ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20160013650 APPLICANT REQUESTS: Correction of his Physical Evaluation Board (PEB) Proceedings to show he sustained combat-related injuries; specifically, to show his diagnosis of post-traumatic stress disorder (PTSD) retroactive to the date of his placement on the Temporary Disability Retirement List (TDRL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TDRL Summary, dated 10 September 2015 * TDRL Psychiatric Medical Evaluation Board addendum, dated 7 October 2015 * DA Form 199 (Informal PEB Evaluation), dated 28 October 2015 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Following prior service in the U.S. Air Force, the applicant enlisted in the Regular Army on 23 May 2006. 3. The applicant underwent a medical evaluation board (MEB) in 2010. The MEB found 13 medical conditions that it referred to the PEB: * right shoulder arthropathy * migraine headaches * low back pain * cervical spinal fusion with persistent neck pain * PTSD * alcohol dependency * right shoulder condition * right knee sprain * left knee sprain * L5/S1 radicular symptoms with sensory deficits and possible urinary incontinence * status post Boxer's Fracture right hand * tinea versicolor of the neck * Gastroesophageal reflux disease 4. An informal PEB convened on 25 August 2010, determined that four of the conditions found by the MEB were unfitting, and evaluated them as: * PTSD (50 percent (%)) * migraine headaches (30%) * cervical spinal fusion with persistent neck pain (20%) * right shoulder arthropathy (20%) 5. The PEB also noted that: * in accordance with Department of Defense Instruction (DoDI) 1332.38 (Physical Disability Evaluation), the MEB diagnosis number 6 (alcohol dependence) did not constitute a physical disability * there were no records of any injuries due to rocket attacks and despite the psychiatric narrative summary, his records show he injured his shoulder lifting weights * the board recommended: * at item 10a, the soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law * at item 10c, the disability did not result from a combat related injury as defined in 26 U.S.C. 104 * he was being placed on the TDRL because his condition was not sufficiently stable for final adjudication * this was not a permanent rating or retirement and the disposition of his disability rating and retirement status could change while on TDRL based upon the results of his periodic TDRL evaluation(s), he might be found fit for duty, permanently retired, or separated from the service with severance pay 6. The applicant concurred with the PEB findings and waived his right to a formal PEB. 7. The applicant was retired and placed on the TDRL effective 14 February 2011. 8. The applicant applied to the U.S. Army Human Resources Command for award of Combat Related Special Compensation (CRSC). He was denied on the following dates for the specified reasons: a. On 25 February 2011, his claim could not be processed due to the fact that the records showed he did not have a Department of Veterans Affairs (VA) waiver. In order to submit an eligible claim for CRSC, Department of Defense (DoD) guidelines required that: * he be in receipt of military retired pay * he have 10% or greater VA rated injury * military retired pay is reduced by VA disability payments (VA waiver) b. On 4 April 2011, documentation provided (for his four unfitting conditions) did not show a relationship between an injury and a combat event. They were required by law and DoD guidance to investigate "how" the injuries took place by verifying medical and or personnel records. CRSC program guidance required this stringent standard. c. On 2 May 2011: (1) He requested consideration for PTSD, migraine headaches, cervical spinal fusion with persistent neck pain, and right shoulder arthropathy. It was requested that he provide evidence how these conditions occurred. His VA rating decision is inconclusive on how these conditions originated. Being in a combat zone was not, in and of itself, sufficient to award CRSC. The disability or injury must be linked to a combat-related event. Evidence can be a Line of Duty Investigation (LOD), PEB Proceedings, MEB Proceedings, a VA Rating Decision(s), and/or other Military Medical Records that show how the disabilities/conditions were combat-related, as defined by CRSC program guidance. (2) He could not receive both Concurrent Retirement and Disability Pay (CRDP) and CRSC payments, per Public Laws 107-314 and 108-136. If CRSC was more beneficial than CRDP, DFAS would make the election for him. CRSC payments would be made in the same manner as his retired pay. d. On 8 June 2011, after reviewing all documentation in support of his claim, they were unable to overturn the previous adjudication(s). The documentation he submitted still did not meet the criteria for CRSC under current program guidance. If he choose to appeal the decision, he must submit his Notice of Disagreement (NOD) to the Army Review Boards Agency (ARBA). e. On 30 January 2012, he was notified that they had received his application for reconsideration. Records in their database indicated he had received a final CRSC determination letter dated 8 June 2011. That decision was final and CRSC would not process his reconsideration request. 9. The VA granted the applicant service connection for 13 conditions and denied benefits for 5 additional conditions. 10. The follow-up PEB evaluation on 28 October 2015 found the applicant physically unfit for duty and recommended a rating of 90%, and that his disposition be permanent disability retirement, noting at: * at item 10a - The disability disposition is based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303) * at item 10c - The disability did result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216 11. The PEB does not indicate which condition(s) were determined to meet the criteria for combat-related status for the 10a and 10c entries. 12. The applicant concurred with the determination and waived a formal hearing. 13. The applicant again applied to HRC for CRSC. On 24 June 2016, HRC stated they are unable to overturn the previous adjudication(s). Documentation he submitted did not meet the criteria for CRSC under program guidance. 14. An advisory opinion was obtained from the Physical Disability Agency. It stated: a. The DA Form 199, dated 19 August 2010, indicated “10 A/C is not awarded. There are no records of any injuries due to rocket attacks and despite the psychiatric NARSUM, his records reflect that he injured his shoulder lifting weights.” b. On 28 October 2015, the PEB concluded its TDRL review of the applicant and recommended a Permanent Disability Retirement (PDR) disposition with a 90% rating. In addition, the PEB granted V1/V3 (Administrative Determinations) combat codes without explanation which were not previously indicated on the DA Form199 placing him on TDRL. c. While insufficient facts exist to corroborate beyond the applicant’s proffered testimony, there is no disproving evidence to suggest an alternative conclusion. As a result, the more-likely than not preponderant evidentiary standard has been met. d. It is their opinion, the applicant’s request is accurate; PTSD is a combat- related injury and the combat related benefits granted on the PDR DA Form 199 should be retroactive to the DA Form 199, initially placing him on the TDRL. As a result, they found the applicant's request to be legally sufficient. 15. A copy of the advisory opinion was forwarded to the applicant with no response. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The applicant served in the combat theater. He was placed on the TDRL and subsequently the PDRL with PTSD determined to be one of his unfitting conditions. However, his PTSD was not considered a combat related injury. The medical advisory official concluded his PTSD was combat related and recommended approval of his request. Based upon the preponderance of evidence, the Board agreed his diagnosis of PTSD was combat related, and that his initial PEB findings should have reflected that determination. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X X: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 199, dated 25 August 2010 to show his PTSD was determined to be a combat related injury. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it was not for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) or a Title 10 USC Chapter 61 medically retiree, who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10 percent disabling. Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree. 3. For retroactive payment DFAS will audit the service member's account to determine whether or not they are due retroactive payment. An audit of their account requires researching pay information from both DFAS and VA. If they are due any money from DFAS, they will receive it within 30-60 days of receipt of their first CRSC monthly payment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013650 5 1