ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20180001646 APPLICANT REQUESTS: * a reevaluation of his disability rating for post-traumatic stress disorder (PTSD) * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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. The applicant states: a. It was prematurely and inaccurately determined that his PTSD condition had stabilized;·and at a lower level than his present degree of impairment. Following a Medical Evaluation Board (MEB) proceeding, he states he received a 50% rating for PTSD. His condition was reevaluated about two years after he separated from service and while he was a student. b. At the time, life was improving and was easy. He states he was supported by the GI Bill and was not required to work. The applicant states his reevaluation lowered his rating to 10%. However, since reentering the work force, two years ago, his PTSD, and his social and functional impairment has shown that he’s still significantly impaired at the same level he was when he was in the military. Accordingly, he states it appears that the follow-up evaluation that placed him on the permanent disability retired list (PDRL), with a 10% rating for PTSD was premature. As such, he requests a reevaluation. c. His condition regarding PTSD, the one that placed him on the PDRL, has deteriorated since his last evaluation. He believes the brief snapshot of time, when he was doing better, did not need therapy or treatment, and was a student with a low level of requirements and stress, did not accurately assess his condition. He states at the present time he is in need of a lot of treatment to deal with his PTSD and symptoms. At the time of time of his application, he was under the managed care of the following providers: * a social worker * a prescribing psychiatrist * a biofeedback specialist * a PhD psychologist student who interns at the Department of Veterans Affairs (VA) as a psychologist d. He also obtain care for related issues at the VA Polytrauma Clinic, many of which he believes are related in part to his PTSD symptoms, to include the light stress headaches. He also states he has sought the counseling of a priest at his local catholic church for the past year to assist in dealing with the issues mentioned. 3. A review of the applicant’s service record shows: a. He commissioned in the rank and pay grade of second lieutenant in the Regular Army on 26 May 2007. b. The applicant’s service record was void of many of the circumstances leading up to a review of his medical status by a Physical Evaluation Board (PEB). However, his DA Form 199 (Physical Evaluation Board (PEB) Proceedings, convened on 17 April 2012, shows the applicant was evaluated, in part, to determine his disability level for PTSD resulting from his deployment to Afghanistan during the 2010 to 2011 timeframe. The PEB found the applicant to be physically unfit and recommended he receive, in part, a disability rating of 50% for PTSD. He was placed on the temporary disability retired list (TDRL), with a reexamination projected for January 2013. c. Orders 117-0024, dated 26 April 2012, issued by Installation Management Command, Headquarters, United States Army Garrison, Fort Carson, CO, reassigned the applicant to the Fort Carson Transition Center for separation processing on 26 June 2012. d. Orders 138-0017, dated 17 May 2012, issued by the same command, amended Orders 117-0024, dated 26 April 2012, by adjusting his effective date of separation and retirement to 27 June 2012. The order also adjusted the applicant’s date placed on the retired list to 28 June 2012. e. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), shows, in part, the applicant was retired from active duty, as an Infantry Officer, on 27 June 2012 and transferred to the United States Army Reserve (USAR) Control Group (Retired Reserve). His DD Form 214 also shows in: * Item 18 (Remarks), the applicant served in a designated imminent danger pay area in Afghanistan from 1 June 2009 to 2 June 2010 * Item 25 (Separation Authority), shows the applicant was retired under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 4 * Item 28 (Narrative Reason for Separation), shows the reason “Disability, Temporary (Enhanced)” f. The PEB conducted a re-evaluation, which convened on the applicant’s behalf on 14 July 2014. The DA Form 199 (now titled “Informal PEB Proceedings”), shows the board found the applicant to be physically unfit and recommended a disability rating, in part, of 10% for PTSD and recommend his disposition to be permanent disability retirement. Section VI (Instructions and Advisory Statements) shows the combined rating of 50% for all disabilities considered and states, “Upon re-evaluation, although some change in the applicant’s medical condition may be anticipated, for the purpose of adjudicating his disability compensation, his conditions were considered to have stabilized to a degree of severity that was equal to or greater than 30%. Permanent retirement was recommended. The applicant did not concur with the findings and waived a formal hearing. g. A memorandum, dated 13 August 2014, issued by the United States Army Physical Disability Agency (USAPDA), informed the applicant the Agency concluded his case was properly adjudicated by the PEB, which applied the rules that govern the Physical Disability Evaluation System (PDES) in making their determination. The Agency states the findings and recommendations of the PEB were supported by substantial evidence and was therefore affirmed. The applicant’s service record was void of appeals he made to the PEB. However, he was informed his appeal to the PEB was responded to in a memorandum dated 3 August 2014. The Agency concurred with the response provided by the PEB. h. Order D225-25, dated 13 August 2014, issued by USAPDA, removed the applicant from the TDRL and placed him on permanent disability, at a combined total 50% disability rating effective 17 September 1985. 4. On 4 May 2017, a medical advisory opinion was received from the Army Review Boards Agency (ARBA) medical advisor/psychologist in the processing of this case. 5. The medical advisor/psychologist opined based on a thorough review of available medical records and systems, a. It is acknowledged that the applicant has a serviced connected disability rating of 50% for PTSD from the VA. This determination alone, however, does not automatically mean that military medical disability/retirement at the same rating level is warranted. Itis important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). b. The medical advisor/Psychologist added, in essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty. It was further opined, the applicant's current social and occupational functioning appear similar to his reported functioning during the TDRL reevaluation. There was insufficient evidence to support a re-evaluation of his PDRL rating of 10% for PTSD. 6. On 21 August 2019, the applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He was given an opportunity to provide a rebuttal or comments. 7. On 5 September 2019, the applicant provided a response to ARBA. He states, in effect: a. He agrees with the factual contents of Paragraphs 1-7 and 9 of the Advisory Opinion. He agrees that paragraph 7 of the Advisory Opinion, is a correct summary of the applicable standard, i.e., that “In essence, the VA will compensate for all disabilities felt to be unsuiting. He states, DOD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty.” b. He disputes the conclusion stated in paragraph 8 of the Advisory Opinion. He states, first, the facts provided in paragraphs 1-7 are insufficient to substantiate the conclusion that the Advisory Opinion reaches in paragraph 8. Rather, the facts in paragraph 1-7 contradict the conclusion reached in paragraph 8, and the Advisory Opinion does not reconcile these contradictions. Second, he adds, the Advisory Opinions fails to explain or offer any justification for its conclusion that a 10% rating for PTSD is more fitting than a 50% rating. c. He states he understands the primary facts relevant to the Advisory Opinions determination are provided in paragraph 6, which reflect the events that occurred since his TDRL reevaluation leading to his placement on PDRL with a 10% disability rating for PTSD. He states, paragraph 6 summarizes dozens of mental health visits and notes that a number of symptoms related to anxiety and insomnia have worsened. To the extent that there are positive events, paragraph 6 identifies only three—i.e., that he had been increasingly social with coworkers, been dating, and had a positive relationship with my girlfriend. He shares disagreement that these outweigh the many significant negative events identified in his mental health records, including relapse and increased alcohol and drug abuse, and the deterioration of his many social relationships, including many friendships and his marriage, since the TDRL periodic re-evaluation. These negative events reflect a significantly worse level of functioning than those described in paragraph 5 regarding his functioning at the time of the TDRL reevaluation. d. He states the advisory opinion fails to substantiate its finding that a 10% rating is more appropriate than a 50% rating. He adds, there is no discussion regarding the appropriate rating based on a degree of impairment of an unfitting service connected condition—in his case, the degree of impairment of his PTSD. He states, the Advisory Opinion appears to concede that PTSD is an unfitting condition that was incurred in the line of duty, since it concludes that a 10% rating is warranted. However, the Advisory Opinion offers no justification for this particular rating and does not reconcile the strikingly different level of functioning between the TDRL re-evaluation and the years that followed. e. The applicant adds, in light of the weight of the evidence in the Board’s possession regarding his mental health treatments and level of functioning in the years following the TDRL periodic evaluation, he requests the Board order a reevaluation of his PDRL rating. He states, it is well accepted that PTSD does not follow a linear pattern of improvement, and can follow a variable pattern of remission and relapse over many years. f. The applicant references, “A Systematic Review of PTSD Prevalence and Trajectories in DSM-5 Defined Trauma Exposed Populations: Intention and Non- Intentional Traumatic Events, Santiago, P., et al, (April 11, 2013) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3623968/). He states, this has been his experience with PTSD, as demonstrated from his mental health treatment records. Lastly, he adds, at a minimum, the Department of the Army should permit him the opportunity to meet with a PDRL re-evaluator. 8. By regulation, (AR 15-185 (ABCMR)) 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. 9. By regulation (AR 40-501, chapter 3), the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: Significantly limit or interfere with the Soldier’s performance of their duties. a. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service. b. May compromise the health or well-being of other Soldiers. c. May prejudice the best interests of the Government if the individual were to remain in military service. 10. AR 635-40, which governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an evaluation of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB). The MEB will recommend referral to a physical evaluation board those Soldiers who do not meet retention standards. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Board members believed that the higher rating by the VA (50%) does not establish an error by the Army. Board members opined that the VA operates under different rules, laws, and regulations when assigning disability percentages than the DOD. The VA compensates for all disabilities felt to be unsuiting. The military does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty. Based upon the difference in medical evaluation from the VA and DOD, as well as the the medical advisory’s finding that there was insufficient evidence to support a reevalaation of his PDRL rating of 10% for PTSD, the Board concluded there was insufficient evidence of an error or injustice which would warrant changing the DOD disability rating for the applicant. 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 and for a personal appearance before the Board 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 3. Army Regulation 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in military service. 4. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an evaluation of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB). The MEB will recommend referral to a physical evaluation board those Soldiers who do not meet retention standards. 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180001646 7 1