ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20190006948 APPLICANT REQUESTS: amendment of his records to show: * his disability was based on injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law * his disability resulted from a combat related injury * in effect, the inclusion of additional conditions in his physical disability rating * award of the Purple Heart APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * multiple self-authored statements * multiple sets of deployment, award, and retirement orders * multiple certificates * multiple letters of recommendation * multiple DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) * multiple Sworn Statements and Witness Statements * multiple Department of Veterans Affairs (VA) letters and Rating Decisions * medical records in excess of 150 pages * unclassified Multi-National Division Baghdad 1st Cavalry Division report * multiple issues of Long Knife News * photographs in excess of 100 pages FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He requests that his retirement orders be corrected to appropriately document his disabilities were incurred in the LOD as a direct result of armed conflict or caused by and instrumentality of war and incurred in the LOD during a period of war as defined by law and that his disabilities resulted from a combat-related injury. He also requests award of the Purple Heart for these wounds and injuries received by the enemy or a terrorist organization. b. His orders do not correlate to the facts of his combat experiences. He still has not actively questioned the nerve agent exposures his unit was associated with during their 2008 – 2009 deployment, out of respect to the brothers he lost in this war. The combined effort of the Medical Evaluation Board (MEB), Physical Evaluation Board (PEB), retirement counseling, and the treatment/diagnoses of his conditions were negligent in that they failed to express his actual situation. The MEB/PEB program did not provide him with knowledge of the importance of proper rating and treatment of traumatic brain injuries (TBI). c. He was not provided the opportunity to understand the transitional steps while exiting the military. In his understanding at the time of his retirement, an appeal for correction of his orders would have taken a minimum of 6 months. His representing Counsel recommended he waive the appeal as his treatment records and Official Military Personnel File (OMPF) documents all reflect the combat relation of his disabilities. d. At the time, he was 26 years old and in a situation he did not understand. Had he grasped the impact it would have had on his life in 10 years, he would have reconsidered appealing the determination. He was ignorant to the infraction. Clarification and definition of “combat-related” weren’t appropriately discussed with him during the MEB/PEB process at Fort Polk in 2013. He avoided the appeal process due to a lack of knowledge. e. His family has earned its voice in this country as they have provided freedom since the very foundation of this nation. His great grandfather joined the U.S. Army to fight in the First World War. He earned his citizenship and right to become a small town American barber. His actions provided him with the opportunity to live in this great nation today. His family has created a lineage of war heroes and men who have given everything for our freedoms. His great uncle was a World War II prisoner of war veteran who lived into his 90s with scars of war. His grandfather served as a tanker in Germany. His great uncle served as a U.S. Army Reservist. Other family members fought in Vietnam and there’s a relative who served as an Arabic linguist in the Global War on Terrorism. f. He spent nearly 48 months in a combat environment. The men whom he has been blessed with learning from make his experiences seem moot. He has over 350 combat patrols and at least 3,000 hours training foreign military units in American war tactics. He has witnessed the loss of close friends and done memorial services in the hometown of a mourning mother. These Soldiers he was sworn to protect and he has a sworn pact and bond with their families. The representation of his unit’s actions and its combat experiences are outlined within this document. g. The main purpose of this document is to provide proof of his unit’s exposure to weapons of mass destruction, sarin nerve agents, mustard blister agents, and many other components of life threatening hazards or exposures. Many men and women from this unit are suffering from presumptive conditions to exposure related injuries and illnesses. A portion of the unit are already deceased or suffering from illnesses associated with presumptive conditions. The remaining are either healthy or unable to be contacted. Members of the unit are also experiencing their children living with conditions that are presumptive to these exposures. h. Their living conditions during the 2008-2009 deployment to southern Iraq were not like the average Soldiers’ experiences during this time in the war. Alpha section, Apache Troop, 1st Squadron, 9th Cavalry Regiment, 4th Brigade Combat Team, 1st Cavalry Division’s mission was a sporadic chain of rabbit hole chases for weapons of mass destruction, the landing of C-130s in southern Iraq, and the interdiction of weapons smuggling from Iran. They spent the first few weeks on Forward Operating Base (FOB) Scania, where they had all of the necessary living conditions a Soldier at war could be thankful for: hot meals, decent showers, a mattress to sleep on in the tent, and most importantly, a gym. i. Their mission changed when they were attached to the 10th Mountain Division. The unit successfully held positive authoritative control of the area. With the new Iraqi government elections approaching, their intelligence found that a large contingent of Iranian forces were festering in the southern portion of Iraq from the Syrian border to the Iranian border. Iran was controlling the use of contaminated nerve agent weapons against U.S. Soldiers and the Iraqi southern population with no American intervention. j. When they departed FOB Scania, on roughly 8 June 2008, they made their way in 5 vehicles to an area of Iraq where American forces had not yet been operational. They did not live in an inhabitable condition for the 12-month duration of the deployment. Their unit lived in pre-war/Operation Iraqi Freedom (OIF) I conditions, malnourished, in austere conditions and with limited hygiene options. Included with this document are photographs, news articles, and sworn statements that express the nature of their living conditions and exposures. k. The hardened shelter air hangers and bunkers that they lived in housed many of Saddam Hussein’s war weapons of mass destruction. This document outlines the conditions to which he was exposed, the combat relation to his sustained injury, and the elements to which his unit was exposed. l. The injury he sustained during the deployment was never appropriately addressed due to the lack of treatment documents from the incident itself. Due to the lack of available technology, most of their incidents went undocumented. A large portion of the unit’s documents were burned before returning to the States due to lack of quad-con space availability. m. On 19 August 2008, he began experiencing headaches and dizziness associated with nausea after a rocket attack that landed within 20 feet of him. The rocket killed another U.S. Soldier. A few weeks after the attack he experienced the dizziness and nausea again, which resulted in him falling from the top of an up-armored High Mobility Multipurpose Wheeled Vehicle (HMMWV) in full combat gear. He landed on his right shoulder, wrist, and face. n. The fall caused him a plethora of physical fitness issues later in his career due to the inefficiency of medical providers and lack of treatment availability during the event. His right shoulder began progressively crunching. He requested imaging, but he images returned normal. The crunching began spreading throughout his body and slowly led to the numerous diagnoses he has today. He mentioned this throughout the duration of his military career during medical appointments that are provided in the medical documentation attached to this document. He time and time again mentioned the explosion on 19 August 2008 to the medical professionals, but they continuously ignored documenting it due to lack of medical treatment records. o. His retirement orders do not reflect that his injuries are combat-related. This infraction is neglecting to provide him with legally earned combat awards and benefits associated with injuries sustained by enemies of the United States. This also hinders himself and his unit members from successfully obtaining the appropriate medical treatment for their types of injuries and exposures. p. His organization, Conquer Your War, is dedicated to research finding medical answers to their diagnosed condition and unexplained illnesses. While Veterans are often the main cause of many of their own problems, they cannot be expected to achieve success if they aren’t provided the necessary materials from which to start. His organization will spread the wealth of knowledge to our communities in hopes of reducing the suicide statistic that cripples our nation’s strongest individuals. They strive to demolish the post-traumatic stress disorder (PTSD) stigma that our Soldiers and veterans experience. Our wars should not be lost returning to the green grass we desperately fought for as we fought for your freedoms. q. Via separate emails, the applicant sent the ABCMR numerous photos taken at the time of attack and states he regrets digging into this information and inquiring about his illness rather than just living the best he could. His intentions were to help his old peers and himself better understand their medical issued and they turned out to be deceived. He spent so much time being angry from 2014-2017 that he wishes he could go back. Among the photos open sores on his arms can be seen as well as the crater caused by a rocket attack, the impact of which was just feet from their location. His packet also contains documentation/photos involving his unit assisting in the destruction of chemical nerve agents and weapons of mass destruction during Operation Hunter Lone-Star in 2008-2009, in Maysan Province, Iraq. r. It has been determined through medical examinations that the cause of his retirement was more likely than not caused by anthrax exposure/reaction to inoculations and the possible exposure to chemical agents in Iraq during his 2008 deployment, as well as PTSD associated with loss of friends in combat in 2011. Initially, they [medical professionals] felt the TBI from an encounter in August 2008 that could have caused symptoms of neurological degradation. They haven’t ruled out the possibility of it still being the reason. Regardless of the diagnosis, there is no formal treatment for improvement for TBI. He does, however, still find it disturbing that his organization wouldn’t be more forthcoming about the possibilities of illness due to negative reaction to inoculation or other possible exposures. s. He felt an obligation to be as blunt and forthcoming on the issues as possible. Many of the members of their unit have been awarded compensation and back pay for being associated with these units. In his application, he requested that his retirement orders show his injuries were combat-related and that he receive corresponding awards. While he still feels the injuries do meet the requirements governing awards, decorations, compensation, and pension, he would ask that you allow him to humble himself. A few of the issues have recently been corrected, but he still stands answerless from a medical perspective regarding healing or feeling well. He has lost friends and many of his seniors are combat veterans whom he respects more than his self-pride. His issues lie dormant with the VA and he will no longer engage in active treatment unless a terminal illness is diagnosed. t. He is unsure if his scenario truly warrants a Purple Heart or being considered combat-related. He put in the request to allow the Board to professionally determine the outcome. He did not acquire a lawyer in this matter as he feels confident in his military experience. He does, however, experience a ton of anxiety due to making allegations against his unit, which is something he has so much pride in. He has spoken to most of his peers about the situation and feels like after everything that happened in 2011 that he overreacted. His overreaction was caused by the seriousness of his medical condition and the lack of knowledge about the condition that caused his retirement, anthrax and fibromyalgia (disorder characterized by musculoskeletal pain and fatigue). He also never received an actual understandable diagnosed issued for treatment until recently, after his retirement. u. He provided additional information he received through a Freedom of Information Act (FOIA) request which documents his VA claim of bad Anthrax inoculations from 20 February 2008 through 5 December 2008. Almost every inoculation of Anthrax resulted in emergency treatment or a negative reaction within 1 – 2 days. Other members of his unit are also suffering from the same physical and psychological illnesses and they received the same patented IND inoculations. Bioport is the only authorized manufacturer of Anthrax and his 5 December 2008 shot records indicate the manufacturer is unknown. It was known though at the time that their unit was reprimanded due to their poor living conditions from June - August 2008. Their medications were not properly stored according to patent standards of the IND experimental vaccination (the first human experimentation began at Fort Detrick, MD in 2006) and the patent was changed again on 30 July 2009 in order to endure long term conditions. v. He has now spent 11 years with these conditions all worsening yearly. He also spent the last 3 years and over $20,000.00 to get answers because the VA didn’t render a pathology study to diagnose fibromyalgia at the time of his retirement in 2013. The VA continued to treat him as a fibromyalgia patient and would never take the time to focus on his physical ailments rather than PTSD. They always focused on PTSD because it is his highest rated condition at 50 percent. Why does the VA even look at percentages in our benefits rating? Physicians always immediately become biased if they know how much money you make. His VA hospital is under investigation for murder and he has relentlessly attempted to discuss the issue with them without success. He continuously gets sent to the Mental Health Department because his PTSD is his highest rated condition. 3. The applicant enlisted in the Regular Army on 16 May 2007 and was awarded the military occupational specialty (MOS) 19K (Cavalry Scout). x. The applicant provided a Vaccine Administration Record on which he highlighted the following received vaccines and information: * Anthrax, 20 February 2008, manufacturer Bioport * Anthrax, 5 May 2008, manufacturer Bioport * Anthrax, 13 July 2008, manufacturer Bioport * Anthrax, 5 December 2008, manufacturer unknown * Novel Influenza (H1N1 09), 8 February 2010, manufacturer unknown * Smallpox, 11 June 2008, lot number unknown 4. The applicant provided a Standard Form 600 (Chronological Record of Medical Care) which shows the following: a. He was seen on 22 February 2008 for fever and headache that persisted over the past 12 hours. He was assessed as having viral gastroenteritis and prescribed Phenergan and Imodium with 24 hours quarters. b. He was seen on 4 April 2008 for a persistent rash all over his body for which he had been seen before and requested a dermatologist referral. The rash started in October 2007 and was generalized all over his body except his chest, back and upper shoulder. The rash was of unknown origin and he was referred to a dermatologist. c. He was seen on an unspecified date for complaints of neck and shoulder pain for 2 months. The pain varied but was usually a 5/10 and radiated to the collar bone, crunching in the shoulder areas. He was assessed as having muscle pain and inflammation and prescribed Naproxen. d. He was seen on 12 November 2008 for complaints of stomach cramps and loose stool for 1 day. He rated the pain a 7/10 at its worst. He reported 5 loose stools in the last hour and one episode of blood in stool. He was assessed as having infectious diarrhea and prescribed Imodium and Phenergan. e. He was seen on 6 December 2008 with complaints of nausea, vomiting, and diarrhea for 6 hours with a small amount of blood in his vomit. He was assessed as having an upper respiratory infection (URI) with drainage causing vomiting and diarrhea and he was advised to stop Testosterone. 5. He deployed to Iraq on two occasions. His first Iraq deployment was from 11 June 2008 through 23 May 2009. 6. Headquarters, 4th Brigade Combat Team, Permanent Order Number 250-05, dated 6 September 2008, awarded him the Combat Action Badge for being engaged in active ground combat on 19 August 2008. 7. An Army Commendation Medal (ARCOM) Certificate, dated 28 February 2009, shows the applicant was awarded the ARCOM for meritorious service while serving as an M1151 gunner during Operation Iraqi Freedom 08-10 from 14 June 2008 through 15 September 2009. The accompanying DA Form 638 (Recommendation for Award) specifies he served as a gunner on over 150 combined combat patrols and conducted over 50 combined mounted and dismounted operations as well as helped secure the squadron tactical operations center (TOC) as it moved south and support troop movement to the Iranian border. 8. The applicant provided an 11th Brigade, 4th Region Department of Border Enforcement Border Transition Team, 1st Squadron, 9th U.S. Cavalry, 4th Brigade, 1st Cavalry Division memorandum for record, dated 15 May 2009, authorizing him to wear the 1st Infantry Division Shoulder Sleeve Insignia Former Wartime Service as he was under their operational control for a period not less than 30 days. 9. He provided an Emergency Care and Treatment Record showing he was treated at Carl E. Darnall Army Medical Hospital on 16 August 2009 for complaints of fever. His assessment, diagnosis, and disposition are not listed on the form. 10. The applicant provided a DA Form 1059 (Service School Academic Evaluation Report), dated 22 April 2010, showing he exceeded course standards at the Warrior Leader Course 600 from 8 April 2010 through 22 April 2010, where he was picked to become student platoon sergeant, held the highest grade point average (GPA), and was selected as the Honor Graduate. An Army Achievement Medal (AAM) Certificate, dated 22 April 2010, shows he was awarded an AAM for the achievement of being named the Warrior Leader Course Honor Graduate for Class 08-10. 11. He provided another Immunization Record which shows the following additional inoculations he highlighted: * Anthrax, 19 July 2010 * Anthrax, 20 December 2010 * Anthrax 20 July 2011 12. The applicant again deployed to Iraq from 10 September 2010 through 25 August 2011. 13. A Standard Form 600, dated 11 July 2012, shows the following: a. The reason for his visit to the Rheumatology Clinic at the San Antonio Army Medical Center was for military services related to an MEB and a military physical for battle-related injury. b. The Applicant was seen at Fort Hood for myalgia (muscle pain) and arthralgia (joint pain) on 18 August 2010. He was assessed clinically depressed and had some suicidal ideation. He was escorted to Psychiatry for treatment. Celebrex and Ultram were continued. A telephone consultation was recorded with the rheumatologist on 24 August 2010 indicating the applicant complained of pain and had been started on an antidepressant. He was instructed it would take more time for the medications to work. On 7 October 2010, he was seen in the clinic with a diagnosis of anxiety disorder treated with Celexa. He returned from deployment in September 2011. On 27 January 2012, he was seen following a positive screen for possible depression and he was diagnosed as having a mild affect of disturbance which appeared to be a normal reaction to his possible fibromyalgia. He refused a consult for further therapy at that time. On 19 March 2012, he was seen in the emergency room for bilateral arm pain with flexion for 3 days. He had been performing physical training the Friday before and since then had been having difficulty flexing his arms due to pain. He was seen the following day with the diagnosis of generalized myalgia and given consultation to Behavioral Health and Rheumatology. He was given Ibuprofen and analgesic balm was recommended. c. A history of his present illness from Dr. H , states the applicant reported falling off a HMMWV in Iraq, injuring his right shoulder, which he stated started the present problems. The applicant stated he was in constant pain all the time, starting in 2009. He stated every joint in his body was shot, including all peripheral joints and his back. Sometimes if felt muscular. He noted being very sensitive to the touch. He has had years of crunching in his joints and they tell him it’s just crepitus (a grating sound produced by friction between bone and cartilage). He stated he was totally unable to go to the gym and did research on fibromyalgia because he was told that was his diagnosis. He stated has tried sleep hygiene, Zumba, yoga, every medication the Army can think to give him and all have been unsuccessful. By noon each day he has a grueling headache. He keeps passing up meeting the promotion board because he cannot pass the Army Physical Fitness (APFT) test despite doing physical training (PT) every day. He doesn’t feel he is up to working in his area as a 19D anymore. He suspects prior providers thought he was malingering. He stated he wanted to stay in the Army, but is not sure he can. He did not have suicidal or homicidal ideation. He attended Behavioral Health treatments but did not feel it helped much. He started Cymbalta in April which helps a bit with the pain. d. A history of his present illness from the day of the visit, 11 July 2012, states the applicant presented from Fort Polk for a second opinion in Rheumatology. He said he was previously seen by Dr. H and was diagnosed with fibromyalgia. He is going through an MEB and mentioned to the MEB that he believes he has something else and knows his body. The MEB referred him back to Rheumatology for a second opinion. According to the applicant, his problems started when he fell off a HMMWV in Iraq in 2009. He tried to catch himself and popped his right shoulder. He went to a medic and was given Ibuprofen. For 3 weeks after that he couldn’t lift his arms up. He eventually improved, but not to the point of being normal. He was again deployed in 2010 – 2011 and was diagnosed with PTSD after that. He said he started having trouble with different parts of his body with back, hips, ankles, wrists, and continued popping in shoulders. Prior to that he was pretty active with sports and exercise, but now he couldn’t get through a day without significant pain. He stated he agreed with the fibromyalgia diagnosis, but thinks there is something else wrong. 14. An MEB Narrative Summary (NARSUM) addendum, dated 9 October 2012 and completed by an MEB physician shows: a. This addendum responded to the applicant’s appeal of MEB findings dated 1 October 2012. He contended his fibromyalgia failed retentions standards independently of his other conditions. This sis incorrect and is a consequence of the requirement to consider the VA Compensation and Pension Exam as the examination of record, yet also use the Department of Defense (DOD) diagnosis when determining what condition fails retention standards. b. The reason the applicant was referred for an MEB in the first place was for his diagnosis of fibromyalgia. The DOD diagnosis has always been fibromyalgia. However, for unknown reasons, the VA examiner denied the claim for fibromyalgia and instead diagnosed multiple joint complaints. DOD examiners associate these joint complaints with his fibromyalgia. c. So, the applicant either has fibromyalgia (the DOD diagnosis) or he has strains in multiple joints (the VA diagnosis), but from a diagnostic diagnosis, he does not have both. Therefore, either his fibromyalgia fails retention standards or his multiple joint complaints fail retention standards. Since the VA denied the fibromyalgia diagnosis, likely resulting in no disability rating, the MEB decided to use the VA diagnoses for the MEB. 15. Within his medical records, the applicant provided a partial DA Form 3947 (MEB Proceedings), which appears to be only page 2. It does not show the applicant’s diagnoses numbered 1 – 8, but it shows the following list of the applicant’s diagnoses numbered 9 – 16, all of which were determined to meet retention standards: * diagnosis 9: multiple nevi to back * diagnosis 10: sinus headaches * diagnosis 11: reversible obstructive airway disease * diagnosis 12: bilateral tinnitus * diagnosis 13: erectile dysfunction * diagnosis 14: temporomandibular joint dysfunction * diagnosis 15: keratitis sicca, dry eye syndrome * diagnosis 16: fibromyalgia diagnosed by DOD; no pathology to render a diagnosis via the VA 16. His records contain a DA Form 199 (Informal PEB Proceedings) which shows the following: a. A PEB convened at Fort Sam Houston on 6 August 2013 and the case was adjudicated as part of the Integrated disability Evaluation System (IDES) under the 19 December 2011 Policy and Procedure Directive –type Memorandum 11-015. The specific VA Schedule of Rating Disabilities (VASRD) codes to describe the Soldier’s condition and the disability was determined by the VA and is documented in a VA memorandum dated 28 February 2013. b. The PEB found the applicant physically unfit and recommended a rating of 80 percent and that his disposition be permanent disability retirement. c. The following conditions were found to be unfitting: * cervical strain (MEB diagnosis 5); no specific incident or trauma is noted; 30 percent * lumbar strain (MEB diagnosis 1); condition existed since 2009; it is not due to injury or trauma; 20 percent * left shoulder strain (MEB diagnosis 2); no specific incident or trauma is noted; 20 percent * right shoulder strain (MEB diagnosis 2); the applicant fell of a HMMWV in Iraq in 2009 and injured his right shoulder; 20 percent * right knee strain (MEB diagnoses 3,6); occurred during basic combat training (BCT) in 2007; 10 percent * left knee strain (MEB diagnosis 3); occurred during BCT in 2007; 10 percent * right hip strain (MEB diagnosis 4); condition existed since 2011; occurred from wear and tear in 2011; 10 percent * right hip strain, impairment of the thigh (MEB diagnosis 4); condition existed since 2011; occurred from wear and tear in 2011; 10 percent * left hip strain (MEB diagnosis 4 ); condition existed since 2011; occurred from wear and tear in 2011; 10 percent * right hip strain, limitation of extension (MEB diagnosis 4) condition existed since 2011; occurred from wear and tear in 2011; 0 percent * left hip strain, limitation of extension (MEB diagnosis 4); condition existed since 2011; occurred from wear and tear in 2011; 0 percent * left hip strain, impairment of thigh (MEB diagnosis 4); condition existed since 2011; occurred from wear and tear in 2011; 0 percent d. The following conditions (MEB diagnoses 7 – 16) were not found to be unfitting both individually and in combination with other conditions and they were not associated with physical profile limitations nor did they impact the applicant’s ability to perform and of the ten functional areas: * PTSD * depression * multiple nevi to back * sinus headaches * reversible obstructive airway disease * bilateral tinnitus * erectile dysfunction * temporomandibular joint (TMJ) dysfunction * keratitis sicca * dry eye syndrome * fibromyalgia (no pathology to render a diagnosis) e. The PEB found the applicant’s disability disposition was not based on disease or injury incurred in the LOD in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war. It also found the disability did not result from a combat-related injury. f. The applicant concurred and waived a formal hearing of his case and did not request reconsideration of his VA ratings on 6 August 2013. 17. Headquarters, Joint Readiness Training Center and Fort Polk Orders 227-0314, dated 15 August 2013, released the applicant from assignment and duty because of permanent physical disability with a rating of 80 percent and placed him on the retirement list effective 6 November 2013 in the retired grade of rank of sergeant. The orders specify his disability was not based on injury or diseases incurred in the LOD in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war nor did it result from a combat-related injury. 18. Headquarters, Joint Readiness Training Center and Fort Polk Orders 232-0320, dated 20 August 2013, amended Orders 227-0314 to reflect his retired grade of rank as staff sergeant in lieu of sergeant. 19. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired due to disability, permanent (enhanced) on 5 November 2013 after 6 years, 5 months, and 20 days of net active service. It does not reflect award of the Purple Heart. 20. A VA Rating Decision, dated 15 January 2014 shows: a. Service connection for the following conditions was granted effective 6 November 2013: * PTSD and depression, 50 percent * cervical strain, 30 percent * lumbar strain, 20 percent * left shoulder strain (dominant), 20 percent * right shoulder strain (non-dominant), 20 percent * TMJ dysfunction, 20 percent * right knee strain, 10 percent * left knee strain, 10 percent * right hip strain, limitation of flexion, 10 percent * right hip strain, impairment of thigh, 10 percent * left hip strain, limitation of flexion, 10 percent * right wrist strain (non-dominant), 10 percent * tinnitus, 10 percent * left hip strain, impairment of thigh, 0 percent * right hip strain, limitation of extension, 0 percent * left hip strain, limitation of extension, 0 percent * dry eye syndrome, 0 percent * obstructive airway disease, 0 percent * erectile dysfunction, 0 percent * multiple nevi, 0 percent * sinus headaches, 0 percent b. Service connection for the following conditions was denied: * fibromyalgia * hearing loss * sinus condition * heart condition * scar formation right thigh and back 21. A VA Rating Decision, dated 13 March 2015 shows the applicant’s combined rating was 100 percent, with the following changes: * service connection for radiculopathy, left lower extremity, manifested in the sciatic nerve was granted with an evaluation of 20 percent effective 6 November 2013 * service connection for TBI, resolved was granted with an evaluation of 0 percent effective 6 November 2013 * evaluation of PTSD and depression, which was currently 50 percent disabling was continued * evaluation of lumbar strain, which was then currently evaluated 20 percent disabling, was decreased to 10 percent effective 27 January 2015; 1 10 percent evaluation was assigned from 27 January 2015 22. A VA letter, dated 8 June 2018 shows the applicant’s combined service-connected evaluation was 100 percent and he was considered to be totally and permanently disabled due solely to his service-connected disabilities effective 6 November 2013. 23. The applicant provided multiple witness statements, including his own Sworn Statement, written between 2015 and 2019, all of which have been provided to the Board for review. The statements attest to their austere living conditions during their Iraq deployment in 2008 - 2009, give reports of indirect fire, and detail an incoming rocket round that impacted roughly 15-20 feet from their truck, killing one unit member and injuring the applicant. The applicant specifies his injuries were a concussion with a nose bleed. 24. A U.S. Army Human Resources Command letter to the applicant, dated 24 January 2019, shows: a. The applicant was awarded Combat-Related Special Compensation (CRSC) for PTSD and depression, 50 percent and tinnitus, 10 percent, combining for a total CRSC disability rating of 60 percent. Those conditions were granted due to his combat award. b. The remaining conditions were not verified as combat-related disabilities: * erectile dysfunction * left hip strain limitation of extension * right hip strain limitation of extension * right hip strain limitation of flexion * left hip strain limitation of flexion * left shoulder strain * right shoulder strain * right wrist strain * TMJ dysfunction * lumbar strain * cervical strain * sinus headaches * radiculopathy left lower extremity * right hip strain impairment of thigh * left hip strain impairment of thigh * TBI 25. A VA Rated Disabilities statement, presumed to be the applicant’s, shows his final degree of disability was 100 percent for the previously listed service-connected disabilities. 26. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 27. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 28. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 29. 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). 2. The applicant’s DA form 199 shows that when the PEB convened on 6 August 2013, the applicant was determined unfit for conditions related to his cervical and lumbar spine as well as both shoulders, hips, and knees: Cervical strain (30%), Lumbar strain (20%), Left shoulder strain (10%), Right shoulder strain (10%), Right knee strain (10%), Left knee strain (10%), Right hip strain (10%), Right hip strain, impairment of thigh (10%), Left hip strain (10%), Right hip strain, limitation of extension (0%), Left hip strain, limitation of extension (0%), and Left hip strain, impairment of thigh (0%). 3. As part of their administrative findings, they determined that none of his unfitting conditions were combat related: They found no evidence that any of these disabilities was the direct result of armed combat, was related to the use of combat devices (instrumentalities of war), was the result of combat training, was incurred while performing extra hazardous service though not engaged in combat, or was incurred while performing activities or training in preparation for armed conflict in conditions simulating war. 4. His combined rating was 80% and the PEB recommend the disposition of permanent retirement for physical disability. Following counseling by his PEB liaison officer, he concurred with these findings on 6 August 2013, and was retired on 5 November 2013. Supporting documentation clearly shows the applicant served in Iraq and that he was exposed to both enemy actions and environmental hazards. Except for his right shoulder disability, none of the disabilities have an identified mechanism of injury and appear to have had a gradual / insidious onset. Nevertheless, for an injury or disease to be combat related, section b(3) of 26 U.S. Code §?104 requires there be a cause and effect relationship. The onset of each of his disabilities is stated in his medical evaluation board narrative summary and/or his PEB Proceedings. 5. The record shows that for his right shoulder disability, the injury occurred when he fell off a HMMWV while deployed in Iraq in 2009. This vehicle is an instrumentality of war. However, because a Soldier was injured while in, on, around, or working on/with an instrumentality of war doesn’t automatically make it a disability caused by an instrumentality of war. The disability must be because the use or circumstances surrounding the injury is uniquely military and different from the use or occurrences in similar circumstances in civilian pursuits. In this case, falls from a vehicle occur in many areas of civilian life and there is nothing unique to the HMMWV which contributed to his injury. 6. There is no evidence identified supporting the applicant’s claim that one or more of his unfitting disabilities is combat related. Based on the information currently available, it is the opinion of the ARBA Medical Advisor that the awarding of a combat related designation is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. The Board found insufficient evidence indicating the PEB erred in determining his unfitting disabilities were not combat related. The Board found no evidence conclusively showing his unfitting disabilities were a direct result of armed conflict, were incurred while engaged in hazardous service or under conditions simulating war, or were caused by an instrumentality of war. The Board further found insufficient evidence to conclude that the PEB erred in identifying the unfitting conditions that formed the basis for the applicant's retirement due to disability. 3. The Board noted that the Purple Heart is awarded is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. The Board found insufficient evidence to support a conclusion that the applicant incurred a wound that met the criteria for award of the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. X 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, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 (Combat-Related), covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 3. DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in general, covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live-fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. 4. Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 (Disability Evaluation System) (DES) currently in effect, defines armed conflict and instrumentality of war. a. Incurred in Combat with an Enemy of the United States. The disease or injury was incurred in the LOD in combat with an enemy of the United States. b. Armed Conflict. The disease or injury was incurred in the LOD as a direct result of armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference (d). The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. Engaged in Hazardous Service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. d. Under Conditions Simulating War. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. e. Caused by an Instrumentality of War. Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 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. 6. 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. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 7. 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). 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. 8. 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. 9. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. b. Paragraph 2-8e specifically states a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed in the regulation. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the service member’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. 10. HRC MILPER Message Number 11-125, dated 29 April 2011, states the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart). The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). a. HRC verified award of the Purple Heart for a TBI injury is retroactive only to 11 September 2001 and that all requests that are not processed within theater must be processed through the peacetime chain of command. Awards of the Purple Heart for injuries incurred in a previous deployment and requests that are not processed in the combat theater must be processed through the Soldier’s current chain of command to the Commander, HRC. When recommending and considering award of the Purple Heart, the chain of command will ensure the Purple Heart criteria in Army Regulation 600-8-22, paragraph 2-8, are met and that both diagnostic and treatment factors are present and documented in the Soldier’s medical records by a medical officer. b. The following non-exclusive list provides examples of signs, symptoms, or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart: * diagnosis of concussion or mild traumatic brain injury * any period of loss or decreased level of consciousness * any loss of memory for events immediately before or after the injury * neurological deficits (weakness, loss of balance, change in vision, praxis (i.e. difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, etc.) that may or may not be transient * intracranial lesion (positive computerized axial tomography (CAT) or magnetic resonance imaging (MRI) scan c. The following non-exclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: * limitation of duty following the incident (limited duty, quarters, etc.) * pain medication such as acetaminophen, aspirin, ibuprofen, etc, to treat injury * referral to neurologist or neuropsychologist to treat the injury * rehabilitation (such as occupational therapy, physical therapy, etc.) to treat injury d. Combat theater and unit command policies mandating rest periods or “down time” following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, this rest period must have been directed by a medical officer or medical professional for the individual after diagnosis of an injury. e. Paragraph 4a, states award of the Purple Heart may be made for wounds (including mild TBI and concussive injuries) treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the Soldier’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. 11. Title 38, U.S. Code, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 12. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS//