BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20180009980 APPLICANT REQUESTS: Correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding post-traumatic stress disorder (PTSD) as an unfitting condition and adjusting his disability rating to reflect this condition. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * U.S. Army Reserve (USAR) discharge orders, dated 29 October 1993 * Department of Veterans Affairs (VA) service-connected disabilities certificate, dated 27 May 2003 * VA Consult Requests, dated 29 April 2015 (2 pages) * VA Progress Notes, dated 1 May 2015 (66 pages) * VA summary of benefits letter, dated 27 December 2017 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, 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 he would like his record corrected to reflect the fact that he was discharged for PTSD, which now reflects a rating of 100 percent. Therefore, his diagnosis at the time of his discharge is incorrect. 3. The applicant enlisted in the USAR on 4 April 1989. 4. On 9 June 1993, a Medical Evaluation Board (MEB) recommended the applicant's referral to a PEB based on a primary diagnosis of coccydynia (tailbone pain), status post fracture sacrum. The MEB indicated the applicant was originally evaluated at a Naval hospital with a diagnosis of fractured sacrum. 5. On 9 July 1993, he acknowledged he had been informed of the MEB's opinion and recommendation. He indicated he did not desire to submit a rebuttal statement. 6. On 3 August 1993, the applicant was issued a permanent physical profile based on a diagnosis of coccydynia. 7. On 26 August 1993, a PEB found the applicant unfit for further military service due to a diagnosis of coccydynia, following fracture of the sacrum. The PEB recommended a disability rating 10 percent and the applicant's separation with entitlement to severance pay. 8. Orders issued on 29 October 1993 directed the applicant's discharge from the USAR, due to physical disability with entitlement to severance pay, effective 19 November 1993. 9. The applicant provided: a. A VA service-connected disabilities certificate, dated 27 May 2003, showing he is entitled to compensation for service-connected disabilities rated at 30 percent or more. b. VA Consult Requests, dated 29 April 2015, showing the applicant was granted service connection for the following conditions with the corresponding disability ratings: * PTSD – 50 percent * migraine headaches – 30 percent * lumbosacral or cervical strain – 20 percent * tinnitus – 10 percent * removal of tailbone – 10 percent * impaired hearing – 0 percent c. VA Progress Notes, dated 1 May 2015, showing a combined 80 percent service- connected disability rating for a number of medical conditions that include a 50 percent rating for PTSD. d. A VA summary of benefits letter, dated 27 December 2017, showing his service- connected disability rating was increased to 100 percent effective 1 December 2017. 10. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. Documentation does not support the applicant had PTSD at the time of separation rendering him unfit and eligible for MEB based on a psychiatric condition. Rather, the applicant has consistently reported symptoms emerged several years later, he maintained full time employment until retired in 2017, was active in parenting, and volunteered and involved with the Mason’s lodge. Accordingly, a referral to the Disability Evaluation System (DES) is not recommended. b. Due to the period of service, active duty medical records are void. Hard copy active duty medical records were unavailable other than those surrounding the MEB condition. c. The applicant is 100% service connected for PTSD and 40% of TBI. The applicant went to behavioral health in 1999 reporting nightmares about the in-service motor vehicle accident (MVA); however “he never had any problems until 2 mos. ago.” The provider felt “he did not appear to be suffering from any severe PTSD” to which the applicant “accepted this.” The applicant returned in February 2015, 16 years later, reporting a reappearance of nightmares over the prior two months. The applicant had been working 25 years for the school system, obtained a BA, parenting, active in the Mason lodge, and engaged in community service activities. The provider diagnosed PTSD and Depressive Disorder NOS with medication. A re-evaluation in March determined the applicant had sub-threshold symptoms of PTSD, rather than PTSD. The psychiatrist added Cluster C Personality Traits. The applicant had a Compensation and Pension (C&P) exam in August 2011 with diagnosis of PTSD. The evaluation noted symptoms emerged over the past 8-9 months. The provider noted the applicant “claims” he received a few sessions in 1992 or 1993 related to nightmares and depressed mood due to the MVA; however did not engage in treatment suggestive of a clinical disorder and “had absence of symptoms until about 8-9 months ago.” The applicant had a second C&P in March 2015 with diagnoses of PTSD and Major Depressive Disorder (MDD). In April 2015, the applicant went to the ER due to discontinuing medication, relational stress, and alcohol misuse. The applicant was hospitalized in July 2017 due to suicidal ideation after discontinuing medication. He was discharged with diagnoses of MDD, PTSD, and Cannabis Use Disorder. He had two more C&Ps in August 2017 and March 2020 maintaining MDD and PTSD. Overall the applicant has been engaged primarily with psychiatry, although often medication noncompliant. He has attended a few coping and anger management groups over the years and a handful of therapy sessions over the years. The applicant’s symptoms are managed as long as he is medication compliant and life stressors minimal. 11. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 12. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 13. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s contentions and his request for corrections to his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding post-traumatic stress disorder (PTSD) as an unfitting condition and adjusting his disability rating to reflect this condition. The Board agreed with the Medical Advisory Opinion that there is no indication in his records that the applicant had PTSD at the time of separation rendering him unfit and eligible for MEB based on a psychiatric condition. Therefore, the Board found insufficient evidence to support the applicant’s request. 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. Title 10, U.S. Code, 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. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 3. Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating. 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination or directed by medical providers. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is 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 because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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 Scheduled 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. 4. 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, U.S. Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009980 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1