ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20180014192 APPLICANT REQUESTS: he be medically retired. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * document pertaining to disabilities (no name appears on document) * 1 page of a Chronological Record of Medical Care 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 he was “diagnosed with partial complex seizure disorder during the last 45 days of my enlistment.” The first time he experienced them was in early 2011 while deployed in Afghanistan. He wanted to do 20 years and retire. In early 2011, he remembers going to mental health. He told them he was having hard shakes and wasn’t able to sleep. The counselor told him he thought he had post-traumatic stress disorder (PTSD) but the hard shakes where something for neurology to review. Since he was in Afghanistan, it wasn’t possible to see neurology while he was there, according to the mental health counselor. Because of his symptoms with PTSD and not knowing what the hard shakes meant, he decided to be released from active duty at the completion his expiration term of service (ETS). b. The Army clinic and doctor that diagnosed him stated he should be medically boarded because someone with a seizure disorder could not or should not serve. He thought he would have been medically boarded, but he was not. He was given just an honorable discharge without being retired. He has been treated for seizures ever since he was diagnosed and given treatment for seizures while in the Army. He believes this is an inequity and he was simply rushed through the process instead of being reviewed for medical retirement. He completed over 10 years of active duty service. 3. The applicant’s medical records are not available for the board’s review and the available record is void of evidence showing he had a condition requiring referral to the medical evaluation board (MEB) during his tour on active duty. 4. On 16 February 2007, the applicant was honorably released from active duty due to completion of required active service and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). 5. On 22 August 2019, the Army Review Boards Agency (ARBA), medical advisor provided an advisory opinion. The ARBA medical advisor states, in part, Army Regulation 40-501 allows for a period of treatment following a diagnosis of seizure disorder. Given the applicant’s lack of occupational impairment and being in the initial treatment phase for seizures, he was not at the medical determination point that would warrant referral to the MEB. There is no evidence of occupational impairment during the period of time he was experiencing the “hard shakes” and he had just initiated treatment prior to his separation from service. Similarly, diagnoses of PTSD and Anxiety Disorder do not automatically fall below retention standards. It is acknowledged the applicant has a serviced connected disability rating for PTSD and seizure disorder from the Department of Veterans Affairs (VA). This determination alone, however, does not automatically mean military medical disability/retirement at the same rating level is warranted. It is important to understand VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, 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. A copy of the complete medical advisory was provided to the Board for their review and consideration. 6. In response to the medical advisory, the applicant provides additional medical document and states, in part: a. The medical advisory uses his performance evaluations as evidence that his conditions did not affect his performance. In actuality, he was diagnosed with PTSD while deployed on 23 May 2011. This means that during his deployment, his ability to serve was affected so much that he had to go see a mental health professional while he was at war. He can remember that he couldn't sleep. He became very irritable. He kept thinking specifically that he was going to get attacked and replayed in his mind how it would happen. He can remember crying and having shortness of breath. Furthermore, he thought the shaking (which was later found to be seizures) was a mental health issue. b. The mental health provider told him he needed to see a neurologist. He went on to say there were no neurologists in Afghanistan and he would have to wait until the end of his deployment to see one. This occurred on 23 May 2011. He didn't get to see a neurologist until 18 August 2011, the neurologist later diagnosed him with seizures. This was nearly 90 days later after first telling a medical professional he was having hard shakes. The advisory opinion further states his mental health didn't impact his ability to perform his duties. He’s been out of the military for 8 years and has been receiving treatment ever since. In 8 years, he never had any mental health professionals encourage him to use or be around a firearm. Only in the Army could you explain to a mental health professional that you've become hyper-aware, anxious, afraid of large crowds, afraid of anything lying on the ground while walking or driving for it may be an improvised explosive device and they still believe being around firearms is a good idea. c. He discussed with the mental health provider about being on a Sanitation Team while in Iraq in 2007. The purpose of that team was to clean the vehicles that soldiers had been wounded or killed in after an IED blast. PTSD can be deceptive, it affects not only your career but your whole life and usually the soldier is the last to know. He was actually going to reenlist while in Afghanistan and reclassify to Counter Intelligence. He went through the interview process and was getting ready reenlist, but he started having those hard shakes and stopped sleeping. He started thinking any day could be the day he would die. He became cold to his wife during phone conversations and started having irritable spells with his boss. He knew something was wrong but didn't know what. After speaking with the mental health provider, he knew it was time for me to go. All he ever wanted to do was be a soldier but he knew it was only a matter of time before something terrible would happened. d. The medical advisory states the doctor prescribed Trileptal and he quit taking it because it was making him sleepy. He attached the side effects of the drug from the MAYO Clinic. He remembers the sore throats, dizziness, and feeling feverish. As with any new medications, the patient may discontinue it if he feels as if the side effects where more than what he can handle. He didn't avoid treatment because he went back to see him a few weeks later to discuss it as indicated in the advisory opinion. Getting a patient on the correct medication takes time, unfortunately, he wasn't given that time. The opinion suggests he didn't give the doctors the opportunity to treat him. When in actuality, they didn't give him the time to be treated. Anyone who has ever served in the military knows a service member cannot simply refuse treatment without some kind of repercussions. e. The opinion states his seizure disorder did not warrant MEB due to the lack of occupational impairment. This is completely false. The applicant cites the Governing regulation in reference to seizure disorders. The first is treatment over a time period of 6 Months and the second option is referral directly to an MEB for referral to a PEB which is mentioned in section. He didn't have six months left in the military to be treated for the first option. The only alternative would have been the second option of MEB. f. He didn't really understand much about the MEB while he was on active duty. His neurologist spoke to him about it during the visit when he diagnosed him. The neurologist said he may have to go through a MEB. The neurologist said it would extend the time he would get out and he just looked at him. The regulation didn't give him the opportunity to be treated for 6 months unless he was going through a MEB. A MEB was the only alternative and that's why he believes the doctor mentioned it to him. g. The advisory suggest his VA rating and condition are irrelevant to medical retirement. His VA rating and treatment are proof the out-processing by the Army failed him. If he had stayed in for 6 more months under review, the Army doctors would have concluded he was having chronic seizures just as VA did. Furthermore, VA told him numerous times he should not operate a vehicle if he can't go six months without having a seizure, which he has failed to do. The advisory opinion seems to pass the buck of his treatment to VA. Getting VA benefits is not automatic. It's considered by most to be the last battle. After getting out of the military, it took years to get the right prescriptions and treatment for PTSD and Seizures. It's a battle he faces every day. He was not given an opportunity for treatment due to his ETS date. He was simply passed on out the back door like most of the other soldiers. This is not simply about retirement, it’s about the fact he couldn't get the treatment he needed while active duty, due to timing and convenience for the Army. He did 10 years with 4 combat tours and was ready to open a new chapter in his career. The deployments and whatever caused the seizures had caught up to him. The applicant’s complete rebuttal is available for the Board’s review and consideration. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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. 8. 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 higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. 11. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service to include deployments, his performance of duties and the reason for his separation. The Board considered the review and conclusions of the Agency medical advising official, his VA ratings and the response from the applicant to the advisory opinion. The Board found that the applicant had a diagnosis that may have been unfitting, but departed service prior to reaching a medical determination point. The Board further considered the applicant’s continuing treatment post-service. Based on a preponderance of evidence, the Board determined that the applicant should have been afforded due process through the Disability Evaluation System prior to separation to correct an injustice. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review: a. If a review by the Office of The Surgeon General determines the evidence supports it, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (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 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 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 retirement payments and have access to all other benefits afforded to military retirees. b. 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 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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 at less than 30 percent. 5. 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 higher VA rating does not establish an error or injustice in the Army rating. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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) AR20180014192 9 1