ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180014360 APPLICANT REQUESTS: in effect, correction of medical retirement Integrated Disability Evaluation System (IDES) paperwork to add his service connected mental health condition of Post-traumatic Stress Disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veteran Affairs (VA) Rating Decisions * Email * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical documents FACTS: 1. The applicant states he was found to have a mental health condition by the Army and was then rated by VA with a 70 percent rating. His mental health condition started while on active duty and was already established in the IDES system to be a condition that did not meet retention standards; however, it is not listed on his medical retirement evaluation. He was advised he did not need to be evaluated again during the medical evaluation board (MEB) process and that it would migrate into his final packet. It did not migrate and was left off his documents completely. This caused him to go back to VA to be evaluated and rated after being discharged. The Military Service Coordinator attempted to have this corrected but was not successful. He thought his IDES packet would be corrected with the VA evaluation rating. He found out it was not when he was contacted by someone with working with the Temporary Disability Retirement List (TDRL). 2. The applicant was issued a permanent P3 profile due to depression and back pain which was signed by a profiling officer on 11 June 2011. The profile indicates referral to a PEB, however block 15 (action by approval authority) of the profile is checked “Not Approved” and there is no signature on the form from an approval authority. There is no indication a MEB was conducted and he continued to serve. 3. On 10 September 2015, the applicant was issued a P3 profile for neck pain, neck nerve pain, shoulder pain, heart problems, headaches, sleep problems and depression. The profile indicated he did not meet retention standards and needed a MEB. 4. On 4 December 2015, he was issued a P3 profile for neck pain and lower back pain. The profile indicated he did not meet retention standards and needed a MEB. 5. A Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement, dated 8 December 2015, shows the applicant’s commander recommended retaining the applicant. The commander stated the applicant had proven to be an asset to the unit and there was no drop in his administrative overall performance. The applicant completes all tasks and requirements to standard with no excuses. The applicant has physical limitations which interferes with physical ability to complete all requirements for his military occupational specialty. The commander was not able to state the applicant’s overall fit for duty as the applicant is not able to participate in many of the unit’s physical demanding training or perform many of the required duties in a field or garrison environment. His limitations would not allow him to be able to be mobilized which is one of the most critical requirement in today’s Army Reserve. 6. On 11 February 2016, a MEB found the applicant unfit due to Cervical strain with intervertebral disk (IVDs) syndrome status post anterior cervical discectomy and fusion at C5-C6, Degenerative disk disease, lumbar spine with strain with herniated nucleus pulposus at L5-S1, and left sciatic nerve IVDs with radiculopathy. He was referred to a Physical Evaluation Board (PEB). The MEB proceedings is void of a PTSD diagnosis meeting or not meeting retention standards. On 18 February 2016, the applicant agreed with the Board’s recommendation. The applicant acknowledged the MEB accurately covered all of his current medical conditions. 7. The applicant’s PEB proceedings are not available for the board’s review and the applicant does not provide them. 8. On 30 June 2016, the applicant was placed on the Temporary Disability Retired List. 9. On 29 May 2019, an informal PEB found the applicant physically unfit and recommended he be permanently retired with a 70 percent disability rating due to degenerative disc disease, lumbar spine with lumbar strain and herniated disc at L5-S1, left upper extremity radiculopathy, left sciatic nerve intervertebral disc syndrome with radiculopathy, and cervical strain with intervertebral disc syndrome post cervical discectomy and fusion. The applicant concurred with the findings and waive a formal hearing of his case. The PEB proceedings are void of any mention of PTSD either as a fitting or unfitting condition. 10. On 11 June 2019, the applicant was removed from the TDRL and was permanently retired on 12 June 2019, due to disability. 11. On 7 June 2019, the Army Review Boards Agency (ARBA), medical advisor provided an advisory opinion. The ARBA medical advisor states, in part, based on a thorough review of available records, the applicant did not have an IDES/MEB established diagnosis of PTSD, or any behavioral health condition, nor was he found unfit related to a behavioral health condition. Although he was aware he could appeal and/or request the Boards consider other conditions, he only requested reconsideration for Sleep Apnea and subsequently agreed with the findings indicating the final determination included all conditions. Even if the diagnosis had been considered, a VA rating does not equate to an Army rating. 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. Although in 2010 the applicant had a profile listing depression as unfit with referral to the MEB, the condition was not PTSD and he remained on active duty; if there was a referral to IDES, the determination was either he didn’t meet criteria to enter the MEB process or did complete the process and found fit for duty. The applicant’s subsequent profiles do not include limitations due to psychiatric conditions, only notate depression, and went back and forth from a S1 and S2 with final determination of a S1; he was psychiatrically fit for duty. All additional military and medical documentation indicate the applicant was not impaired by a behavioral health condition and, in fact, excelled for nine years after the initial diagnosis only hindered by a physical profile making him nondeployable. In summary, documentation does not support the applicant’s claim a diagnosis of PTSD was already in the IDES system, noted to fall below medical retention standards, and should have been included in his Army disability rating. Furthermore, there is no evidence the applicant failed medical retention standards for a behavioral health condition at the time of separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 7 June 2019, he was provided a copy of the medical advisory for comment or rebuttal. He did not respond. 13. 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. 14. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for IDES. The IDES is the joint Department of Defense (DOD) - VA process by DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service- connected disability 15. 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. 16. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 17. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, the conditions that led to his medical retirement, the conclusions of the advising official regarding the applicant’s claim of PTSD and the applicant’s VA rating. The Board found no evidence of PTSD as an unfitting conditions during the time of the applicant’s service and determined there was no error or injustice in the rating he received upon separation. The Board determined that no correction was required. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. X CHAIRPERSON 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. Directive-type Memorandum (DTM) 11-015, in effect at the time, explains the IDES. 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. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. 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 (or his or her designated representative) 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. 2. 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. 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. 5. 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.