, an informal PEB was convened and found the applicant fit for duty. He was evaluated for left knee retropatellar pain syndrome and right patellofemoral syndrome. It was determined that he could take an alternate physical fitness test, could wear a helmet and fire his weapon. Additionally, imaging of both knees revealed slight improved changes and he had pain-free motion from 0-140 degrees. On 16 August 2010, he did not concur with the findings and requested an appeal. 10. On 1 September 2010, the PEB considered his appeal and found the applicant's condition of left knee retropatellar syndrome, non-combat related rendered him unfit. The condition of right patellar syndrome was found to be not unfitting. The PEB forwarded his case to the VA requesting a disability rating. 11. On 13 September 2010, the Seattle, Washington VA Regional Office completed a disability determination under the PDES Pilot Program. The VA determination was prepared to assign evaluations to the applicant’s unfitting condition(s) as well as to determine the member’s potential entitlement to VA disability compensation. The VA recommended the PEB assign a 10 percent disability rating for "left knee retropatellar syndrome" under VA Schedule of Rating Disabilities (VASRD) code 5260, which was found to be an unfitting condition. A total 10 percent disability rating was recommended for the following two service-connected conditions that were not found unfitting: "right knee retropatellar syndrome," VASRD code 5260; and "residuals of right middle finger fracture," VASRD code 5229. It also found the applicant suffered from low back pain and a left ankle sprain that were not service connected and as such were not ratable. 12. On 27 September 2010, an informal PEB reconsidered the applicant’s case. The PEB found the applicant’s "left knee retropatellar syndrome" was an unfitting condition. The PEB rated this condition as 10 percent disabling and recommended the applicant’s separation with severance pay based on a physical disability rating of 10 percent. 13. The PEB noted the applicant's right knee condition and stated an exam showed a normal gait and stability with normal range of motion. It further confirmed the three other conditions the applicant suffered from as noted in the disability evaluation system evaluation were not found unfitting for further service and as a result were not ratable. 14. On 29 September 2010, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing. The PEB's findings and recommendation were approved on behalf of the Secretary of the Army on 30 September 2010. 15. He was honorably discharged on 11 December 2010 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability, severance pay, non-combat related. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 11 months, and 20 days of active service and received severance pay. 16. On 1 March 2012, the ABCMR denied his petition to increase his disability rating. 17. The applicant's military records are void of any available documentation that shows he suffered from, sought medical treatment for, or was diagnosed with PTSD or any other mental health/behavioral health condition during his period of active military service. 18. The applicant provided: a. A decision letter from the VA, dated 9 September 2014, which shows he was granted service-connected disability compensation for PTSD effective 27 March 2014 and that his overall combined disability rating was 80 percent. b. A two-page document from the VA and DOD titled "Dashboard – Disabilities," which is undated and does not specify that it pertains to the applicant. This document determined an 80 percent disability rating. (1) It shows an unnamed individual was granted service-connected disability compensation as follows: * 50 percent for PTSD, non-combat in March 2014 * 20 percent for strain with degenerative joint disease, thoracic spine in 2013 * 20 percent for cervical strain in 2013 * 10 percent for left knee retropatellar syndrome as related to PDES in 2010 * 10 percent for right knee patellofemoral syndrome as related to PDES in 2010 * 10 percent for residuals of right middle finger fracture in 2013 * 10percent for strain, left shoulder scapular region in 2013 * 10 percent plantar fasciitis, right foot with hammer toe and claw (claimed as right foot condition) in 2010 (2) It shows an unnamed individual was not rated (given a 0%) for the following non-service connected conditions: low back pain and left ankle strain. (3) It shows an unnamed individual is pending two new claims of right foot plantar fasciitis (2014) and bilateral knee pain (2015). 19. In connection with the processing of this case, an advisory opinion was obtained on 8 February 2017 from the Army Review Boards Agency (ARBA) Clinical Psychologist. a. The psychologist restated the applicant’s military history including his processing through the PDES. b. The applicant is now contending he should have been medically retired, rather than discharged. He has cited a 50 percent service-connected disability rating from the VA for non-combat PTSD. He has other ratings related to physical problems as well. The Joint Legacy Viewer (JLV) shows he received an 80 percent combined service-connected disability rating from the VA. PTSD is not shown on his VA active problem list in the JLV. His military medical records to include electronic records (AHLTA) showed no behavioral health diagnoses, other than two relationship problems with his wife that led to treatment by Family Advocacy providers while in the Army. c. His available documentation from the time of discharge described none of the dramatic symptoms of PTSD that he now is asserting are interfering with his life. d. The existence of a VA disability, even if it is discovered in close proximity to the time of an applicant's discharge, does not determine whether an applicant was eligible for medical retirement or a higher disability rating by the Army. The Army and VA use different standards for disability. In particular, the Army is focused on the ability of a Soldier to function. The applicant has provided no evidence that he had relevant functional psychiatric impairments during the time of his service. In fact, there is no evidence in the record that he had a psychiatric condition during the time of his active duty service. It was a physical problem, not a mental one, which was making him unable to function as a Soldier. e. The applicant did not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to his era of service. Therefore, he was discharged because of a physical disability. f. The applicant's medical conditions were appropriately evaluated at the time of his discharge. g. A review of his available documentation did not discover evidence of mental health considerations that may be relevant to the question of medical retirement or of an enhanced disability rating because of a mental-health condition. 20. A copy of the advisory opinion was forwarded to the applicant on 10 February 2017, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. 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, the PEB rates all disabilities using the VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 2. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Paragraph 3-1 provides that 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 the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that 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. 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 at less than 30 percent. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. 5. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. 6. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 7. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 8. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior. (2) Self-destructive or reckless behavior. (3) Hypervigilance. (4) Exaggerated startle response. (5) Problems in concentration. (6) Sleep disturbance. f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. DISCUSSION: 1. The evidence of record shows the applicant was referred to an MEB because of his inability to physically perform the basic functions of his MOS due to chronic left knee retropatellar pain syndrome and right patellofemoral syndrome. He was also evaluated for low back strain, left ankle sprain, and malunion of right hand third interphalangeal joint due to avulsion fracture. Consequently, his records were evaluated by an MEB, which ultimately referred him to a PEB for his chronic left knee retropatellar pain syndrome and right patellofemoral syndrome. His other medical conditions met retention standards. He concurred with the findings and indicated the MEB accurately covered all his current medical conditions. 2. After appealing the first informal PEB recommendation which found him fit for duty, a second informal PEB found him medically unfit for left knee retropatellar syndrome and assigned a 10 percent disability rating in concert with the VA rating guidelines. As his combined disability rating was below 30 percent, the PEB recommended his separation by reason of physical disability with entitlement to severance pay as authorized by law. He concurred with the second informal PEB recommendation and waived a formal PEB hearing. 3. He now contends he should receive an increase to his disability ratings because the VA granted him a higher combined disability percentage for numerous other medical conditions, including PTSD in 2014, that were not evaluated by either the MEB or informal PEBs in 2010. 4. An award of a different rating by another agency does not establish error in the rating assigned by the Army's during the PDES process. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. 5. He contends he suffers from multiple physically-limiting conditions, to include PTSD, which are equally debilitating, and if all of these conditions had been considered during his processing through the PDES, his Army disability rating would have been higher, thus qualifying him for a medical retirement (over 30 percent combined disability rating). However, only his left knee retropatellar syndrome was deemed severe enough to cause him to be unfit for continued service. He concurred with both the MEB and second informal PEB proceedings with no contentions. 6. The clinical psychologist's review of the available documentation found all his medical conditions were appropriately evaluated at the time of his discharge. The available documentation found no evidence of a mental-health or medical condition diagnosed during his period of service that would support a change to his PEB and thus his reason for discharge in this case. 7. The applicant's processing through the PDES pilot program appears to have been accomplished in compliance with the governing regulations, guidance and applicable laws. It also appears the applicant's rights were fully protected throughout the PDES process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018985 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018985 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2