IN THE CASE OF: BOARD DATE: 25 February 2022 DOCKET NUMBER: AR20210011274 APPLICANT REQUESTS: correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) by adding additional medical conditions as unfitting and combat related resulting in a higher disability rating. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Confidential Consultative Examination, dated 13 November 2017 * Social Security Administration (SSA) Benefit Verification Letter * Department of Veterans Affairs (VA) rating decision (pages 5 and 6 of 20) 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. His severe post-traumatic stress disorder (PTSD) and depression should be added to his DA Form 199 as unfitting and combat related. He contends that although he was able to fight through his PTSD and depression for over 10 years prior to his PEB, the severe progression of his mental health conditions left him unfit for duty because the conditions prevented him from providing safe and effective nursing care at any health care organization or work effectively in any simulated or actual combat situation. He further contends that his provider told him that she believed he required a permanent profile for theses conditions, but the provider asserted one could not be submitted because he was already progressing through the PEB process. He is providing supporting evidence from an outside provider that shows how severe his mental condition was and remains. He has been receiving social security disability benefits since his separation on 27 December 2017. b. His mental condition has debilitated his abilities to understand simple or complexed situations and the PEB process was extremely complex. He went through the PEB process in a fog; he was not capable of making decisions on his own. Therefore, he did not understand or could identify the error of his mental health condition not being listed as an unfit for duty condition related to combat. It was not until 2021, while searching for additional programs to help him with his PTSD and depression, that his wife identified the error that his mental condition was not listed as an unfit condition related to combat. 3. Following enlisted active duty service, which included service in Iraq from 1 March 2004 to 31 March 2005, the applicant was appointed a Reserve commissioned officer, Army Nurse Corps, effective 5 March 2009. He entered active duty on 5 March 2009. 4. On 5 September 2017, an informal PEB found the applicant unfit for further military service due to migraines, including migraine variants, and right ankle degenerative arthritis. The PEB found 18 additional medical conditions (including PTSD) not unfitting because the Medical Evaluation Board (MEB) indicated the conditions met the medical fitness standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and none of the conditions were listed on the DA Form 3349 (Physical Profile) as preventing him from performing one or more functional activities and there was no evidence indicating that performance issues, if any, were due to those conditions. 5. The PEB recommended a combined 60% percent disability rating and the applicant's permanent disability retirement. The DA Form 199 contains the following statements in: a. Section V: (1) The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service. (2) The disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216. b. Section VI: (1) This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). (2) As documented in the VA memorandum dated 28 August 2017, VA determined the specific VA Schedule for Rating Disabilities (VASRD) code(s) to describe the Soldier's condition(s). The PEB determined the disposition recommendation based on the proposed VA disability ratings and in accord with applicable statutes and regulations. 6. On 6 September 2017, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 7. The applicant's DD Form 214 shows he was retired on 27 December 2017 by reason of disability, permanent (enhanced). 8. The applicant provided: a. A Confidential Consultative Examination, dated 13 November 2017, showing he underwent a clinical interview and mental status evaluation and was diagnosed with: * PTSD – chronic, by history * major depressive disorder, severe without psychosis, by history * obstructive sleep apnea, by history * relationship distress with spouse * parent-child relational problem b. An SSA Benefit Verification Letter showing he is receiving social security benefits and that the SSA found him disabled under their rules on 23 March 2017. c. A VA rating decision (pages 5 and 6 of 20), undated, showing he was granted service-connected disability compensation for a number of disabilities that include PTSD and anxiety. 9. 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. 10. 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. 11. Title 38, Code of Federal Regulations, Part IV is the VASRD. 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. 12. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates he was seen on 10 Mar 2011 due to problems with anger with family members. On 14 Mar 2011 he was diagnosed with Anxiety Disorder, not otherwise specified (NOS). On 23 May 2011, he was diagnosed with Adjustment Disorder with Anxiety and Depressed Mood. On 25 May 2011, he was started on Zoloft. On 16 Jun 2011, he reported improvement in his symptoms on his medication. On 8 Aug 2011, he reported feeling better on increased dosage of Zoloft and found life more enjoyable. He reported improved sleep on Ambien with good daytime energy. He reported that work was going well. He did not return to behavioral health until 26 Apr 2016. He reported difficulty with sleep and concentration. His mood was euthymic. He reported difficulty with combat stress issues and increased anger. He denied any occupational impairment and was diagnosed with PTSD. On 5 May 2016, he completed a medication evaluation and was started on Prozac, Prazosin and Trazadone. He did not return to behavioral health until 27 Mar 2017. He reported that he had discontinued previously prescribed medications for mood and sleep. He was diagnosed with Major Depressive Disorder (MDD) and started on Zoloft. On 25 Apr 2017, his Zoloft was increased to 100mg and his Ambien was increased to 10mg for his MDD symptoms. He had no duty limitations and he was not placed on a behavioral health profile. On 23 May 2017, the psychiatric addendum for his MEB Narrative Summary was completed. The psychologist noted he had no duty limitations due to his psychiatric conditions and found the applicant’s MDD and PTSD met retention standards. On 30 May 2017, his Zoloft was increased to 150mg and he was prescribed Trazadone for sleep (Ambien discontinued). On 2 Jun 2017, his diagnosis was changed to Dysthymic Disorder and PTSD. On 18 Jul 2017, his medication was changed from Zoloft to Wellbutrin with a plan for tapering. On 14 Aug 2017, his dosage of Wellbutrin was increased. He was released with no duty limitations. He did not return for follow-up treatment. Telephone consultation dated 5 Oct 2017 indicates he was provided with a 90-day refill in preparation for medical retirement. His next behavioral health appointment was 30 May 2018 to establish behavioral health care at Ft Rucker. On 6 Jun 2018, he started medication to address sleep problems. On 11 Jul 2018, his medications were changed to add Zoloft and Ambien. On 12 Sept 2018, he discontinued Zoloft and started Effexor. On 16 Nov 2018, he reported he had discontinued Effexor and wanted to try a different medication. On 17 Dec 2018, he was started on Seroquel for sleep. On 15 Jan 2019, he reported that Seroquel was initially a “miracle drug” but was not working as well currently. There are no further behavioral health encounters in his record. His PEB was completed on 5 Sept 2017 found his PTSD along with multiple medical conditions met retention standards IAW AR 40-501. He received 60% for right ankle degenerative arthritis (10%) and migraines including migraine variants (50%). These ratings were based on VA Compensation and Pension exam. The applicant was evaluated on 1 Nov 2017 by a civilian provider. The provider diagnosed him with PTSD and MDD. A letter from the Social Security Administration indicates he started receiving SS benefits in September 2019. It determined he became disable under their rules on 23 Mar 2017. However, he was still on active duty and working as of that date. A copy of his VA disability paperwork indicates his PTSD was initially rated at 30% due to “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.” A review of JLV indicates his PTSD rating is currently 50% effective 21 Oct 2021. His current combined service connected disability rating is 100%. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards from a behavioral health perspective at the time of his medical retirement thus military disability for PTSD is unwarranted. It is acknowledged that the applicant has a service-connected disability for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. The applicant’s PTSD met retention standards at the time of his retirement. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical review, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s findings and determined there is insufficient evidence that supports amending the applicant’s PEB results to show the contested medical conditions were unfitting, nor an increase to the disability rating is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, 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. 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 Disability Evaluation System (DES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 3. Army Regulation 635-40 establishes the Army DES 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination or directed by medical providers. 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 or 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 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 whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. 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 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 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. 4. Directive-type Memorandum (DTM) 1-015, dated 19 December 2011, explains the IDES. It states: a. The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and 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 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 requirements promulgated in DODI 1332.18 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 standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Boards for Correction of Military Records (BCMR) procedures of the Military Department concerned, the former service member 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 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. e. If, after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 5. Army Regulation 635-40, Paragraph 5-24 (Determination for Purposes of Federal Civil Service Employment) states that physical disability evaluation will include a decision and supporting documentation regarding whether the injury or disease that makes the Soldier unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during a period of war. These determinations impact the eligibility of certain military retirees for certain benefits when employed under the Federal Civil Service System. a. The determinations will be recorded on the record of proceedings of the Soldier’s adjudication. Notwithstanding that the determinations concern disability retirements, the determination will be documented on the record of proceedings for a disability disposition of separate with disability severance pay. b. Armed Conflict: The fact that a Soldier may have incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations, is not sufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. 6. Army Regulation 635-40, paragraph 5-25 (Determination for Federal Tax Benefits) states: a. Physical disability evaluation will include a determination and supporting documentation on whether the Soldiers disability compensation is excluded from Federal gross income under the provisions of Title 26, U.S. Code, section 104. The entitlement to this exclusion is based on the Soldier having a certain status on 24 September 1975 or being retired or separated for a disability determined to be combat related as set forth in this paragraph. The determination will be recorded on the record of proceedings of the Soldier’s adjudication. b. Combat related: This standard 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 will be considered combat-related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: (1) As a direct result of armed conflict. (2) While 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. (3) Caused by an instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as 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. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, if a Soldier is on a field exercise and is engaged in a sporting activity and falls and strikes an armored vehicle, the injury will not be considered to result from the instrumentality of war (the armored vehicle), because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the Soldier, the injury would be considered the result of an instrumentality of war (the armored vehicle). 7. Title 26, U.S. Code, section 104, states that for the purpose of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. //NOTHING FOLLOWS//