ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20170015968 APPLICANT REQUESTS: Reconsideration of his previous requests for the addition of post-traumatic stress disorder (PTSD) to his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) resulting in an increase of his Army disability rating from 40 percent to 100 percent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * newspaper article titled: Tired of the "runaround" Gulf War Vet with ailments seeks answers * Certificate of Training * five-page brief from a Texas Veterans Commission Veterans Counselor, dated 31 March 2011 * applicant's VA Board of Veterans' Appeals Record of Proceedings, dated 28 March 2012 * letters from the U.S. Army Human Resources Command pertaining to his Combat Related Special Compensation claim * Department of Veterans Affairs (VA) Rating Decision letters * two third-party statements FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the ABCMR in Dockets Number AR20090014879 on 13 May 2010 and AR20110006400 on 27 October 2011. 3. The applicant states he should have been medically retired with a 70-100 percent disability rating and not the 40 percent rating he received. He request that his 40 percent disability rating be increased and back dated to 6 July 1996 as a direct result of a PTSD diagnosis granted on that date. He is currently rated 30 percent by the VA for his PTSD and he would like for the U.S. Army Medical Evaluation Board (MEB) to also approve his 30 percent for PTSD. In combination with his current rating, he should be receiving a 70 percent rating from the MEB. 4. The applicant enlisted in the Regular Army on 21 February 1979. He served in Southwest Asia in support of Operations Desert Shield/Storm. 5. A DA Form 3947 (MEB Proceedings), dated 19 October 1994, shows the applicant was evaluated for 18 diagnosed medical conditions. The MEB recommended his referral to a Physical Evaluation Board (PEB). The DA Form 3947 does not show PTSD as a diagnosed condition. 6. A Certificate of Training shows the applicant successfully completed the Combat Stress Fitness Center Course which he attended from 5 to 14 September 1995. 7. On 4 December 1995, in a memorandum addressed to the president of the PEB, the applicant acknowledged he had been counseled by the PEB Liaison Officer (PEBLO), he had reviewed his MEB, and that he agreed with the findings and recommendations. He also concurred the findings were current and unchanged and that no new conditions needed to be addressed at the time. 8. On 8 January 1996, the PEB returned the applicant's case to the MEB for clarification. A revised DA Form 3947 was prepared on 13 February 1996. The MEB again recommended the applicant's case be referred to the PEB. The applicant concurred with the findings and recommendations of the revised MEB findings and recommendations. The revised DA Form 3947 does not include PTSD as a condition. 9. On 8 March 1996, a PEB determined the applicant was unfit for further service based on the following diagnoses and assigned disability ratings: * pain associated with severe degenerative joint disease, hip, left greater than right, L5/S1 herniated nucleus pulpous and S1 radiculitis, left greater than right both described as mild, 20 percent * profound obstructive sleep apnea with severe sleep fragmentation and mild oxygen desaturation, 10 percent * migraine headache syndrome, moderate with incapacitation attacks, frequent, 10 percent 10. The PEB also indicated that of the myriad of the applicant's medical conditions, only those indicated above rendered him incapable of performing duties in his military occupational specialty (MOS). The PEB assigned a combined disability rating of 40 percent and recommended his permanent retirement by reason of disability. 11. On 20 March 1996, the applicant, after been advised of the findings and recommendations of the PEB, and after receiving a full explanation of the results of the findings and recommendations and his legal rights pertaining thereto, concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. 12. On 5 July 1996, the applicant was retired by reason of permanent physical disability. He completed 17 years, 4 months, and 15 days of active military service. 13. The applicant provided a 5-page counsel brief from a Texas Veterans Commission Veterans Counselor. In this brief, the counselor provides background information on Department of Defense disability processing policy, information on the medical conditions evaluated by the Army, and the VA rating decision. The VA counselor contended that based on the applicant being granted a 100 percent disability rating by the VA and the Social Security Administration, effective the date of his separation from military service, the Army, or PEB, erred in granting only a 40 percent disability rating. This brief was considered by the Board in the applicant's previous Record of Proceedings (AR20110006400). 14. The applicant also provided his VA Board of Veterans' Appeals Record of Proceedings, dated 28 March 2012, showing the VA granted him service-connected disability compensation for PTSD effective 6 July 1996. 15. On 3 November 2017, the Army Review Boards Agency (ARBA) psychologist/medical advisor provided a medical advisory opinion. The opinion found the available evidence does not reasonably supports that PTSD or another behavioral health condition existed at the time of the applicant's military service. Although he failed to meet medical retention standards, the standards he failed to meet were unrelated to PTSD. In conclusion, a review of the available documentation found an insufficiency of evidence of a medical disability or condition which would support inclusion of psychiatric condition in his Army disability rating. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion on 7 November 2017 and given an opportunity to submit comments. He responded and provided a Military Medical Center, Fort Sam Houston, TX, Independent Case Review of Behavioral Health Record, dated 30 November 2017, stating that PTSD should have been included as an unfitting condition during the his medical separation process. He also provided two self- authored statements contending that he suffers from PTSD which should have been included during his MEB/PEB process. 17. On or around 8 February 2019, the ARBA's Senior Medical Advisor reviewed the medical advisory opinion rendered by the ARBA's psychologist/medical advisor. The ARBA's Senior Medical Advisor concurred with the advisory opinion and reiterated that the applicant did not have a diagnosis of PTSD on separation, he met medical retention standards for behavioral health conditions, and was not unfit for any psychiatric condition on separation. The Senior Medical Advisor added that the Army has neither the role nor the authority to compensate for progression or complications of service- connected conditions after separation. Congress grants that role and authority to the VA, operating under a different set of laws. 18. The applicant was provided a copy of the ARBA's Senior Medical Advisor reviewed and given an opportunity to submit comments. He responded and provided a three- page memorandum, dated 1 March 2019, with 8 pages of military medical records as enclosures. The memorandum states the following: This supplemental memorandum is submitted in rebuttal to the Senior Medical Advisory review. I respectfully request the Board consider the totality of my medical records, including all indicia of PTSD symptoms that were present during my service. Viewed in totality, it is clear that I was suffering from PTSD at the time of active duty service, but was misdiagnosed by medical providers. In addition, I request the opportunity to appear before a formal PEB to present evidence of PTSD during service and its effect on my fitness for service. I request the Board find that I was suffering from PTSD as a result of my military service while still on active duty, and that my medical records contain sufficient evidence for a finding that my PTSD failed medical retention standards at the time of separation. The Board should consider all of my medical records, as well as the context for the medical treatment I received after returning from the Gulf War. After returning from this combat deployment, I suffered from a litany of medical problems, to include degenerative joint disease, migraines, memory loss, rashes, sleep apnea, and depression. I received extensive medical care during this time, including being evaluated for Gulf War Syndrome, numerous orthopedic evaluations, and a sleep study. However, my PTSD was never addressed or considered fully due to a lack of attention and prioritization of other medical issues. My records indicate many PTSD symptoms that were ignored while other diagnosis and health issues were addressed. On 21 June 1991, I reported being unable to sleep, headaches, memory loss, inability to keep my mind on anything, not getting along with anyone, and a loss of weight (Enclosure 1). On 20 September 1994, I complained of being unable to sleep at night and not being able to get along with anyone, as well as severe headaches and not being able to keep my mind on anything (Enclosure 2). On 14 March 1995, I was assigned stress management and relaxation therapy for my migraine headache syndrome (Enclosure 3). I subsequently completed a Combat Stress Fitness Center Course on 14 September 1995 (Enclosure 4). On 24 August 1995, I told medical providers about the issues I had been having for years, including feeling tired all day, having trouble sleeping at night, and not getting along with other people (Enclosure 5). While I presented multiple symptoms for PTSD for over 4 years since returning from the Gulf War, the medical providers failed to properly identify and diagnose my worsening condition. I was also prescribed a number of antidepressants during this time, including Despipramine and Nortriptyline, to combat my depression, a component of my PTSD. My medical records lack the clear diagnosis because of the Army's failure to timely and properly address my PTSD issues. On 10 January 1996, I was referred to the psychology department to "rule out PTSD" (Enclosure 6). However, I was never evaluated, as I was discharged on 5 July 1996, and the referral was closed on 20 March 1997. The treating physician, [Dr. A], noted that I did not show for two appointments, 6 March 1997 and 20 March 1997. The significance of this incomplete referral cannot be understated. On 10 January 1996, after my initial MEB, I was still undergoing possible diagnosis for PTSD. My MEB was returned by the PEB to the MTF [medical treatment facility] on 8 January 1996 to be redone. The subsequent MEB, dated 13 February 1996, was compiled and submitted without the outstanding PTSD evaluation being complete. The PEB findings, dated 8 March 1996, were also completed without a pending PTSD evaluation referral. I was never afforded the opportunity to be properly evaluated because the appointments, 6 March 1997 and 20 March 1997, were made for after I had been discharged from the Army. My subsequent diagnosis of PTSD within less than one year of discharge by the VA is evidence that this medical condition did not suddenly manifest after my discharge. Rather, the evidence is clear that I suffered from PTSD during my active duty service, and that it was either ignored or misdiagnosed, preventing a fair and accurate MEB and correct rating. I request the Board grant me a formal PEB and opportunity to exercise my right to due process and a full and fair hearing to testify before the PEB. My MEB processing was unjust, disorganized, and not the comprehensive evaluation of all of the medical conditions that made me unfit for further service. My initial MEB was disorganized to such a degree that it was returned by the PEB on 8 January 1996 to be redone as a single integrated MEB that considers all the available medical evidence of record (Enclosure 7). The initial MEB's return to be redone demonstrates the substandard processing that contributed to my PTSD not being properly identified. The subsequent MEB, dated 13 February 1996, contains numerous diagnoses that could also be explained by PTSD, including severe sleep fragmentation, psychophysiological insomnia, migraine headache, and forgetfulness. While I acknowledge that I concurred with the MEB findings on 1 March 1996, I did not knowingly and voluntarily waive my PEB board. Rather, I was pressured by my PEBLO at the Darnall Army Hospital, who informed me that if I did not sign and accept the MEB, then I was going to be put out of the Army and my family was going to be homeless. I was not aware of the PEB proceedings or the right to appear and testify at a formal board. If I had been afforded legal counsel or better guidance from my PEBLO, I would have requested a PEB to request my PTSD be added as an unfitting condition. My interest in adding PTSD is evident by the pending referral in January 1996 as referenced above. By granting a formal PEB, the Board can allow my behavioral health disability that was caused my unfitness to finally be properly addressed. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief and amend the decision of the ABCMR set forth in Dockets Number AR20090014879 on 13 May 2010 and AR20110006400 on 27 October 2011. 1. The Board agreed with the Medical Advisory and prior board decisions that the available record does not reasonably support PTSD as a boardable condition at the time of the applicant’s military service. 2. The record shows that it took time for a consensus to emerge, culminating in a VA PTSD determination in June 2008, twelve years after the applicant’s discharge. 3. The Board agreed that the preponderance of evidence shows that medical and service records do not support PTSD as an unfitting condition at time of discharge: a. The applicant concurred with the findings of several medical evaluation boards, including the culminating March 1996 Physical Evaluation Board (PEB) findings that did not consider PTSD as an unfitting condition b. There is insufficient medical evidence of record and the applicant failed to provide any evidence sufficient to show that he was suffering from or was being treated for PTSD during his service or at the time of discharge. c. The applicant’s pertinent evaluation reports from 1992 to 1994, including his final NCOER, completed on 21 September 1994, were favorable and did not suggest a dysfunctional soldier. 4. The Board agreed that the VA properly provided the applicant post-service support and benefits for service connected medical concerns. This decision does not negate the applicant’s deployment and training experiences or his post-service diagnosis of PTSD. However, the Board found insufficient evidence to recommend a change in the PEB fitness determination for PTSD and so no additional disability rating is recommended. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 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. a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. 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. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 3. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. 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 individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 4. Title 38, U.S. Code, sections 1110 and 1131, permits 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 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 that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015968 7 1