IN THE CASE OF: BOARD DATE: 20 April 2022 DOCKET NUMBER: AR20210016877 APPLICANT REQUESTS: reconsideration of his previous request for correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) by adding post-traumatic stress disorder (PTSD) as unfitting. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR201300 on 4 March 2014. 2. The applicant states, in effect, he believes the correction should be made because he is sure that if he would have been evaluated for PTSD, the evaluation would have discovered he was suffering from PTSD. The Department of Veterans Affairs (VA) discovered his PTSD conditions years after his discharge. He was separated in 2006 but he was not evaluated for PTSD until 2010. 3. Having had prior enlisted service in the Regular Army, the applicant enlisted in the Regular Army on 29 September 2004. He served in Kuwait/Iraq from 15 March to 15 July 2003. 4. On 23 February 2006, a Medical Evaluation Board (MEB) recommended the applicant's referral to a Physical Evaluation Board (PEB) based on chronic low back pain with degenerative disc disease and left flexor digitorum profundus rupture with tendon transplant repair, which did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 5. On 1 March 2006, a PEB found the applicant unfit for further military service due to chronic low back pain secondary to degenerative disc disease. The PEB determined that the applicant's diagnosis of left flexor digitorum profundus was not separately unfitting because it was a longstanding injury. The PEB recommended a 10% disability rating and his separation with severance pay. 6. On 3 March 2006, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. 7. On 31 March 2006, the applicant was discharged under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) by reason of disability, severance pay. 8. In support of his previous application, the applicant provided a VA Rating Decision, dated 9 January 2013, showing he was granted service-connected disability compensation, with a combined 90% disability rating, for a number of medical conditions that include PTSD with elements of depression. 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 VA Schedule for Rating Disabilities (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 Boards Agency (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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: The applicant is again applying to the ABCMR requesting that his PTSD be determined to have been an unfitting condition for continued military service prior to his separation form the Army; that his current Veterans Benefits Administration service connected disability rating of 70% for his PTSD be combined with his previous military disability rating; and that his disability discharge disposition be subsequently changed from separated with disability severance pay to permanent retirement for physical disability. He states: “I would like to have my PTSD that I receive form the VA, to which I am 100% because of my PTSD, be added to my original discharge in 2006. I believe this correction should be made because I am sure if I would have been given a PTSD physical back in 2006 along with my discharge physical, it would have been discovered that I was suffering from PTSD then {rather than} just the VA discovered it years after I was discharged.” The Record of Proceedings and prior denial detail the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 29 September 2004 and was discharged with $19,359.00 of disability severance pay on 31 March 2006 under provisions in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). This request was previously denied in full on 4 March 2014 (AR201300). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on the new evidence submitted by the applicant. No new information was submitted with the application. The applicant’s case was reviewed by the Physical Disability Board of Review (PDBR) in 2012. Issues addressed included the applicant’s lumbar spine condition and left hand finger injury. PDBR’s findings dated 26 July 2012: “In the matter of the chronic LBP {low back pain} condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended left ring finger tendon rupture status post repair, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board's scope of review for consideration.” Their recommendation was approved by the Deputy Assistant Secretary of the Army Review Boards on 31 July 2012. DoD PDBR decisions are final and the issues considered by the PDBR cannot afterwards be considered by the Army Board for Correction of Military Records. a. In brief, a medical evaluation board (MEB) determined on 23 February 2006 that the applicant’s “Chronic low back pain with DDD {degenerative disk disease}” and “Left flexor digitorum profundus rupture with tendon transplant repair” were conditions which failed the medical retention standards of AR 40-501, Standards of Medical Fitness. On 28 February 2006, the applicant agreed with the board’s findings and recommendation and the case was forwarded to a physical evaluation board (PEB) for adjudication. b. On 1 March 2006, the applicant’s informal PEB found his “Chronic low back pain secondary to degenerative disc disease” to be his sole unfitting condition for continued service. They determined the flexor digitorum profundus injury was not unfitting for continued service: “Not separately unfitting. This is a long standing injury.” The MEB narrative summary states the injury incurred during his prior enlisted which ended in December 2003. The applicant underwent surgical reconstruction during the current enlistment. c. Using the Veterans Administration Schedule for Rating Disabilities (VASRD) diagnostic code 5242 - Degenerative arthritis of the spine -, the PEB derived a disability rating of 10% and recommended the applicant be separated with disability severance pay. On 3 March 2006, after being counseled on the informal PEB’s findings and recommendation by his PEB Liaison Officer, the applicant concurred with the informal PEB’s findings and waived his right to a formal hearing. d. His encounters in AHLTA start on 12 April 2005 and run thru 25 January 2006. There are no mental health encounters among these 47 visits, 23 of which were related to his left finger injury and 10 to has lumbar spine condition. e, His case, including the MEB, PEB, and VA Ratings Decision, were reviewed and no issues were identified. f. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings, including a 70% disability rating for PTSD. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. g. Given no evidence of error or injustice, it is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding an increase of the applicant’s military disability rating was not warranted nor was having his case referred to the IDES for review. Based on this, the Board denied relief. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. 2. 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501(Fitness), 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. c. 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. d. The mere presence of 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. e. 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. f. 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. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016877 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1