ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180000673 APPLICANT REQUESTS: Correction of her DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) by adding traumatic brain injury (TBI) as an unfitting condition. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * magnetic resonance imaging (MRI) report (brain) * Department of Veterans Affairs (VA) benefits decision letter, dated 23 May 2017 FACTS: 1. The applicant states that while going through the Integrated Disability Evaluation System (IDES) process, she was screened for TBI and the screening was placed on hold. She was told to follow up with the Department of Veterans Affairs (VA). Once, she enrolled into the VA, she had an MRI completed which came back as a TBI or injury significant to a blast or head injury. While in Iraq in 2006, she suffered a head injury during an incoming mortar attack. She was running to take cover and ran into an armored HMMWV. She was knocked unconscious. 2. The applicant enlisted in the Regular Army on 5 March 2003. She served in Iraq from 15 October 2005 to 4 October 2006 and in Afghanistan from 16 March 2008 to 15 May 2009. 3. An IDES Narrative Summary (NARSUM) to a Medical Evaluation Board (MEB), dated 25 June 2015, shows the applicant was diagnosed with PTSD, which was deemed medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness). She was also diagnosed with 31 additional medical conditions which were deemed medically acceptable. The NARSUM also shows the applicant claimed "head injury/temporary unconscious" but the VA did not find sufficient evidence to support the diagnosis of TBI. The NARSUM noted that the diagnosis "history of TBI" occurs in the service treatment record only in a number of physical therapy visits. 4. On 2 October 2015, the VA completed a disability assessment of the applicant's unfitting and service-connected disabilities under the DES Pilot Program, a joint initiative between the Department of Defense (DOD) and the VA. The VA indicated that for the purpose of entitlements to VA benefits, entitlement to service connection for TBI (claimed as head injury, temporary unconscious) was not proposed. The VA stated the following: Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for TBI (claimed as head injury, temporary unconscious) is not proposed because the medical evidence of record fails to show that this disability has been clinically diagnosed. The evidence of record shows you report head trauma secondary to striking your head on a Humvee and proximity exposure to mortar fire while deployed to Iraq in 2005-2006. You report loss of consciousness of undetermined period from head injury. You report no impairment at the time and did not experience duty restrictions. Service records show report of headaches from 2009. CT [computed tomography] brain scan from 2012 was normal and August 2014 MRI brain scan was unremarkable. Service records show a diagnosis of a history of TBI based on subjective response at physical therapy in 2014. Service treatment records are absent ongoing complaint or treatment for residuals of TBI. Your focused VA TBI exam shows complaints of headaches. Your migraine headaches have not been related to TBI and are evaluated separately. Objective testing revealed no cognitive impairment. The examiner determined there is no objective medical finding to support a TBI and no diagnosis for residuals of TBI was provided. Your more recent MEB findings concluded the medical evidence does not support a diagnosis for TBI. 5. The applicant's records contain page 2 of 4 of a DA Form 199 (PEB Proceedings) indicating a PEB convened on 28 October 2015 and found the applicant unfit. Page 2 also shows she was placed on the Temporary Disability Retired List (TDRL). 6. On 16 March 2016, an Informal PEB convened for reconsideration of the applicant's disabilities and found the applicant unfit for the conditions PTSD and migraine without aura. The PEB recommended a combined rating of 80 percent and her placement on the TDRL with reexamination during December 2016. Section VI of the DA Form 199 states: a. The ratings were combined in accordance with the VA Schedule for Rating Disabilities (VASRD). b. This case was adjudicated as part of the IDES. As documented in a VA memorandum dated 19 February 2016, the VA determined the specific VASRD codes to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed VA disability rating(s) and in accord with applicable statutes and regulations. 7. On 25 March 2016, after being advised of the findings and recommendations of the Informal PEB and of her legal rights, the applicant concurred with the PEB's findings and recommendation and waived her right to a formal hearing. She checked the appropriate block of the DA Form 199 to show she did not request reconsideration of her VA ratings. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) she was released from active duty and placed on the TDRL on 24 September 2016. 9. It appears the applicant submitted a claim to the VA for reconsideration of her service-connected conditions. On 22 May 2017, the VA awarded her service-connected disability compensation for TBI with PTSD, rated 100 percent. The VA stated the following: An evaluation of 100 percent is assigned from 25 September 2016, the first day after your release from active duty. Though the rating decision dated 3 November 2016 denied service connection for this condition, no compensation examination had been conducted or afforded to you since your discharge. Therefore, benefit of the doubt is awarded that this condition was in existence at the time of your separation from service, allowing the VA to award the effective date of the date after separation from service. Please also not that when medical examiners are not able to adequately separate out symptoms of TBI from symptoms of PTSD, the evaluations must be combined and evaluated according to the criteria allowing the higher evaluation, per federal regulations. As such, your service connected PTSD has been combined with your now service connected TBI, and evaluated by your TBI symptoms as this is the most favorable to you. 10. On 8 February 2018, an Informal PEB reevaluated the applicant unfitting conditions and found her unfit due to PTSD and migraine. The PEB recommended a combined rating of 90 percent and her permanent disability retirement. The PEB stated that "when on the TDRL, your unstable condition(s) (to include treatment) did not cause additional unfitting conditions. Upon re-evaluation, although some change in your medical condition may be anticipated, for the purpose of adjudicating your disability compensation, your condition(s) is/are considered to have stabilized at a degree of severity that is equal to or greater than 30 percent." The DA Form 199 shows the applicant concurred and waived a formal hearing of her case. 11. Orders issued by the U.S. Army Physical Disability Agency on 3 April 2018, directed the applicant's removal from the TDRL and placement of the Permanent Disability Retired List (PDRL) effective 3 April 2018. 12. On 27 June 2018, the Army Review Boards Agency senior medical advisor provided and advisory opinion. The medical advisor stated that a review of the available documentation found no evidence of a medical disability or condition which would support a change to disability determination(s) (TDRL and/or PDRL), disability rating(s)(TDRL and/or PDRL), and/or combat-relatedness for the discharge in this case. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) are recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 10 July 2018 and given an opportunity to submit comments. She did not respond. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory, the Board determined there is insufficient evidence to grant relief. The Board agreed with the Medical Advisory that the Physical Evaluation Board (PEB) properly rated the applicant’s TBI as not unfitting. The Medical Advisory presented a thorough catalogue and discussion of the limited evidence in the applicant’s medical records, including the PEB findings and the Veterans’ Administration (VA) post- service disability evaluation, which all indicate insufficient evidence of TBI as a stand- alone (not related to the migraine headaches), unfitting condition. The Board agreed that the applicant’s medical records did not support this condition as unfitting: In 2010, the applicant was seen in the TBI Neurology clinic for a waiver for migraine headaches and there is no mention in the notes about TBI at that time; a preseparation MRI on 1 August 2014 was normal, with no significant findings; and the only other mention of TBI is in physical therapy notes. Therefore, the board agreed with the Medical Advisory and found no evidence in the record of a medical disability or condition that would support a CHANGE to the character, reason, rated conditions, disability determinations, disability ratings, and/or combat-relatedness for the discharge in this case. The Board further found insufficient evidence to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings is recommended. The VA properly provided her support and benefits for service connected medical concerns. 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. Army Regulation 635-40 (Disability 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. 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 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. 2. Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the IDES and states: a. The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. 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. c. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former service member may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. d. If, after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA Regional Office of jurisdiction. 3. Title 38, U.S. Code, 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. ABCMR Record of Proceedings (cont) AR20180000673 4 1