ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190002005 APPLICANT REQUESTS: * physical disability retirement in lieu of physical disability discharge * disability rating of 30 percent for traumatic brain injury (TBI) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * numerous pages of service medical records * DA Form 3349 (Physical Profile), dated 7 January 2015 * Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 23 February 2015 * Department of Veterans Affairs (VA) Disability Evaluation System (DES) Proposed Rating, dated 8 July 2015 * U.S. Army Physical Evaluation Board (PEB) memorandum, dated 28 September 2015 * Headquarters, U.S. Army North (Fifth Army) Orders 348-1103, 14 December 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Rating Decision, dated 4 February 2016 * multiple pages of VA medical records FACTS: 1. The applicant states: a. His TBI was determined to be not duty limiting by the MEB, but it has been documented that it is in fact significantly duty limiting. He continues to have daily and weekly headaches that have persisted since the injury. He also has issues with memory as a result of the TBI, which would affect his ability to accurately perform his duties. b. He has continued to receive care from the VA to help get medication and treatment for his TBI. Due to his documented TBI and its symptoms, he believes this should be corrected and he should be granted a proper medical retirement. 2. The applicant enlisted in the Regular Army on 5 April 2011 and served in Afghanistan from 23 January 2014 through 30 May 2014. 3. Service medical records indicate he was involved in a helicopter crash in Kandahar, Afghanistan on 29 May 2014, after which he was medically evacuated to Landstuhl Regional Medical Center, Germany, then was further medically evacuated to Fort Sam Houston, TX on 31 May 2014. 4. On 1 June 2014, he was attached to Headquarters and Headquarters Company Warrior Transition Battalion Brooke Army Medical Center (BAMC), Joint Base San Antonio for continuation of healthcare and medical treatment for a left elbow dislocation, left acetabular fracture, left proximal femur fracture, and left lateral tibia plateau fracture status post external fixator application. 5. A Medical Record shows he was then admitted to the Audie Murphy VA Hospital, Polytrauma Center on 3 July 2014 where he was treated for left elbow dislocation status post external fixation, heterotrophic ossification to left elbow status post osteocapsular release excision, left posterior wall acetabulum fracture, left proximal femur fracture, left lateral tibia plateau fracture, left knee multiligamentous meniscus injury, left ankle sprain, mild TBI, pain, left lateral malleolus fracture, vision problems and released on 17 July 2014. 6. A Standard Form 600 shows he was seen as an outpatient at BAMC on 14 October 2014 at the TBI program. He completed informal cognitive testing without significant deficits and was released from BAMC without limitations. 7. A DA Form 3349 (Physical Profile), shows he was given a temporary physical profile rating of “3” on 7 January 2015, for left elbow dislocation, left acetabular non-displaced fracture, left lateral tibial plateau fracture, left fibular head fracture, left lower extremity open wounds, mild TBI, and left ACL rupture, LCL/MCL tears, migraine headaches. The document does not indicate the requirement for an MEB. 8. An MEB NARSUM, dated 23 February 2015, states DA Form 3947 (MEB Proceedings), shows the applicant was given the following diagnoses: * TBI with memory impairment and headache, medically unacceptable * left elbow dislocation, medically unacceptable * left elbow hypertrophic ossification, medically unacceptable * left knee multi-ligamentous injuries with instability, medical unacceptable * adjustment disorder with anxiety and depressed mood, medically unacceptable * left acetabular fracture, medically acceptable * left proximal femur fracture, medically acceptable * left lateral tibial plateau fracture, medically acceptable * left leg soft tissue injuries, medically acceptable * scars, medically acceptable * left ankle sprain, medically acceptable * left carpal instability, medically acceptable * tinnitus, medically acceptable 9. The referenced DA Form 3947 is not in the applicant’s available records for review. 10. A VA DES Proposed Rating, dated 8 July 2015, shows: a. The document was sent to the PEB with the following proposed DES ratings for service-connected disabilities: * multiple painful and/or unstable scars, 30 percent * nerve damage left upper extremity status post left elbow dislocation and heterotropic ossification excision with capsular release (minor) (claimed as nerve damage left forearm/elbow/wrist area, 30 percent * adjustment disorder with mixed anxiety and depressed mood and TBI, 30 percent * left elbow dislocation with hypertrophic ossification (limitation of flexion) (minor) (DES/PEB referred), 10 percent * left knee multi-lamentous injury with history of instability (DES/PEB referred), 10 percent * left hip acetabular fracture, 10 percent * left ankle sprain with healed distal fibula fracture, 10 percent * tinnitus, 10 percent * calf muscle injury left lower extremity with nerve damage (also claimed as unknown muscle injury left calf area and nerve damage left knee to top left ankle area), 10 percent * left thigh nerve damage status post meniscectomy with external fixation left knee, 10 percent * left elbow dislocation with hypertrophic ossification (limitation of flexion) (minor) (DES/PEB referred), 0 percent * facial scar, 0 percent * scar left calf area, 0 percent * scars on right knee, 0 percent * scars on lower left leg and upper left thigh (skin graft), 0 percent * scar from burn left shoulder area and multiple scars left elbow/left arm area, 0 percent * headaches, 0 percent b. The proposed service-connected combined evaluation for DES purposes was 80 percent. c. The following disabilities were proposed as DES not service-connected: * back condition with pain * bilateral decreased vision * bilateral hearing loss 11. A VA letter to the applicant, dated 9 July 2015, provided the applicant an early estimate of his VA benefits to assist him with his financial planning following his discharge from active duty. It reiterates the VA DES diagnoses and proposed ratings stated above. 12. The applicant provided a U.S. Army PEB memorandum, dated 28 September 2015 notified the applicant he was scheduled to appear for a formal board hearing before the PEB at Joint Base San Antonio, TX, on 23 October 2015. 13. A DA Form 199-1 (Formal PEB Proceedings), dated 26 October 2015, shows: a. A formal PEB was convened on the date of the form and found the applicant physically unfit, recommending a disability rating of 20 percent and that his disposition be separated with severance pay. b. The following conditions were found unfitting for the following reasons: (1) Left elbow dislocation with hypertrophic ossification (MEB diagnoses 3 and 4), with a rating of 10 percent. He was unfit for this condition because he could not move a combat load the distance required of a Soldier in a combat arms military occupational specialty (MOS) since he could not lift more than 20 pounds, carry or fire his assigned weapon, or wear body armor. (2) Left knee multi-ligament injury instability (MEB diagnosis 2), with a rating of 10 percent. He was unfit for this condition because he could not move a combat load the distance required of a Soldier in a combat arms MOS since he could not lift more than 20 pounds, walk long distances, or walk on uneven ground. (3) Left elbow dislocation with hypertrophic ossification (limitation of flexion) (MEB diagnoses 3 and 4), with a rating of 0 percent. He was unfit for this condition because he could not move a combat load the distance required of a Soldier in a combat arms MOS since he could not lift more than 20 pounds, carry or fire his assigned weapon, or wear body armor. c. The following conditions were found to not be unfitting for the following reasons: (1) TBI with headaches and memory loss was found not unfitting (MEB diagnosis 1). He was found fit for TBI with headaches and memory loss, notwithstanding the MEB indicating this condition does not meet retention standards. The evidence supports this condition does not prevent reasonable duty performance and continuing in the military does not pose a risk to the Soldier or to others. The condition does not impose unreasonable requirements on the military to maintain or protect the Soldier. He has only subjective complaint of mild memory loss. As described in the VA Compensation and Pension (C&P) Exam, his headaches and the Montreal Cognitive Assessment (MOCA) test were in the normal range. There is no evidence he underwent formal neuropsychological testing and he is not currently taking any medications for headache prevention. The VA C&P examiner found the Soldier did not have either non-prostrating or prostrating migraine headaches and headaches did not affect his ability to work. The Commander’s statement addresses the Soldier’s headaches, memory impairment, and anxiety disorder stating the Soldier has developed coping mechanisms, is responding to treatment, and is able to complete tasks to standard. There is no evidence this condition interfered with the performance of his duties. (2) Adjustment disorder with anxiety and depressing was found not unfitting (MEB diagnosis 5). He was found fit for adjustment disorder with anxiety and depression, notwithstanding the MEB indicating this condition does not meet retention standards. The evidence supports this condition does not prevent reasonable duty performance and continuing in the military does not pose a risk to the Soldier or to others. Continuing in the military does not pose a risk to the Soldier or to others. The condition does not impose unreasonable requirements on the military to maintain or protect the Soldier. His occupational and social functioning is described by the VA as being due to mild or transient symptoms. The Commander’s statement addresses the Soldier’s headaches, memory impairment, and anxiety disorder stating the Soldier is responding to treatment, has developed coping mechanisms, and is able to complete tasks to standard. The Soldier is able to conduct normal workplace interactions and is able to meet all tasking with his established support system. His anxiety is a daily concern, but is generally manageable. The Commander does not recommend retention because the Soldier is simply prepared to transition out of the Army. There is no evidence this condition interferes with the performance of the Soldier’s duties. d. He was found fit for the following conditions: left acetabular fracture; left proximal femur fracture; left lateral tibial plateau fracture; left leg soft tissue injuries; scars; left ankle sprain; left carpal instability and tinnitus (MEB diagnoses 6-13). The conditions are not unfitting, as the MEB indicates, because these conditions meet retention standards and they do not cause any physical profile limitations of functional activities and there are no performance issues due to these conditions. e. The applicant did not concur with the PEB and submitted a written appeal. He did not request reconsideration of his VA ratings. 14. On 13 November 2015, the applicant appealed the Formal PEB decision and requested reconsideration. He contented his migraine condition was medically unfitting and the PEB’s decision did not have an opportunity to take into account his most recent record of medical care from 12 November 2015, which shows he is diagnosed with a migraine condition necessitating an escalation in prescribed medication and limiting reasonable performance of his duties. 15. On 20 November, the U.S. Army PEB carefully considered the applicant’s appeal and supporting documentation and adhered to the original findings and recommendations of the Formal PEB. The provided medical note from 12 November 2015, revealed the applicant was seen as a “walk in” unscheduled visit, not caused by an acute headache which required immediate medical attention. His headache was described as a constant, dull headache of low intensity (2/10) punctuated by severe migraine 2-3 times per week. His neurological examinations and MRI results were normal. The 12 November 2015 medical note does not indicate worsening of his migraine headaches nor a need for drastic change in management or in his activities. The evidence supports this condition does not prevent reasonable duty performance. His appeal was then forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final processing per regulatory guidance. 16. On 1 December 2015, the USAPDA informed the applicant that after carefully considering the arguments presented in his appeal and reviewing his entire case file, to include all new enclosures, the USAPDA agreed with the PEB findings. 17. Headquarters, U.S. Army North (Fifth Army) Orders 348-1103, dated 14 December 2015, reassigned the applicant to the U.S. Army Transition point at Fort Sam Houston, TX ,for physical disability discharge with separation pay and a rating of 20 percent, effective 17 January 2016. 18. His DD Form 214 shows he was honorably discharged on 17 January 2016, after 4 years, 9 months, and 13 days, due to combat-related physical disability with severance pay. 19. A VA Rating Decision, dated 4 February 2016, shows effective 18 January 2016, service-connected disability for the following disabilities with the following ratings were granted: * adjustment disorder with mixed anxiety and depressed mood and TBI (also claimed as memory impairment), 30 percent * nerve damage left upper extremity status post left elbow dislocation and heterotropic ossification excision with capsular release (minor) claimed as nerve damage left forearm/elbow/wrist area), 30 percent * multiple painful and/or unstable scars, 30 percent * left knee multi-ligament injury with a history of instability, 10 percent * calf muscle injury left lower extremity with nerve damage (also claimed as unknown muscle injury calf area and nerve damage left knee to top of left ankle area, 10 percent * left ankle sprain with healed distal fibula fracture (claimed as unknown muscle injury left calf area and nerve damage left knee to top of left ankle area), 10 percent * left thigh nerve damage status post meniscectomy with external fixation left knee (claimed as nerve damage left knee down to top of left ankle area), 10 percent * tinnitus, 10 percent * left elbow dislocation with hypertrophic ossification (limitation of flexion) (minor) (claimed as status post left elbow dislocation and left elbow hypertrophic ossification), 10 percent * eft elbow dislocation with hypertrophic ossification (limitation of extension) (minor) (claimed as status post left elbow dislocation and left elbow hypertrophic ossification), 0 percent * headaches, 0 percent * scar from burn to left shoulder area and multiple scars to left elbow/left arm area, 0 percent * scars on lower left leg and upper left thigh (skin graft), 0 percent * scars on right knee, 0 percent * scar on left calf area, 0 percent * service connection for bilateral hearing loss is denied * service connection for back condition with pain is denied * service connection for bilateral decreased vision is denied 20. An advisory opinion was provided by the Army Review Boards Agency (ARBA) psychologist on 31 October 2019, which states: a. A review of the applicant’s electronic VA medical record indicates he has a combined service-connected disability rating of 80 percent, of which 30 percent is for adjustment disorder with mixed anxiety and depressed mood and TBI. b. Subsequent to a helicopter crash and medical evacuation from Afghanistan, the applicant was seen at the TBI clinic at BAMC. On 28 May 2015 he was evaluated by a neuropsychologist for an evaluation for his memory, anxiety, and headaches. The results of the psychometric testing indicated his cognitive and memory abilities were in the average range. The neuropsychologist noted the applicant’s adjustment disorder fell below retention standards and the adjustment disorder and headaches should be rated separately on his MEB. c. The applicant completed the MEB/PEB process and was awarded severance pay based on the results of the DES process. It is acknowledged that he received a higher disability rating from the VA. This determination alone, however, does not automatically mean that a military physical disability retirement is warranted. The VA operates under different rules, laws, and regulations than the Department of Defense when assigning disability percentages. d. In essence, the 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 in the line of duty. While the applicant did have a history of mild TBI, it did not result in him being unfit for military service. A referral to the military medical DES for reevaluation is not recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 21. The applicant was provided a copy of the advisory opinion on 4 November 2019 and given an opportunity to provide comments, but 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 record of service, his injuries and treatment, the applicant’s MEB process, the VA evaluation of his conditions, conditions that failed to meet medical retention standards, the determination by the PEB of the conditions that were unfitting, the applicant’s appeal, the PDA review and his separation with disability severance pay. The Board considered the applicant’s VA disability ratings and the review and conclusions by the medical advising official. The Board found insufficient evidence to show the applicant should have received 30% disability rating for Traumatic Brain Injury (TBI). The Board considered that the VA provides compensation for disabilities under a standard different (unsuiting) than that applied by the Army (unfitting). The Board did not find evidence of additional unfitting conditions at the time of the applicant’s separation. Based on a preponderance of evidence, the Board determined that the applicant’s separation due to disability, with severance pay, was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 : : : 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, 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. 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. 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. 3. 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. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190002005 10 1