ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180014077 APPLICANT REQUESTS: physical disability retirement in lieu of physical disability discharge. 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) * Department of Veterans Affairs (VA) Rating Decision 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 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. He was separated from the Army due to physical disability with a rating of 20 percent, but received a 90 percent disability rating from the VA. He did not receive a mental health evaluation from the Army. b. He now has a 100 percent disability rating from the VA with a 70 percent rating for post-traumatic stress disorder (PTSD) and feels he should be considered for a medical retirement from the Army by increasing his disability percentage. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 29 March 1982 and served in the USAR until 38 March 1988, when he was honorably discharged. He enlisted in the Army National Guard (ARNG) on 21 August 2003. 4. He was ordered to active duty with his ARNG unit on 6 June 2005 and deployed to Iraq from 20 September 2005 through 19 November 2006. He remained on active duty for operation support of Operation Enduring Freedom from 20 November 2006 through 18 November 2008. 5. He remained activated for medical retention processing from 19 November 2008 through 8 March 2009 and was subsequently assigned as an activated ARNG member to a Community Based Health Care Organization from 9 March 2009 through 4 March 2014 for continued medical retention processing. 6. A Physical Disability Information Report, dated 28 January 2014, shows the applicant would be separated due to disability with a 20 percent rating effective 4 March 2014. 7. On 4 March 2014 he was honorably discharged from active duty and the ARNG due to disability with severance pay, non-combat, after 8 years, 8 months, and 29 days of net active service this period. 8. The applicant’s medical records, to include his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings are not in his available records and the applicant did not provide a copy of them for review. 9. The applicant provided a VA Rating Decision, dated 28 July 2017, which shows he received a combined rating of 100 percent effective 7 June 2017, an increase from 10 percent effective 9 October 2006, for the following service-connected disability ratings: * PTSD, 70 percent effective 7 June 2017 * obstructive sleep apnea, 50 percent effective 5 March 2014 * post-concussion syndrome, 50 percent effective 7 June 2017 * left upper extremity radiculopathy associated with cervical spondylosis, 30 percent effective 7 June 2017 * right shoulder joint osteoarthritis shoulder superior labral tear from anterior to posterior and bilateral arm/hand paresthesia with numbness and pain, 20 percent effective 5 March 2014 * left shoulder slap tear status post surgeries with residual pain and scars left shoulder, 20 percent effective 7 June 2017 * cervical spondylosis, 20 percent effective 7 June 2017 * right patellofemoral degenerative arthritis, 10 percent effective 5 March 2014 * left knee meniscus tear status post arthroscopy with residual pain, 10 percent effective 7 June 2017 * hypertension, 10 percent effective 7 June 2017 10. On 12 June 2019, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion, which states: a. A review of the applicant’s DOD electronic medical record (AHLTA) indicates during an October 2008 screening, he reported anxiety and depression resulting in a mental health referral. During the subsequent appointment, he reported a 2005 suicide attempt, prior to deployment, due to marital disorder; he placed a rope around his neck, but stopped when a gospel song came on the radio. He reported attending a “stress program” while deployed as well as supportive therapy twice a week for a month. He endorsed occasional nightmares related to a Soldier’s death, overall he indicated symptoms were primarily related to psychosocial stressors; marital, financial, credit “issues”, and his security clearance being suspended. He was found fit for duty with no diagnosis and offered a referral to stress management. b. In 2010, the applicant was referred to behavioral health after reporting depressed mood to his primary care manager; however he missed appointments. In the summer of 2010, notes indicate he was involved in an MEB for orthopedic issues. He was referred for a neuropsychological evaluation after reporting deployment traumatic brain injuries (TBIs). The provider indicated cognitive functioning was intact and there was minimal impact of any cognitive symptoms reporting. The provider also stated the applicant’s responses suggest some trauma symptoms, however not to the level of PTSD. The provider noted the results would be given to the MEB; psychological health was considered during the 2010 MEB process. In June 2010, the applicant’s Warrior Transition Unit (WTU) case management conducted a risk assessment which was void of behavioral health issues; his summary report only highlighted health and TBI as areas of concern. c. A case management note from June 2012 indicates the applicant reported he was doing well, had no medical problems, was “managing his anxiety well,” functioning as an activated reservist and holding two jobs outside of this, and was working toward being found fit for duty by the MEB; he was functioning with no limitations. d. In November 2012, he went to behavioral health reporting marital issues and nightmares. He outlined primary stressors were his marriage and potential separation. The provider noted discrepancies between the applicant’s self-report and medical documentation, especially as it pertained to his claim he hadn’t been supported in seeking and receiving mental health care; the medical record showed multiple referrals with the applicant either not scheduling or no showing. e. With regards to deployment traumas, he referenced being part of a medical evacuation team transporting his friend who had “been blown up.” He noted handling the event well and didn’t have any nightmares until he remained activated post- deployment to train mobilizing Soldiers. He found the training triggered the nightmares of his friend. The applicant stated he had been diagnosed with PTSD at Ft. Bliss, however this was not in the record and he stated he wanted to remain on active duty rather than be medically boarded. The provider diagnosed anxiety disorder NOS, major depressive disorder, and PTSD; however there is a lack of substantiation for the PTSD diagnosis, specifically he lacked the required symptoms and impairment. f. In January 2013, the applicant returned to the therapist reiterating his desire to remain in the Army and pointed out he’d been recently promoted; he was excelling irrespective of any symptoms. In May 2013, he “denied PTSD symptoms, no nightmares recently. Able to work, socialize and engage in his freelance DJ job.” He discontinued therapy in May 2013. g. In January 2013, the applicant was evaluated by psychiatry and diagnosed with anxiety disorder NOS and depressive disorder NOS. The provider later changed depressive disorder NOS to major depressive disorder; however she did not diagnose him with PTSD. The applicant stated his primary issue were nightmares, although arising only when there were personal and marital stress. He noted appealing the MEB decision as he was “fine” and able to perform his duties. The provider noted sleep as the primary issues and prescribed a sleep aid noting emotional symptoms would improve with sleep. The applicant discontinued care in May 2013. A case management note from November 2013 indicates the applicant reported nightmares were minimal and he was doing well. h. The applicant’s MEB paperwork lists the conditions reviewed, both those found unfitting and fitting. On 12 February 2013, he agreed with the findings and he was aware behavioral health conditions were not assessed or included, but did not raise this as an issue. Moreover, the paperwork indicates he “denies having any other known medical conditions” which listed examples to include psychological. On the VA disability paperwork, the applicant was made aware of the conditions that would be assessed and did not list a psychological condition for review. i. The Narrative Summary included a September 2010 report indicated the applicant’s reported anxiety and depressive symptoms. Although the VA initially declined a psychological evaluation, in January 2011 he had a VA psychological evaluation. He reported doing well and working as a DJ and at Home Depot in addition to being a Soldier. He denied any changes or functional impairment related to emotional symptoms. The provider diagnosed Dysthymia. The NARSUM included a February 2013 profile listing a psychological physical profile of “1”; as he did not have a physical profile for any psychiatric conditions. j. The applicant contested the March 2013 informal PEB findings requesting a personal appearance. He contested the findings as he wanted to be found fit for duty and allowed to remain in the service. The formal PEB in May 2013 noted the applicant’s appearance with council; however affirmed he was unfit for shoulder and knee conditions. He was awarded a 20 percent disability rating with severance pay by the Army. He submitted an appeal memo; however in June 2013 the findings were the same. The appeal response acknowledged his ARNG unit believed he was fit for duty, as he did, and he was up for promotion; however he did not submit new medical information that suggested he was now fit for duty. The final results were forwarded to the Army Physical Disability Agency with a second appeal denial in December 2013. k. The applicant’s personnel records reflect satisfactory performance in all Service School Academic Evaluation Reports with the last in August 2011 rating him as Superior in three of the four areas to include achieving 100% on all exams. His available Noncommissioned Officer Evaluation Reports rated him as “Fully Capable” or “Among the Best.” l. A review of VA medical records show a negative mental health screening upon redeployment in 2006. In August 2015, the applicant’s primary care manager noted his PTSD diagnosis in the VA records and referred him to behavioral health. The consult was closed due to nonresponse. In December 2015, he had a Compensation and Pension (C&P) exam diagnosing PTSD and Dysthymic Disorder. m. In February 2016, he went to the emergency room after feeling down and anxious due to life stressors. Specifically ongoing conflict with his wife and wanting to hang himself from the garage rafters “so that she would have to walk in and find me.” He was not admitted. In April 2016, a note indicates behavioral issues as a child to include expulsion and bullying; however the note also outlines childhood physical and sexual abuse which could have contributed to his misbehavior. The applicant agreed to attend a PTSD group, but dropped out. n. In November 2016, he was referred for a neuropsychological evaluation; the VA reviewed previous evaluations which suggested cognitive issues were psychological in nature, not TBI. In the interview, he told the provider he received a 40 percent rating from a 2010 neuropsychological evaluation, but there is no evidence of this. The applicant completed the interview, but cancelled the testing appointments. o. The ARBA clinical psychologist determined, based on a thorough review of all available records that the applicant met psychiatric medical retention standards per Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3, Para 31-37 at the time of separation This does not negate his deployment and VA diagnosis and rating for PTSD; however the VA conducts evaluations based on different standards and regulations. VA examinations can confirm diagnoses and determine if medical conditions occurred while on active duty; however, it does not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. p. In response to the applicant’s concern he did not have a mental health evaluation as part of his MEB, the record includes a June 2010 neuropsychological evaluation in which the provider stated the report was forwarded to the MEB and a January 2011 VA Disability behavioral health evaluation. Furthermore, the applicant had full knowledge of the conditions he was being assessed for and did not request a behavioral health diagnosis be included. Moreover, during his appeals he also did not request a behavioral health condition be considered; rather he appealed to be found fit for duty. q. In summary, the applicant’s behavioral health condition met medical retention standards at the time of separation and he ARBA clinical psychologist concluded there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and thus no additional disability rating(s) are recommended. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 14 June 2019 and given an opportunity to submit comments. He replied to the advisory opinion, stating: a. The advisory opinion states he applied to the Board in October 2014, but he applied in October 2018, once he discovered this was possible. Please recheck the dates. Additionally, while he did receive a satisfactory performance in all evaluations, he did not receive a 100 percent on all exams. He did pass all exams, but not with a 100 percent grade. He failed his Basic Noncommissioned Officer Course. b. The opinion states he attempted suicide in 2005 due to marital stress, only he stated he thought about suicide and did not attempt it. He did not attend a stress management program while deployed or therapy twice a week while deployed. His primary stressors were related to his friend’s death in Iraq. He also did not have nightmares only occasionally, but he has them nightly. c. He was a part of the Community Based Health Care Organization, but it was not located on an Army base and he was reporting to an ARNG unit while he received treatment. The program was not a good fit for any Army Soldier and half the time they didn’t know what to do with him. It would have been much smoother had he been allowed to stay at Fort Bliss, TX to continue his medical treatment. His case manager mainly spoke to him over the phone and did not authorize certain medical treatment he needed, such as Lasik eye surgery or surgery on his right knee and left shoulder. The only reason he received Zoloft was because he forced his way in to see a doctor for the prescription. He continued to complain about mental health issues, but they only wanted to treat his shoulder, neck, knees, and sleep apnea. His case manager just wanted him to get out of the military. d. He was never evaluated for PTSD or mental health conditions until he was separated from the military. They were getting along well. His nightmares were not related to his marriage, but to seeing his friend getting blown up in Iraq. In 2012 he was under medical orders to get well and he was not allowed to have a job outside of the military. He didn’t return to his Home Depot job until 2014, after he was separated from the Army and he no longer has that job as he was fired in December 2017 due to comprehension issues. He wanted to work toward being fit for duty, but all they wanted to do was get his separated from the military. In 2012 his marriage was not in jeopardy and his wife was supportive of his healing process. He missed some appointments because he didn’t receive calls on his cell phone regarding appointments. He also was having memory problems due to TBI which cause him to forget his appointment. He never had a mental health screening upon redeployment; he simply remained on active duty. e. In 2013 he did not agree with his MEB findings and attempted to contest the formal PEB findings because he wanted to retire since he only had 2 more years to perform. In 2015, a consult for a behavioral health group was put in for him, but they never called him. In April 2016 he could not attend any groups due to his job schedule; they would not allow it. He went to the emergency room in 2015 due to the stress of his job and the stress it was causing in his marriage. f. He did his best to maintain a positive attitude while in the Army and tried to go to the appointments they gave him without cancelling any. He did what he was told to do. He is a combat veteran who lost some vision in his right eye due to an improvised explosive device blast and shattered his shoulder while being left behind in Baghdad trying to run and jump back into a Black Hawk helicopter. He feels he should have been medically retired with a rating percentage that includes PTSD and is commensurate with his VA rating. He is 57 years old and will never be a younger man again. He can no longer run and his memory isn’t as good as it used to be, but he loves the Army and his country and still wants to be a part of it in some way. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of 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 military service. 13. 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. 14. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service- connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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 review of the application and all evidence, including the medical advisory opinion and the applicant’s rebuttal to it, the Board found insufficient evidence to grant relief. The Board agreed that the applicant was medically evaluated during his period of service and that he met medical retention standards for combat-related PTSD at the time of discharge: the applicant’s medical service records do not indicate that his medical concerns, including combat-related PTSD, were severe enough to receive a permanent 3 Profile or higher that would have required medical boarding, nor did the applicant request for a psychological evaluation during the MEB/PEB process prior to discharge; therefore at the time of discharge, PTSD was not an unfitting condition. The Board agreed that the applicant’s disability discharge at 20% was proper and fitting and there is insufficient evidence in the applicant’s medical and service records of a medical disability or condition that would support a change in narrative reason to “disability retirement”: the applicant requested to be considered fit for duty, failed to attend offered treatment, and his performance record reflects that the applicant was able to perform his duties in a satisfactory manner. The VA properly provided him support and benefits for service connected medical concerns post-service. 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 Army Board for Correction of Military Records (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 DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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 medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 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/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 or not 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 who are determined to be unfit for duty due to disability either are 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 a 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 a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014077 4 1