ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160017725 APPLICANT REQUESTS: His disability ratings be reviewed and increased. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Department of Veterans Affairs (DVA) Decision Review Officer Decision * DVA Letter increasing Posttraumatic Stress Disorder (PTSD) rating * DVA Medication Reconciliation Summary 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. The applicant states the Army did not rate or erred in rating his PTSD. He also states his amended ratings for his joints should be 30 percent (%) or more due to the condition and motion of his knees, ankles, elbows, etc. He believes his ratings should be 30% for his musculoskeletal conditions, and 40-100% for his PTSD. 3. The applicant provides: a. DVA Decision Review Officer Decision, dated 30 June 2008, which shows the applicant became eligible on 4 November 2006 for dependent education assistance based on his 100% evaluation for his unemployability due to his inability to perform sedentary or active employment stemming from his service connected PTSD, along with the knee and back disabilities. b. DVA letter, page 2, undated, which shows the DVA increased his PTSD rating from 50% to 100% effective from 10 July 2012. a. c. DVA Medication Reconciliation Summary, dated 12 August 2016, which shows his active medications current as of that date. 4. A review of the applicant’s service record shows: a. He enlisted in the US Army Reserve (USAR) for 8 years on 12 December 1996. b. A DD Form 214 shows he entered active duty for training (ADT) on 25 February 1997 and he was released from ADT on 5 June 1997 with service of 3 months and 11 days for training as an 11B Infantryman. c. Orders C-01-200300, published by U. S. Army Reserve Personnel Command on 4 January 2002 shows he was voluntarily transferred from USAR Control Group (Annual Training)) to the 100th Infantry Battalion in Honolulu, HI effective on 4 January 2002. d. On 16 August 2004, he entered active duty, and on 15 February 2005, he reenlisted in the USAR while deployed and involuntarily retained under Headquarters Department of the Army (HQDA) Stop Loss Policy. e. Orders A-10-520491, published by the U. S. Army Human Resources Command on 3 October 2005 show he was retained on active duty for reserve component medical care and treatment. f. On 14 June 2006, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended for a referral to a physical evaluation board (PEB) Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Osteoarthritis of knees X 2. Osteoarthritis of ankles X 3. Gouty arthritis X 4. Headaches X 5. Low back pain X 6. Neck pain X 7. Depression X 8. Erectile dysfunction X 9. Hearing loss X g. On 27 June 2006, after having been counseled, the applicant indicated he reviewed the contents of the MEB, agreed with the findings and recommendations, and acknowledged: a. * he reviewed the contents of the MEB, physical profile, and narrative summary (NARSUM); he understood the PEB would only consider the conditions listed on the DA Form 3947 * the DA Form 3947 included all his conditions and whether or not they met retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time h. On 9 August 2006, an informal PEB convened to determine the applicant’s fitness for retention in the Army. * the PEB found him physically unfit for his gouty and degenerative arthritis of his ankles, knees and elbows with an acute flare following his August 2005 mobilization * the PEB found him not eligible for disability compensation as the conditions were neither service incurred or permanently aggravated by military service, and recommended he be separated without benefits * he did not concur with the PEB findings or recommendation on 18 August 2006, and demanded a formal PEB with his personal appearance and representation by regularly appointed PEB counsel i. On 7 September 2006, along with his assigned PEB counsel, he appeared before the formal PEB, and after testimony and deliberation the formal PEB found him unfit for his bilateral knee and ankle pains with radiographic evidence of degenerative joint disease in all joints, recommended a disability rating of 10% and a disposition of separation with severance pay. * he concurred with the formal PEB findings on 18 September 2006 * on 29 September 2006, a Physical Disability Information Report (PDIR) was generated reflecting his 10 percent disability rating j. Orders 276-0006, published by U. S. Army Garrison-Hawaii on 3 October 2006 reassigned him to the transition point for processing for discharge with a 10% disability. k. His DD Form 214, dated 3 November 2006, shows he was honorably discharged for completing his full term with disability severance pay, and service in Iraq from 16 August 2004 to 24 August 2005. l.. On 18 June 2009, a Memorandum For Record was signed by the commander of the 100th Battalion, 442nd Infantry Regiment awarding him and other members of the command, the Iraq Campaign Medal with 2 bronze service stars for duty performed from 20 February 2005 through 11 January 2006. 5. A review of the applicant’s Physical Disability Board of Review (PDBR) shows: a. On 19 May 2012, he submitted a DD Form 294 (Application for a Review by The Physical Disability Board of Review of the Rating Awarded Accompanying a medical Separation from the Armed Forces of the United States). b. He stated he was severely injured/illness during the time of his rating, but an unfair rating was issued as he was on crutches at the time, and as of the date of this application he was on crutches when worse, and on a cane every day. He also stated he was a P3 for his hearing but not rated, and his PTSD was not rated. c. On 21 February 2013, the PDBR conducted an officially constituted Board to review the applicant’s file. The PDBR Record of Proceedings (ROP) shows: * the PDBR recommended the bilateral knees and ankles be unbundled for rating purposes with a recommended separate disability rating of 10% for the left knee condition, and a separate disability rating for the right ankle * the PDBR determined the right knee and left ankle conditions were not separately unfitting and no disability rating could be recommended * in the matter of the gout, hearing loss, and PTSD (depression) conditions, the PDBR recommended no change to the PEB determinations as not unfitting * the PDBR recommended the applicant’s prior determinations by the PEB be modified to reflect a combined disability rating of 20%, effective as of the date of his prior medical separation and without re-characterization * the PDBR submitted an undated memorandum for the Army Review Boards Agency (ARBA), indicating the PDBR findings in the case 6. A review of the Army Review Boards Agency (ARBA) documents review show: * on 28 March 2013, ARBA notified the applicant that his PDBR review recommended a modification to his disability rating, and that ARBA had reviewed and accepted the recommended modification. * he was informed that a copy of the decision would be filed with his PEB records, and with the DVA. * he was informed the decision is final, and recourse within the Department of Defense (DoD) or the Department of the Army (DA) was exhausted * he was informed of his option to seek relief by filing suit in a court of appropriate jurisdiction. * ARBA notified the US Army Physical Disability Agency USAPDA) of the accepted Board recommendation to modify the disability rating to 20% without a recharacterization in separation. * 7. A review of the USAPDA documents show: * Orders 106-0033, published by U. S. Army Garrison-Hawaii on 16 April 2013, shows his 10% disability rating had been amended to 20% * On 26 April 2013, the USAPDA notified the applicant his separation order had been amended, modifying his disability rating to 20% without a recharacterization to the separation, and that his severance pay amount would not be affected because it is not based on rating. 8. On 17 January 2017, the ARBA medical advisor rendered an advisory opinion in the processing of this case. He opined: a. The applicant’s medical records do, at the time of discharge, reasonably support him having a boardable medical condition for that period, and that he did not meet retention standards in Army Regulation (AR) 40-501 and AR 635-40 that were applicable to his era of service. b. Based on available behavioral health evidence, he had been having mental health difficulties since at least 2005, with PTSD diagnosed after his deployment, and he also had treatment for depression. It was impossible to tell, from the record, the degree of functional impairment from the mental health condition, but certainly appears to be higher than zero. c. His conditions were duly considered at time of his discharge. d. Review of available documentation did find evidence in records of a judgement that his PTSD, anxiety and depression are combat related. e. The Army has neither the role nor the authority to compensate for progressive or complications of service-connected conditions after separation. That role and authority is granted by Congress to the VA, operating under a different set of laws. 9. On 23 January 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the applicant having his records reviewed twice already with no significant new evidence since the last evaluation, as well as the medical advisory stating that the applicant’s conditions were duly considered at time of his discharge, the Board concluded that there was no error or injustice which would warrant having the applicant’s record reviewed again for an increased disability rating. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 6/4/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of- disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 3. DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) the scope of the PDBR, review is limited to those conditions which were determined by the PEB to be unfitting for continued military service; or, when requested by the applicant, those conditions 1. “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions are reviewed in all cases.