IN THE CASE OF: BOARD DATE: 18 January 2018 DOCKET NUMBER: AR20160004636 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 January 2018 DOCKET NUMBER: AR20160004636 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from Disability 1 of his DA Form 199 the entry “Onset occurred in 2013 while Soldier was stationed in CONUS.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to modifying the onset statement in Disability 1 of his DA Form 199. ___________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: 18 January 2018 DOCKET NUMBER: AR20160004636 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 DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings by showing the onset of disability 1 occurred in 2013 while he was stationed in Afghanistan. 2. The applicant states he served in Afghanistan in support of Operation Enduring Freedom (OEF). His DA Form 199 states his cervical spine fusion at C3-C4 and C5-C6, cervical spine osteoarthritis onset occurred while he was stationed in the Continental United States (CONUS). He contends this is incorrect; the onset occurred when he was stationed outside of (OCONUS). He argues that a Standard Form (SF) 600 (Chronological Record of Medical Care), 251st Army Support Medical Clinic (ASMC), Camp Phoenix, Kabul, Afghanistan, dated 12 August 2013, shows onset of cervical disc degeneration and foraminal stenosis of C5-C6. 3. The applicant provides: * Orders 066-603, State of Michigan, dated 7 March 2013 (2 pages) * SF Form 600, Kabul, Afghanistan, dated 12 August 2013 (3 pages) * DA Form 199, authenticated on 21 October 2015 (4 pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 February 2016 with a DD Form 214C (Continuation Sheet) CONSIDERATION OF EVIDENCE: 1. At the time of his application, the applicant was retired in the rank of staff sergeant, pay grade E-6, due to permanent (enhanced) disability. 2. Orders 066-603, State of Michigan, dated 7 March 2013, provided by the applicant, show he was ordered to active duty as a member of the Michigan Army National Guard (MIARNG). Mobilization was in support of OEF. His reporting date was 15 March 2013. 3. Records show the applicant arrived in Afghanistan on or about 29 April 2013. 4. An SF 600, dated 12 August 2013, shows the applicant was a patient at the 251st “ASMC,” Camp Phoenix. a. The reasons for his visit to the clinic were: * ringing in his ears * neck pain * pain in his right arm * periods of not breathing while asleep b. The applicant underwent imaging studies for his neck pain. A cervical spine series showed he suffered from degenerative joint disease and foraminal stenosis of C5-C6. He was treated as possible radiculopathy and would need advanced imaging upon his return to CONUS, as well as orthopedic/neuro-surgery consultation. He was released without limitations and told to return if his symptoms worsened or did not subside. 5. Records show on or about 26 January 2014, the applicant returned to CONUS. 6. A DA Form 199, provided by the applicant, shows an informal PEB convened on 21 October 2015 and he was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). His case was adjudicated as part of the Integrated Disability Evaluation System (IDES). He was assigned: a. VASRD code 5242-5241 for cervical spine fusion C3-C4 and C5-C6 status post herniation, cervical spine osteoarthritis. Onset occurred in 2013 while he was stationed in CONUS. The examiner attributed the condition to insidious onset. This disability was rated as 30 percent disabling. b. VASRD code 5242-5243 for lumbar spine degenerative disc disease. Onset occurred in 1996 while he was stationed in CONUS. The examiner attributed the condition to a motor vehicle accident while on active duty which had since become chronic. This disability was rated at 20 percent disabling. c. The two VASRD ratings discussed above were combined in accordance with the VASRD resulting in a combined rating of 40 percent. d. On 21 October 2015, the DA Form 199 was signed by the authentication officer. e. The DA Form 199 indicates on 2 November 2015, the applicant concurred with the PEB informal findings and recommendation. He waived a formal hearing. 7. On 3 February 2016, the applicant was retired due to a permanent physical disability. 8. In the processing of this case, an advisory opinion was obtained from the Agency Medical Advisor, U.S. Army Physical Disability Agency (USAPDA), wherein it stated: a. A review of the applicant’s DA Form 199 revealed the subject statement indicate the onset of his neck condition occurred in 2013 while he was stationed in CONUS. b. The opinion stated the applicant’s medical file included a progress note, dated 12 August 2013, from Camp Phoenix Troop Medical Clinic, which indicated he had presented with multiple complaints that were chronic in nature. One of his symptoms was right neck pain. X-rays revealed degenerative joint disease and foraminal stenosis of C5-C6. After returning to CONUS, he had a cervical spine fusion for this condition. The condition existed prior to 12 August 2013, but had become a chronic condition by the time he was examined. c. There is no indication that his chronic neck pain was combat related or due to an instrumentality of war. The applicant has been permanently retired so benefits were not an issue in this case. The applicant was on active duty for more than 8 years and was on active duty at the time he went through the IDES. Therefore, there is no issue regarding whether this condition was compensable, which is a reason for including an onset statement. d. Based on the above comments, the advisory recommended omitting the onset statement from the applicant’s DA Form 199. 9. On 9 June 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: Department of Defense Instruction 1332.18 (Disability Evaluation System) provides the following in Appendix 5 and Appendix 6: a. Appendix 5: Disability evaluation includes a determination and supporting documentation on whether the Service member’s disability compensation is excluded from federal gross income. For combat-related, the standard covers injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A disability is considered combat-related if it makes the service member unfit or contributes to unfitness and the preponderance of evidence shows it was incurred under any of the following circumstances. (1) As a direct result of armed conflict. (2) While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. (3) Under conditions simulating war. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. (4) Caused by an instrumentality of war. Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. b. Appendix 6 to Enclosure 3, paragraph 5.c(2)(c) states the Secretary of the Military Department concerned will credit members separated from the military services for a disability incurred in the line of duty in a designated combat zone tax exclusion area or incurred during the performance of duty in combat-related operations consistent with the criteria discussed in Appendix 5 to this enclosure with a minimum of 6 years of service. DISCUSSION: 1. The applicant contends his DA Form 199 should be corrected by showing the onset of disability 1 occurred in 2013 while he was stationed in OCONUS in Afghanistan, rather than while he was in CONUS. 2. The applicant’s DA Form 199 includes the onset statement that he believes should be rewritten to show his condition's onset was after he arrived OCONUS rather than while he was still in CONUS. 3. The advisory opinion received from the USAPDA argues that the content of the onset statement is not in error. However, based on the applicant’s situation at the time and his current retired status due to a permanent physical disability, the statement is not necessary and should be removed entirely rather than modified in any way. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004636 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004636 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2