IN THE CASE OF: BOARD DATE: 4 February 2022 DOCKET NUMBER: AR20210007418 APPLICANT REQUESTS: * in effect, a retroactive medical evaluation board (MEB) in lieu of his honorable retirement from the U.S. Army Reserve (USAR) * a medical retirement * correction of his records to state his injury was not due to illness nor a disease * back pay for convalescent leave from 21 May 2003 through April 2004 * entitlement to military education benefits * entitlement to TRICARE insurance and reimbursement for previous premiums paid * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). FACTS: 1. The applicant states he believes he was wrongfully retired from the military and that he should have been medically boarded with the opportunity to have his military medical issues reviewed by appropriate medical doctors in order to determine retirement status. His last three profiles were entered into the medical system who did not have all of his medical records available to them and negating to route his records through the MEB process. He is requesting a disability rating from the Army since he never received a rating when he retired. 2. The applicant also stated he would be providing military medical records in support of his application. A representative from the ABCMR requested these documents from the applicant, he did not respond. 3. A review of the applicant s service records show: a. The applicant was born in A___ 1966. He will turn 60 in A__ 2026. b. Having had prior service as an enlisted member in the Regular Army and Army National Guard (ARNG), he was appointed as a Reserve commissioned officer on 5 November 1993. c. His record contains a DD Form 3349 (Physical Profile), dated 22 April 2004, which shows he was seen for a cervical fusion. He was issued a temporary profile and instructed not to participate in the Army Physical Fitness Test for 3 months. d. He served on active duty from 16 October 2005 through 18 May 2007, a period of 1 year, 7 months, and 8 days. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned to Fort Sill, OK as a Signal Support System Specialist (31U) in the rank/grade of captain (CPT)/O-3. He was honorably released from active duty and transferred to the USAR. e. On 24 January 2008, the U.S. Army Human Resources Command (HRC) notified the applicant by memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) indicating he had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60. f. On 8 June 2017, HRC published Orders C-06-708116, which assigned the applicant to the Retired Reserve, effective 29 July 2017. The reason was stated as Non-Selection for Promotion (to lieutenant colonel). g. His DA Form 5016 (Chronological Statements of Retirement Points) shows he completed 20 years, 7 months, and 23 days of qualifying service towards non-regular retirement. 4. The applicant s request concerning correction of his records to change the status determination of his injury/illness and request for back pay for convalescent leave are unclear as his record does not indicate nor did the applicant provide any such record for correction. 5. The medical and education benefits request from the applicant is premature. These entitlements are based on a Soldier s reason for separation and determined by agencies not within the ABCMR. 6. By regulation, Soldiers are referred to the disability system when they have a condition that does not meet medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness) and/or prevents the Soldier from performing all required functional activities. An MEB is convened to determine whether a Soldier s medical condition meets medical retention standards per AR 40-501. A Physical Evaluation Board determines fitness for purposes of Soldiers retention, separation, or retirement for disability. 7. Also by regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. MEDICAL REVIEW The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests medical discharge processing through a MEB/PEB. He believes that the persons who wrote his profile did not have all of his medical records to accurately assess his conditions. He specifically mentioned injuries as follows: Neck injury, elbow injury, back injury, inhalation issue, eye problems, skin/scalp, joints, broken foot, stomach, PTSD, and TBI injury. He also had some other administrative requests. a. PTSD (1) 28Aug2006 Mental Health. He was being seen at the VA for work related stress. New leadership had been very confrontational with those in the section. He was taking a daily psychotropic medication, and an as needed medication for anxiety. His diagnoses were PTSD and depression. (2) 15Sep2006 Mental Health. Global and Assessment Functioning score 70 (mild symptoms) (3) 10Oct2006 Mental Health. He was introduced to Deep Muscle Relaxation. GAF score 65 (mild symptoms) (4) 15May2007 Social Work Care Managers note. No major mental health concerns were noted prior to being released from active duty in 3 days. This was the last BH visit recorded in AHLTA. (5) 26Dec2007 Report of Medical History (for over 40). Physical profile was S1. (6) In the 17Jun2008 Annual MEDCOM Questionnaire, his health was described as good ; the level current ability in managing his stress was good . He reported having continued in treatment from August to November 2006. (7) OER with thru date 20100219 showed Outstanding Performance Must Promote and Best Qualified as Staff Observer/Controller-Trainer. (8) 05Jan2010 Psychiatry VA Oklahoma City note. The applicant was working for government contract with Northgrum Drummond. He reported that he was in an active reserve unit with drills once per month. Due to external life stressors, he wanted to transfer to an individual ready reserve (IRR) unit. He requested a letter from BH stating that for mental health reasons he needed immediate transfer out of the drilling reserve and into the IRR. He feared that without the letter he may have to face non judicial punishment. The stressors reported were: Military contract with Northrump; lawsuit with Goodyear Tire Co; financial problems; and being in debt. He was angry because he felt the unit was blocking the request to transfer. The psychiatrist declined the letter at that time, advising the applicant to follow up with outpatient clinic prior to the letter being written. (10) 12Jan2010 Lawton Outpatient Clinic Social Work Services. He began attending an outpatient PTSD group. (11) 05Mar2010 Psychiatry VA OC note. He was working for Northgrum Drummond as a contractor. His BH history included that he was treated after Desert Storm for suicide ideation 2000/2001 and took medication; and restarted medicine again in 2005 which he continued. Symptoms reported feeling down, problems with sleep, hypervigilant, nightmares. He did report symptoms improved because of his medication. There was no hospitalization and no suicide/homicide ideation. Diagnoses: Major Depressive Disorder and PTSD. GAF was 60. It was stated that he was 70% service connected by the VA. (12) 29Sep2011 Psychiatry VA OC Note. The last BH visit was 1.5 years prior (March 2010). He had been doing well on his medicine but had just spent the last several months in Iraq as a contractor and ran out of his medication. There were mortar attacks which he found stressful. His meds were refilled. GAF score was 60 (moderate symptoms). (13) 30Sep2011 Medical Boards Clinic Reynolds AMC. The provider advised the applicant that he already had a permanent S3 already from Jan 2011, for Chronic PTSD. The applicant had been unaware of the profile. The provider indicated they would need to review his chart further. The applicant reported he was stable on his medications. There were no other BH notes in AHLTA. (14) 06Jan2012 Medical Boards Clinic Reynolds AMC. The neck and back were mentioned for a MEB as well as PTSD condition. (15) VA Oklahoma City Psychiatry notes from 08Mar2012 until he was assigned to the Retired Ready Reserve (29Jul2017) he was seen 2-8 times per year. Frequently he was seen for refills. He stated that his medication was working for him, and he denied side effects. His GAF score was consistently 55-60 (moderate symptoms). His stressors included back surgery in April 2012; concerns about job security (was laid off September 2012); chronic pain which increased markedly after the back surgery. b. TBI. (1) The applicant screened positive for TBI in 2019, 2 years after discharge from service. MOCA (cognitive screening test) completed today scored well 29/30. He was evaluated during the 08Nov2019 TBI/Polytrauma Program Note and it was determined that no follow up was necessary. c. Neck and Back (1) 22Apr2004 given a permanent U2 physical profile Cervical Fusion C4-C7 which did not prohibit any functional activities. However, there was to be no APFT events for 3 months. (2) 30Sep2004 He presented with longstanding neck pain status post cervical discectomy at multiple levels and fusion at C4-C7 in October 2003 at BAMC. He had pain with flexion, extension and left/right rotation. He was receiving physical therapy and TENS at the time was. He was informed that after follow up at BAMC he would likely be referred for medical board. (3) On 11Jun2006 (while on active orders) he was seen for severe neck and back pain after a car accident. The recent MRI was reviewed and showed no significant changes from prior. A MEB was considered but he entered WTU in October 2006 for pain control and to assess the conditions. The applicant had lumbar surgery in November 2006. After the back improved the neurosurgeon turned to reassessing the neck condition. He progressing in his rehab program, and remained in Medical Holdover until he was released in May 2007. He reported significant improvement and was released from care of neurosurgeon, with minor restrictions: No lifting > 70 lbs and he could walk or bike for APFT (permanent U2 profile 14May2007). (4) 26Dec2007 Report of Medical History (for over 40); the applicant endorsed being in good health. He also endorsed the following: Asthma; shortness of breath; bronchitis; arthritis, neck problems (status post fusion 01Oct2003); back problems (lumbar surgery 13Nov2006); numbness or tingling; left foot fracture 5th metatarsal; plates, screws, rods or pins in his bones; kidney stones; headaches related to cervical injury; and he was treated for PTSD and depression. There were no limitations for his MOS or physical training test. 26Dec2007 Report of Medical Exam (for retention). Summary of defects included: Weight; Asthma; Pes Planus; Arthralgias; Neck Pain; Back Pain; and Severe Dyslipidemia. His physical profile dated 08Jan2008 was 221111. He was deemed qualified for service. (5) 30Jan2008 Family Practice. The P3 profile was completed but only had one signature and indicated the need for an MEB because he could not wear full gear for a 2 mile march. The provider did not think the level 3 profile was appropriate. They did not find him unfit for duty. They assessed that he was able to do all duties and met retention standards per AR 40-501 for his neck and back. A new profile was given which had the same limitations as his previous U2 profile. (6) 17Jun2008. The applicant endorsed that he was still "capable of doing everything I need to do." He had some limited motion in the neck but otherwise no limitations because of his neck. He wore IBA, kevlar recently during 2 week AT. He also had lower back pain which began about 2005 and was worsened by an MVA in 2006. Still has some back pain which was minimal. (7) Officer Evaluation Report 20090406 through 20100219 as Staff Observer/Controller-Trainer and he passed the APFT on 20091003. Performance was rated as outstanding must promote . Senior rated endorsed that the applicant was best qualified . He completed Field Artillery Captains Career Course 26Feb2007 through 09Mar2007. (8) 30Sep2011 Just returned from Iraq 2 weeks ago. Was in Iraq x 5 months as a civilian contractor for the Army. Reinjured back 24Jun2011 while in Iraq, lifting Howitzers. He had already started physical therapy. He was taking OxyContin 10mg PRN (a few times per week). MRI L-spine from 26Sep2011 shows some new findings when compared to previous film (L5/S1 with worsening 7mm extrusion to the right and T12/L1 mild canal stenosis due to new 3mm protrusion). (9) 06Jan2012 Reynolds ACH. It was documented that that he was in the process of getting a medical board for chronic neck and back pain as well as PTSD. He had been ordered to report to Fort Riley that weekend for a Battle assembly. He didn t believe he could attend because he was walking with the assistance of a cane and he was taking chronic daily narcotics. He was not able to drive longer than about 30 miles without needing to stop and rest for an hour. He was working as a civilian contractor at Fort Sill. (10) 21Feb2012 Memorial Medical Group. The history was supplied that his neck and back pain increased after an injury while in Iraq (2011). The neurosurgeon reviewed the cervical MRI: C3-4 osteophyte causing mild spinal stenosis. The previous (2003) surgery instrumentation was stable. There was no spinal cord compression. The specialist assessed the condition and offered conservative options to include referral to Physical Medicine and Rehab for pain management; and further indicated the applicant was not a surgical candidate. They opined that the applicant did not meet medical retention standards and was permanently non deployable. They recommended a MEB. Diagnosis: Cervical Spondylosis without Myelopathy. (11) 15Mar2012 Medical Boards Clinic Reynolds AMC. He was currently transferred to the IRR February 2012. He presented for LOD for neck and back pain. The examiner annotated that the applicant aggravated his neck injury in June 2011 while in Iraq as a civilian contractor for the Army. He returned from Iraq September 2011 after 6 months due to the neck and back pain. He was seen by Red Bud physical therapy x 12 without improvement. 27Feb2012 Dr. D_ note in ALTHA states cervical spondylosis without myelopathy. A MEB had been recommended by his neurosurgeon, due to inability to wear IBA and helmet for 12hours. The provider planned to refer him for a MEB for Cervicalgia. (12) 03May2012 Memorial Medical Group. He was status post L5-S1 laminectomy and discectomy on 18Apr2012. The note stated that it was a work s comp case. He was to follow up with physical therapy. The surgeon agreed that a medical board should be started. The applicant stated that his pain was worse after the surgery than before it. He had numbness in the right buttocks and slight numbness in upper thigh. He denied weakness. He was advised that his recovery time could be from 12 to 18 months. He was to follow up in 3 months. (13) 09Aug2012 Memorial Medical Group. He was suffering from a chronic radiculopathy that would require medical treatment for some time and he was given a permanent 10# lifting limit. He was at maximum medical improvement and was released from care. (14) 25Jul2014 Orthotics Consult. He was fitted for a lumbar-sacral orthotic (LSO), from which he stated that he felt instant relief when he put it on. (15) 05Feb2015 Primary Care note. Reported pain 9/10 when his back popped while he was in the shower. Severe pain radiated into both legs. Exam showed limited flexion, and back spasm. (16) 31Mar2015 Neurology Consult. He has pain in back and both legs down to feet. Pain was improved after first back surgery in 2006, then he reinjured the neck and back during (civilian) deployment and had second surgery in 2012. Pain down R leg worse than L leg. Mostly constant, worsening over past 3 months. He also has neck pain with radiation of numbness to both arms. (17) He had radicular pain. His lower back was the main problem for him now. He stated that he was managing his pain with medication (included narcotics). But he had difficulty finding work. He had neck pain with radiation of numbness to both arms. Under employment it was written Disabled . (18) 15May2015 Pain Consult. Recommended a right L5-S1 transforaminal epidural steroid injection (19) 02Feb2017 Neck C&P exam. Neck forward flexion to 25 degrees (0-45 degrees); and extension to 25 degrees (0-20 degrees). The C5-C6 nerve root moderate paresthesia and numbness. He used a walker regularly as an assistive device. d. Records were also reviewed for the following conditions: Elbow status post release surgery 2002; Asthma, Mild, Intermittent; Dry Eye Syndrome, Presbyopia; Refractive Error, Open Angle Glaucoma; Dermatophytosis (fungal skin infection); Pes Planus; and Stomach issues. JLV search showed that the applicant is total combined service connected by the VA at 100% for the following conditions: PTSD (70%); Degenerative Arthritis of the Spine (40%); Neurogenic Bladder (40%); Paralysis of Upper Radicular Nerve Group (40%); Paralysis of Upper Radicular Nerve Group (30%); Intervertebral Disc Syndrome (20%); Neuralgia of Sciatic Nerve (20%); Neuralgia of Sciatic Nerve (20%); Limited Flexion of Forearm (10%); Impairment of Sphincter Control (0%); Scars (0%); Fascial Scars (0%); Allergic or Vasomotor Rhinitis (0%); Dermatophytosis (0%); Deformity of the Penis (0%). e. The ARBA reviewer did not find a LOD for the back or neck condition although it appeared that initial onset for both were duty related. (1) The applicant eventually recovered from the June 2006 car accident which exacerbated both conditions while on active orders. The applicant was released from active duty 18May2007. The available evidence showed that the applicant met retention standards at that time. (2) He continued in service and he passed the APFT on 20091003. He exacerbated the neck and back condition again in 2011 while in Iraq. In the 27Mar2019 TBI Consult, the applicant indicated that he was in Iraq as both a civilian and Reservist in 2011. One encounter indicated that he reinjured his back on 24Jun2011 while in Iraq as a civilian, lifting Howitzers. Another record indicated that it was a worker s compensation injury. A 30Oct2018 subpoena of records indicated that he was claiming benefits (under the Defense Base Act) for an injury he sustained on 24Jun2011 (the same date as the injury that permanently aggravated his neck and back pain). The 26Sep2011 lumbar spine MRI confirmed objective findings of the worsened spine condition. The ARBA reviewer did not find compelling evidence that he recovered sufficiently to return to full active duty after the June 2011 injury. His lifting was restricted to 10 pounds. There was no other military duty related exacerbation. (3) Records indicated that in January 2012, he was being evaluated for a MEB for neck and back pain as well as PTSD conditions; and later the MEB was for the neck condition. However, there was no evidence in ePEB that a MEB had taken place. In April 2012, he underwent a back surgery for a worker s comp issue. Reports indicated his back pain was worse afterwards. He was assigned to retired ready reserve effective 29Jul2017 due to non selection for promotion. f. This case was complicated by multiple injuries impacting both the neck and back; and trying to determine his duty status at the time. The ARBA reviewer was never able to determine when the applicant was actually transferred to the IRR. Notes indicated it was done so by February 2012. The initial injuries appeared to be duty related (the records pre-dated the AHLTA system). However, both the neck and back conditions appeared to be permanently worsened to the extent that they became unfitting for continued military service, due to the non military related injury while as a contractor in Iraq (June 2011). He had increased, persistent pain; and there were objective findings that showed worsening on his MRI. He also had an exacerbation of the back pain in February 2015 while in the shower. He appeared to not completely recover from the 2011 injury and a non duty related PEB could have ensued but did not. Concerning the BH condition: The last OER report was very good. He reportedly had an S3 in January 2011. 05Mar2010 note indicated he was 70% service connected by the VA for PTSD. The C&P exam for which the 70% rating was based on was not available for review. The applicant reported benefit from his medications without side effects; there was no persistent suicide/homicide ideation; and no psychiatric hospitalization. His symptoms were consistently rated as moderate. Based on records available for review, at the time of release from active duty in May 2007, it appeared that the applicant did not have conditions which failed retention standards of AR 40-501 chapter 3. After his release while in reserve status, evidence was insufficient to support that the applicant s PTSD failed medical retention standards. However, it appeared that the neck and back conditions did NOT meet retention standards at the time of referral into the Retired Ready Reserve effective 29Jul2017. After his non duty related back/neck injury in 2011, and following the trial of recovery after the 2012 back surgery, in the ARBA reviewer s opinion, the applicant should have been referred for a MEB/PEB (as he had permanent limitation for lifting over 10 pounds). The record did not contain an approved LOD for the neck or the back. It is possible that it may be determined that his neck and back conditions became unfitting as a result of the non duty related injury in 2011. Nevertheless, the ARBA reviewer recommends referral for Army medical discharge processing for more in-depth review by the MEB. BOARD DISCUSSION: 1. 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. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The applicant s contentions, the military record, a medical review, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all medical and TRICARE reimbursement relief dependent upon a final medical determination. The applicant did not specifically state military education benefits that he is seeking therefore the Board could not render a decision on this portion of the request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :MB :SM :GT GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 education benefits, pay for convalescent leave, and changing his type of discharge without evaluation under the DES, and the further relief. 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, United States 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. Title 38, U.S. Code, Section 1110 (Wartime Disability Compensation Basic Entitlement) provides 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 U.S. 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. 3. Title 38, U.S. Code, Section 1131 (Peacetime Disability Compensation Basic Entitlement) provides 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 U.S. 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. 4. Title 10, U.S. Code, Chapter 61 (Retirement or Separation for Physical Disability), 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 operating the Disability Evaluation System (DES) and executes Secretary of Army decision-making authority as directed by Congress in Chapter 61 and in accordance with Department of Defense Instruction 1332.18 (DES) and Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 5. AR 635-40, in effect at the time, prescribed Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Paragraph 3-2 (Presumptions) 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007418 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1