IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210011154 APPLICANT REQUESTS: * an increase in his disability rating * a medical retirement * a telephonic and/or video appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Sleep Apnea Disability Benefits Questionnaire, dated 6 June 2017 * Medical Records (5 pages) * Department of Veterans Affairs (VA) Decision Letter, dated 3 October 2019 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 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 he is requesting that his separation from the military be upgraded to a medical retirement with full benefits. He was only deemed 10% disabled when he was separated and he believes he definitely should have been 30% or greater to receive medical retirement. a. He was diagnosed with PTSD by the VA shortly after leaving the military. He underwent ACL surgery and meniscus repairs in 2004 which resulted from an injury sustained in Afghanistan and rendered him incapable of performing his military occupational specialty (MOS). He further aggravated his injury during reclassification training and in 2007 was medically discharged. He began visiting the VA in for severe knee pain and swelling. He was informed it was standard for doctors to place the ACL in that location during initial surgery; however, it was actually the wrong spot. It was only providing front and back support, but no pivotal support. He underwent the same surgery in 2009 to correct ACL placement. Additionally, he was denied and later diagnosed with sleep apnea, secondary to PTSD. As a young airborne and infantry Soldier, they were never really afforded the opportunity to go to sick call or seek proper treatment. b. The applicant further states in his personal statement that he joined the Army in perfect health as a 17 year old. He provides a brief summary of his service history. He deployed to Afghanistan (11 months) in 2003 and subsequently deployed to Iraq in 2004 (4 months). He believes changes to his sleep were attributed to guard duty and security patrols, among other tasks required of him during deployment. Additionally, during his deployment to Iraq, 3 Soldiers were killed in action during one of their missions with 3 more injured. They were required to pick up the pieces and return to their mission. He stayed up for days replaying the events in his head. The camp also began to receive regular attacks from mortar rounds, missiles, and whatever else the enemy could launch. They were required to sleep with all their gear on in order to move quicker in case of an attack. c. The traumatic events happened 13 years ago; however, he did not know what sleep apnea was back then and only recently became knowledgeable. He has consistently fallen asleep behind the steering wheel and even wrecked because he fell asleep. The challenges date back to 2005 and most recently in an accident in 2016. He believes that sleep apnea is a problem that exists and has gone untreated for many years. Sleep apnea is directly related to PTSD and should be reviewed to grant him compensation for the condition. 3. The applicant provides: a. A DD Form 214 for his active service from 16 January 2002 through 21 August 2007. b. A Sleep Apnea Disability Benefits Questionnaire, dated 6 June 2017, indicated a sleep study was performed on the applicant in December 2016 and the applicant was diagnosed with obstructive sleep apnea with no other significant findings. c. Medical records (5 pages) for treatment received for his ACL from 4 March 2005 to 31 March 2009. d. A VA Decision letter, dated 3 October 2019, notified the applicant his appeal resulted in a total/full grant of benefits for service connection of obstructive sleep apnea as secondary to his service connected disability of PTSD and other ancillary benefits. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 January 2002. b. The service record is void of the applicant’s deployment history. It is neither annotated on his Enlisted Record Brief, nor on his DD Form 214. c. A MEB Narrative Summary (NARSUM) dated 26 April 2007 showed the following: (1) The applicant’s chief complaint was left knee pain and instability. The history of his illness showed the applicant initially injured his left knee serving in Afghanistan. The injury occurred while playing basketball. He experienced immediate pain and swelling; however, he was not deployed back to the United States at that time for further evaluation. Upon returning back to his duty station at Ft Bragg, NC he was further evaluated with an MRI and it identified that he had sustained a complete tear to the left anterior cruciate ligament as well as tears to the medial and lateral meniscus. He underwent surgical intervention for an anterior cruciate ligament reconstruction as well as partial medial meniscectomy. After the surgery he was doing well. He was not suffering from pain or instability. It was determined that since his primary MOS at the time was 11B infantryman, in his best interest, he should reclassify. He was provided orders to be reclassified as a medical maintenance technician at Sheppard AFB, TX. While running as part of his physical training he stepped into a hole, reinjuring his knee which occurred April 2006. He completed his training in medical maintenance and was assigned to Brooke Army Medical Center, Ft Sam Houston, TX still complaining of knee pain and instability. He was referred to Orthopedics for further intervention. He had been enrolled in physical therapy for quad and hamstring strengthening. He was not interested in further surgical intervention. He stated that he was in pain approximately 25-50% of the time during the day while awake. However, he did not take any medication for pain control. (2) The applicant’s diagnoses were listed as follows: * left knee pain and instability status post left anterior cruciate ligament reconstruction and partial medial meniscectomy, in accordance with (IAW) AR 40-501, 3-41 e * Medial and lateral meniscal tears, IAW AR 40-501, 3-41 e (3) Based on the above diagnoses the applicant was referred to the Physical Evaluation Board (PEB) for proper adjudication IAW AR 40-501, 3-41 e. d. A DA Form 3947 (Medical Evaluation Board Proceedings) indicated the conditions for which the applicant was referred to the PEB were: * left knee pain and instability, s/p left ACL, reconstruction and partial medical meniscetomy, pain is slight and occasional * medial and lateral meniscal tears, pain is slight and occasional e. The applicant’s DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) are not in his available records for review and have not been provided by the applicant. f. Orders 205-0108, dated 24 July 2007, discharged the applicant from active duty with a 10% disability rating effective 21 August 2007. g. He was honorably discharged on 21 August 2007. His DD Form 214 shows he completed 5 years, 7 months and 6 days of active service with no lost time. He was assigned separation code JFL and the narrative reason for his separation listed as “Disability, Severance Pay.” 5. On 15 June 2015, the applicant was notified the Physical Disability Board of Review (PDBR) reviewed his application and found his disability rating and his separation from the Army for disability with severance pay to be accurate. The decision did not include his request for increased disability rating due to obstructive sleep apnea secondary to PTSD. 6. As a result of the finality of the PDBR’s decision, the scope of the current Board’s review is limited to those conditions which were not considered by the PDBR and not determined by the PEB to be unfitting for continued military service. 7. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 8. Department of Defense Instruction (DODI) 6040.44 (Physical Disability Board of Review (PDBR)) states the PDBR may, at the request of an eligible member, review conditions identified but not determined to be unfitting by the PEB of the Military Department concerned. As a result of a request for PDBR review, the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary of the Military Department concerned. 9. By regulation (AR 635-40), the Army disability system 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. The regulation 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. 10. 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. 11. 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. 12. 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. 13. 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an increase in his military disability ratings and a permanent retirement for physical disability. He states: “I was diagnosed early on with PTSD shortly after leaving the military and visiting the VA. This was results from my military service. l had to undergo a ACL surgery and meniscus repairs in 2004 while still serving, resulting from an injury sustained in Afghanistan in 2003. This injury made me ineligible to perform my current job, so I had to reclass. The same injury was re-aggravated during reclassification and unfortunately I had to undergo a medical discharge in 2007, because my meniscus in the same knee kept tearing and the medical staff didn’t know the reason ... I was also denied and later diagnosed with Sleep Apnea which was secondary to PTSD.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period under consideration shows he entered the regular Army on 16 January 2002 and was discharged on 21 August 2007, being separated with disability severance pay under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). c. In 2015, the Physical Disability Board of Review (PDBR) reviewed the physical evaluation board’s (PEB) separation disability rating for his left knee condition with the resulting separation from the Army with disability severance pay. They recommended that no changes be make PEB’s findings and that there be no re-characterization of the covered individual’s disability and separation determination. Their recommendation was approved by the Deputy Assistant Secretary of the Army Review Boards on 15 June 2015. DoD PDBR decisions are final and the issues considered by the PDBR cannot afterward be considered by the Army Board for Correction of Military Records. d. On 22 May 2007, a medical evaluation board determined the applicant’s “Left knee pain and instability status post ACL {anterior cruciate ligament reconstruction” and “Medial and lateral meniscal tears failed medical retention standards of AR 40-501, Standards of Medical Fitness. The applicant agreed “with the board’s findings and recommendation” on 8 June 2007 and his case was forwarded to a physical evaluation board (PEB). e. His informal PEB determined that his “Left knee ACL insufficiency with 1 plus Lachman” was his only unfitting condition for continued service. The derived and applied a 10% rating to this disability are recommended that the applicant be separated with disability severance pay. The applicant was so discharged on 21 August 2007. f. There are three behavioral health related group encounters in AHLTA. These occurred on 8 and 14 December 2005 and 15 February 2006. The applicant was participating in a several day seminar “Desert to Desk” during which readjusting to family and life on base were discussed as well as the potential of PTSD. The applicant had no mental health diagnosis per se. There are no AHLTA encounters for sleep apnea. The vast majority of his encounters are related to his knee injury. g. There is no evidence the applicant had any additional medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that such an additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. h. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings. However, the DES compensates an individual only for service incurred 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. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. i. It is the opinion of the Agency Medical Advisor that neither an increase in his military disability rating nor a referral to the DES is warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board 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 determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, regulatory guidance and Agency Medical Advisor. The Board concurred with the Medical Advisor’s findings and recommendations, specifically that there was neither cause to refer the applicant to DES nor evidence of an additional medical condition which would have failed the medical retention standards in accordance with applicable regulatory guidance prior to discharge. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF 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, 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. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states 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. 3. Department of Defense Instruction (DODI) 6040.44 (Physical Disability Board of Review (PDBR)) designates the Secretary of the Air Force as the lead agent for the establishment, operation and management of the PDBR for the DOD. a. The PDBR reassesses the accuracy and fairness of the combined disability ratings assigned former service members who were separated, with a combined disability rating of 20% or less during the period beginning on 11 September 2001 and ending on 31 December 2009, due to unfitness for continued military service, resulting from a physical disability. b. The PDBR may, at the request of an eligible member, review conditions identified but not determined to be unfitting by the PEB of the Military Department concerned. c. As a result of a request for PDBR review, the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary of the Military Department concerned. 4. 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. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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. 6. 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 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. 7. 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 raring 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. 8. 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 percent. 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 percent. 9. 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. 10. 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// ABCMR Record of Proceedings (cont) AR20210011154 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1