IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20170004318 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: 31 May 2018 DOCKET NUMBER: AR20170004318 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, in effect, reconsideration of his previous request to be retired by reason of physical disability or medically separated. 2. The applicant contends he should receive a retroactive review of his medical records, resulting in a finding of unfit. He states his body was riddled with shrapnel; however, during the demobilization process his medical condition was overlooked. He has shrapnel in the ventricular wall of his heart. It would have been detected if had received a thorough medical examination during the demobilization process. He also believes his traumatic brain injury (TBI) would have been discovered, and the TBI would have resulted in a finding of unfit. A Medical Evaluation Board (MEB) would have commenced. a. The culture of the United States Army Reserve (USAR) in the early days of the War was to quickly demobilize Soldiers without the careful screening that active duty Soldiers received. He previously filed with the Board requesting to be medically retired and the Board determined there was no authority to grant him relief, because he was not found to be unfit. b. He was injured in Iraq, which resulted in countless pieces of shrapnel throughout his leg. When he returned from his deployment, he continued to serve in his unit despite his injuries. It was not until 9 January 2009 that a piece of shrapnel was found in his heart. His medical record states he has a 4-millimeter metallic density, consistent with a shrapnel fragment, overlying the left anterior wall myocardium. c. Dr. ARB, a radiologist, stated that there were a large number of shrapnel fragments in the soft tissues of his right lateral leg extending to the superior image aspect of the right side. Dr. ARB further stated an inferior image of the right upper leg suggested that there were more shrapnel fragments outside the region of the present images embedded within the muscles. Dr. ARB believed there was ample evidence to suggest the applicant had shrapnel in other areas of his body. 3. The applicant and his counsel provide: * a letter of legal representation * Department of Veterans Affairs (VA) medical records, and other medical documentation * memorandum from MAJ LHD * witness statements of the events that caused the applicant’s injuries * email thread of witness statements * letters of recommendation in support of the applicant * copies of photographs (that appear to be of the applicant’s injuries) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120004201 on 4 September 2012. 2. The applicant and counsel reiterate argument presented in the previous case, and provide new medical documents, photos, letter of recommendations, and statements. This new evidence warrants reconsideration by the Board. 3. After having previous enlisted service, in the Army National Guard (ARNG) the applicant, the applicant enlisted in the Missouri ARNG (MOARNG) on 31 July 2001. He held military occupational specialties (MOS) 13B (Cannon Crewmember) and 91B (Medical Specialist). 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 15 March 2003, he deployed to Kuwait and Iraq from 7 June 2003 to 10 July 2004, and was awarded the Purple Heart. A subsequently issued DD Form 215 (Correction of DD Form 214 shows he was awarded the Combat Action Badge. 5. On 30 July 2007, the applicant’s NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the MOARNG at his expiration term of service (ETS). 6. The Army Review Boards Agency Medical Advisor provided an advisory opinion for this case on 12 December 2017. The medical advisor reviewed the following records iPERMS (Interactive Personnel Electronic Records Management System) records, the evidence provided by the applicant, the applicant's electronic medical record (AHLTA), VA (Veteran's Administration) records through the JLV (Joint Legacy Viewer) including VA rating decisions, and Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), board dated 4 Sep 2012, docket number: AR20120004201. The medical advisor notes: a. A review of AHLTA revealed no clinical encounters after 2003. There were no clinical notes and no radiology reports. The Laboratory results were reviewed from July and October 2004. There were no prescription reports. b. The applicant's Post-Deployment Health Assessment dated 6 July 2004, notes the applicant was injured in mortar attack on 16 May 2004. The applicant reported his current symptoms as none (0 of 21 questions). He indicated that he did not have any symptoms of depression (0 of 3 questions), but reported positive responses for post-traumatic stress disorder (PTSD) (3 of 4 questions). A review with a medical provider notes the applicant had shrapnel in both legs after a mortar attack, and that he may have some mental sequealae. The applicant did not have a profile. The applicant noted that, during his deployment, he did not, nor did he intend to seek, counseling or care for mental health. He was referred to "PCM" for loud noises. c. On 17 August 2004, he has a bilateral knee x-ray series, which revealed no fracture dislocation. The series revealed tiny metallic foreign bodies are seen in the soft tissues of both thighs and calves, consistent with the history of prior shrapnel injury. d. On 14 September 2004, he had a CT scan of the left knee without contrast, which notes s metallic fragment embedded in the center of the tendon overlying the tibia tubercle (several small bone islands are present in the distal femur; but there is no evidence of bone injury). e. On 30 September 2004, he received a bilateral ankle x-ray series which notes shrapnel injury bilaterally within the soft tissue including the musculature of the ankles (no degenerative changes of the ankles). (1) A bilateral tibia/fibula series of the right leg shows minimal spurring tibial spines; left leg, minimal patellofemoral spurring, and innumerable pieces of small shrapnel throughout the leg. (2) A bilateral knee x-ray series shows a large number of shrapnel fragments surrounding the knees bilaterally suggesting a shrapnel-burst of the right side of the patient, based on the distribution. Nearly all of these [fragments] are in the muscles. The largest [fragment] measures 6 mm and the smallest <1 mm. The series reveals mild osteoarthritis in the medial compartments of the knee joints bilaterally. f. A VA Rating Decision, dated 22 February 2005 shows the applicant was rated for the following conditions: * residual sural nerve injury, right leg status post shrapnel wounds (also claimed as shrapnel wounds right leg, nerve damage right leg, and ankle damage right leg), rated at 20% * residual saphenous nerve injury left leg status post shrapnel wounds (also claimed as shrapnel wounds left leg, nerve damage left leg and ankle damage left leg), rated at 20% * degenerative joint disease right knee status post shrapnel wounds, rated at 10% * degenerative joint disease left knee status post shrapnel wounds, rated at 10% * residuals status post shrapnel wounds right ankle, rated at 10% * residuals status post shrapnel wounds left ankle, rated at 10% * residual scars status post shrapnel wounds right leg, rated at 0% * residual scares status post shrapnel wounds left leg at 0% g. The ARBA Medical advisor notes that VA records did not contain any claims or VA evaluations for TBI, PTSD or shrapnel in the chest in 2004-2005. The Medical advisor also notes the applicant served for an additional 2.5 years in the ARNG after injury, demobilization, the VA evaluation and rating prior to his ETS separation. h. The applicant’s medical records show on: * 9 January 2009, a chest x-ray series, with no acute pulmonary disease; 4 mm shrapnel fragment which appears to be within the myocardium of the anterior wall of the left ventricle * 9 January 2009, a lumbar spine x-ray series for increased pain, with a normal lumbar spine * 14 January 2009, a computer tomography (CT) scan thorax without and with contrast for abnormal chest x-ray, no report found g. On 2 February 2009, the applicant received a Cardiothoracic Surgery Consult for shrapnel in heart. With a HPI (history of present illness) that shows a foreign body was found on x-ray at the beginning of January. Subsequent CT scan demonstrated 5 mm metallic foreign body in the anterior apex of the heart (without extension into a chamber). The assessment showed a 33 year old with shrapnel in the myocardium of the anterior heart. Likely from migration of shrapnel received to his lower extremities. The foreign body appears to be outside of the chambers of the heart and away from the coronary vessels and does not appear to require any surgical intervention at this time. Recommend serial CT scan to monitor for further migration/shift. h. A limited review of VA (Veteran's Administration) records through the JLV (Joint Legacy Viewer) with 13 VA listed diagnoses including PTSD, concussion, dermatitis, tinea, sensorineural hearing loss, joint pain, hyperlipidemia, hypothyroidism and others. The applicant is currently VA service-connected at 100 percent overall (PTSD rated at 70 percent; traumatic brain disease rated at 40 percent; migraine headaches rated at 30 percent; paralysis of internal popliteal nerve times 2 rated at 20 percent times 2; leg muscle injury rated at 10 percent; tinnitus rated at 10 percent; thigh muscle injury rated at 10 percent; ventricular arrhythmias (sustained) at 10 percent; leg muscle injury rated at 10 percent; scars times 2 rated at 0 percent times 2; and labyrinthitis rated at 0 percent. i. The available record does not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service. He met medical retention standards in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness). j. The applicant met medical retention standards for history of shrapnel injury (16 May 2004), hyperlipidemia, and other physical, medical, dental and/or behavioral conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. The applicant’s medical conditions were duly considered during medical separation processing. k. A review of the available documentation found no evidence of a medical disability or condition, which would support a change to the character or reason for the discharge in this case. The applicant underwent comprehensive VA medical assessment and VA C&P (Compensation and Pension) examinations in 2004 thru 2005 after demobilization for the shrapnel injuries including detailed radiological studies. l. The applicant didn't report any chest injuries or symptoms, nor mental or behavioral health problems; otherwise, he would have undergone further VA assessment at that time. The applicant subsequently passed physical, medical and behavioral health screening requirements to join the Colorado State Patrol. In 2009, over 4 years after the shrapnel injuries and 2 years after ETSing (Expiration Term of Service) from the Army National Guard, the applicant underwent additional evaluation for PTSD, TBl/concussion and imaging that noted the piece of shrapnel in the heart. m. There was no medical indication for Physical Disability Evaluation System (PDES) processing (i.e. medical evaluation board (MEB)/physical evaluation board (PEB)) in 2004 thru 2005 (at demobilization), 2007 (at ETS), or retroactively at this time in this applicant. n. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes that the following presumptions will apply to the physical disability evaluation system when processing for separation or retirement from active service. (1) Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. (2) When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. o. If the applicant's official service treatment records (STR) become available in the near future, from the VA or elsewhere, I will review and amend this medical advisory if indicated. 7. Counsel provided the below statement in response to the medical advisory opinion: a. We had requested an extension to respond to the advisory opinion dated 14 December 2017. In addition to the reasons set forth in his application, the applicant is entitled to medical retirement for the below reasons. b. When assessing whether the applicant is entitled to medical retirement, the Army Board for Correction Military Records (ABCMR) must assess whether he was able to perform the duties in his position at the time of his active duty, when he was injured. The applicant was a medic. As a medic, he was placed in difficult and dangerous combat situations, forcing him to expel significant physical energy, ranging from running to victims, to carrying victims and other heavy medical equipment. He needed to be of sound mind and strength to function as a medic in the Army effectively. c. As the advisory opinion noted, the applicant was diagnosed with TBI and PTSD in 2009, onset triggered by the contemporaneous finding of shrapnel in his heart. With these findings, he was deemed unfit to continue to work, because of both mental injury and physical injury. Had these findings been made in 2004, there is no question that the applicant would have been medically retired from the military. d. The advisory opinion does not mention the following: (1) The applicant did not receive any workup prior to 2009 that would have revealed the shrapnel in his heart. He never suffered from chest pain, not in 2004, 2005 or 2009. Yet, there was shrapnel present in his heart, the dislodging of which could have seriously, or even fatally, injured the applicant. He only discovered the shrapnel in his heart when he underwent scans for a back injury. Because of these comprehensive scans, the doctors were able to identify the shrapnel in his heart. In 2009, the Colorado State Patrol placed him on disability, finding that with both the shrapnel and the mental injuries, he was unable to serve in his capacity as a state trooper. The applicant's cardiologist told him that he did not want the applicant to sustain any possible hits to the chest area. If the applicant could not serve as a state trooper, he would not have been able to serve as a medic in the Army, especially because the demands of a medic in combat are much greater than that of a state trooper. (2) The applicant did not receive proper medical treatment immediately following the mortar attack in Iraq. When in Iraq, the various places he was treated did not have the facilities or diagnosing equipment available to have identified shrapnel in his heart. Additionally, the applicant was moved around very quickly. See the 18 July 2017 statement from the applicant's commanding officer major (MAJ) Decker, attached, along with other statements. Similarly, when back in the United State, the applicant's medical evaluations never included scans of his heart until 2009. If proper medical attention had been paid to the applicant, full body scans would have been conducted. Additionally, the applicant was never told in 2004 or 2005 that the shrapnel could travel to his heart. (3) The advisory opinion incorrectly states that the applicant returned to active duty. However, he never returned to active duty after his injury because while he was treated in Iraq, his unit was called home and he returned with them back in the U.S. Once in the U.S., he was moved through Fort Leonard Wood extremely quickly, with no scans taken of his heart. The applicant never returned to active duty. (4) Other individuals were injured in the same mortar attack and received medical retirement, including specialist (SPC) W and lieutenant (LT) M. The applicant survived the same attack and he is entitled to the same benefit. The applicant is currently VA rated disabled at 100%, following the finding of the shrapnel in his heart and post-traumatic stress disorder (PTSD)/TBI. 12. Counsel provides the following evidence: a. a memorandum from MAJ LHP stating the applicant was wounded in action on 16 May 2004 and he was there to witness the wounds/injuries. A line of duty investigation was completed on the applicant; however, the documents were lost or misplaced; b. witness statements describing in detail the events that occurred on 16 May 2004 when they began taking small arms and mortar fire, which led to and caused the applicant’s shrapnel and other injuries; c. photographs of injuries (which appear to be puncture or shrapnel wounds), d. an email thread of witness statements; e. letters from members of his unit attesting to serving with the applicant; and f. letters of recommendation supporting the applicant’s dedication to duty, loyalty, and professionalism. REFERENCES: 1. Army Regulation 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 physical evaluation board (PEB) rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2. Paragraph 3-1 states these medical conditions and physical defects, individually or in combination, are those that: (a) significantly limit or interfere with the Soldier’s performance of his or her duties, (b) may compromise or aggravate the Soldier's health or well-being if he or she were to remain in military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), (c) may compromise the health or well-being of other Soldiers, and (d) may prejudice the best interests of the government if the individual were to remain in military service. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); receive a permanent physical profile rating of 3 or 4; and are referred by an military occupational specialty (MOS) Medical Retention Board; are command-referred for a fitness-for-duty medical examination; and are referred by the Commander, U.S. Army Human Resources Command. a. The PDES assessment process involves two distinct stages: the MEB and the PEB. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. b. The mere presence of 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. Reasonable performance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army 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 or her office, grade, rank, or rating. 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. Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) covers the policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. Chapter 6 (Transfer to and from the Retired Reserve) states assignment to the Retired Reserve is authorized for Soldiers who: are entitled to receive retired pay from the U.S. Armed Forces because of prior military service; have completed a total of 20 years of active or inactive service in the U.S. Armed Forces; are medically disqualified for active duty resulting from a service­connected disability; were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve; reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency; completed 10 or more years of active Federal commissioned service; and are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. 6. 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 rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 7. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. 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 error or injustice on the part of 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 VA does not have the 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. These two government agencies operate under different policies. 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. 8. National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers. It provides for separation of ARNG Soldiers. It lists expiration of active status commitment in the Selected Reserve as a valid reason for separation from the State ARNG. 9. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests reconsideration of his request for correction of his record to show he was unfit, and received a physical disability retirement or medical separation from the Army. 2. The available evidence does not show the applicant had a permanent physical profile rating of 3 or 4, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry into the PDES; all of which are requirements for entry into the DES system. 3. The applicant was honorably released from active duty due to completion of required active service, and further discharged from the Missouri Army National Guard due to expiration of his active status commitment in the Selected Reserve. The applicant's separation was in compliance with applicable statutory and regulatory guidance with no indication of procedural errors. 4. The ARBA senior medical advisor noted that the applicant met medical retention standards IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to him. The applicant served for an additional 2.5 years in the ARNG after injury, demobilization, the VA evaluation and rating prior to his ETS separation. The applicant’s medical conditions were duly considered during separation processing. 5. The ARBA senior medical advisor also noted that a review of the available documentation found no evidence of a medical disability or condition, which would support a change to the character or reason for the discharge in this case. The applicant clearly met medical retention requirements and was worldwide deployable. The applicant electively separated at the end of his term of service and he was fully eligible to reenlist. 6. The fact that the VA granted him a service-connected disability rating for various medical conditions after his release from active duty does not prove an error on the part of the Army at the time of his separation. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004318 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004318 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2