BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160004215 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: 21 November 2017 DOCKET NUMBER: AR20160004215 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: 21 November 2017 DOCKET NUMBER: AR20160004215 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: a. He was permanently retired due to a physical disability as a result of armed conflict based on a combat-related condition during a period defined by law and the combat injury as defined in Title 26 (Internal Revenue Code), U.S. Code (26 USC), section 104 (Compensation for Injuries or Sickness). b. Award of a higher disability rating than he currently has based on a diagnosis of post-traumatic stress disorder (PTSD). 2. The applicant states there were errors and injustice in the disability evaluation system process during his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings. He states: a. On 17 August 2010, he was evaluated by an orthopedic doctor in Heidelberg, Germany, and awarded a permanent (P-3) physical profile. On 20 August 2010, an MEB determined a temporary (T-3) physical profile was appropriate at the time and recommended follow-up care, as appropriate through his primary care manager and orthopedics. b. An MEB found his condition did not meet the criteria in Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3.3d (Disposition). c. He was going to Fort Gordon, GA, because the MEB determined he did not meet (retention) standards. Later, that very same day, he received a telephone call from an MEB official and was told that "after further review [he] met the requirement for the MEB." The applicant provides additional information about events and conversations with his chain of command and the ensuing MEB/PEB process. He adds that he believes his command sergeant major made a telephone call to direct when and how he was going to retire. He acknowledges that he cannot prove this. d. Events and provides a timeline for the period 1 November 2009 through 30 November 2011 that summarizes his medical treatment, hip replacement surgery, physical profiles, physical therapy, the MEB/PEB process, and his decision to accept the results of the PEB out of fear of losing the disability rating of 60 percent (%). e. Both the MEB and PEB proceedings show he was in a combat zone when he started experiencing pain in his left hip. However, the Physical Disability Information Report he received does not show his disability was received as a direct result of armed conflict or caused by an instrumentality of war, and it does not show his disability resulted from a combat-related injury as defined in 26 USC, section 104. f. His Noncommissioned Officer Evaluation Report and his retirement award were not completed before he retired from active duty. He adds that he and his family decided to remain in Germany after he retired. He notes that nobody from his former command contacted them or inquired into how he was doing after he retired from active duty based on permanent disability. g. He does not believe he was properly counseled by his lawyer and the PEB proceedings do not show his conditions are combat-related. In addition, the Department of Veterans Affairs (VA) rated him as 100% disabled. His PEB proceedings do not show his injuries are combat-related; therefore, he was disapproved for college benefits for his children. h. He adds that he received a disability rating for PTSD of 70% from the VA. He is hopeful this will increase his overall disability rating from the Army. 3. The applicant provides a self-authored statement with email messages (summarized above) and copies of the following documents: * Personal Data Sheet * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief (ERB) * MILPER (Military Personnel) Message Number 09-067 * MEB proceedings with Narrative Summary and medical records * PEB Proceedings with Physical Disability Information Report * three DA Forms 3349 (Physical Profiles) * two award certificates * retirement orders * VA disability rating and related information 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. The applicant enlisted in the Regular Army on 9 February 1984. He was awarded military occupational specialty (MOS) 36C (Wire Systems Installer). 3. Through a series of reenlistments he continued to serve on active duty. * he served overseas in – * Germany – * 12 July 1984 to 8 October 1986 * 5 January 1990 to 20 February 1993 * 30 November 1995 to 20 November 2003, that included – * Bosnia – Herzegovina: 29 August 1996 to 23 February 1997 * Kosovo: 12 June 1999 to 19 December 1999 * Kuwait: 20 November 2003 to 20 November 2004 * Kuwait – Iraq: 5 December 2005 to 4 December 2006 4. He attained the rank of master sergeant (MSG)/pay grade E-8 on 1 August 2006 and was awarded MOS 25W (Telecommunications Operations Chief). 5. Three DA Forms 3349 show medical doctors (MD) issued the applicant the following permanent physical profiles (Format: Date, Medical Condition, PULHES, Profiling Officer): * 25 February 2011, total hip replacement with calcar fracture, "333111," Colonel Eric, S___, MD * 2 March 2011, total hip replacement with calcar fracture, "113111," Theodore L___, MD * 1 April 2011, MEB for failed total hip arthroplasty (left with calcar fracture) also right hip osteoarthritis, "213111," Theodore L___, MD 6. U.S. Army Medical Department Activity (MEDDAC) – Heidelberg, Medical Board Summary, prepared on 1 April 2011, shows the applicant's chief complaint was, "I'm here for [a] Medical Board for a left hip replacement surgery failure." It shows the applicant was a physician-directed referral arising from a permanent (P-3) physical profile from an Orthopedic Surgeon at the Heidelberg Health Clinic. The applicant explained that during 2005 he was part of an Advance Party early into an Operation Iraqi Freedom (OIF) rotation when he woke up with left hip pain. The pain persisted and he was prescribed pain medication. In 2008 his hip problem worsened and he did not deploy with his unit in 2009. He was evaluated at Landstuhle Regional Medical Center and it was determined he required a total left hip replacement. He underwent the procedure on 4 May 2010. After the surgery it was determined the process of the hip replacement had resulted in a calcar fracture of the residual femoral neck. 7. A DA Form 3947 (MEB Proceedings) show an MEB convened, on 4 May 2011, at Heidelberg Health Center, Germany. a. The applicant did not present views in his own behalf. b. Item 13 (Diagnosis) lists the following: * medically unacceptable conditions – * left total hip arthroplasty with associated calcar fracture – fails functional recovery * right hip osteoarthritis – pain/limitation * medically acceptable conditions (meets retention standards) – * obstructive sleep apnea * male erectile disorder * intermittent back stiffness * hyperlipidemia * right-sided hearing loss * intermittent left shoulder pain * intermittent knee stiffness c. After consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant unfit for duty under the provisions of AR 40-501, chapter 3, and referred him to a PEB. On 5 May 2011, the findings and recommendation were approved. d. On 9 May 2011, the applicant was informed of the findings and recommendation of the MEB and indicated that he agreed with the board's findings and recommendation. He indicated all documentation of military medical care were in his possession and had been provided to the PEB Liaison Officer (PEBLO). He agreed the DA Form 3947 accurately included all of his current medical conditions and whether or not they met medical retention standards. 8. A DA Form 199 (PEB Proceedings), dated 10 August 2011, shows an informal PEB conducted in Washington, DC found the applicant physically unfit and recommended a rating of 60% with permanent disability retirement. It also shows in: a. item 8 (The Board considered the member's conditions described in the records. Each disability is listed below in descending order of significance): * medical conditions determined to be unfitting – * hip replacement (left), listed as left total hip arthroplasty (MEB diagnosis 1) – Rated: 50% (It also shows the applicant first noticed left hip pain in 2005 while deployed in support of OIF) * thigh, limitation of motion of (right hip), listed as osteoarthritis (MEB Diagnosis 2) – Rated: 10% (It also show the applicant's right hip pain began to worsen when rehabilitating from his left total hip replacement in 2010) * medical conditions determined not to be unfitting were those listed on the DA Form 3947 (MEB diagnoses 3 through 9) b. item 8, column e, "In LD [line of duty] in the time of national emergency or after 14 September 1978 (incurred or aggravated): "Yes" [for both medical conditions determined to be unfitting]. c. The PEB found the applicant physically unfit, recommended a combined disability rating of 60%, and permanent disability retirement. d. Item 10, in pertinent part, shows, "If retired because of disability, the board makes the recommended finding that: * The Soldier's retirement is not based on disability from injury or disease received in the LD as a direct result of armed conflict or caused by an instrumentality of war and incurring in LD during a period of war as defined by law * Disability did not result from a combat-related injury as defined in 26 USC, section 104 and for purposes of 10 USC, section 10216(G)." e. The PEBLO officer affirmed by signing the above document with his signature indicating that he had informed the applicant of the findings and recommendations of the PEB, and explained to him the results of the findings and recommendations and his legal rights pertaining thereto. f. On 1 September 2011, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. 9. On 6 September 2011, the PEB was approved for the Secretary of the Army. 10. A Physical Disability Information Report, dated 12 September 2011 shows: * disability is based on injury or disease received in the LD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LD during a period of war as defined by law: No * member of an Armed Force on 24 September 1975: No * disability resulted from a combat-related injury as defined in 26 USC 104: No * disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act 2008, section 1646): Not Applicable 11. A DD Form 214 shows the applicant was honorably retired from active duty on 30 November 2011 based on permanent disability. He had completed 27 years, 9 months, and 22 days of total active service this period. 12. Installation Management Command – Europe, Heidelberg Transition Center, Orders 284-0004, dated 11 October 2011, released the applicant from assignment because of physical disability and placed him on the retired list on 1 December 2011 in the retired rank of MSG (E-8). These orders also show: * disability is based on injury or disease received in the LD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LD during a period of war as defined by law: No * disability resulted from a combat-related injury as defined in 26 USC, section 104: No 13. In support of his application the applicant provides, in pertinent part, the following additional documents. a. A Personal Data Sheet, ERB, Bronze Star Medal and Meritorious Service Medal (1st Oak Leaf Cluster) award certificates, and his DD Form 214 that provide a summary of information pertaining to his career in the U.S. Army spanning the period 9 February 1984 to 30 November 2011. b. His MEB proceedings with narrative summary, three DA Forms 3349, and medical records; PEB proceedings with Physical Disability Information Report; and retirement orders that were previously summarized. c. MILPER Message Number 09-067, issued 25 March 2009, subject: Consolidated Army Transition Center Policy and Procedures for Disability Evaluation System Separation Processing. The message provides guidance on policy and procedures to installation transition centers to accomplish separation processing of Soldiers separating due to disability. d. VA (eBenefits) disability rating, dated 10 February 2016, that shows a total combined disability rating of 100%. 14. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 5 May 2017. The ARBA senior medical advisor: a. Noted he was asked to determine if the alleged medical condition(s) warranted separation through medical channels or if medical conditions were not considered during the medical separation process. b. Opinion was based on the information and records provided by the ABCMR and the applicant in his application to this Board, records available in the Department of Defense electronic medical record (Armed Forces Health Longitudinal Technology Application), and the VA Joint Legacy Viewer. c. Reviewed the applicant's military personnel records and service treatment records. He provided an extensive description of the applicant's clinical encounters and examinations, including a summary of the MEB and PEB proceedings. d. Determined the available medical records reveals no behavioral/mental health encounters or diagnoses between 2005 through 2011. In addition, there were no prescriptions for behavioral/mental health medications from 1996 to 2011. e. Found the applicant did not meet medical retention standards for: (1) hip replacement (left, listed as left total hip arthroplasty) and (2) thigh limitation of motion of right hip (listed as osteoarthritis) in accordance with (IAW) AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. f. Found the applicant met medical retention standards for obstructive sleep apnea, male erectile disorder, intermittent back stiffness, hyperlipidemia, right-sided hearing loss, intermittent left shoulder pain, intermittent knee stiffness, visual acuity problems, and other physical, medical and/or behavioral conditions IAW AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. g. Concluded the applicant's medical conditions were duly considered during his medical separation processing. This official found no evidence of a medical disability or condition which would support a change to the applicant's separation based permanent disability. 15. On 9 May 2017, the applicant was provided a copy of the ARBA medical advisory opinion to allow him the opportunity to submit comments or a rebuttal. 16. On 9 June 2017, the applicant provided his response. He stated when he submitted his application to the ABCMR, he did not understand how he was referred to an MEB or by whom. Additionally, he states: a. He had assignment reassignment orders for Fort Gordon, when he was notified by telephone that he was being referred to an MEB. This led to a PEB and ultimately his retirement based on permanent disability. b. He is not questioning his medical examination, medical condition, permanent disability, or the disability percentage (60%). He is questioning the finding that shows his disability did not result from a combat-related injury as defined in 26 USC, section 104 and 10 USC, section 10216(G). c. He was serving in Iraq when his injury occurred and he was receiving steroid shots while serving in the theater to help with his mobility. He adds, "I can [not] get my medical from Iraq because I think the unit deactivated." REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Chapter 4 (Procedures), paragraph 4-19 (PEB decisions – common criteria), show the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in this paragraph. a. The board decides all questions by majority vote. All findings must be based on a preponderance of the evidence. Normally PEBs accept the validity of informal and formal LD investigations and reports. However, the PEB may question the validity of a favorable LD determination. If so, the PEB will conditionally adjudicate the case as if a favorable LD decision is correct. b. Subparagraph j (Armed conflict – instrumentality of war) shows certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined the disability for which retired was incurred under specific circumstances. These advantages concern preference eligible status within the Civil Service system (5 USC, section 3501). The specific circumstances are: (1) The disability resulted from an injury or disease received in the LD as a direct result of armed conflict and which itself renders the Soldier unfit. A disability may be considered a direct result of armed conflict if: (a) The disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status. (b) A direct causal relationship exists between the armed conflict or the incident or operation, and the disability. (2) The disability is unfitting, was caused by an instrumentality of war, and was incurred in LD during a period of war as defined by law. (The periods of war are defined in 38 USC, sections 101 and 301.) c. The Glossary, Section II (Terms) defines relevant terms, as follows: * Armed conflict: Any activity in which American military personnel are engaged with a hostile or belligerent nation, faction, or force. The activity may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, or similar situation * Combat-related injury: A personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict; while engaged in extra hazardous service; under conditions simulating war; or which is caused by an instrumentality of war * Instrumentality of war: A device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred in an incident to a hazard or risk of the service 2. Title 26, USC, section 104) provides in general, except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include, in pertinent part, (a)(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980. a. It also provides special rules for combat-related injuries. 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 * under conditions simulating war, or * which is caused by an instrumentality of war b. It further shows the only amounts taken into account under subsection (a)(4) shall be the amounts received by reason of a combat-related injury. DISCUSSION: 1. The applicant contends his records should be corrected to show he was permanently retired due to combat-related physical disability conditions (i.e., left hip replacement and thigh limitation of motion of right hip) that were a direct result of armed conflict during a period of war. He believes his injury is a combat injury as defined by law because he sustained the injury during a combat deployment in Iraq in 2005 when he woke up with left hip pain. 2. Records show the applicant served in Iraq in support of OIF from 5 December 2005 to 4 December 2006. 3. The evidence of record shows Doctor Eric S___, Orthopedic Surgeon, issued the applicant a permanent physical profile on 25 February 2011. He received two additional permanent physical profiles and he was referred to an MEB: a. The applicant reported to the U.S. Army MEDDAC–Heidelberg, on 1 April 2011, and acknowledged that he was there for an MEB as a result of left hip replacement surgery failure. b. He explained that he "woke up with left hip pain" (on an unspecified date, presumably in December 2005) while in Iraq as part of an Advance Party. c. He underwent a total left hip replacement procedure on 4 May 2010. It was determined the process of the hip replacement resulted in a calcar fracture of the residual femoral neck. d. The evidence of record provides information that identifies the responsible medical officials and the reasons for the applicant's referral to an MEB. 4. On 4 May 2011, an MEB convened at Heidelberg Health Center, Germany. The MEB found the applicant's conditions of left total hip arthroplasty with associated calcar fracture (fails functional recovery) and right hip osteoarthritis (pain/limitation) medically unacceptable: a. The MEB recommended referral to a PEB and the findings and recommendation of the MEB were approved. b. The applicant was informed of the findings and recommendation of the MEB and he agreed with the board's findings and recommendation. 5. On 11 August 2011, a PEB found the applicant medically unfit due to hip replacement (left) and thigh limitation of motion (of right hip). He received a total combined disability rating of 60% and was permanently retired. a. The PEB found: * The applicant's disposition (retirement) was not based on disability from an injury or disease received in LD as a direct result of armed conflict or caused by an instrumentality of war and incurring in LD during a period of war as defined by law * The disability did not result from a combat-related injury as defined in 26 USC, section 104 b. The PEBLO explained the findings and recommendations of the PEB to and the results of the findings and recommendations to the applicant. c. The applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case. d. The applicant's PEB was approved on 6 September 2011. 6. The evidence of record shows: a. an armed conflict is defined as any activity in which American military personnel are engaged with a hostile or belligerent nation, faction, or force; b. a combat-related injury is defined as a personal injury or sickness that a Soldier incurs as a direct result of armed conflict; and c. The available evidence does not show his medical conditions were incurred as a direct result of armed conflict. 7. The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the disability evaluation system process. a. the available evidence does not show the Army misapplied either the medical factors involved or the governing statutory/regulatory guidance concerning his disability processing; b. the ARBA senior medical advisor found no medical record from 2005 through 2011 of any behavioral/mental health encounters or diagnoses and no PTSD diagnosis; c. the applicant's PEB proceedings are considered proper and equitable; and d. the evidence of record does not support the applicant's contention that the physical disability condition was due to a combat-related injury that was a direct result of armed conflict. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004215 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2