BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170000075 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: 28 November 2017 DOCKET NUMBER: AR20170000075 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: 28 November 2017 DOCKET NUMBER: AR20170000075 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 the medical conditions which resulted in his medical retirement were classified as combat related in accordance with Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216. 2. The applicant states: a.  He believes his multiple deployment/combat experiences caused the onset of the medical conditions that precipitated his mandatory medical retirement and thus satisfy the provisions outlined under the provisions of both Title 26, U.S. Code, section 104, and Title 10, U.S. Code, section 10216, as his four primary medical conditions are resultant of armed conflict, engagement in extra-hazardous service, and conditions simulating war. b.  He was never made aware of such a classification nor the implications of it. He did not take note until he received the 1-page Physical Disability Information report. It was his understanding that his condition and discharge were due to combat-related experiences and his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) also states the onset of his post-traumatic stress disorder (PTSD) occurred in 2013 while he was deployed to Afghanistan. c.  He consulted his PEB lawyer for guidance and he was advised that his PEB Liaison Officer (PEBLO) should have reviewed the classification of his disabilities and implications with him when the DA Form 199 identifying the proposed ratings was generated. However, this review never transpired and his PEBLO simply emailed him the document with instructions to review and sign it. His PEBLO fell short on many occasions which, among other things that have long-term implications, resulted in his not being paid for 5 months, losing 35 days of leave, and delaying his PEB packet for 3 months while the PEBLO was on leave. Perhaps he should have noted the classifications and asked follow-up questions, but he was bewildered by the medical evaluation board (MEB)/PEB process and he was not in the best mental/physical state given his condition and medications. d.  On his first deployment, he served as part of the initial Afghanistan assault force during the period October 2001 to May 2002. His command experienced several injured personnel during this deployment. He served as a decedent affairs officer and casualty/medical evacuation coordinator, which resulted in his exposure to many things he prefers not to recollect. e.  He served as part of the Iraq assault force on his second deployment during the period January 2003 to June 2003. His command experienced hostile fire and several dead/wounded, to include a young medic who he had been mentoring. The U.S. Navy/U.S. Marine Corps Combat Action Ribbon was awarded, which requires involvement "in a bona fide ground or surface combat fire-fight or action during which he/she was under enemy fire and his/her performance while under fire was satisfactory." f.  His last deployment was to Afghanistan during the period July 2013 to November 2013. In addition to the normal rigors of a deployment, his unit lost two Soldiers. g.  He submitted a request to the U.S. Army Physical Disability Agency (PDA) in December 2015 to have his referring medical conditions classified as combat related prior to his discharge; however, his request was not approved. Of all his conditions listed on his DA Form 199, the PDA's civilian lawyers only responded regarding one condition and opined that the "PTSD and panic disorder existed prior to joining the military." He disagrees with the PDA's opinion and states: (1)  before joining the military in 1990 and since, he has never exhibited any such symptomology or sought care for such conditions until late 2013; (2)  he would have been barred from enlisting had he exhibited any such symptomology prior to enlistment; (3)  he consulted with his referring psychiatrist and she expressed the opinion that his condition is indeed combat related; (4)  while his psychiatrist postulated that his alcoholic mother beating him while he was little might have made him more susceptible to PTSD following combat exposures later in life, she indicated the combat exposure is still the cause; (5)  he parted ways with his mother who died in 1999 when he was 8 years old and he never thought about her afterward; and (6)  he often reflects about those service members who were killed/ wounded under his watch and many others who he witnessed either being injured or deceased in the line of duty. h.  Besides the PTSD, his other medical conditions manifested either during combat field training exercises or while on deployments, thereby satisfying the provisions of Title 26, U.S. Code, section 104, and Title 10, U.S. Code, section 10216, as explained by his PEB counsel and Veterans Service Officer/ representative. i.  The PDA's civilian lawyers also denied his initial request, in part, as he had indicated he enjoyed deployments during one of his treatments. He would argue that enjoying being deployed does not mean that deployments do not result in the onset of unpleasant medical outcomes. As a case in point, he recently encountered seven former Soldiers who had been medically discharged for PTSD at a residential service dog course and all of them missed being deployed with their brethren-in-arms; such bonding and exploits are why most service members join and which makes the PDA civilian lawyers' position rather puerile and disconnected with the realities of military life. j.  He is not submitting his request simply for the benefits associated with having his medical conditions classified as combat related. Rather, he feels aggrieved that his beloved career was brought to a premature terminus primarily due to PTSD and was then told by the PDA lawyers that his condition was not actually related to military service despite evidence to the contrary. This belittles both his record of dedicated service and the hardships pressed upon his family while serving. Sadly, such an unjust position also plays into PTSD stigma, which effectively deters personnel such as himself from seeking care in the first place. 3. The applicant provides: * self-authored statement, dated 11 January 2016 * Officer Record Brief * Headquarters, 4th Infantry Division (Mechanized), Orders , dated 29 January 2003 * DA Form 199 * Physical Disability Information Report, dated 4 November 2015 * correspondence from Dr. (Captain) C____ W____, dated 9 December 2015, subject: Confirmation of Treatment * Joint Base Myer-Henderson Hall Orders , dated 14 December 2015 * DD Form 2808 (Report of Medical Examination), dated 5 October 2016 * DD Form 2807-1 (Report of Medical History), dated 5 October 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 1 April 2010 through 11 January 2016 * Department of Veterans Affairs letter, dated 13 November 2016 CONSIDERATION OF EVIDENCE: 1. Having prior honorable enlisted service in the Army National Guard, Air National Guard, and U.S. Navy Reserve, the applicant was appointed as a captain in the Army National Guard on 17 April 2009. 2. On 9 January 2011, he was honorably discharged from the Army National Guard and transferred to the U.S. Army Reserve. 3. On 20 September 2013, he deployed in a temporary change of station status to Afghanistan in support of Operation Enduring Freedom for a period not to exceed 104 days. 4. On 20 September 2013, he was issued North Atlantic Treaty Organization Travel Order WR-247-0002 that shows he was authorized travel to Afghanistan and his expected date of return was 1 January 2014. 5. North Atlantic Treaty Organization Training Mission-Afghanistan and Combined Security Transition Command-Afghanistan, memorandum, dated 13 October 2013, subject: Redeployment Authorization/Theater Letter of Release, shows the applicant and two other Soldiers were released from assignment and authorized redeployment to Fort Bliss, TX, on or after 15 November 2013 due to mission completion. 6. Joint Base Myer-Henderson Hall Orders 139-001, dated 19 May 2014, released him from active duty and assigned him to the U.S. Army Reserve transition point at Fort Myer-Henderson Hall effective 26 October 2014. 7. Joint Base Myer-Henderson Hall Orders 283-0006, dated 10 October 2014, revoked Orders 139-001, same headquarters, dated 19 May 2014. 8. His MEB proceedings are not available for review. 9. His DA Form 199, dated 15 July 2015, shows in: a.  Section II (Recommended Disposition), the Informal PEB found him physically unfit and recommended a rating of 70 percent and his placement on the Temporary Disability Retired List (TDRL); b.  Section III (Medical Conditions Determined to be Unfitting), his unfitting conditions and assigned disability ratings were listed as follows: * PTSD and panic disorder with onset occurring in 2013 while deployed to Afghanistan – 50 percent * migraine headaches (referred as migraine without aura) with onset occurring in 2003 while deployed to Iraq – 30 percent * cervical spondylosis without myelopathy/cervical spine strain with onset occurring in 1990 while stationed in the continental United States – 10 percent * lumbar spine strain (PEB referred as cervical spondylosis without myelopathy/cervical spine strain with onset occurring in 1990 while stationed in the continental United States – 0 percent c.  Section IV (Medical Conditions Determined Not to be Unfitting), the following medical conditions were found not to be unfitting; * sleep apnea * lumbar spine strain * right hip labral tear * vitreous floaters/mild right estropia/strabismus (eye misalignment) * mild left ulna neuropathy * erectile disorder * progressive lower urinary tract symptoms over time * incidental benign cyst hemangioma * chronic bilateral wrist tendonitis * bilateral chondromalacia patella (commonly known as runner's knee) * chronic left costochondritis (chest wall pain) * actinic keratoses with actinic damage (pre-cancerous skin disease caused by long-term sun exposure) * dysplastic nevi (atypical mole) * laceration posterior scalp * subjective tinnitus d.  Section V (Administrative Determinations), his disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216; e.  Section VI (Instructions and Advisory Statements), he received a combined total disability rating of 70 percent; his case was adjudicated as part of the Integrated Disability Evaluation System; medical evidence indicated one or more of his conditions would probably change enough within the next 5 years to change his disability rating; f.  Section VIII (PEBLO/Soldier's Counsel Statement), his PEBLO acknowledged on 28 July 2015 that she informed him of the findings and recommendations of the PEB; g.  Section IX (Soldier's Election), he non-concurred with the findings and recommendation of the PEB on 28 July 2015, demanded a formal hearing, requested a personal appearance, requested regularly appointed counsel, and did not request reconsideration of his VA ratings. He provided a reconstructed copy of this section of his DA Form 199, which is not filed in his Official Military Personnel File, that shows he non-concurred with the findings and recommendations of the PEB, demanded a formal hearing, and requested reconsideration of his disability ratings by the VA. The signatures on both forms do not appear to be the same. 10. On 1 October 2015, the findings and recommendation of the Informal PEB were approved by the Secretary of the Army designee. 11. He provided a Physical Disability Information Report, dated 4 November 2015, that shows his disability was not the result of a combat-related injury and the entry "NA" is listed for disability resulted in a combat zone or incurred during the performance of duty in combat-related operations as designed by the Secretary of Defense (National Defense Authorization Act 2008, section 1646). 12. Joint Base Myer-Henderson Hall Orders , dated 24 November 2015, released him from assignment and duty because of physical disability and placed him on the TDRL effective 29 December 2015 with a 70-percent disability rating under the provisions of Title 10, U.S. Code, section 1202. His disability was not based on injury or disease received in the line of duty 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 as defined by law and his disability was not the result of a combat-related injury. 13. He provided correspondence from Dr. (Captain) C____ W____, U.S. Army Medical Command Psychiatrist, dated 9 December 2015, which shows he participated in outpatient treatment at the Adult Behavioral Health Clinic, Walter Reed National Military Medical Center from December 2013 through June 2015 for treatment of PTSD and associated anxiety disorder. She indicated he was identified to have symptoms of PTSD related to civilian trauma prior to military service which were exacerbated by combat exposure. In addition, he presented with symptoms consistent with combat-related PTSD as evidenced with the onset of symptoms and treatment following deployment in Afghanistan in 2013. 14. Joint Base Myer-Henderson Hall Orders , dated 14 December 2015, revoked Orders , same headquarters, dated 24 November 2015. 15. Joint Base Myer-Henderson Hall Orders , dated 14 December 2015, released him from assignment and duty because of physical disability and placed him on the TDRL effective 12 January 2016 with a 70-percent disability rating. His disability was not based on injury or disease received in the line of duty 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 as defined by law and his disability was not the result of a combat-related injury. He completed 25 years, 5 months, and 19 days of service for pay purposes and 12 years, 9 months, and 10 days of creditable service for retirement. 16. On 11 January 2016, he submitted a request for Combat Related Special Compensation (CRSC). 17. On 14 July 2016, he received CRSC approval for his 50-percent total combat-related disability rating due to PTSD with panic disorder. 18. He provided a copy of his DA Form 2808, dated 5 October 2016, which shows he was not qualified for service and he was advised of his disqualifying condition on 5 October 2016. His levels of functional capacity in the six factors (PULHES) as 333311 and his defects and diagnoses were listed as PTSD, panic disorder, migraines, cervical spondylosis, and fibromyalgia. His reviewing officer/approval authority recommended continued care with a Department of Defense medical treatment facility or the VA. 19. His DA Form 2807-1, dated 5 October 2015, shows he was diagnosed with PTSD and anxiety/panic disorder related to combat deployments in 2003 and 2014, assessed in 2014. 20. His DD Form 214 shows he retired due to temporary disability on 11 January 2016. 21. His VA Rating Decision, dated 3 March 2016, shows the decision was rendered in conjunction with his release from active duty and was effective 12 January 2016. 22. On 14 July 2016, his PTSD with panic disorder with a 50-percent service- connected disability rating was determined to be combat related for approval of a total combat-related disability rating of 50 percent for CRSC effective February 2016. 23. His VA Rating Decision, dated 14 September 2016, shows: a.  his PTSD with panic disorder (also claimed with anxiety disorder, memory loss, sleep disturbance and insomnia), which was rated 50-percent disabling, was increased to 70-percent disabling effective 7 September 2016; and b.  his service-connected disability for fibromyalgia was granted and he was assigned a 10-percent disability rating for this condition effective 12 January 2016. 24. On 12 November 2016, he provided updated documentation for reconsideration of his CRSC application. 25. On 13 November 2016, the VA notified the applicant that his combined service-connected disability percentage was increased to 100 percent. 26. On 13 January 2017, an Army Review Boards Agency Medical Advisor/ Psychologist provided an advisory opinion wherein he stated a review of the available documentation found evidence that the applicant's PTSD and panic disorder were combat related. He further stated: a.  The applicant did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his service. b.  His medical conditions were considered at the time of his discharge. c.  Despite the possible significance of a desire to obtain disability income before discharge from the Army, both Army and VA providers have held PTSD and panic disorder are related to combat, and the VA has recognized service-connected disability at 90 percent while the Army allowed a 50-percent disability claim for PTSD and panic disorder. 27. On 17 January 2017, a copy of the advisory opinion was provided to the applicant for review and an opportunity to provide a response or additional evidence. 28. On 19 January 2017, he provided a response wherein he stated: a.  He was placed on the TDRL on 11 January 2016 instead of 11 January 2011. b.  The VA changed his overall service-connected disability rating to 100 percent effective 14 September 2016. c.  Although he did not openly exhibit any combat-related health issues following his deployments from 2001 to 2002 and in 2003, the VA mental health provider he has been seeing since his discharge believes he repressed many experiences from those deployments and the medical issues surfaced following experiences/triggers in Afghanistan in 2013. 29. On 29 June 2017, his approved CRSC for his 50-percent service-connected disability rating for PTSD with panic disorder was increased to a 70-percent service-connected disability rating. Additionally, he was advised to keep the CRSC approval authority/office advised of any changes to his VA-awarded disabilities or new disabilities that could be combat related. 30. His records are void of any evidence showing he provided the CRSC approval authority/office with his 100-percent disability rating decision from the VA. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 2. Army Regulation 635-40 establishes the Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply 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. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. c.  Paragraph 4-19j, in effect at the time, stated the following must be considered in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war: (1)  The disability resulted from injury or disease received in the line of duty 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 or her 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; and (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 the line of duty during a period of war as defined by law. d.  Integrated Disability Evaluation System features: (1)  A single set of disability medical examinations that may assist the Disability Evaluation System in identifying conditions that may render the Soldier unfit. (2)  A single set of disability ratings provided by VA for use by both departments. The Disability Evaluation System applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. e.  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. f.  Recommendations of the Informal PEB are recorded on a DA Form 199. Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * concurrence with the findings and recommendations and waiver of a formal hearing * non-concurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for non-concurrence, and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded g.  Soldiers indicate their elections by placing a checkmark in item 9 (Soldier's Election) and by signing and dating the original and the medical treatment facility copies. 3. Title 26, U.S. Code, section 104, states 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. 4. Title 10, U.S. Code, section 10216, applies to dual-status military technicians. 5. CRSC is a form of concurrent receipt, which is paid monthly. It restores military retired pay that is offset when a military retiree accepts compensation from the VA for a disability or condition that can be attributed to a combat-related event as defined by the Department of Defense program guidance. This allows eligible retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat related. Claimants found ineligible for the preliminary criteria of CRSC or disapproved for combat-related injuries will be notified. Notification will include reasons for ineligibility or combat disapproval. In the case that a claimant does not agree with the determination, the claimant can submit a request to the U.S. Army CRSC Division for reconsideration of a decision. If the claimant does not agree with the reconsideration decision, an appeal may be submitted to the ABCMR. 6.  Concurrent Retirement and Disability Pay (CRDP) allows military retirees to receive both military retired pay and VA compensation. Eligibility requirements state an individual must be eligible for retired pay to qualify for CRDP. Qualified individuals are automatically enrolled. Retirees cannot receive both CRSC and CRDP. If an individual qualifies for both, the Defense Finance and Accounting Service will automatically apply the entitlement that is most beneficial to the member based on the gross amount of each entitlement. 7. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability. Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant contends the four medical conditions, which resulted in his medical retirement, should be classified as combat related in accordance with Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216. He also contends his PEBLO ineffectively counseled him. 2. On 15 July 2015, an Informal PEB processed through the Integrated Disability Evaluation System determined the onset of the applicant's migraine headaches occurred in 2003 while he was deployed to Iraq and the onset of his PTSD with panic disorder occurred in 2013 while he was deployed to Afghanistan. 3. Nevertheless, the PEB granted him a combined 70-percent disability rating and determined his disability was not based on injury or disease received in the line of duty 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 as defined by law and his disability was not the result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104. 4. On 12 January 2016, he was placed on the TDRL with a 70-percent service-connected disability rating under the provisions of Title 10, U.S. Code, section 1202, and his disability was not the result from a combat-related injury as defined by Title 26, U.S. Code, section 104. 5. On 14 July 2016, his PTSD with panic disorder with a 50-percent service- connected disability rating was determined to be combat related for approval of a total combat-related disability rating of 50 percent for CRSC effective February 2016. 6. On 13 January 2017, an Army Review Boards Agency Medical Advisor/ Psychologist provided an advisory opinion wherein he stated a review of the available documentation found evidence that the applicant's PTSD and panic disorder were combat related. Further, both Army and VA providers have held PTSD and panic disorder are related to combat and the VA has recognized service-connected disability at 90 percent while the Army allowed a 50-percent disability claim for PTSD and panic disorder. 7. On 29 June 2017, his PTSD with panic disorder previously rated at 50 percent for CRSC was changed to a 70-percent total combat-related disability rating effective October 2016. 8. The evidence of record shows the applicant was properly processed through the Integrated Disability Evaluation System and his rights were not violated. His diagnosis of PTSD with panic disorder has been properly identified as combat related and he was notified of his eligibility for CRSC retroactive to February 2016. 9. While the applicant contends all of his medical conditions resulting in his retirement are combat related, his available records are void of this evidence or evidence showing the VA has determined all of his conditions are combat related. Further, there is no evidence the applicant has provided his most recent VA Rating Decision to the CRSC approval authority/office. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000075 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000075 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2