IN THE CASE OF: BOARD DATE: 11 September 2020 DOCKET NUMBER: AR20190004378 APPLICANT REQUESTS: an increase to the physical disability rating assessed by the Physical Evaluation Board (PEB), through the addition of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI), and for PTSD and TBI to be listed as combat related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Combat Action Badge (CAB) Certificate * CAB orders * Department of Veteran Affairs (VA) Rating Decisions * VA reconsideration memorandum * Letters of support * Medical documents * DA Form 199 (Informal PEB Proceedings) * PEB reconsideration memorandum * DA Form 199-1 (Formal PEB Proceedings) * DA Form 3349 (Physical Profile) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states his final PEB proceedings should have listed his diagnoses of PTSD and TBI with an Army rating listed as combat related. He was seen by his behavioral health (BH) counselor at the time and she was using a different medical computer system for the medical board to pull his BH diagnosis from. As a result, the Army medical evaluation board (MEB) never saw his MEB rebuttal with the PTSD checklist. There was a period of time her system became available and only the VA doctor was able to review his rebuttal. When he received his final Army and VA rating under the integrated disability evaluation system (IDES), he realized the Army did not list his diagnosis of PTSD with unspecified anxiety disorder and traumatic brain injury (TBI) on his DA Form 199. He was rated by the VA for PTSD and TBI with a 50 percent disability rating. The VA lowered his disability rating for PTSD with TBI from 50 percent to 30 percent. He filed an appeal to add combat to his PEB, however he did not know to add the PTSD and TBI. 2. On 13 May 2016, the applicant was issued a temporary P3 profile due to PTSD. The profile was to expire on 11 June 2016. 3. The applicant’s MEB proceedings are not in his available records for review. 4. A DA Form 199 shows an Informal PEB convened on 29 December 2016 and found the following: a. The applicant’s case was adjudicated as part of IDES and the specific Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes used to describe his condition and the disability percentage were determined by the VA. The disposition recommendation was determined by the PEB based on the VA disability rating. The applicant was found physically unfit with a recommended rating of 20 percent and a recommended disposition of separation with severance pay. b. He was found unfit for cervical spondylosis. This is unfitting because it prevents the performance of one or more common Soldier tasks and prevents him from performing in his primary military occupational specialty. c. He was found fit for MEB diagnoses 2-18: cervical radiculopathy; obstructive sleep apnea with use of continuous positive airway pressure (CPAP); left ankle fracture with residual of pain; left achilles tendonitis; pes planus, bilateral; chronic plantar fasciitis, left; pseudofolliculitis barbae; headache syndrome; mild TBI; left hand ganglion cyst, resolved; tonsillectomy, resolved; left shoulder acromioclavicular joint injury; left shoulder strain; right foot osteoarthritis; calcaneal bone spur, bilateral; left hand triangular fibrocartilage complex tear, resolved; dry eye syndrome; lumbar strain; tinnitus; problems related to other legal circumstances. The conditions were not unfitting because the MEB indicates these conditions meet retention standards. It does not indicate these conditions cause physical profile limitations or performance issues are due to these conditions. d. On 12 January 2017, the applicant did not concur, demanded a formal hearing, requested a personal appearance and regularly appointed counsel, and attached his written appeal to his nonoccurrence. He further requested the VA reconsider his disability ratings. 5. On 19 July 2017, a formal PEB convened and found the following: a. The applicant’s case was adjudicated as part of the IDES and the specific VASRD codes used to describe his condition and the disability percentage were determined by the VA. The disposition recommendation was determined by the PEB based on the VA disability rating. The applicant was found physically unfit with a recommended rating of 70 percent and a recommended permanent disability retirement. b. He was found unfit for migraines, left arm radiculopathy with shoulder strain; and cervical spondylosis. c. He was found fit for MEB diagnoses 3-18: CPAP; left ankle fracture with residual of pain; left achilles tendonitis; pes planus, bilateral; chronic plantar fasciitis, left; pseudofolliculitis barbae; mild TBI; left hand ganglion cyst, resolved; tonsillectomy, resolved; left shoulder acromioclavicular joint injury; left shoulder strain; right foot osteoarthritis; calcaneal bone spur, bilateral; left hand triangular fibrocartilage complex tear, resolved; dry eye syndrome; lumbar strain; tinnitus; problems related to other legal circumstances. The conditions were not unfitting because the MEB indicates these conditions meet retention standards. It does not indicate these conditions cause physical profile limitations or performance issues are due to these conditions. d. The applicant signed the form on 26 July 2017, showing he concurred. 6. On 11 November 2017, the applicant was honorably retired due to permanent Disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He completed 11 years, 10 months, and28 days of net active service this period. 7. 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. 8. Army Regulation 635-40 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. 9. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. 10. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains IDES. 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 reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) and Health Artifacts Image Management Solutions (HAIMS) indicates he was seen on 9 February 2016 for a command directed evaluation due to a an incident of driving under the influence (DUI) the previous Friday. The applicant reported being arrested while parked at the bowling alley and denied speeding. The blotter indicates refusal of a breathalyzer, blood work and speeding 26 miles above speed limit. He was enrolled in mandatory substance use treatment. He was diagnosed with Alcohol Abuse. On 18 February 2016, he reported his command was completing paperwork for a chapter separation and he had completed part one of his separation physical. On 23 February 2016, the TBI provider placed him on a P3 profile for cervicalgia and referred him to the disability evaluation system thus halting his chapter separation. 2. His medical record shows a series of medical appointments for evaluation of cervicalgia and he continued his treatment in the substance abuse clinic. On 26 February 2016, he was seen as a walk-in in the behavioral health clinic due to frustration and stress due to his treatment by his chain of command. He was diagnosed with Adjustment Disorder. On 30 March and 8 April 2016, he was seen for follow-up sessions with the same diagnosis and reported increased stress due to a pending reprimand. On 11 May 2016, his provider changed his diagnosis to acute stress reaction. The provider noted that she had been trying for months to work on a PTSD diagnosis but to date did not have sufficient symptoms to justify the PTSD diagnosis. On 12 May 2016, the applicant and his provider went through each item of the PTSD checklist and the provider changed his diagnosis to PTSD. On 20 June 2016, his prescriber noted non-compliance with medication and required lab work. On 10 August 2016, he was admitted due to suicidal thoughts and an unwillingness to release his weapons and ammunition stockpile at his home. His upcoming trial for DUI was leading to increased distress. He was placed on a temporary profile for PTSD on 11 August 2016 due to psychiatric admission. On 23 August 2016, he was recommended for an intensive outpatient program (IOP) as a step down from his recent hospitalization. He expressed concerns about his separation board scheduled for 30 August 2016. The board voted to retain for him to complete the disability evaluation system process. On 6 September 2016, he temporarily discontinued participation in the IOP to take two weeks of leave. On 22 September 2016, he returned to the IOP and continued to participate in groups on an irregular basis from October 2016 through February 2017. 3. On 29 December 2016, the PEB determined his spondylosis was unfitting with a 20% rating. On 12 January 2017, the applicant applied for reconsideration by the PEB for his spondylosis to be found combat related, his left arm radiculopathy to be found unfit, and his migraines to be combat related. He did not request consideration of any behavioral health conditions. On 25 May 2017, he was seen by his prescriber. The provider noted applicant had canceled five appointments in March 2017. The applicant reported his anxiety was 5/10 and depression 3/10 on current medication. On 12 July 2017, the applicant reported that he was not interested in further behavioral health treatment and preferred to address his issues on his own. On 26 July 2017, the applicant concurred with the PEB recommendation of permanent retirement with 70% disability rating with 50% for migraines, 30% for left arm radiculopathy, and 20% for cervical spondylosis. He was found fit for multiple medical conditions to include mild TBI as they met retention standards. He was medically retired on 26 November 2017. 4. A review of VA’s Joint Legacy Viewer (JLV) indicates he has a service connected disability rating of 100% with 50% for PTSD. He continued most of his behavioral health care at Fort Knox post retirement but received behavioral health care and case management at the VA due to court involvement from a domestic event starting in June 2018. On 16 August 2018, he was seen as a retiree and reported his anxiety and depression are not a problem for him and have decreased. He does report continued nightmares. At the time of his PEB and retirement from the military, his PTSD was not unfitting. His primary symptoms during treatment were related to legal and occupational issues. There is no indication of occupational impairment with the exception of a temporary profile that is mandatory after hospitalizations. 5. It is acknowledged that the applicant has a service-connected disability of 50% for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). 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. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board noted the conclusions of the ARBA Medical Advisor that the applicant did not have any additional unfitting conditions beyond those identified by the PEB at the time of his retirement for disability, but did not concur. The Board found sufficient ambiguity in the available records regarding the severity of his PTSD to support a recommendation to refer the applicant's records to the Department of the Army Office of The Surgeon General for review to determine if the applicant had any additional conditions that did not meet medical retention standards. If the Office of The Surgeon General identifies additional conditions that didn’t meet retention standards, the applicant should be afforded further review through the Disability Evaluation System to determine if any additional conditions not meeting medical retention standards were unfitting at the time. If any additional unfitting conditions are identified, they should be rated in accordance with the governing policies. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring the his records to the Department of the Army Office of The Surgeon General for review to determine if he had any additional conditions that did not meet medical retention standards. If the Office of The Surgeon General identifies additional conditions that did not meet retention standards, the applicant should be afforded further review through the Disability Evaluation System to determine if any additional conditions not meeting medical retention standards were unfitting at the time. If any additional unfitting conditions are identified, they should be rated in accordance with the governing policies. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the applicant's disability rating without benefit of the review described above. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 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. 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 4. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the rating using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004378 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1