IN THE CASE OF: BOARD DATE: 30 June 2021 DOCKET NUMBER: AR20160009152 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 June 2021 DOCKET NUMBER: AR20160009152 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, that his medical discharge be upgraded to a medical retirement. 2. He states, in effect, that: a. The Medical Evaluation Board (MEB) failed to consider all his combat related and service connected disabilities. b. While assigned to 1st Battalion, 321st Field Artillery Regiment, during Operation Iraq Freedom (OIF), he was directly exposed to multiple improvised explosive device (IED) explosions, small arms fire, and other combat-related situations during convoy security operations. He contends that after the explosion, he did not receive treatment until a year after the initial incident. He never received an x-ray or MRI to check out his lower back or identify other internal injuries. Immediately after being discharged from the military he was diagnosed with post-traumatic stress disorder (PTSD), tinnitus, a torn disc, and other service connected disabilities. Sometime after his discharge, he was diagnosed with traumatic brain injury (TBI). He currently has permanent damage to his lower lumbar, back pain, PTSD, TBI, and he struggles completing his everyday activities because he never received treatment. c. After being hit by the IED in May 2005, he was only treated for his external injuries and he did not receive any type of screening (X-ray, MRI, CT scan) to determine if he had any internal injuries. He received treatment almost two years later that consisted of a physical profile, an MRI on his lumbar spine, and Motrin. This is when he discovered his back was injured. d. His MEB did not include screening for PTSD, TBI, or any other possible symptoms that occur after a direct IED explosion. Since 2008, he has gone back and forth to the Department of Veterans Affairs (VA) and his primary care physician. He was diagnosed with PTSD, TBI, and a deteriorating lower back injury. e. If all of his medical conditions had been properly identified and evaluated, he would have received a higher disability rating and a medical retirement. f. He requests a personal appearance before the Board. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * Self-authored statement * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 15 January 2008 * DA Form 199 (Revised), dated 7 April 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 15 March 2008 * VA Rating Decision, dated 14 May 2008 * VA Rating Decision, dated 21 December 2015 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 4 (Enlistment/Reenlistment Document) * Enlisted Record Brief REFERENCES: 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. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. 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. b. This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. c. Appendix B provides guidance on the Army's application of the VASRD. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition. 2. AR 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. 3. 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. However, an award of any VA rating does not establish an error or injustice by the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 4. 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 rated at least 30-percent. Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30-percent. DISCUSSION: 1. While 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. He enlisted in the Regular Army on 10 December 2004 and served as a cannon crewmember. 3. He completed a deployment in Iraq from 27 October 2005 to 11 October 2006. He was awarded the Purple Heart and the Combat Action Badge for this period of service. 4. On 17 October 2007, the applicant's chronic low back pain was evaluated by a MEB. The MEB stated that his back pain was the result of being thrown about in his turret from an IED blast. He suffered loss of consciousness and severe lumbar pain. He was treated for minor skin burns to his face and chest and released with sharp lower back pain (8-9/10), which improved (5-6/10) over the next couple of months. His pain increased markedly with heavy lifting, greater than 20 pounds. He was diagnosed with: * Chronic low back pain, multilevel degenerative disc disease * Congenital thoracic scoliosis, not medically disqualifying * Hypercholesterolemia, not medically disqualifying * History of benign colon polyps, not medically disqualifying * Left high-frequency hearing loss, H1, not medically disqualifying 5. After receiving treatment that included physical therapy, pain clinic, chiropractics, medication, and rest, the applicant indicated that he had no desire to continue with further conservative treatment or continue his military career. The MEB found his chronic back pain to be the only condition that did not meet retention standards and referred his case to the PEB. He concurred with the findings and recommendation. 6. On 15 January 2008, an informal PEB evaluated his chronic lower back pain onset on 17 May 2006, the result of being thrown from the gunner turret while exposed to an IED blast in Iraq. The PEB assigned a combined disability rating of 10 percent under the VA Schedule for Rating Disabilities (VASRD). The PEB recommended separation with severance pay. He concurred with the findings and recommendation of the informal PEB and waived a formal hearing. 7. On 15 March 2008, he was discharged due to disability. 8. On 7 April 2008, his case was administratively corrected in accordance with changes to disability rating guidance in the 2008 National Defense Authorization Act. As a result, the PEB revised the applicant's disability rating from 10 percent to 20 percent. The recommendation for separation with severance pay remained the same. 9. On 14 May 2008, the VA granted the applicant a 70 percent disability rating for his PTSD with an effective date of 16 March 2008. His TBI with headaches was assigned a 10 percent disability rating, effective 2 July 2015. 10. The U.S. Army Review Boards Agency's clinical psychologist reviewed the applicant’s available medical and personnel records and concluded: a. There was no evidence that the applicant met criteria for PTSD at the time of his separation. Medical records, particularly his MEB and PEB, did not list any behavioral health conditions, and there was no indication the applicant had a behavioral health condition that did not meet medical retention standards, or that he was not able to effectively perform his assigned military duties due to a behavioral health condition. b. Although there is no particular medical note related to the assessment of PTSD symptoms, there is also no indication that he endorsed any behavioral health difficulties or addressed concerns within his medical and physical therapy appointments. This observation does not negate the applicant's deployment history, injuries incurred, or diagnosis and disability rating for PTSD from the VA. However, the VA conducts evaluations based on different standards and regulations. VA examinations can confirm diagnoses and determine if medical conditions occurred while on active duty. The VA does not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. c. There is no evidence that a post-service diagnosis of PTSD warrants a change of disposition to medical retirement. 11. The advisory opinion was forwarded to the applicant for acknowledgement and or rebuttal. He provided a self-authored statement affirming the PEB did not consider his mental condition nor TBI, and additional supporting documents as evidence available for the Board to review. , 12. The PEB evaluated five of the applicant's medical conditions and determined that his chronic back pain was unfitting and this condition received a 20-percent disability rating. 13. There was no evidence in his records indicating any additional conditions failed to meet retention standards and/or prevented him from performing his military duties while he was on active duty. A disability rating assigned by the Army is based solely on conditions found to be unfitting while the Soldier is on active duty. 14. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members require a disability rating of at least 30-percent. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009152 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2