ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170008323 APPLICANT REQUESTS: reconsideration of her previous request for correction of her son’s (former service member) military records for an increased disability rating for post- traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Sweetwater Psychological Associates Consultation Summary * Department of Veterans Affairs (VA) Progress Notes * VA Confidential Notes FACTS: 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 AR20140021050 on 3 May 2016. 2. The applicant states: a. She is providing copies of medical evaluations and records showing her son, the FSM, had combat-related PTSD at the time of his accident. Therefore, any evidence regarding the wreck and his physical condition is obsolete as she is sure the Board is well aware, but keeps ignoring. Furthermore, her son was wearing a helmet, the sheriff’s department failed to secure the scene, which was a dirt road in the country. When her son’s father went to investigate the scene, he found several motorcycle parts the sheriff’s department missed and he also found two teenagers removing parts from the FSM’s bike, which they got away with doing. Three days later, his father further found the seat of the motorcycle still at the sight of the accident. The area is heavily wooded and was not searched thoroughly. b. Additionally, the FSM’s medical records will show he bled to death. He arrived at the hospital exsanguinated, with no heartbeat. He was also wiped down with wipes that contained alcohol at the scene. He had no blood for a test. They hereby request all the evidence the Army stated they have proving he was drunk, not wearing a helmet, and showing any misconduct of any nature. The enclosed records show her son’s mental statement when he came home. It will close the issue once and for all. As per Army Regulations (AR), it will negate the Army’s claim regarding his behavior, which they contest. By witnesses that she has spoken with, her son was extremely distraught that night and was dwelling on the event of the war. 3. Review of the FSM’s military record shows: a. He enlisted in the Regular Army on 5 September 2007. He served in Iraq from 24 April 2009 to 13 April 2010. b. An informal Physical Evaluation Board (PEB) convened on 20 June 2013 and considered his medical conditions of PTSD, right leg amputation, spinal shock with weak anal sphincter/neurogenic bowel, spinal shock with neurogenic bladder, left leg compartment syndrome, and left status post scar. The PEB found him physically unfit and recommended a rating of 50 percent (%) and his placement on the Temporary Disability Retired (TDRL). He did not concur and requested reconsideration of the board’s findings and recommendations. The decision was upheld. c. He was honorably retired on 4 September 2013, under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for temporary disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years of net active service. d. The applicant provides a Sweetwater Psychological Associated Consultation Summary, dated 4 September 2014, showing: * the FSM was seeking reevaluation of his PTSD * he was involved in a motor cycle accident in April 2013 that resulted in the loss of his right leg above the knee and had been wheelchair bound since then * he denied the Army’s claim that blood test results meant he was drinking alcohol at the time of the accident and he had medical documentation showing there were medical reason for the blood test results * he was diagnosed with chronic, severe PTSD; moderate to severe Persistent Depressive Disorder; and Other Specified Personality Disorder, with Mixed Narcissistic and Anti-Social Personality Features * the examining clinical psychologist recommended a PTSD rating of 100%, based on the current assessment e. A reevaluation PEB convened 5 September 2014 and found him physically unfit due to PTSD. The PEB found the other medical conditions unfitting, but not in the LOD and therefore not compensable. The PEB recommended his permanent disability retirement with a 50% rating. He concurred and waived his rights to a formal hearing. f. On 17 September 2014, he was removed from the TDRL and permanently retired effective 18 September 2014, due to PTSD with a disability rating of 50%. g. The applicant also provides VA Progress Notes, dated between 7 October 2013 and 7 September 2014, showing the FSM underwent a psychiatric evaluation, was diagnosed with chronic PTSD, and began psychotherapy. h. On 3 May 2016, the ABCMR denied the applicant’s petition for correction of the FSM’s LOD investigation. i. The applicant further provides VA Confidential Notes showing on 20 October 2016, the FSM was assessed with PTSD, polysubstance of dependence, and post- concussion syndrome. 4. An advisory opinion was received from the Clinical Psychologist, Army Review Boards Agency, on 13 June 2017, in the processing of this case. The medical advisor reviewed the record to determine if the FSM’s 50% rating for PTSD warranted reevaluation. The medical advisor reiterated the applicant’s period of military service and stated: * despite a clear record if the motorcycle accident was related to alcohol use or misconduct, PTSD symptoms have continued to negatively impact the FSM’s mood and functions, and can be associated with his subsequent social and occupational difficulties * given the FSM’s impairment and need for continued supportive service, it was more likely than not that his PTSD symptoms stemming from experiences in Iraq, were exacerbated by his motorcycle accident * reevaluation of his PTSD rating was recommended 5. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. In his response, dated 3 July 2017, the FSM stated: a. He arrived at the hospital exsanguinated, incoherent, and unable to sign any release forms. In as much, he never gave his permission to have blood drawn or tested. Therefore any blood test or information regarding what the Army had was inadmissible and could not be used against him in any capacity. He requested removal of the medical examination report and all its contents including the blood alcohol information. b. The wreak had nothing to do with his PTSD. He was raised in a household with a grandmother that lost her leg before he was born and was wheelchair bound. She was a sweet and cheerful woman who baby sat for him. So, when he lost his leg it was no big deal to him. His mother told him that he would never get out of an electric wheelchair. He uses crutches and sometimes an artificial leg. He never once complained about the loss of his leg. He accepted it and went about modifying his life to his new conditions. c. What haunts him are the screams of a dying man that he was helpless to help as that man slowly burned to death, trapped in his helicopter for what seemed like an eternity, and many other horrors of wars he will not go into her for brevity’s sake. He had been awake for the better part of 3 days when his wreck occurred. He could not sleep and still does not sleep much. He does not want to sleep, as he always returned to Iraq when he slept. It is a living hell. d. Even when he is awake, he cannot escape the nightmares. His PTSD is due to his service in Iraq as his records show and as his retirement from the Army indicated. Please correct his records to reflect the corrected information to show his wreck as in the LOD, as it was the truth and the logical conclusion. 6. By regulation, a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness) and awarded a disability rating assigned by the Army’s disability system. 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. An award of a rating by another agency does not establish error in the rating assigned by the Army's disability system. . 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board concluded that drinking alcohol can be attributed to PTSD; however, drinking and driving cannot be attributed to PTSD. Based upon the totality of the circumstances, the Board found that the medical process was completed appropriately and that no error or injustice was present which would warrant having his disability rating reviewed or increased. 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) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, in effect at the time, set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustained or aggravated physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits. The regulation stated: a. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it was 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. b. The VA Schedule for Rating Disabilities (VASRD) was primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting condition(s) from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 2. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness was made, the Physical Evaluation Board rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 3. 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, USC, 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. 4. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.