BOARD DATE: 28 May 2020 DOCKET NUMBER: AR20170010078 APPLICANT REQUESTS: * in effect, correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings to show his injury or medical condition as combat related * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) on-line application * Memorandum from the United States Army Physical Evaluation Board, TX, dated 1 February 2017 * DA Form 199, only page 1 was provided with VA request rating memo FACTS: 1. The applicant states he had no symptoms of any behavioral disorder prior to his second deployment to Afghanistan. a. After returning from overseas, his Post-Deployment Health Assessment medical officer referred him to his unit's Embedded Behavioral Health (EBH) program. After speaking with the EBH professional, he was diagnosed with Adjustment Disorder, which was later changed to Bipolar Disorder after further review and several years of consistent therapy. He believes there is a clear and direct linkage to the onset and aggravation of his disorder with his combat deployments to Afghanistan because he sought treatment directly following his return from theater. b. His DA 199 Section III states in column "A" as "YES." The PEB memorandum states he was unfit to continue military service and he received the rating of PEB V4 code "YES" for a combat related injury. DA 199 Section V does not reflect this. He believes this should be changed to reflect the PEB memo attached to his application. He believes this is a mistake not found during my transition. 2. The applicant enlisted in the Regular Army on 27 May 2009. After his initial entry training, he was awarded military occupational specialty (MOS) 15G (Aircraft Structural Repairer). 3. The applicant's record shows he served in Afghanistan from 21 February 2011 through 13 February 2012 and again from 28 December 2013 through 2 August 2014. 4. The applicant's record contains a complete copy of his DA Form 199. This form shows an informal PEB was convened at Joint Base San Antonio, TX on 24 February 2017. This board found the applicant as physically unfit and recommended a disability rating of 70% (percent) and that he be placed on the permanent disability retirement list. This form also shows in: a. Section III (Medical Conditions Determined to be Unfitting) shows the medical condition of Unspecified Bipolar Disorder as unfitting. The following is noted: (1) The condition was deemed to have incurred or aggravated in the line of duty; it was not due to misconduct or neglect; and it was considered permanent and stable. (2) The Soldier reports onset of this condition in 2014 which began as insomnia and anxiety following deployment to Afghanistan (2011-2012 and 2013-2014). Treatment has included therapy, multiple medications for mood, anxiety and sleep as well as an 8-day behavioral health hospitalization in October 2016. Although the NARSUM states that this condition existed prior to service there is no evidence that the Soldier was diagnosed with or treated for a behavioral health condition prior to entering the Army. The Soldier's Commander states the "Soldier is unable to perform aircraft structural maintenance tasks. His medications make concentration difficult and could potentially cause him to make life-threatening mistakes." Reasonable performance in the Soldier's PMOS requires the Soldier perform certain activities. IAW DoDI 1332.18, Appendix 2 to Enclosure 3 para 2.a., the Soldier is unfit because this condition prevents the Soldier from being able to safely perform and/or supervise inspections, fabrication, repairs and maintenance on aircraft structures due to his irritability and anxiety in completion of his assigned PMOS (15G, Aircraft Structural Repairer). b. Section V (Administrative Determinations) shows the PEB made the following findings (Note: This form only contains V1, V2, and a V3; it does not contain a V4 entry): (V1). The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and 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 (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) (V3). The disability did not result from a combat related injury under the provisions of 26 USC 104 or 10 USC 10216. c. Section VI (Instructions and Advisory Statements) shows his case was adjudicated as part of the Integrated Disability Evaluation System (IDES). It further noted the specific VASRD code(s) to describe the Soldier's condition(s) was documented in a Department of Veterans Affairs (VA) memorandum dated 9 February 2017. The PEB determined the disposition recommendation based on the proposed VA disability rating(s) and in accord with applicable statutes and regulations. d. The PEB was authenticated on 24 February 2017. The applicant was advised of the findings and recommendation, concurred with the determination, and did not request reconsideration of his VA ratings by his signature on 1 March 2017. e. The United States Army Physical Disability Agency (USAPDA) authenticated and approved the determinations on behalf of the Secretary of the Army on 21 March 2017. 5. The applicant was honorably retired on 30 May 2017 under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of disability, permanent (enhanced). 6. The applicant provides a memorandum from United States Army Physical Evaluation Board, Fort Sam Houston, TX to the VA, dated 1 February 2017, wherein the PEB is requesting a disability rating with rationale due to his unfitting medical condition of "Unspecified bipolar disorder. (MEB Dx 1) (V1-No; V3-No; V4-Yes)." 7. In connection with the processing of this case, an advisory opinion was obtained on 20 April 2020 from an ARBA Clinical Psychologist, who opined (see attachment): a. A review of the applicant's electronic VA medical record indicates a compensation and pension evaluation was conducted on 28 November 2017. The applicant has a service-connected disability rating of 90% with 70% for Bipolar Disorder, 30% for migraine headaches, 20% for limited motion of arm, and 10% each for multiple physical issues. b. Review of applicant’s military and military medical records indicate, after his second deployment, he self-referred to behavioral health due to feeling tightness in his chest, heart palpitations and feeling he wasn’t getting enough oxygen on 3 September 2014. He reported having four of these anxiety attacks while deployed. He reported a difficult deployment with additional stress due to his father's imprisonment prior to his deployment, marital problems moving toward divorce, and his grandmother’s terminal cancer and subsequent death the previous week. He was evacuated out of theater due to his grandmother’s diagnosis and placement into hospice. The psychologist diagnosed him with Adjustment disorder. c. He had one follow up appointment on 29 September 2014. The provider noted he had completed a stress test was found to have an irregular heart beat but no other findings. He reported he thinks his symptoms are related to stress and lack of control over some of his stressors. On 26 August 2015, he was referred to behavioral health due to depression regarding impact of having low testosterone and he was diagnosed with Adjustment Disorder. He was seen on 11 July 2016 for anxiety and depression related to multiple medical problems he was still working to address cardiac issues, compartment syndrome, chronic insomnia, and possible surgery. On 29 September 2016, he was seen for marital stress and guilt regarding his wife’s rape and it triggering memories of his childhood sexual abuse. He was diagnosed with Adjustment Disorder. He returned on 4 October 2016 and reported the clonazepam was not helping with chest pain/anxiety. On 18 October 2016, he was hospitalized due to suicidal ideation and depressed mood. He was discharged on 26 October 2016 with a diagnosis of Major Depressive Disorder (MDD) and change in his medications. On 31 October 2016, he reported symptoms are exacerbated by marital stress and his wife’s diagnosis of a brain tumor. On 28 December 2016, his psychiatrist reviewed his treatment history and current symptoms and diagnosed MDD and Anxiety Disorder, unspecified. He completed his medical evaluation board and was diagnosed with unspecified bipolar disorder by the VA provider. On 3 May 2016, he met with regular provider and reported some manic symptoms in his past with the last episode in February 2016. The applicant discussed the diagnosis of bipolar and the fact that his father and other family members have also been diagnosed with bipolar disorder. He reported that he would be transferring his care to the VA his pending discharge. d. A review of his military medical records and the electronic VA medical record are consistent with the diagnosis given and that it is not combat related. Bipolar is frequently inherited and tends to run in families. Concur with the [PEB] (sic) findings that his unspecified bipolar disorder was not incurred in the line of duty during a period of war and is not the result of a combat related injury. No changes to the DA Form 199 are recommended. 8. A copy of the advisory opinion was forwarded to the applicant on or about 30 April 2020, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 9. The applicant requested a personal appearance hearing. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 10. Title 26, U.S. Code, section 104, states the term "combat related injury" means personal injury or sickness that 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. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the Army Review Board Agency Medical Advisory opinion, the Board determined there is insufficient evidence to grant relief. 1. The applicant requested, in effect, correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his injury or medical condition as combat related. The Board carefully considered the applicant’s contentions and supporting documents. The Board found insufficient evidence of a medical disability or condition that would support a change to the rated conditions, disability determinations, disability ratings, and/or combat-relatedness for the discharge in this case. The Board discussed that Bipolar is frequently inherited and tends to run in families. The Board agreed with the PEB findings that the applicant’s unspecified bipolar disorder was not incurred in the line of duty during a period of war and is not the result of a combat related injury. Therefore, the Board found insufficient evidence to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating is recommended. The VA properly provided him post-service support and benefits for service connected medical concerns. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that 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. 3. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 (Combat-Related), covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 4. DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in general, covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live-fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. 5. Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 (Disability Evaluation System) (DES) currently in effect, defines armed conflict and instrumentality of war. a. Incurred in Combat with an Enemy of the United States. The disease or injury was incurred in the LOD in combat with an enemy of the United States. b. Armed Conflict. The disease or injury was incurred in the LOD as a direct result of armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference (d). The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. Engaged in Hazardous Service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. d. Under Conditions Simulating War. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. e. Caused by an Instrumentality of War. Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. 6. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), dated 19 January 2017, prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010078 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1