IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20170001466 APPLICANT REQUESTS: His disability rating for post-traumatic stress disorder (PTSD) be increased to 100 percent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Documents * Letter from the Department of Veterans Affairs (VA) * Retiree Account Statement * DA Form 199-1 (Formal Physical Evaluation Board Proceedings) FACTS: 1. The applicant states, in part, any Solder released from service with PTSD should receive a 50 percent disability rating unless the law changed since 2008. The Integrated Disability Evaluation System (IDES) evaluation for PTSD was not conducted properly and the rating for his PTSD conducted in 2013, was unjust and failed to account for all of his symptoms. 2. A DA Form 199-1, dated 21 May 2014, shows a formal physical evaluation board (PEB) found the applicant unfit for duty due to the following conditions: * Post traumatic stress disorder, rated at 30 percent * cervical degenerative disc disease, rated at 20 percent * Morton’s neuroma, right foot associated with residuals of bunion-ectomy with mild degenerative osteoarthritic changes, rated at 10 percent * radiculopathy, right upper extremity, rated at 10 percent * residuals of bunion-ectomy with mild degenerative osteoarthritic changes, rates at10 percent 3. The PEB recommended he be permanently retired with a combined disability rating of 60 percent. 4. The DA Form 199-1 shows the applicant was a drilling member of the Army National Guard at the time of his PEB, and that his case was adjudicated as part of the IDES under the Policy and Procedure Directive-Type Memorandum (DTM) 11-015, dated 19 December 2011. It also states the applicant’s disability percentage was determined by the Department of Veterans Affairs. 5. On 28 May 2014, the applicant acknowledged he had been advised of the findings and recommendations of the PEB and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. The applicant concurred with the findings and recommendation. 6. Order D 162-12, dated 11 June 2014, shows the applicant was placed on the retired list effective 16 July 2014, due to permanent disability. He was given a 60 percent disability rating. 7. On 23 January 2020, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, part, the applicant was evaluated by VA and given a rating of 30 percent for PTSD based on his functioning at the time of the evaluation. At the time of the evaluation he was employed full time in a federal job and had multiple best qualified Officer Evaluation Reports from 2010-2014. VA increased his disability rating effective 2 years after his retirement indicating his symptoms had worsened subsequent to his retirement. The role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to VA and not a function or role of the Department of Defense. An increase in his PEB rating of 30 percent PTSD is not recommended. The complete advisory is available for the Board's review and consideration. 8. On 3 February 2020, in response the advisory opinion, the applicant stated, in part, he was enlisted in the active army from 86-90, then finished his contact with the active reserves and then transitioned into the Army National Guard (ARNG) until he was separated in 2014 after 28 years of combined service. His civilian position was immediately terminated once he was separated from the ARNG. The Officer Evaluation Reports from the ARNG provide insight for 10-12 days of direct contact over a year. If the Board really wants to know the direct impact of PTSD please schedule a private meeting with his spouse, children, and community member. He is just trying to ascertain if there is a minimum rating for PTSD is 50 percent if a Soldier is permanently separated medically with PTSD. If this board is not the right agent to answer this question, please reply with the correct agent. Also, if there is no minimum rating from the DOD regarding PTSD please reply. The applicant's complete rebuttal is available for the Board's review and consideration. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 office, grade, rank, or rating. 10. DTM 11-015 – Integrated Disability Evaluation, dated 19 December 2011, establishes policy, assigns responsibilities, and prescribes procedures for the IDES, which superseded the legacy Disability Evaluation System (DES). It provides that service members whose cases were initiated under the legacy DES process will not enter the IDES. 11. 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 a higher VA rating does not establish an error or injustice in the Army rating. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 3. In accordance with Title 38, Code of Federal Regulations, Book C, Schedule for Rating Disabilities, Section 4.129 states when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service (emphasis added), the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted. The applicant’s PTSD was not the sole reason for his disability separation nor was it severe enough at that time to be the sole reason for the applicant’s release from active duty. The PTSD at the time of separation was just one of 5 rated disabilities that collectively made the applicant unfit for continued service. The VA correctly determined at the time of separation that the applicant’s PTSD was rated at 30 percent in accordance with Title 38, Code of Federal Regulations, Book C, Schedule for Rating Disabilities, Section 4.130, 30 percent for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 4. After reviewing the application and all supporting documents, and finding no error or injustice in the applicant’s disability ratings at the time of separation, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 office, grade, rank, or rating. a. MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. If an MEB determines a Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. A Soldier may provide additional information to the medical treatment facility (MTF) commander to forward to the PEB. The information may be from the unit commander, supervisor, or other persons who have knowledge regarding the effect the condition has on the Soldier’s ability to perform the duties of the office, grade, rank, or rating. b. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation. The PEB may return a case to the MTF commander for additional information. However, efforts should be made to resolve all issues without returning the case. c. Based on its findings the PEB makes recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. d. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. For an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. 2. DTM 11-015 – Integrated Disability Evaluation, dated 19 December 2011, establishes policy, assigns responsibilities, and prescribes procedures for the IDES, which is superseding the legacy DES. It specifies all newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. Under the IDES the PEB applies the VA provided ratings to the service member’s unfitting conditions. 3. Title 38, Code of Federal Regulations, Book C, Schedule for Rating Disabilities, provides the detailed requirements for assigning disability ratings to conditions for military disability and regulating the amount of compensation received for each disability. a. Section 4.1 states the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. b. Section 4.129 states when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service (emphasis added), the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted. c. Section 4.130 sets forth the schedule for the general rating formula for mental disorders (including PTSD) as follows: * 100 percent: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name * 70 percent: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships * 50 percent: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long- term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships * 30 percent: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) * 10 percent: occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication * 0 percent: a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 4. 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 a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001466 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1