IN THE CASE OF: BOARD DATE: 4 November 2020 DOCKET NUMBER: AR20200001859 APPLICANT REQUESTS: Correction of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings to show a 100 percent disability rating, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * State of Hawaii Senate Concurrent Resolution Number 46 (S.C.R. NO. 46), dated 27 February 2020, subject: Urging the Department of Veterans Affairs (VA) to Recognize a Presumptive Service Connection for Chronically Ill Veterans who Were Stationed at Kunia Field on the Island of Oahu * neuropsychological evaluation results, dated 5 March 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The 30 percent disability rating she received should have been 100 percent. Her mental status evaluation determined that she had no suicidal ideations; however, she went to the mental health office several times requesting help for just that. She was even admitted following her retirement due to her self-harm issues. b. Her mental status evaluation also determined she was feeling guilty about her husband's death, who was suffering from post-traumatic stress disorder, and who committed suicide while they were still married. He had failed a mental exam in order to come home but he cried and they let him come home anyway, which was two weeks before their son's first visit with him. c. She is considered 100 percent disabled due to non-employability although they suggested she would be able to work. She is still having memory issues, headaches, and nerve issues as a result of her surgery. Please fix this great disaster and allow her the 100 percent disability rating she should have been given initially instead of feeling like it was all in her head. The Social Security Administration granted her non-employability in less than 30 days, which shows a different story. She is just glad she finally gets to tell it. d. The worst part is the onset, which may have occurred when she was grabbed with two hands on the side of her Kevlar helmet and rammed into a wall. She believes that is what caused her initial head injury. She remembers her drill sergeant telling her that some things were only for "real Soldiers"; the ones hurt in conflict. She just wonders when she stopped counting. 3. The applicant enlisted in the Regular Army on 31 January 1995. She was released from active duty and transferred to the U.S. Army Reserve on 6 October 2000. Her DA Form 2-1 (Personnel Qualification Record) and Enlisted Record Brief show she served in Hawaii from 29 October 1997 to 6 October 2000, with duties in Kunia, Hawaii. 4. The applicant reentered active duty in an Active Guard/Reserve status on 15 January 2005. 5. On 4 December 2007, a PEB found the applicant unfit based on a diagnosis of major depressive disorder, moderate with anxious features, with onset in 2006 in the context of multiple familial and occupational stresses, rated 30 percent disabling. The PEB stated the following: Soldier has not worked for several months and currently lives at home. Soldier has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, and chronic sleep impairment. Based on a review of the medical evidence of record, the PEB concludes that your medical condition prevents satisfactory performance of duty in your grade and specialty. This condition has not stabilized to the point that a permanent degree of severity can be determined. 6. The PEB recommended the applicant's placement on the Temporary Disability Retired List (TDRL) with reexamination during February 2009. 7. Orders issued by the U.S. Army Human Resources Command, HRC on 22 February 2008, directed the applicant's release from assignment and duty because of physical disability and her placement on the TDRL effective 4 March 2008. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was released from active duty and placed on the TDRL on 4 March 2008, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation), by reason of physical disability, temporary. 9. On 20 February 2010, a PEB reevaluated the applicant's condition and recommended a 30 percent disability rating, for major depressive disorder, and the applicant's permanent disability retirement. The PEB stated the following: Major depressive disorder. This condition is not a battle injury and it was not caused by an instrumentality of war. Onset of Soldier's depression occurred in 2006 in the context of multiple familial and occupational stresses. Current mental exam documents Soldier's mood as depressed. Her thought processes were logical, linear and goal oriented. Thought content was without suicidal/homicidal ideation, plan or intent. Her judgment and impulse control were assessed as adequate. Psychiatrist stated, "Soldier's depressive symptoms of negative thinking, crying spells, insomnia, anxiety, fatigue, and despondency cause occasional decrease in work efficiency or intermittent periods of inability to occupational tasks due to manifestations and symptoms." This condition is unfitting as Soldier cannot carry and fire individual assigned weapon and her health or well-being would be compromised if she were to remain in the military service. Condition is stable for final adjudication. Rated for occasional decrease in work efficiency or intermittent periods of inability to occupational tasks. The present PEB rating of 30 percent accurately reflects the current degree of severity of your condition. The PEB considers you to have stabilized sufficiently for rating purposes and recommends permanent retirement. 10. The applicant's DA Form 199 does not show whether she concurred with the PEB's findings and recommendations. However, it appears she initially did not concur with the PEB's findings and requested a regularly appointed counsel to represent her. 11. A DA Form 751 (Telephone or Verbal Conversation Record) shows that on 15 March 2010, the applicant withdrew her demand for a formal hearing and agreed with the PEB's decision. 12. Orders issued by the U.S. Army Physical Disability Agency on 19 March 2010, directed the applicant's removal from the TDRL and her placement on the Permanent Disability Retired List. The orders show she was assigned a 30 percent disability rating. 13. The applicant provided State of Hawaii S.C.R. NO. 46 and stated that she recently found some pertinent information which could also explain the chronic illness that she first began to display while stationed at field station Kunia and later after her craniotomy got worse and continues today. She also contends that she found information showing the government knew about the contamination. 14. The State of Hawaii S.C.R. No. 46 addresses veterans and their advocates argument that they have been denied access to the government records needed to conclusively link their illnesses to toxic exposure and urged the VA to recognize a presumptive service connection for chronically ill veterans who were stationed at Kunia Field and to provide medical care and long-term services regardless of the veterans' ability to conclusively link their conditions to toxic exposure. 15. The applicant also provided her neuropsychological evaluation results, dated 5 March 2020, showing she was diagnosed with cognitive complaints with normal neuropsychological evaluation, major depressive disorder, recurrent, sever without psychotic symptoms, generalized anxiety disorder. 16. 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. 17. Title 38, USC, 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. 18. Title 38, CFR, 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. 19. Based on the applicant’s condition, the Army Review Board Agency medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant’s PEB rating of 30% for Major Depressive Disorder (MDD) was appropriate at the time of separation. Specifically, the applicant had only attended behavioral health sporadically, was not hospitalized, did not have a psychiatric profile limiting duties, and was not diagnosed with MDD until right before separation. In fact, it is unclear why the applicant’s one-time diagnosis of MDD prior to separation was referred at all; she had not failed retention standards at that time. Nonetheless, there is no indication she was impaired beyond the 30% rating. Post-service, the applicant was taking college courses and ran a daycare in her home; documentation immediately post-service does not support impairment beyond the 30% given. In summary, the 30% rating at discharge was appropriate given the documentation reviewed. 2. The applicant attended a total of 5 behavioral health visits, one of which was a neuropsychological evaluation; she did not require care for a chronic or impairing psychiatric condition. In December 2005, the applicant called behavioral health reporting she provided a civilian neuropsychological evaluation to Command leading them to request she meet with military providers. The military provider noted the civilian report stated she had “no impairment with no indication of a decline,” rather “intense somatic focus, probably magnifying the severity of her actual organic problems.” The military neuropsychological eval concluded the same. The applicant was diagnosed with an Adjustment Disorder and ongoing consideration for Somatization Disorder and Personality Disorder. 3. In September 2006, she discussed anxiety which led to a diagnosis of Anxiety Disorder NOS with prescribed medication. In an October follow up, she reported symptoms were improved with medication. She returned in June 2007 related to her husband’s suicide the month prior. She reported depression since her 2005 craniotomy, but symptoms worsened with her husband’s death. The applicant was diagnosed with Major Depressive Disorder (MDD). Although she had not attended treatment, been hospitalized, or on a profile for psychiatric concerns, the provider stated she did not meet medical retention standards leading the MDD diagnosis to be added to an already pending medical MEB. While the applicant asserts she reported suicidality in-service and this should be considered in her rating, all behavioral health encounters, to include the last referring MDD to the MEB process, indicate there was no suicidality. 4. The applicant is 70% service connected for Chronic Adjustment Disorder. The applicant went to behavioral health in August 2008 with a diagnosis of Depression. In October, she reported running a home daycare and taking college courses. She denied any history of suicide attempts. The provider diagnosed Mood Disorder due to craniotomy. In March 2009, the applicant reported closing her daycare due to headaches, unrelated to psychiatric symptoms. In April 2009, therapy focused on unhealthy relationship patterns. In June 2009, she reported being “situationally depressed.” The applicant was going to the gym and returning to school. An October 2009 Temporary Disability Retirement List (TDRL) exam indicated the applicant self- reported “severe and disabling symptoms…” The provider diagnosed MDD. In November, the applicant requested admission for increasing depression. She was discharged with diagnosis of MDD. 5. In February 2010, she was offered dialectical behavior therapy (DBT) due to poor coping skills for psychosocial stressors. A February 2010 MEB review maintained the 30% rating. A March 2020 report reflects “severe degree of recent depression and anxiety” with diagnoses of MDD and Generalized Anxiety Disorder (GAD) with a normal cognitive exam. Of note, the exam specifically noted the severity of symptoms was “recent.” The applicant had a Compensation and Pension (C&P) exam in July 2010 noting she was rated at 10% for Chronic Adjustment Disorder. In September 2011, the applicant had a neuropsychological evaluation with diagnoses of Mood Disorder due to a general medical condition with depressive features, Anxiety Disorder NOS, and Cognitive Disorder NOS. In June 2012, the applicant’s diagnosis list added Cluster B Personality traits. In July 2015, she had a C&P which diagnosed Adjustment Disorder noting she was 70% service connected already. The applicant’s current diagnosis if MDD. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, public law guidance and a medical advisory opinion. The Board considered the applicant’s statement, documents provided by the applicant, her medical records and the review and conclusion of the medical advising official. The Board concurred with the medical advisory opinion finding the 30% rating at discharge was appropriate given the documentation reviewed. Furthermore, the Board determined there is insufficient evidence of an error or injustice which would warrant granting relief. The law allows 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 an error or injustice in the Army's rating. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 establishes the Army Physical 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 or her office, grade, rank, or rating. It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Paragraph 4-17 provides guidance for PEBs. It states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 3. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides 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 the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 4. Title 38 U.S. Code, section 1110 (General - Basic Entitlement) states that 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. 5. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states that 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// ABCMR Record of Proceedings (cont) AR20200001859 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1