ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180014625 APPLICANT REQUESTS: Reconsideration of his previous request for retirement based on physical disability. 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100015313 on 18 January 2011. 3. The applicant states: * His disability should be rated higher than 10 percent * He feels his issues are 100 percent total as his TBI and mental health have made his life lots less than should have been * He got his disability rating corrected and he though the issue was over * He thinks that during his 5-year medical exam something was missed as he is rated 100 percent disabled by the Department of Veterans Affairs (VA) * His traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) should result in a medical retirement * His shoulder and his mental health will forever be an issue 4. The applicant enlisted in the Regular Army on 30 January 2003. He served in Iraq from 8 August 2004 to 29 July 2005 with duties in military occupational specialty 11B (Infantryman). 5. On 30 November 2006, a Medical Evaluation Board (MEB) diagnosed the applicant with chronic PTSD, which failed to meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). He was also diagnosed with chronic intermittent right shoulder pain, status post two concussive injuries, and gastroesophageal reflux disease symptoms, which were deemed to meet retention standards. The MEB referred that applicant's case to a Physical Evaluation Board (PEB). 6. A DA Form 199 (PEB Proceedings) shows that on 15 February 2007, a PEB found the applicant physically unfit due to PTSD, onset during deployment to Iraq in 2005. The PEB recommended a disability rating of 10 percent and the applicant's separation with entitlement to severance pay. The DA Form 199 shows the following disability description: PTSD, onset during deployment to Iraq, 2005 (10 A/C, commander statement). Symptoms include insomnia, nightmares and anxiety in crowds. Soldier has had numerous discipline issues since return to include DUI [driving under the influence] and AWOL [absent without leave]. Treated with medication and counseling. Soldier currently employed on staff duty and CQ [charge of quarters], 12-24 hours per week. Profile restrictions render Soldier unfit for military service. Rated for mild industrial impairment. 7. The applicant concurred with the PEB findings and waived a formal hearing. On 13 March 2007, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations. 8. On 29 March 2007, the applicant was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on disability with severance pay. 9. In an application dated 8 March 2010, the applicant requested to the ABCMR that he be granted a medical retirement based on PTSD and TBI. 10. The Board determined on 18 January 2011 that relief was warranted based on a 17 July 2009 memorandum, issued by the Office of the Under Secretary of Defense (Personnel and Readiness), which directed that as a matter of policy, all BCMRs will apply the VA Schedule for Ratings Disabilities (VASRD) Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50 percent for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence. 11. On 10 August 2011, the U.S. Army Physical Disability Agency (PDA) issued a corrected DA Form 18 (Revised PEB Proceedings) showing the applicant was unfit for PTSD, onset during deployment to Iraq, rated 50 percent disabling. The PEB recommended the applicant's placement of the temporary disability retired list (TDRL), retroactive to 15 February 2007, with reexamination during August 2011. 12. The DA Form 18 contains the following statement: The ABCMR had directed that your previous disability findings be amended to reflect placement on the TDRL with a minimum 50 percent rating for PTSD, effective the date you initially retired or separated from the Army. This administrative correction accomplishes that, and supersedes the DA Form 199 dated 15 February 2007. The ABCMR also directed a re-evaluation be conducted on you based on your condition on the six month anniversary of your placement on the TDRL, and you will receive a separate PEB Proceedings document with the results of that evaluation. 13. On 11 August 2011, a PEB reevaluated the applicant's unfitting condition and found him unfit for PTSD, rated 10 percent disabling. The PEB recommended his separation with entitlement to severance pay. The DA Form 199 shows the following disability description: PTSD secondary to service in Iraq in 2004-2005 for which the Soldier has been placed on TDRL as of 29 March 2007. At that time, Soldier complained of nightmares, anxiety, insomnia, irritability, avoidance behavior. It was opined that the Soldier's conditions cause marked impairment of industrial adaptability. However, he was working part-time in staff and CQ duties. His commander indicated that he worked under supervision well and maintained an appropriate relationship with peers and superiors with only minor disciplinary guidance. The neuropsychological testing revealed no evidence of a cognitive disorder. Condition was aggravated by Soldier's overuse of alcohol which is not compensable. Based on the preponderance of the evidence in the case file, and due to the lack of current information with regard to the Soldier's status and the expectation that the condition would improve with medical treatment, the disorder is properly rated at 10 percent after the required statutory period. 14. The DA Form 199 shows the following statement: This adjudication was conducted per direction of the ABCMR to determine your condition at the six-month point after placement on the TDRL. Effective date of this adjudication is 29 September 2007, and orders will be generated using that date as effective date for your removal from the TDRL. 15. On 16 August 2011, the PDA published orders directing the applicant's removal from the TDRL and his discharge from the service, effective 29 September 2007, because of permanent physical disability with entitlement to severance pay. The order show a percentage of disability of 10 percent. 16. On 7 August 2019, the Army Review Boards Agency clinical psychologist/medical advisor provided an advisory opinion. The advisory states that based on a thorough review of available medical records at the time of separation, the applicant was experiencing minimal symptoms supporting the 10 percent he received. Documentation reflects minor duty restrictions, one brief hospitalization with determination he did not require further treatment, successful school performance with superior ratings, command’s statement that he worked well under supervision and had appropriate relationships, and behavioral health notes indicating he was improving, doing well, going to formation and performing duties, and reporting minimal symptoms. Although he was referred to an MEB, this does not equate to being 100 percent disabled at the time of separation. Rather, documentation supports the PEB’s determination the referred condition, PTSD, had minimal impact on daily functioning. Likewise, TBI was not found unfitting as neuropsychological testing found no evidence of a cognitive disorder or post-concussive syndrome. In summary, documentation supports the PEB’s rating of 10 percent for PTSD. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 8 August 2019 and given an opportunity to submit comments. He did not respond. 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 medical conditions a separation, his VA ratings over time, a previous ABCMR decision, his reevaluation and final PDA determination and the reason for his separation. The Board considered the conclusions of the medical advising official regarding changes in his condition, the impact of PTSD on his daily functioning and that status of his condition at his final medical separation. The Board found insufficient evidence to support a change to his disability separation and determined that the reason for his separation was not in error or unjust. 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. 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a 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 service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states 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 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. c. Paragraph 3–9 provides guidance for the TDRL. It states the TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, USC, section 1208. In addition, the condition must be determined to be temporary or unstable. d. Paragraph 4-17 provides guidance for PEBs. It states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 3. The VASRD, section 4.129, provides information regarding mental disorders due to traumatic stress. It states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted. 4. The 2008 National Defense Authorization Act, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA. 5. In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50 percent for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence. It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions. Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001. 6. Title 10, USC, 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, USC, 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. 7. Title 38, USC, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.