IN THE CASE OF: BOARD DATE: 4 September 2020 DOCKET NUMBER: AR20190004202 APPLICANT REQUESTS: the applicant requests correction of his military records to show he: * received a disability rating or more than 30 percent (%) * medically retired (disability retirement) from the Army due to post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) with full benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement, dated 19 March 2019 * DA Form 2796 (Post-Deployment Health Assessment), 17 February 2004 * U.S. Army Transport Center, Fort Eustis, VA, Permanent Good Conduct Medal, dated February 2005 * Office of Medical Evaluation Board (MEB), Memorandum for Record – Initial MEB Counseling, dated 8 December 2010 * Military Medical Records from period 2009 to 2011 * Office of MEB Outreach Counsel Memorandum (from Applicant), Fort Riley, KS, dated 29 July 2011 * Department of Veterans Affairs (VA) Letter, dated 26 September 2011 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings, dated 5 October 2011 * 30 Day Pre Sep Computation, dated 11 October 2011 * Headquarters, 1st Infantry Division, Fort Riley, KS, , dated 20 October 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for separation date 12 December 2011 * VA Letters, dated 2 February 2012, 7 February 2012, 23 August 2012, 30 August 2012, 7 April 2014, and 9 April 2014 * U.S. Army Physical Disability Agency (USAPDA) Letter, dated 25 April 2013 * National Archives and Records Administration (NARA), dated 19 March 2019 * DA Form 2870 (Authorization for Disclosure of Medical or Dental Information), 19 March 2019 * VA Form 10-5345 (Request for and Authorization to Release Health Information) 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 discharged on 11 December 2011 for medical reasons. He recently found a letter discussing his approval for a discharge upgrade based on the ?Hagel Memo? (Secretary of Defense Memorandum, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (PTSD), dated 3 September 2014). He must have received the letter, filed it away, and forgot about it. His wife recently found the letter and this is why they are petitioning for the Board's assistance with this matter. He would like his medical discharge reviewed and upgraded to reflect his diagnoses of PTSD and TBI. He believes that during the discharge process the discharge review board was in error and his discharge was improper due to the fact that they changed his diagnosis of PTSD to anxiety. If he was discharged after the Hagel Memo was in effect his discharge would have been more than 30% giving him and his family significantly more benefits that they were entitled to. b. When he returned from his first deployment in 2004 he was unaware of the effects of wartime deployment and/or was in denial regarding his symptoms. During this time he started to abuse alcohol which led to him receiving an Article 15 and having to take Army substance abuse classes. This stress on his life continued to cause problems with his career and his family. c. He deployed again in 2006 to Iraq where he was not able to abuse alcohol; however, he was having problems with his marriage, which led to a separation and then later a divorce. He had problems with anxiety, anger, memory, and night terrors. He attempted to advance to sergeant (SGT) at this time but was unable to pass the promotion board due to his stress and memory loss. His thought process was jumbled and he had problems remembering important events when under stress. Even today he struggles with remembering tasks and important events. He was denied promotion and this continued to cause problems with his anger and stress. d. When he returned home from deployment he divorced his second wife and then was reassigned (permanent change of station) to. He petitioned to return with his new unit on their deployment, even though he had not been stateside very long. While he was petitioning to accompany his new unit to Iraq, he started dating his current spouse who is a registered nurse. She discussed with him her concerns for his alcohol abuse and memory loss and the fact that he wanted to return to a wartime area so soon after returning home. He rebuffed her concerns because he felt more in control of his situation and his life, and more normal on deployment than at home. Again, she encouraged him to go to the promotion board and again he was denied promotion. This continued to cause problems for him and he went into a depression cycle. e. After returning home he continued to abuse alcohol while he was not at work. He had an injury from repetitive lifting. His wife encouraged him to seek medical attention for the pain instead of self-medicating with alcohol. Shortly after this, he was drinking at a bar in Junction City when he blacked out and started to have what witnesses described as flashbacks, fighting and anger. He was arrested and detained. He has no memory of these events. When his chain of command was notified, he was required to attend Army Substance Abuse Program (ASAP) classes and AA (Alcoholics Anonymous) classes. He began seeing medical doctors for treatment for his shoulder injury and pain. f. His wife told his providers of her concerns with his memory, anger, night terrors, and other symptoms. In 2010 he was diagnosed with PTSD and TBI. He went to the TBI clinic and they helped him find ways to assist with his memory, which helped his depression and anxiety. They taught him techniques to help him calm down when he became angry. They also placed him on different medications. Some were not very successful; however, for his career and family he was willing to try them. In 2011 when he found out he was being discharged, he was told it was due to his shoulder. His discharge paperwork conflicts with this and states his shoulder injury was retainable. g. He did not rebut the discharge or appeal it. When he first saw the paperwork from the VA stating his diagnoses had been changed from PTSD to anxiety he became angry and withdrawn. He was quite depressed the first year after his discharge. His wife described him as being a zombie. He was alive and surviving but not thriving. He was receiving help from the VA but it did not seem to be enough. He attempted to go to college but failed his classes due his lack of memory to help him pass the tests. This caused him to be more depressed and withdrawn. His wife was their sole support at this time and they were frustrated. They hired a lawyer in 2012 and decided to petition to have this changed through the VA. They were unaware of the Hagel memo at that time. h. After his petition to the VA his rating was changed back to PTSD and increased from 10% to 50%. This proves there was an error of some sort. However he did not petition the Army Board because he was unaware that he was able to. His family has been denied healthcare from the military and they struggled over the years to pay the hospital bills with civilian insurance. This causes him to be angry and feel that all the work he did for the military was in vain. He feels unsecure with the VA and his benefits could be removed at any time. His diagnoses with the VA are not considered permanent and total. i. He took time off from receiving medical care. He struggles with maintaining his appearance and his wife helps him with this but he does not have a desire to do so. He has no desire to eat but he does to please his family. He is frustrated a lot due to his lack of memory and this saddens him. He is angry a lot and half of the time, he has no idea why he is angry. He started to go back to the VA to get help with these issues due to the encouragement of his wife. His injuries and conditions were caused from his wartime deployments and he would like his record to reflect such. j. He hopes the Board is able to assist and to have compassion over his complaints and issues. He is no longer abusing alcohol due to the help of his church, his wife, and his children. It is scary to have these issues, i.e., flashbacks and not being able to remember his behavior. He had hoped to retire from the Army before all of this happened. It was his total life and his career. Thankfully, his wife helped him find a new career path that works for him and they are considerate of his disabilities; however, he continues to struggle. 3. Having previous enlisted service in the Army National Guard, on 29 December 2000, the applicant enlisted in the Regular Army. He held the Military Occupational Specialty (MOS) 92F (Petroleum Supply Specialist). His record shows he served at various overseas and stateside assignments. a. He was assigned overseas to Babenhausen, Germany, on 20 April 2001 as a Petroleum Heavy Vehicle Operator and he deployed to Iraq from 19 March 2003 to 1 March 2004. He departed Germany on or about July 2004. b. He was assigned to Fort Story, VA, on 27 July 2004 as a Petroleum Supply Specialist and a Petroleum Light Vehicle Operator; on 1 September 2006, he was deployed to Iraq. He was reassigned to Fort Eustis, VA on 28 March 2007, as a Petroleum Light Vehicle Operator, and he returned from Iraq on 26 August 2007. c. He was assigned to on 28 November 2007. He was deployed to Iraq from 20 March 2008 to 20 November 2008, and after deployment, he returned to 4. In November 2010, the MEB determined that his right shoulder acromioclavicular arthropathy (synonymous with arthroscopic subacromial decompression with excision of distal clavicle) did not meet medical standards. It further determined that the other 12 additional conditions met medical standards: * Bilateral patellar chondromalacia (synonymous with osteoarthritis of bilateral knees) * Sarcoidosis * Onychomycosis/Tinea pedis (synonymous with athlete’s foot) * Cholinergic urticarial * Allergic rhinitis * Gastroesophageal reflux * Hypertension * Nicotine dependence * Sleep apnea * Alcohol misuse (h/o) * TBI (synonymous with history of TBI with mild disconjugate gaze and double vision * Anxiety disorder NOS (noted the applicant asserted he had PTSD) 5. A PEB was convened on 5 October 2011. His DA Form 199 (Physical Evaluation Board (PEB) Proceedings), states, in pertinent part: a. The applicant’s disability of the right acromioclavicular arthropathy (shoulder) was not a battle injury but reported to be related to heavy lifting performed while deployed to Iraq in 2008. He underwent resection of distal clavicle and supraspinatus debridement, followed by later biceps tenodesis in July 2010. Despite local injections and physical therapy, had not recovered sufficiently to return to unrestricted duty. It is unfitting as Soldier cannot lift equipment used in MOS, climb into tactical vehicles, wear IBA (Individual Body Armor), carry a combat load, or perform functional tasks. His injury was considered stable and was rated at 20%. b. The conditions listed as medical board diagnoses numbers 2-10, 12, and 13 were determined to meet retention standards by the medical treatment facility (the record is void of the MEB proceedings). They were found not to be unfitting and were not ratable. They were not listed on his physical profile as limiting any of his functional activities. The commander did not consider conditions to hinder his performance and the case file contains no evidence that these diagnoses independently, or combined, render the Soldier unfit for assigned duties c. The condition listed as medical board diagnosis number 11 was considered and found to be not compensable as it is not deemed to constitute a physical disability although it may be administratively unfitting. d. His disability rating was less than 30%. Soldiers with a disability rating of less than 30% and with less than 20 years of service, as computed under Title 10, U.S. Code, section 1028 are separated from service with disability severance pay. The specific VASRD (Veteran Affairs Schedule for Rating Disabilities) code to describe his conditions and the disability percentage awarded were determined by the VA. His disposition in block 9 was determined by the PEB after receipt of the VA disability decision. Block 9 states the board finds the Soldier is physically unfit and recommends a combined rating of 20% and that the Soldier’s disposition be separation with severance pay if otherwise qualified. e. The applicant indicated that he was advised of the findings and recommendations of the PEB and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto and he concurred with the PEB. 6. On 12 December 2011, the applicant was honorably discharged under Army Regulation (AR) 635-40 (Personnel Separations – Physical Evaluation for Retention Retirement, or Separation), Chapter 4 (Procedures) for disability, severance pay, combat related (enhanced). He completed 10 years, 11 months, and 14 days net active service this period (4 months, 3 months, and 25 days since his last reenlistment), and 4 months and 17 days total prior active service. 7. The applicant provides: a, dated 8 February 2005, showing he was awarded the Good Conduct Medal for the period of service 21 May 1999 to 20 May 2002. b. Post Deployment Health Assessment, dated 17 February 2004, showing he completed the assessment due to his deployment with A Battery, 1st Battalion, 27th Field Artillery to Southwest Asia in support of Operation Iraqi Freedom. The applicant indicated that his health stayed about the same or was better during this deployment. He was seen on sick call on two occasions. He had the following symptoms during deployment or developed them after deployment: chronic cough, runny nose, skin diseases or rashes, and feeling tired after sleeping. He did witness individuals, coalition or enemy, wounded, killed or dead during the deployment. He was engaged in direct land combat. He felt he was in great danger of being killed. Within the last two weeks he had little interest or pleasure in doing things and felt down, depressed, or hopeless. He had thoughts or concerns that he may have serious conflicts with his spouse family, members, or close friends. He was referred for combat/operational stress reaction and internal medicine and he had sarcoidosis (an inflammatory disease that affects multiple organs in the body, but mostly the lungs and lymph glands). c. Office of the Medical Evaluation Board Memorandum for Record from the MEB Attorney, dated 8 December 2010, showing during an initial counseling session, the applicant, in pertinent part, states he had just been diagnosed with PTSD, and was being tested for anxiety. He suffered from TBI and had chronic headaches, with light sensitivity, concentration problems and was easily irritated. The attorney requested further evaluation and testing. d. Headquarters, 1st Infantry Division, Fort Riley, KS, Orders 293-0026, dated 20 October 2011, showing he was reassigned to the U.S. Army transition point with a reporting date of 12 December 2011. The additional instructions read: * Percentage of disability of 20% * He was authorized disability severance pay in pay grade E05 (E-5) based on 12 years, 1 month, and 5 days of service as computed, Title 10, U.S. Code, section 1208 * Disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as define by law: No * Disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104: No * Member of an Armed Force on 24 September 1975: No * Disability was incurred in a combat zone and incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA (National Defense Authorization Act) 2008, Section 1646: Yes e. Medical records from the period 2009 to 2011 showing: (1) On 30 July 2009, the applicant received an arthrogram, ordered by physical therapy, for right shoulder pain for one year after doing repetitive heavy lifting, test revealed possible distal clavicle osteolysis, minimal improvement with profiles and physical therapy. He also had history of an MRI screening – a single waters view of the skull, which show no evidence for radiopaque foreign body, pneumatized portions of the skull were clear and no abnormal areas of lucency nor sclerosis. (2) The applicant was seen by the Neurology clinic on 4 November 2010 by Provider R.G for post-concussion syndrome and he scheduled him for an MRI of the brain (3) On 3 January 2011, he was seen by the TBI Family Practice for evaluation of his mild TBI. It states in the clinical notes: (a) He had been seen by the TBI Clinic, Neurologist but not by the intake provider. He had been in the Army for 12 years and had three deployments to Iraq: March 2003 to April 2004, 2006 to 2007 for 12 months, and March 2008 to November 2008. He was an Aviation Refueler, but in the first deployment he was also on the ground in the Infantry and had several exposures to blasts from RPG’s (rocket propelled grenades) IED’s (improvised explosive devices), etc. He does not recall any loss of consciousness, but would note feeling dazed and confused for a few minutes, was taken to the emergency room and evaluated and had post-traumatic amnesia for 12 to 15 hours following the event. (b) He had noticed a change in his memory since 2003-2004 including remembering events incorrectly, forgetting things he needs to do, forgetting things like his infant son's date of birth, and so on. He did not notice worsening of the memory since his injury in September 2010. He had neuropsych testing that showed problems with new verbal learning and memory and problems with auditory attention. He is still awaiting full Neuropsych testing. Photophobia – noticed since blast exposures in 2003-2004. (c) In regards to his anxiety, he noted that he was edgier and more irritable than he used to be, not all the time, but noted he used to be more patient with his children, for example, no feelings of hopelessness. Sleep disturbances, he was diagnosed with sleep apnea and has been using CPAP (Continuous Positive Airway Pressure) for about three weeks, but still was not able to wear it all night. He will be going back for some additional adjusting of the mask and pressure to help with that. He woke up several times a night and did not feel rested in the morning; no loss of interest in activities and no dangerous thoughts reported. (d) He had a concussion with brief loss of consciousness, under one hour: His most recent TBI, which was not deployment related involved loss of consciousness, but his earlier probable mild TBI’s from which he had most of his symptoms, did not involve any loss of consciousness. He had an MRI of the brain which was normal. He had partial Neuropsych testing and will be scheduled for full testing. (e) He had a history of TBI (personal history of TBI, Global War on Terrorism (GWOT) related, highest level of severity mild (Glasgow Coma Scale 1-5), loss of consciousness less than one hour, and post-trauma amnesia less than 24 hours. He did not feel that this was a major issue for him, but they would re-address this at the next visit to see if he want to see anyone in behavioral health. (4) On 13 January 2011, he was seen by Neurology for a follow-up and the clinic, among the list of his chronic problems, listed a concussion with brief loss of consciousness under one hour; psychiatric diagnosis or condition deferred on Axis 1; anxiety disorder not otherwise specified (NOS); and post-concussion syndrome. Provider R.G. states the patient was seen by him at the clinic on 15 October 2010. He was to have a Brain MRI, which was reported as normal. He was seen by ophthalmology and neuropsychology and several test were competed. Further test were planned. He was seen by an internist and he was to come back to this TBI Neurology clinic as needed. (5) On 16 February 2011 he was seen by the TBI Family Practice clinic for a follow-up and the clinic, among the conditions listed under chronic problems, listed visit for military services physical for pre-deployment; migraine headache; history of TBI, concussion, with brief loss of consciousness under one hour; psychiatric diagnosis or condition deferred on Axis I; anxiety disorder NOS; tinea pedis; photopsia; post- concussion syndrome; memory lapses or loss; and alcoholism. He reported noticing, as did his wife, that he was getting more irritated and angry more easily, so now he would like to meet with a social worker for some counseling. For his anxiety – see HPI (history of present illnesses) for irritability and anger. He had no feelings of hopelessness. His mood was irritable; he was agreeable to seeing a social worker for counseling. He was referred to TBI, Behavioral Health (Routine) Specialty: TBI. (6) On 17 February 2011 he was seen by TBI Family Practice for a follow-up and the clinic, among the conditions listed under chronic problems, listed irritable mood, migraine headache; history of TBI, concussion with brief loss of consciousness under one hour; psychiatric diagnosis or condition deferred on Axis 1; and anxiety disorder NOS. (7) On 4 March 2011, he was seen by the TBI Occupational Therapy clinic for evaluation. (a) He reported not feeling rested in the morning, frequent waking and restlessness, and nightmares about once a month. He had no reports of activity while sleeping or difficulty falling asleep. He had a history of TBI (personal history of TBI, GWOT related/unknown level of severity). He was diagnosed with TBI. His chief complaint was forgetfulness and being easily irritated. He indicated that he was injured from 2003 to 2004, 2006 to 2007, and in 2008 due to blasts during deployments. He had multiple old injuries, which created barriers to healing from the injury. (b) Prior to the injury, he was able to complete IADLs (Instrumental Activities of Daily Living) and military tasks. The records indicated his cognition: affect, alert; orientation x 3; attention span, required focus; interaction, pleasant; distractibility, slow to reorient; memory loss, problematic; and safety awareness, patient had difficulty accepting limitations. His goal was to attend college for accounting and mechanics. (8) On 9 April 2011, the TBI Occupational therapy saw the applicant. Among other conditions, his chronic problems listed irritable mood; visit for military services physical for pre-deployment; migraine headache; history of TBI; psychiatric diagnosis or condition; sleep apnea; and anxiety disorder NOS. (9) On 14 April 2011, he was seen by the TBI occupational therapy clinic for reevaluation. He reported little improvement in lack of restful sleep. The record shows: (a) The assessment and plan for his memory lapses or loss: * reevaluation by the occupational therapy clinic * physical therapy education community reintegration training for 15 minutes on how to set-up and use a PDA (personal digital assistant) to provide cues and prompts for completing work and functional tasks * training and self-care for 15 minutes on setting and using PDA alerts and alarms for medication timeliness, appointments, and completing ADLs * training on development of cognitive skills by compensatory activities for 15 minutes on instruction on area of organization, exit checklist, and routine memory loss compensation techniques (b) His assessment including post-concussion syndrome, his history of TBI, a visit for military services physical for battle-related injury (post-deployment examination), irritable mood, insomnia, and myopia. (c) His initial evaluation was on 4 March 2011. His initial testing indicated impairments in memory, attention and repetitions; and decreased ADLs completion, functional memory, frustration tolerance, attention span, impulse control, executive functioning, stress and anger management skills. The patient and his wife reported that he had difficulty remembering functional tasks. (10) On 15 April 2011, the TBI Family Practice clinic saw the applicant for a follow-up of TBI and states (a) Among other conditions, his chronic problems listed were irritable mood, visit for military services physical for pre-deployment; migraine headache; history of TBI; psychiatric diagnosis or condition deferred on Axis I; sleep apnea; and anxiety disorder NOS. His wife report that his memory was very bad and he often did not know what day it was. He would think something happened the day prior when it happened three or four days ago. They informed him that since his injury was a long time ago in 2003 to 2004, he was unlikely to get all the way back to normal but he could still improve. They encouraged him to perform memory games and read, as well as other brain- active activities. (b) His assessment and plan stated he continued with occupation therapy. He received his PDA and was working on learning how to use it. He had a history of TBI (personal history of TBI), GWOT related, highest level of severity mild (Glasgow Coma Scale 13-15), loss of consciousness of less than 1 hour, and post-trauma amnesia for less than 24 hours. (11) On 19 July 2011, he was seen by the TBI Family Practice clinic for a follow- up of his TBI. The notes indicated that the applicant received a physical examination and despite his mention of all of the stressors, he appeared calm and euthymic. (12) On 28 July 2011, Provider S.J. notes the diagnosis was TBI with chief complaint of forgetfulness and was easily irritated. The provider states current testing indicated impairments in memory, attention, and repetitions. He had decreased ADLs completion, functional memory, and stress management skills. (13) According to the applicant’s medical records he continued to have multiple medical appointments throughout July 2011 until August 2011, which confirmed his previous diagnosis/assessment of his medical conditions. f. By memorandum, the applicant through the Office of MEB Outreach Counsel, Fort Riley, KS, to the Medical Evaluation Board, , dated 29 July 2011, states, in pertinent part: (1) He requested an impartial physician review (IPR) of his DA Form 3947 (Medical Board Proceedings) and accompanying narrative summary (NARSUM). He is seeking an independent physician’s consultation regarding the findings and recommendations contained in his DA Form 3947 and NARSUM for his bilateral patellar chondromalacia, sarcoidosis, and TBI. He was also seeking an opinion regarding his left shoulder pain, migraine headaches with light sensitive, restless leg syndrome, sleep disorder, and wool allergy. (2) In regards to his TBI/post-concussion syndrome, he requested the independent physician review and the physician to provide an opinion regarding the findings of fitness. He continued to receive therapy at the TBI clinic on post and was issued a PDA because of his short and long-term memory lapses. He was certain that the condition prevented him from performing as a 92F. In the NARSUM (not available for review), Dr. R. recommended that he not be retained in the Army or another MOS due to his ongoing treatment for post-concussion syndrome and anxiety symptoms. Ms. N.A. and Dr. P.M. noted in the psychiatric evaluation [unsure if he is referring to eval received as part of his military service/separation], dated 5 November 2010, that his evaluation for TBI had not been completed at the time of their examination. He also wanted to bring to the attention of the IPR, the report from Provider S.J., dated 28 July 2011, which found his current testing indicated impairments in memory, attention and repetitions during various exercises. She also noted decreased attention deficit levels in completing projects, functional memory, and stress management skills. This further verified the need for a more complete and thorough examination of his TBI. g. The Department of Veterans Affairs, Disability Evaluation System (DES) Proposed Rating, dated 26 September 2011, shows: (1) The DES proposed ratings for: * right acromioclavicular arthropathy (claimed as right shoulder pain), 20% * sleep apnea and sarcoidosis with mild restrictive lung defects, 50% * anxiety disorder (claimed as post-traumatic stress disorder and memory loss), 10% * TBI (claimed as insomnia), 10% * gastroesophageal reflux disease (claimed as GERD), 10% * right bicep scar, 0% * osteoarthritis left knee, 0% * cholinergic urtic aria (claimed as rash on chest and army), 0% * dermatitis (claimed as chronic athletes foot), 0% * double vision with disconjugate gaze, deferred (2) His Enlisted Record Brief, dated 26 August 2011, showed he was deployed multiple times from March 2003 to March 2004, September 2006 to September 2007, and March 2008 to November 2008 to Iraq. In March 2003, while deployed in Kuwait he reported Sadaam was shooting ?dirty rockets? three to four times a day and having to take security measures to avoid being hit. He responded with feelings of fear, helplessness, and horror not knowing whether he would be hit. (3) A review of his enlistment examinations, dated 5 October 1998 and 8 December 2000, does not show any evidence or a diagnosis of an anxiety condition prior to service. In his service treatment record, dated 5 November 2010, he was diagnosed with anxiety disorder. (4) In his VA examination dated 10 January 2011, he reported being agitated and mood fluctuations. The examiner noted limited symptoms not consistent with a diagnosis of post-traumatic disorder. He reported subjective symptoms of anger, hypervigilance, memory loss, and irritability when faced with difficult external demands such as stress. The examiner diagnosed him with anxiety disorder and found there were signs and symptoms that were transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. (5) His service enlistment examination dated 5 October 1998 and 8 December 2000 showed no evidence or diagnosis of a traumatic brain injury prior to service. His service treatment records dated October 1998 through May 2011 showed a head injury while in combat zone. He was later diagnosed with post-concussion syndrome in October 2010. (6) The evaluation assigned in his VA examination, dated 28 January 2011, by his examiner is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. The examiner stated his mild deficits in verbal attention was more likely than not due to his behavioral health diagnoses. They addressed his symptoms of abnormal memory, attention, and concentration in his evaluation for anxiety disorder. His diagnosis for disconjugate gaze claimed as double vision will be addressed under a separate evaluation as a residual of his TBI. h. 30 Day Pre Sep Computation, dated 11 October 2011, shows the applicant was due a payment of $50,435.14 at separation. i. VA Letter, dated 2 February 2012, shows the VA decided the following conditions, among others, were service connected: * Sleep apnea and sarcoidosis with mild restrictive lung defects, 50% * Anxiety disorder (claimed as PTSD and memory loss, 10%) * TBI (also claimed as insomnia, 10% j. VA Letter, dated 7 February 2012, shows the VA decided the following conditions, among other conditions, were related to his military service and service- connected disabilty was granted effective 13 December 2011: * TBI (also claimed as insomnia), 10% * photophobia with occasional diplopia (initially diagnosed as history of TBI with mild disconjugate gaze and double vision (DES exam) associated with TBI also claimed as insomnia), 0% * anxiety disorder (claimed as post-traumatic stress disorder and memory loss), 10% k. VA Rating Decision, dated 23 August 2012, shows service connection for photophobia, with occasional diplopia (initially diagnosed as history of TBI with mild disconjugate gaze and double vision (DES)) as secondary to service-connected disability of TBI was granted with an evaluation of 10% effective 13 December 2011. l. VA Letter, dated 30 August 2012, shows he was determined to be 10% disabling for osteoarthritis of bilateral knees. His overall combined rating remained at 70%. m. VA, Rating Decision, dated 7 April 2014, shows he was granted service connection disability, effective 23 April 2013, among other conditions, for: Medical Description Percent Assigned Migraines, as secondary to the service-connected disability of TBI (also claimed as insomnia), 30%; characteristic prostrating attacks occurring on an average of once a month over last several months, later averaging once every two months – less frequent attacks 30% Osteoarthritis of the right knee (previously rated as osteoarthritis of bilateral knees 10% Osteoarthritis left knee 10% Acromioclavicular arthropathy, (claimed as right shoulder pain) reduced to 10% PTSD with alcohol abuse (previously anxiety disorder) also claimed as mental health, which is based on obsessional rituals with interfere with routine activities, difficulty in establishing and maintaining effective work and social relationships, occupational and social impairment with reduced reliability and productivity, chronic sleep impairment, anxiety, suspiciousness, and depressed mood. currently 10%, increased to 50%, Sleep apnea and sarcoidosis with mild restrictive lung defects 50% TBI (also claimed as insomnia), which is currently 10% Gastroesophageal reflux disease (claimed as GERD) 10% n. VA Letter, dated 9 April 2014, shows they made a decision on his claim for service connected compensation received on 23 April 2013. They determined that the following conditions, among others, were related to his military service, so service connection was granted, effective 23 April 2013: * PTSD with alcohol abuse (previously anxiety disorder) also claimed as mental health; old percent assigned, 50%; increased from 10% because the condition had worsened * Migraines associated with TBI (also claimed as insomnia), 30% * TBI, 10% o. U.S. Army Physical Disability Agency Letter, dated 25 April 2013, states: (1) His DoD records indicate that he may be eligible for a review of a previously assigned DoD mental health diagnosis may by the Disability Evaluation System (DES). The Secretary of Defense recently directed a review of disability evaluation cases for individuals who had their mental health diagnosis changed in a way that caused possible disadvantage in the disability evaluation. A review of his case could result in an increase in his benefits. It cannot reduce his previously granted benefits. (2) Participation is voluntary and it required his consent. If he elected to have his case reviewed, complete and forward a DD Form 149 and any additional material to their office. If he forwarded the required documents, his case would receive an independent review by the Special Review Panel, which would provide its advisory opinion to his Service Board for Correction of Military Records for final decision. p. NARA Request Pertaining to Military Records, dated 19 March 2019, shows the applicant requested his DD Form 214 and Medical Records from NARA. q. Authorization for Disclosure of Medical or Dental Information, dated 19 March 2019, shows he authorized his medical records to be released to the Army Review Boards Agency. 8. AR 40-501 (Standards of Medical Fitness) provides a listing of all medical conditions and specific causes for referral to an MEB, medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those, that significantly limit or interfere with the Soldier's performance of their duties; may compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service; may compromise the health or well-being of other Soldiers; and/or may prejudice the best interests of the Government if the individual were to remain in the military Service. Conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. 9. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states the mere presence of an impairment does not, 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 the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. The fact that a Soldier has a condition listed in the Department of Veterans Affairs schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. 10. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 11. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: 2. AHLTA encounters show the applicant was treated for alcohol abuse/dependence. There were no other mental health condition encounters except for an evaluation completed as part of his MEB. The provider diagnosed anxiety disorder, noting “Symptoms are transient and do not cause any limitations in SM's ability to function & not likely to interfere with finding civilian employment.” She cleared him from a behavioral health standpoint and stated he did not need a behavioral health narrative summary as part of his MEB. 3. AHLTA encounters show the applicant sustained several mild traumatic brain injuries (mTBI) during his service, with the most significant injuries having occurred in 2003 – 2004 while in Iraq and from an assault in September of 2010. His evaluation for this issue occurred on 3 January 2011 at the Ft. Riley TBI Clinic. Treatment for memory problems and post-traumatic headaches was initiated. A provider wrote at a follow-up appointment: * Prior Functioning: Independent completing ADLs & military tasks * Initial testing indicated impairments in memory, attention & repetitions. Decreased ADLs {activities of daily living} completion, functional memory, frustration tolerance, attention span, impulse control, executive functioning, stress & anger management skills. * Affect: alert Orientation: x3 * Attention Span: requires focus * Interaction: pleasant * Distractibility: slow to reorient * Memory loss: problematic * Safety Awareness: patient has difficulty accepting limitations 4. A note dated 28 July 2011 shows the applicant was receiving treatment suggesting his level of functioning at that time would prevent him from performing all the duties and task required of a Soldier: “Occupational Therapy & Vocation Rehab Work Hardening / Conditioning … patient worked on ADL problem solving & sequencing. Patient instructed how to organize resources, perform steps in a logical order, identify problems, formulate solutions, and complete the task effectively … following pictorial directions, patient worked for 30 min w/o increase in symptoms. Patient demonstrated attention to detail & problem solving while working on craft project.” 5. The applicant’s TBI was evaluated by the VA on 28 January 2011 as part of the IDES process. “A level of severity of "1" was been assigned for the subjective symptoms facet, indicating that an examiner has found evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family; or other close relationships ... All other facets evaluated were normal based on the examiners findings.” 6. When his PEB convened on 5 October 2011, they found him unfit for “right Acromioclavicular Arthropathy and found him fit for eleven other medical conditions. They rated the single disability at 20% and recommended the applicant be separated with disability severance pay. After being counseled on the PEB’s findings by his PEB liaison officer (PEBLO), the applicant concurred with the PEB’s findings on 11 October 2011 and was discharged on 12 December 2011. The MEB results are not available. However, because the applicant had TBI and PTSD exams completed as part of the process and the PEB did not disagree with the MEB’s recommendation, it is almost a certainty the MEB found these conditions to meet the medical retention standards of AR 40-501. 7. While the applicant is service connected for his TBI and PTSD by the VA, there is no evidence that these conditions failed the medical retention standards of chapter 3, AR 40-501 prior to her discharge. Furthermore, there is no evidence that these conditions prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Given the current information, it is the opinion of the ARBA Medical Advisor that referral of his case to the DES is not warranted. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and a medical review. The Board considered the applicant's statement, his record of service to include deployment, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that there is insufficient evidence to support a conclusion that the applicant had additional unfitting conditions that prevented him from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The Board determined there was no error, inequity, or injustice in the determination that he would be discharged for disability with severance pay. 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. 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 40-501 (Standards of Medical Fitness), in effect at the time, provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), provides a listing of all medical conditions and specific causes for referral to an MEB. It states: a. The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve. The medical conditions and physical defects, individually or in combination, are those, that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military Service. b. Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states: a. The mere presence of an impairment does not, 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 the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. These guidelines are used to refer Soldier to an MEB. b. 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. d. The fact that a Soldier has a condition listed in the Department of Veterans Affairs schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. e. Provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 4. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 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. 6. On 3 September 2014 the Secretary of Defense, Chuck Hagel, directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004202 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004202 21 ABCMR Record of Proceedings (cont) AR20190004202 19