IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210013946 APPLICANT REQUESTS: through counsel, * an increased physical disability rating to at least 30 percent * placement on the Permanent Disability Retired List (PDRL) * retroactive pay and allowances * or, referral to the Physical Evaluation Board (PEB) for reevaluation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum from Counsel * Exhibit A - 2013 Department of Veteran Affairs (VA) Compensation and Pension (C&P) Examination * Exhibit B - VA Rating Decision 2014 * Exhibit C - [applicant] Lay Statement * Exhibit D - 2018 VA Rating Decision * Exhibit E - [applicant] Letter of Record (LOR) * Exhibit F - [applicant] Declaration * Exhibit G - PEB Records * Exhibit H - PDBR Application * Exhibit I - PDBR Record * Exhibit J - Notice of Physical Disability Board of Review (PDBR) Denial * Exhibit K - DD Form 214 * Exhibit L - Service Treatment Record * Exhibit M - Letter from Colonel Retired * Exhibit N - Memorandum from Colonel, US Army * Exhibit O - 2004 VA C&P Exam * Exhibit P - 38 C.F.R. section 4.118 (2004) * Exhibit Q - 38 C.F.R. section 4.130 (2004) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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. Counsel states: a. [The applicant] requests that the ABCMR increase her Department of Defense (DoD) disability rating from an erroneously assigned 20 percent to at least 30 percent, and, accordingly, place her on the PDRL pursuant to 10 USC Section 1201. Additionally, the applicant requests the Board direct payment of all retroactive and prospective pay and allowances due the applicant based on the Board’s correction of the applicant’s disability rating. Finally, the applicant requests correction of her DD Form 214 to reflect the aforementioned corrections. In the alternative, the applicant requests the Board remand the applicant’s matter to an appropriate PEB for reevaluation in accordance with regulation and in consideration of the new medical evidence provided. b. The applicant received a DoD disability rating of 20 percent upon separation form the Army rather than the 60 percent she would have been entitled to but for the mistakes and failures of the PEB. The PEB erroneously issued a rating to four disabling conditions resulting from two cervical-related surgeries the applicant underwent in connection with an injury incurred in the line of duty. However, the PEB failed to evaluate and assign a rating for three disabling conditions existent at the time of separation and related to the aforementioned surgeries: a painful scar; a disfiguring scar; and a depressive disorder. The conditions warranted receiving disability ratings from the PEB of 10 percent, 30 percent, and 30 percent under, the then existing, Veteran Affairs Schedule for Rating Disabilities (VASRD) respectively. Therefore, the applicant’s overall DoD disability rating should have been 60 percent. c. Accordingly, the Board should correct the applicant’s military records to reflect the 60 percent DoD Disability Rating, direct the applicant’s placement on the PDRL pursuant to 10 USC Section 1201, direct the payment of all retroactive and prospective pay and allowances due the applicant based on the Board's correction of the applicant's disability rating, and correct the applicant’s DD Form 214 to reflect the aforementioned corrections. In the alternative, the Board should remand the applicant's matter to an appropriate PEB for a reevaluation in accordance with regulation and in consideration of new medical evidence provided. d. The Board has jurisdiction in this matter. The secretary of the Army, acting through the ABCMR, is authorized to correct any Army military record when the Secretary considers it necessary to correct an error or remove an injustice. A military record is defined broadly to include: a document or other record that pertains to (1) an individual member or former member of the armed forces, or (2) at the discretion of the Secretary of the military department concerned, any other military matter affecting a member or former member of the armed forces. e. The ABCMR exercises the responsibility to review all application that are properly [submitted] before the Board to determine the existence of error or injustice. f. Here, the applicant, a former member of the armed forces, has provided military record – her DoD disability rating and DD Form 214 – that contain both an error and injustice that warrants the Board’s correction. Moreover, as discussed below, the applicant’s application is properly [submitted] before the Board, having satisfied the requirements of timeliness and exhaustion of administrative remedies, and the applicant submits material and ground that a PDBR did not review. Therefore, the Board has jurisdiction in this matter. g. An applicant has three years after discovering the error or injustice to file a request for correction with the ABCRM. The ABCMR may excuse an untimely filing in the interest of justice. h. Here, the applicant’s application is timely in part, and should be considered in the interest of justice regardless. Specifically, the appeal is timely for the appeal ground related to the failure by the PEB to correctly evaluation the applicant’s then existing scar-related conditions. The Board should consider the remaining appeal ground, namely the PEB’s failure to evaluate the applicant’s depressive disorder existing at separation, although outside the three-year window, in the interest of justice. i. The application is timely within the three-year standard for the applicant's appeal of the PEB's failure to identify, evaluate, and assign the correct disability rating to the applicant's readily identifiable condition associated with a painful, disfiguring scar. The applicant first learned that the condition was ratable in 2018. The VA assigned a service connected disability rating to applicant's condition, on 31 May 2018. Accordingly, the applicant learned of the PEB's error less than three years ago. Therefore, the Application is timely under the three-year standard for the scar-related appeal ground. j. The Board should consider the remaining appeal ground, an unevaluated depressive disorder at separation, for two reasons: the circumstances specific to the depressive disorder and the totality of the circumstances in this appeal. k. The circumstances specific to the applicant’s depressive disorder, present at separation but unaccounted for in the PEB's DoD disability rating, warrants consideration of the application in the interest of justice. In 2013, the applicant received a diagnosis of a depressive order as a consequence of the medical trauma she endured that led to her separation. See Exhibit A (C&P Examination Report), see also Exhibit B (Rating Decision of [the applicant], VA). The VA later determined the depressive [dis]order was service connected. See Exhibit B, granting service connection for other specified depressive disorder, mild (claimed as depression, anger, irritability). The depressive disorder existed at the time of the applicant's separation. See Exhibit C (Lay Statement of [applicant]) discussing the applicant being depressed weeks after surgery, which occurred before separation, and shortly after separation; Exhibit E (Letter for Record by [the applicant]) discussing enormous sense of guild in connection with injury and taking applicant several years to speak to the VA or anyone about the effects those feelings have had on the applicant’s life. Neither the applicant’s Medical Evaluation Board (MEB) nor PEB considered the applicant’s depressive disorder, and, accordingly, did not account for the depressive [dis]order in assigning the applicant’s DoD disability rating. On the applicant’s part, she did not know better nor understand or appreciate the trauma she was living in at that moment. Additionally, she did not have any advisement. See Exhibit F (Declaration of [the applicant]). l. The Army failed the applicant by failing to identify her depressive disorder prior to discharge. Our Nation's Army has made tremendous strides in shifting towards a culture that emphasizes that a Soldier's health includes mental health - a cultural shift only in its beginning at the time of the applicant's discharge in 2005. The consequence of this timing is that the Army failed to recognize the condition and properly evaluate it. Accordingly, the applicant's DOD Disability Rating incorrectly omits her depressive disorder. Therefore, the Board's review of the applicant's appeal on this ground is in the interest of justice, serving to reach back in time and correct an injustice that likely would not have occurred today, given the great strides the Army has made in the mental health arena. m. The totality of the circumstances in surrounding this appeal warrant its review in the interest of justice. First, the applicant's mental condition at separation resulted in foreclosing appeal options. The applicant concurred with the PEB’s decision, which foreclosed several avenues of relief within the Army Disability Evaluation System (DES). The applicant's unfortunate decision is unsurprising given the totality of the circumstances. Following the applicant's surgeries that generated her disabling conditions, the applicant required opioids for pain management that left her in a constant haze, and she fell into depression. See Exhibit C discussing being depressed, receiving bottle after bottle of narcotics, muscle relaxers and nerve blocker to ease the pain, and living in an absolute haze. See also Exhibit G (PEB Record) identifying prescription Percocet use for pain, describing “pain requires narcotic type medications 2 to 3 times weekly.” In this condition, and without advisement, a young officer simply accepting the PEB's decision and moving out smartly comes as no surprise - but it is an injustice worthy of correction. n. Second, the applicant's Physical Disability Board of Review (PDBR) denied relief – resting on a seriously flawed medical examination. As discussed in more detail below, the PDBR majority opinion placed the most weight on a 2004 VA C&P examination rife with errors. Most critically, the PDBR minority opinion-the existence of which itself points to a flawed determination-provided a scathing dissent that point-by-point highlighted the VA C&P examination’s errors. Although the Board cannot directly correct the PDBR's errors, the Board has the ability to correct errors the PDBR did not review-and given the circumstances of the PDBR’s decision-making, the Board here can serve the interest of justice by correcting the errors within its purview. o. Finally, the applicant's military record is incorrect and the ABCMR is the last hope to correct that record. As discussed, the applicant’s PEB concurrence foreclosed numerous Army avenues of relief. The remaining ones – except for the ABCMR – are time-barred. Similarly, the applicant exhausted relief from the PDBR. Finally, any appeal to the federal courts is time-barred. Therefore, the ABCMR remains the applicant's final hope to correct the errors in her record. Accordingly, it is in the interest of justice for the ABCMR to review the applicant's appeal. p. The ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. q. Here, the applicant has exhausted all administrative remedies. The applicant did not appeal the PEB decision to the Formal Physical Evaluation Board (FPEB), instead concurring with the PEB decision and waiving a formal hearing in 2004. See Exhibit G. Accordingly, an appeal is unavailable to the FPEB, which forecloses an appeal to either the United States Army Physical Disability Agency (USAPDA) or the Army Physical Disability Appeal Board (APDAB). Likewise, an appeal to the Army Physical Disability Review Board (APDRB) is unavailable because the PEB Rating Decision entitled the applicant to some compensation. r. Therefore, the applicant has exhausted all administrative remedies available within the Army to correct the applicant's military record, with the exception of the ABCMR Accordingly, the applicant has satisfied the administrative exhaustion requirement necessary for the ABCMR to consider the applicant's application. s. The applicant's availing herself to the DoD’s PDBR previously does not preclude the ABCMR's consideration and correction of the applicant 's military record requested here. Once an individual has appealed to a PDBR, the individual cannot appeal the same issue to the ABCMR. However, an individual can submit grounds for appeal to the ABCMR not previously submitted to the PDBR. See Exhibit H ([applicant] application for PDBR review) waving only rights to appeal rating found to render applicant unfit. t. Here, although the applicant received a PDRB review, the applicant does not submit to the ABCMR any appeal grounds submitted to the PDBR nor reviewed by the PDBR. Specifically, the applicant did not submit to the PDBR the PEB’s failure to account for three existing conditions at the time of the applicant’s separation, i.e. a painful scar, a disfiguring surgical scar, and a depressive disorder. However, the applicant does provide the PEB's failure to separately evaluate the applicant’s three medical conditions pursuant to regulations, an error the PDBR indirectly considered, in the event the ABCMR remands the matter to an appropriate PEB for reconsideration pursuant to all law and regulation. Accordingly, the applicant's PDBR review does not preclude consideration and correction of the applicant's military record by the ABCMR. u. The applicant is a former Army officer. See Exhibit K (DD Form 214) see also Exhibit G. The applicant joined the Army in 2000. The applicant completed the Quartermaster Officer's Basic Course, Rigger School, Airborne, and Air Assault. The applicant served a tour in Kosovo. See Exhibit G. The applicant received an Army Commendation Medal, two Army Achievement Medals, along with several service and campaign medals to include the Global War on Terrorism Service Medal and the Kosovo Campaign Medal. See Exhibit K. The applicant served for approximately five years, separating from the Army with an honorable discharge on 20 January 2005. The applicant was medically separated with a 20 percent DoD disability rating. See Exhibit G. The medical separation and associated disability rating resulted from disabilities incurred by the applicant as a result surgeries performed by the military in an attempt to correct an injury sustained by the applicant during a field training exercise. v. In August 2003, the applicant felt a painful snap at the right side of her neck after putting on training gear during a field exercise. See Exhibit G; Exhibit L (Service Treatment Record); Exhibit C; Exhibit M (Letter from Colonel Retired); and Exhibit N (Memorandum from Colonel, US Army). She later noted that pain while bathing. See Exhibit G; and Exhibit I (PDBR Record). Her symptoms increased with turning her head to the left and with load bearing. She was treated with physical therapy, but her pain persisted. See Exhibit I. w. The applicant was diagnosed with degenerative disc disease (DDD), a cervical vertebrae tear, and a bulging cervical disc, requiring a cervical discectomy and vertebrae fusion (cervical surgery). See Exhibit L. The cervical surgery necessitated a follow-up surgery to correct a problem that resulted from the initial surgery-a displaced screw in the applicant's cervical spine. Specifically, the applicant received an MRI of the cervical spine on 23 September 2003. See Exhibit L; and Exhibit I. The MRI revealed multi-level DDD and a tear at the applicant's C5-C6 cervical vertebrae with nerve impingement and a disc bulge at the C6-C7 cervical vertebrae. See Exhibit L; and Exhibit I. The applicant then underwent cervical surgery on 12 December 2003, resulting in hardware placement in the applicant's cervical spine. See Exhibit L; and Exhibit I. Following surgery, medical personnel discovered the applicant had a displaced screw in her cervical spine from the first surgery, necessitating a second cervical surgery on 5 February 2004 to correct the problem. See Exhibit L; and Exhibit I. x. The applicant's two surgeries resulted in a painful and disfiguring scar; neck pain with cervical spine fusion; radiculopathy in both arms; and vocal cord dysfunction. y. These two surgeries left the applicant with a painful and disfiguring scar on her neck. The applicant's VA rating decision in 2018 described the scar as follows: A scar, located on [the applicant's] head, face, or neck, measures 4.0 centimeter in length, 0.1 centimeter in width (0 .1 in2 (0.4 centimeter) overall). The scar is hyper pigmented. The evidence shows the scar is depressed on palpation. The texture of the scar is abnormal (irregular, atrophic, shiny, scaly, etc.). The scar's skin is indurated and inflexible. The scar is adherent to underlying tissue. The scar is painful. See Exhibit D (2018 VA Rating Decision). z. This disfiguring scar was existent- and painful- at the time of the applicant's separation. On 17 May 2004, a medical exam leading to the applicant's MEB review identified an abnormal scar that was 3.5 centimeter (right anterior) neck surgical scar. See Exhibit G. Similarly, on 30 July 2004, the MEB Narrative Summary (NARSUM) describes a 3 centimeter scar at the right side of the neck just above the clavicle. See Exhibit G. Shortly thereafter, on 30 August 2004, during the applicant's VA C&P evaluation, examination revealed that the applicant suffered pain with palpation … over the scar reflecting her anterior cervical disc fusion. See Exhibit O (2004 VA C&P Exam); See Exhibit L; and Exhibit F. Her surgical scar has always been painful. aa. Despite the corrective surgery, the applicant continued to experience ongoing, radiating neck pain and limited flexion. The applicant experienced the following documented pain and limited flexion during the first three months after February 2004 corrective surgery: * On 2 March 2004, one-month post-surgery, applicant described shooting pain with symptoms worsening by looking right, extreme cervical motion, and lifting heavy weight, with the pain being constant for the last three months. See Exhibit L. * On 9 March 2004, approximately one-month post-surgery, the applicant showed a forward flexion of her cervical spine of 2 7 degrees, equating to a 20 percent cervical spine disability rating. See Exhibit L; Exhibit I; VASRD section 4.71a (describing disability rating of 20 percent for forward flexion of the cervical spine greater than 15 degrees but no greater than 30 degrees. * On March 16, 2004, approximately 6-weeks post-surgery, the applicant showed a forward flexion of her cervical spine of 30 degrees, equating to a 20 percent cervical spine disability rating. See Exhibit L; Exhibit I; VASRD section 4.71a (providing disability rating). * On 7 April 2004, the applicant received electrodiagnostic (EDX) testing after a referral resulting from the applicant’s ongoing pain. However, the applicant's pain continued and sensation to light touch was diminished. See Exhibit L; Exhibit I. * In physical therapy on 19 April 2004, the applicant reported continued pain. See Exhibit L; Exhibit I. The applicant’s cervical ROM was limited with 20 degrees of flexion (normal 45), equating to a 20 percent cervical spine disability rating. See Exhibit I; VASRD section 4.71a (providing disability rating). * On 1 June 2004, during a physical therapy clinic visit, the applicant's cervical spine forward flexion ROM measured 24-25 degrees, equating to a 20 percent cervical spine disability rating. See Exhibit L; Exhibit I; VASRD section 4.71a (providing disability rating). * Throughout this period (and after the initial surgery), the applicant had multiple objective instances of reversed cervical lordosis as shown in radiology reports in September 2003, December 2003, January 2004, February 2004, and March 2004. See Exhibit L; Exhibit I. This equates to a 20 percent cervical spine disability rating. See VASRD section 4.71a (providing reversed lordosis disability rating). bb. The applicant continued to experience neck problems over the following months. On 17 June 2004, the applicant reported pain radiating to the ring and little fingers on her right hand during a pain clinic visit. See Exhibit L; Exhibit I. On examination, the applicant's ROM, reflexes, and motor function appeared normal. However, a compression test of the neck showed positive, indicative of symptoms from nerve root impingement. See Exhibit L; Exhibit I. Further, the applicant experienced diminished sensation in a right C7 dermatome. See Exhibit L; Exhibit I. Although the pain clinic did not document spasm, the pain clinic did observe tenderness being present. cc. During the applicant's MEB NARSUM examination on July 7, 2004, the applicant continued to experience neck problems. Examination of the applicant revealed she had painful and limited neck motion. See Exhibit G; and Exhibit I. Further examination revealed the applicant had neck pain with rotation beyond 45 degrees and tilting beyond 20 degrees. The applicant tilting her neck reproduced her radicular symptoms. The MEB NARSUM’s finding of a forward flexion of 20 degrees equates to a 20 percent disability rating. See VASRD section 4.71a. dd. In 2004, a VA C&P documented the applicant's neck pain. During the applicant's VA C&P evaluation on 30 August 2004, the applicant reported right arm and shoulder, left arm, neck, and upper back pain. See Exhibit O; and Exhibit I. Upon examination, the examiner observed pain with palpation over all aspects of the applicant's cervical spine, right shoulder, and scar. See Exhibit O. ee. The VA C&P evaluation documented a forward cervical flexion within a normal range, however, the examination contained numerous errors and inconsistencies and the examiner's methods were severely flawed. The examination’s errors included incorrectly identifying the applicant's prior military training, the date of the applicant's surgery, and assigning the applicant the wrong gender (unchanged since birth) See Exhibit O, discussing Ranger training; providing 2001 date of surgery that occurred in 2004; and stating he reports); see also Exhibit I. ff. The VA C&P examiner's methods to evaluate cervical flexion failed to comply with the VASRD. For example: The examiner annotated a normal cervical spine forward flexion of 65 degrees. This was not in accordance with VASRD rating criteria, was noncompliant with the VASRD and feasibly may have affected the rating determination. The examiner documented cervical spine forward flexion to 40 degrees and then showed a loss of forward flexion to 36 degrees after 5 repetitions (Deluca). There was no record of a goniometer that must be used for this examination in order to meet VASRD compliance (Note: there are a set of identical cervical spine ROM measurements in the record dated 15 July 2004 and these were apparently taken with a goniometer; and it is feasible the 30 August 2004 C&P examination used these measurements, but this is not recorded on the C&P examination and further clouds the validity of this examination particularly given the C&P examiner's use of incorrect VASRD normal ROM standards). If in fact the C&P examiner used these ROM measurements from 6 weeks prior, it is also noteworthy these ROM measurements occurred proximate (one week later) to the NARSUM examination ROM measurements, indicating, the 15 July 2004 measurements could have represented an outlier or good day for the [Covered Individual, i.e. the applicant] in terms of the character of her cervical spine function and not the permanent or most often disabled state of her cervical spine condition. Even though the C&P examiner documented cervical spine forward flexion to 40 degrees and then showed a loss of forward flexion to 36 degrees after 5 repetitions the actual five measurements are not recorded, but instead an average is shown regarding this loss of ROM. Once again, this is non-compliant with the VA examination and rating policy. Any one of those measurements could have feasibly been at 30 degrees forward flexion or below. Furthermore, nowhere in this examination does the examiner specifically address Deluca criteria and definitively answer the question as to whether the additional loss of ROM (objectively recorded and shown as an average) was due to increased fatigability, incoordination, and lack of endurance or pain after repetitive use. This represents a significant omission in this examination and is noncompliant with VA policy and law in effect at the time of this case. In fact, this examiner goes on to specifically document particular aspects of the Cl's functional loss with respect to her cervical spine disability (e.g. can no longer turn around when driving car in reverse, can no longer recreate or participate in activities usually performed prior to her injury). Furthermore, the examination does not specifically address other ratable criteria under VASRD 4.71a with respect to cervical spine disease (e.g. loss of lordotic curve due to spasm) which were documented multiple times in the record prior to this examination. See Exhibit I (minority opinion). gg. On November 2, 2004, 3 weeks prior to the applicant's PEB and 2 months prior to separation, the applicant attended a neurology consult. See Exhibit G. This examination is the closest to the date of separation and is the most probative of all examinations in the record in this regard. See Exhibit I (minority opinion). The neurology physician specialist documented that the applicant would most likely require further surgery 3 to 4 years down the road due to progressive cervical spinal stenosis. See Exhibit G; Exhibit I (minority opinion). This examination painted a picture of a fairly disabled individual with respect to her cervical spine, with an uncertain prognosis, favoring progressive deterioration. See Exhibit I (minority opinion). hh. The applicant experienced radiculopathy, a condition due to a compressed nerve in the spine that caused numbness, weakness and/or tingling in both arms and hands following the surgeries. During the May 2004 MEB examination, eight months prior to separation, the applicant reported continued right upper back and shoulder pain with numbness and tingling of the right hand, upper forearm, and arm. See Exhibit G; Exhibit L; and Exhibit I. On examination she was thought to have abnormal sensations in the distribution of the right ulnar nerve. See Exhibit G. However, remarkably, and inexplicably, the examiner marked the neurological examination as normal. See Exhibit I. ii. During a pain clinic visit on June 17, 2004, the applicant reported pain which radiated to the ring and little fingers on the right hand. See Exhibit L; and Exhibit I. During an occupational therapy clinic visit on July 7, 2004, the occupational therapy specialist officer found the applicant to have a loss of dexterity and diminished grip in her right hand due to her diagnosed radiculopathy. See Exhibit L; and Exhibit I. jj. During the applicant's MEB NARSUM examination on July 7, 2004, the applicant continued to experience upper extremity radiculopathy. The applicant reported moderately severe pain and radiculopathy of the right upper extremity manifested by burning and tingling. See Exhibit G; and Exhibit I. kk. During the applicant's VA C&P evaluation on August 30, 2004, the applicant reported right arm and shoulder, left arm, neck, and upper back pain. See Exhibit O; and Exhibit I. Examination revealed the applicant suffered pain with palpation over all aspects of the cervical spine, right shoulder, and scar. See Exhibit O; and Exhibit I. Further examination revealed abnormal sensation in the applicant's left hand, demonstrating reduced sensation in the 4th and 5th fingers (ulnar nerve or C8) of the left hand. See Exhibit O. ll. On November 2, 2004, 3 weeks prior to the applicant's PEB and 2 months prior to separation, the applicant attended a neurology consult. See Exhibit G. This examination is the closest to the date of separation and is the most probative of all examinations in the record in this regard. See Exhibit I (minority opinion). The examination showed the applicant had a decreased right grip at 4/ 5; decreased right bicep at 4-/ 5; and diminished sensation in the right hand's ulnar nerve distribution. See Exhibit G; and Exhibit I. The neurology consult documented, among other disabling conditions discussed above, that the applicant would incur continued severe radiculopathic pain in a bilateral C5/ 6/7 distribution. See Exhibit G. Moreover, this exam documented loss of strength bilaterally in the applicant's upper extremities. See Exhibit G; and Exhibit I. mm. On November 22, 2004, the PEB annotated that the applicant had 4/ 5 (decreased) strength in her right upper extremity (biceps and grip) due to radiculopathy. See Exhibit G. nn. The applicant experienced vocal cord dysfunction after the February 2004 surgery to correct her original cervical spine surgery. An otolaryngologist, a specialist who deals with surgical and medical management of issues related the head and neck, evaluated the applicant on March 18, 2004, noting the applicant had weakness of the right true vocal cord (TVC). See Exhibit I. On 5 May 2004, in physical therapy, the applicant observed her voice had returned to normal, observing the same two days later in otolaryngology. However, the applicant would experience vocal problems after talking for 45-60 minutes. See Exhibit G. oo. The applicant continued to have a low, raspy, scratchy voice many months after her surgeries. During the applicant's VA C&P examination on August 30, 2004, despite having a normal voice quality, the examiner observed maximal recovery had not been totally achieved. See Exhibit O; and Exhibit I. Further, otolaryngology observed less than two months later that the applicant continued to have a lower, raspier, scratchy voice compared to her voice prior to the surgeries. See Exhibit G. Upon further examination, otolaryngology observed there was clearly decreased movement of the right TVC with good compensation by the left side. Finally, otolaryngology observed, although her voice had good volume and intelligibility, her voice showed a mild raspy and rough quality. pp. The applicant developed a depressive disorder prior to separation. The applicant's original neck injury necessitated the original surgery, which necessitated the corrective surgery. The two surgeries resulted in cervical disc fusion, radiculopathy of both extremities, vocal cord dysfunction, and a disfiguring and painful scar. The combination of these conditions, combined with the resultant separation, produced a depressive disorder in the applicant prior to separation. qq. The applicant described herself as depressed weeks after her second surgery. See Exhibit C. The applicant described herself in the months after separation as being depressed about not being in the Army anymore; depressed about still being in pain. The applicant felt enormous guilt for becoming injured and the resultant inability to deploy with her Soldiers. See Exhibit E. It would take the applicant several years to speak to the VA or anyone about the effects those feelings ... had on her life. rr. In 2013, the applicant was diagnosed with other specified depressive disorder, mild. See Exhibit A. The psychologist determined that the applicant's depressive disorder is at least as likely as not caused by or a result of her [service connected] Residuals of cervical fusion ... and her service connected right arm radiculopathy. See Exhibit A. The psychologist further determined that the applicant's mild symptoms of depression began several years ago, as a result of chronic neck pain. The VA subsequently determined a service connection for other specified depressive disorder, mild in the applicant, assigning a 30 percent disability rating. See Exhibit B. ss. On November 22, 2004, the applicant received an Informal PEB review. See Exhibit G. The PEB: (a) evaluated several of the applicant's disabling conditions existent at the time of separation; (b) but failed to evaluate several disabling conditions also existent at the time of separation; and accordingly, (c) only assigned a DoD Disability Rating to the conditions it evaluated. tt. The PEB evaluated the following conditions based on the applicant's pre- discharge exam: * residuals of cervical fusion with degenerative disc disease; * right arm radiculopathy (now rated as right arm radiculopathy, upper radicular); left arm radiculopathy (now rated as left arm radiculopathy, upper radicular group); and * vocal cord dysfunction. See Exhibit G uu. The PEB failed to evaluate the following conditions existent at the time of the applicant's separation: * A cervical superficial scar that was painful on examination, which provides a disability rating of 10 percent. See 38 C.F.R section 4.118 (2004) Code 7804; * A cervical scar with one or more characteristics of disfigurement, which provides a disability rating ranging from 10 percent to 80 percent. See 38 C.F.R section 4.118 (2004) Code 7800; and * A depressive disorder, which provides a disability rating ranging from 0 percent to 100 percent. See 38 C.F.R section 4.118 (2004) Code 9434 (Mood Disorder, Not Otherwise Specified) vv. The PEB assigned the applicant a combined DoD Disability Rating of 20 percent. The PEB combined the applicant's neck pain with the applicant's radiculopathy under Code 5241, and assigned a 10 percent rating. See Exhibit G. The PEB assigned the applicant's vocal cord dysfunction a 10 percent rating under Code 8299-8210. ww. The VA disability rating system differs in purpose from the DoD disability rating system and the two systems may arrive at a different rating value for the same condition. Given that understanding, the applicant provides the VA's disability rating for the relevant conditions for context and to support the fact that two of the conditions, the disfiguring, painful scar and the depressive disorder, existed at the time of applicant's separation. xx. The VA ultimately assigned the applicant an overall disability rating of 50 percent at the time of separation. The VA initially assigned the applicant the following disability ratings in May 2006: residual of cervical fusion (Code 5299-5242) at 10 percent; left arm radiculopathy (Code 8599-8516) at 10 percent; right arm radiculopathy (Code 8599-8516) at 0 percent; and vocal cord dysfunction (Code 6599-6516) at 10 percent. See Exhibit I. yy. Upon applicant's appeal of the initial VA disability rating, the VA conducted a de novo review on May 18, 2006. The VA increased the applicant's right radiculopathy to a 30 percent disability rating, retroactive to separation. Accordingly, the applicant's VA disability ratings stood at: * Residual of Cervical Fusion, Code 5299-5242, 10 percent rating, exam date 30 August 2004 * Left Arm Radiculopathy, Code 8599-8516, 10 percent rating, exam date 30 August 2004 * Right Arm Radiculopathy, Code 8599-8516, 30 percent rating, exam date 30 August 2004 * Vocal Cord Dysfunction, Code 6599-6516, 10 percent rating, exam date 30 August 2004 * Combined Rating of 50 percent See Exhibit B, providing history of claims subject to compensation. zz. The VA has subsequently determined that the applicant had two additional service connected disabling conditions that warranted a disability rating: * Effective April 16, 2018, the applicant received VA service-connected disability rating of 30 percent for surgical scar, anterior, cervical disc fusion that was effective April 16, 2018. See Exhibit D. * Effective April 16, 2018, the applicant received VA service-connected disability rating of 10 percent for painful scar, anterior, cervical disc fusion. See Exhibit D. * On January 2, 2014, the applicant received VA service-connected disability rating of 30 percent for other specified depressive disorder, mild claimed as depression, anger, irritability), Code 9434, effective July 25, 2013. See Exhibit D. aaa. The underlying VA examination indicate these disabling condition existed at the time of the applicant’s separation: * In 2004, the VA C&P examination discussed pain associated with palpation over the scar reflecting her anterior cervical disc fusion. See Exhibit O, 2004 C&P Exam, discussing pain associated with palpation over the scar reflecting her anterior cervical disc fusion. * In 2013, the VA C&P examination discussed the applicant's depressive disorder is at least as likely as not caused by or a result of her s/c Residuals of cervical fusion ... and her s/c right arm radiculopathy and that the mild symptoms of depression began several years ago, as a result of chronic neck pain. See Exhibit A, 2013 C&P Exam. bbb. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. See 32 C.F.R. section 581.3(e)(2). The Board will determine what relief is appropriate when the preponderance of the evidence shows that an error or injustice exists in an applicant’s records. See 32 C.F.R. section 581.3(e)(3)(iii)(A). ccc. Correction of the applicant's military record is appropriate in this matter. For the reason set forth below, correction of the applicant’s military record is justified because (i) the PEB failed to evaluate existing disabling conditions at the time of separation, i.e. (a) a painful and disfiguring scar and (b) a depressive disorder. Accordingly, the Board should direct correction of the applicant's DoD Disability Rating to reflect these then- existing conditions. Moreover, (ii) the PEB failed to evaluate three disabling conditions, i.e. neck pain with cervical spine fusion and radiculopathy of each upper extremity, separately as required by the VASRD. Accordingly, should the Board exercise its discretion and remand this appeal to an appropriate PEB to evaluate the conditions the PEB failed to evaluate that existed at separation, the Board should also direct that PEB to evaluate the previously evaluated conditions separately in accordance with law and regulation. These reasons are discussed in full below. ddd. In making a determination of the rating of disability of a member of the armed forces, a PEB is required to take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or rating. See 10 U.S.C. section 1216a(b). eee. When evidence suggests that an applicant's disability evaluation received from the Army does not accurately depict the applicant's conditions as they existed at the time of the disability evaluation, then the ABCMR will recommend that all Department of the Army records of the individual concerned be corrected by referring [the applicant's] records to the Office of the Surgeon General for review. (See ABCMR No. AR20170009119, 4 June 2019.) If a review by the Office of the Surgeon General determines the evidence supports amendment of the applicant's disability evaluation records, the individual concerned will be afforded due process through the DES for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his medical retirement. fff. When it is uncertain if an applicant's medical conditions were appropriately considered during separation processing, the ABCMR will recommend that all Department of the Army records of the individual concerned be corrected by referring [the applicant's] records to the Office of the Surgeon General for review to determine if [the applicant's] conditions failed to meet retention standards and warranted consideration for processing by the disability evaluation system. (See ABCMR No. AR20170000508, 11 June 2019, directing evaluation of whether applicant's mental health conditions (TBI and PTSD) at separation would have failed to meet retention standards and, accordingly, should have been processed by the disability evaluation system.) If the Surgeon General's Office determines the evidence supports it, then the applicant will proceed through the DES for consideration of any diagnoses identified as having not met the retention standards prior to [the applicant's] discharge, which may include a formal PEB. Should the DES determine that the applicant should be separated or retired for disability, then the appropriate separation will be issued retroactive to the applicant's original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. ggg. Here, the PEB failed to evaluate existing disabling conditions that the applicant had at the time of the applicant's separation. Specifically, a painful, disfiguring surgical scar and a depressive disorder. See Exhibit O, discussing depressive disorder at least as likely as not caused by or result of her cervical fusion and right arm radiculopathy beginning several years ago, as a result of chronic neck pain); Exhibit C, discussing depression before and after separation. Thus, the Board should correct the applicant’s records through the appropriate means. hhh. The PEB failed to identify, evaluate, and assign the correct disability rating to the applicant's readily identifiable condition associated with her painful, disfiguring scar. In 2004,73 a superficial scar that was painful on examination and a scar with one characteristic of disfigurement were each a ratable disability at the time of the applicant's separation. See Exhibit P (38 C.F.R. section 4.118 (2004)), providing disability ratings for Code 7804 (painful) and Code 7800 (disfiguring)). In 2004, VASRD Code 7804 provided that [s]cars, superficial, painful on examination rated a 10 percent disability. Likewise, VASRD code 7800 provided that any one of eight specified disfigurement characteristics on the neck received a 10 percent disability rating and two or three of the specified disfigurement characteristics received a 30 percent rating. The eight characteristics were: * Scar 5 or more inches (13 or more centimeter) in length; * Scar at least one-quarter inch (0.6 centimeter) wide at widest part; * Surface contour of scar elevated or depressed on palpation; * Scar adherent to underlying tissue * Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. centimeter) * Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. centimeter) * Underlying soft tissue missing in an area exceeding six square inches (39 sq. centimeter); and * Skin indurated and inflexible in an area exceeding six square inches (39 sq. centimeter) See Exhibit P, providing disability ratings for Code 7800 (disfiguring). iii. Here, the applicant had one scar at the time of separation incurred by her surgeries. See Exhibit O, scar present 30 August 2004; Exhibit G, scar present 7 July 2004 and 17 May 2004. This scar was both visually disfiguring and the applicant demonstrated pain associated with this scar at separation. jjj. The scar is disfiguring. On 17 May 2004, a medical examination described an abnormal scar that was 3.5cm [right anterior] neck surgical scar. See Exhibit G. Similarly, on 30 July 2004, the MEB exam described the applicant having a 3 centimeter scar at the right side of the neck just above the clavicle. See Exhibit G. The scar is depressed on palpation, and the scar is adherent to underlying tissue. See Exhibit D. Therefore, this scar meets two of the disfiguring characteristics of a scar, specifically: * Surface contour of scar elevated or depressed on palpation; and * Scar adherent to underlying tissue. See Exhibit P, providing disability ratings for Code 7800 (disfiguring). kkk. The scar was painful on examination. On 30 August 2004, during a VA C&P evaluation, upon examination, the applicant reported pain with palpation ... over the scar reflecting her anterior cervical disk fusion. See Exhibit O; Exhibit I; Exhibit D (The scar is painful.); Exhibit F (Her surgical scar has always been painful.). lll. The PEB failed to assign disability ratings to this painful and disfiguring scar. See Exhibit G. On the other hand, the VA assigned two service-connected disability ratings to this scar effective 16 April 2018, one for a superficial scar at 30 percent and one for a painful scar at 10 percent. See Exhibit D. Therefore, given the PEB's failure to evaluate the scar, and in light of the VA's subsequent rating, and consistent with the VASRD in effect at the applicant's separation, the Board should correct the applicant's DOD Disability Rating to include a disability rating for superficial disfiguring scar at a 30 percent rating plus a painful scar disability rating at 10 percent. Accordingly, the applicant's DoD Disability Rating would increase to 50 percent. In the alternative, the Board should remand the matter to an appropriate PEB to evaluate the scar properly and produce an evaluation determination. mmm. The PEB failed to identify and evaluate the applicant's depressive disorder. A depressive disorder was a ratable disability at the time of the applicant's separation under either Code 9434, major depressive disorder, or Code 9435, mood disorder, not otherwise specified. See Exhibit Q (38 C.F.R. section 4.130 (2004)). In 2004, for either of these codes, the V ASRD provided the indicated disability rating based on the associated description: * Rating of 0 percent: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. See Exhibit Q (Code 9434 (Major Depressive Disorder). * Rating of 10 percent: 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, or; symptoms controlled by continuous medication. * Rating of 30 percent: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). nnn. The applicant's depressive disorder resulted from the applicant's initial injury and subsequent surgeries that generated the other disabling conditions. See Exhibit A, discussing the applicant's depressive disorder is at least as likely as not caused by or a result of her service connected Residuals of cervical fusion ... and her service connected Right arm radiculopathy; Exhibit B, establishing service connection for other specified depressive disorder, mild as related to the service connected disability of residuals of cervical fusion now with degenerative disc disease. ooo. Here, the PEB failed to account for the applicant’s depressive disorder. In retrospect, the applicant described herself as depressed weeks after her second surgery in 2004. See Exhibit C. Similarly, the applicant described herself in the months after separation as being depressed about not being in the Army anymore· depressed about still being in pain. See Exhibit C. The applicant felt enormous guilt for becoming injured and the resultant inability to deploy with her Soldiers. See Exhibit E. The PEB simply missed a depressive disorder diagnosis at the time and it would take the applicant several years to speak to the VA or anyone about the effects those feelings … had on her life. ppp. The PEB 's (and MEB 's) missed diagnosis is illuminated by a subsequent VA C&P examination performed in 2013. In that exam, the applicant was diagnosed with other specified depressive disorder, mild. See Exhibit A, 2018 f VA C&P Exam. The psychologist determined that the applicant's depressive disorder is at least as likely as not caused by or a result of her service connected Residuals of cervical fusion … and her service connected Right arm radiculopathy. See Exhibit A. Critically, the psychologist further determined that the applicant's mild symptoms of depression began several years ago, as a result of chronic neck pain. The VA subsequently determined a service connection for other specified depressive disorder mild in the applicant, assigning a 30 percent disability rating. Exhibit B. qqq. Therefore, given the PEB's failure to evaluate the depressive disorder, and in light of the VA's subsequent rating, and consistent with the VASRD in effect at the applicant's separation, the Board should correct the applicant’s DoD Disability Rating to include a disability rating of 30 percent for the applicant's depressive disorder. Accordingly, the applicant's DoD Disability Rating should be increased to 60 percent to include the scar-related disability rating increases discussed above. In the alterative, the Board should remand the matter to an appropriate PEB to evaluate the depressive disorder properly and produce an evaluation determination. See ABCMR No. AR20170000508, 11 June 2019, directing evaluation of whether applicant's mental health conditions (TBI and PTSD) at separation would have failed to meet retention standards and, accordingly, should have been processed by the DES. rrr. For the reasons set forth above, the applicant should have received a higher DoD Disability Rating than the FEB-assigned 20 percent. The PEB erred in its evaluation of the applicant's DOD Disability Rating by failing to identify and evaluate the applicant's painful and disfiguring scar and depressive disorder – all existent at separation. Consequently, the applicant's DoD Disability Rating resulted in only a 20 percent rating. However, had the PEB properly evaluated these three conditions, the applicant would have received at least a 30 percent DoD Disability Rating and, accordingly, warranted placement on the PDRL pursuant to 10 U.S.C. section 1201. sss. Accordingly, the Board should correct this error by either adjusting the applicant's DoD Disability Rating to include a 30 percent rating for a disfiguring scar, a 10 percent rating for painful scar, and a 30 percent rating for the depressive disorder; remanding to an appropriate PEB to evaluate all three conditions; or a combination of correction and remand. ttt. The PEB failed to adhere to the VASRD in evaluating the applicant's neck pain with cervical spine fusion and radiculopathy of the upper extremities because the PEB conflated the two conditions, rather than evaluating them separately. A PEB must evaluate diseases and injuries in accordance with the Veterans Affairs’ Adjudications Procedure Manual (VAAPM), M21-1. Pursuant to that manual, the PEB had to: Evaluate diseases and injuries of the spine based on the criteria listed in the 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under this criterion, evaluate conditions based chronic orthopedic manifestations … and any associated neurological manifestations. See VAAPM M-21-1, Part III, Subpart iv, Chapter 4 section A.5.a, providing direction on Evaluating Manifestations of Spine Diseases and Injuries. uuu. Here, the PEB failed to assign separate evaluations for the neck pain with cervical spine fusion and radiculopathy of the upper extremities. See Exhibit G, assigning one rating for the cervical spine fusion and extremity radiculopathy. Rather than assigning one rating for the applicant's neck injury and extremity radiculopathy, the PEB should have assigned three disability ratings: loss of range of motion in the neck; left upper extremity radiculopathy; and right upper extremity radiculopathy. vvv. As set forth above, the PEB erred in its evaluation of the applicant's DoD Disability Rating by improperly conflating - or failing to properly separate – neck pain with cervical spine fusion and radiculopathy of the upper extremities. Consequently, the applicant's DOD Disability Rating only resulted in a 20 percent rating. However, had the PEB properly evaluated the three conditions separately pursuant to VAAPM M-21-1, the applicant would have received at least a 30 percent rating and, accordingly, warranted placement on the PDRL pursuant to 10 U.S.C. www. Accordingly, should the Board opt to remand this appeal to an appropriate PEB to reevaluate the previously identified errors concerning the PEB’s failure to evaluate the applicant's painful, disfiguring scar and depressive disorder, then the Board should also direct that the PEB evaluate the neck and extremity radiculopathy conditions all separately in accordance with law and regulation. xxx. For the reasons set forth above, correction of the applicant’s military record is appropriate in this matter. Specifically, the applicant’s record should be corrected to show the following additional disability ratings at the time of separation: * Scar, disfiguring: 30 percent * Scar, painful: 10 percent * Depressive disorder: 30 percent yyy. Given the applicant's already existing 20 percent DoD Disability Rating, then the above corrections related to the additional ratings for the scar conditions and the depressive disorder should result in an additional correction to the applicant’s overall DOD Disability Rating to 60 percent. Accordingly, the applicant, by and through the undersigned pro bono counsel, respectfully requests that this Board grant applicant’s request for the correction of military records. 3. The applicant was appointed an officer in the Army of the United States Reserve as a Second Lieutenant (2LT) at West Point, NY on 27 May 2000. She was awarded the military occupational specialty (MOS) 92A (Quartermaster). 4. The applicant was transferred to Germany for duty effective 8 January 2001. She was deployed to Kosovo 4 May 2002 to 12 November 2002 in support of the Multi- National Brigade (East). 5. A DA Form 5181-R (Screening Note of Acute Medical Care), dated 1 August 2003, shows the applicant was treated for back pain reported to have resulted from a training injury. Comments show the applicant reported right middle back pain over a period of 2 days. She stated she first felt pain in the shower, and it was sharp and came and went. She stated the pain got worse and was more constant. She stated pain radiates to right arm. She had been stretching and has taken Tylenol. She stated she was having problems sleeping and sometimes breathing. She stated 0 acute distress. She stated she did not do [physical training] that day due to pain. 6. A DD Form 2807-1 (Report of Medical History), dated 10 May 2004, shows the applicant underwent an examination for the purpose of a Medical Board. She reported her current medications as Celecoxib (daily), Percocet (as needed at night), and a daily multivitamin. She answered yes the following: * 11.d. Ear, nose, or throat trouble: after second surgery on 5 February 2004, her voice was extremely scratchy and hoarse up in till 16 April 2004 (10+ weeks); she saw Dr. an ENT Dr. at Landstuhl on 7 May 2004 and he said that her voice is improving but that her right vocal cord is still not 100 percent; her voice still gets very tired/scratchy after about 45 minutes to an hour of talking * 11.f. Worn contact lenses or glasses: she has worn glasses since she was in kindergarten; she's nearsighted * 12.a. Painful shoulder, elbow or wrist: ever since her second surgery on 5 February 2004, her right arm has hurt; the pain is more of a tingling nerve pain and is pretty much the same sensation she was experiencing after her injury in August 2003 but before either of the surgeries; the pain periodically shoots down from her neck through her shoulder down to her hand (only on the right side); the tingling sensation and ache is constant; on a scale of 1-10 the constant pain is a 2 * 12.c. Recurrent back pain or any back problem: her upper right back/shoulder hurts since the surgery * 12.d. numbness or tingling: she experiences numbness and tingling in her right hand, upper fore arm and arm (right) * 12.h. swollen or painful joint(s): in October 1999, she ran the Marine Corp Marathon; as a result, she suffered tendonitis in her knees * 12.i. Knee trouble: see 12.h * 12.m. Plates(s), screw(s), rod(s) or pin(s) in any bone: she has one plate and 4 screws in her neck from her ADCF at C6/7 on 12 December 2003; the bottom two screws had to be reset because they were crocked on 5 February 2004 * 12.n. Broken bones: when she was in the 6th grade she fractured her right heal bone * 13.g. Skin diseases: while in Kosovo (2002) she had a very irritated, red rash on her neck and face; the PAs and doctors could not determine what the cause of the rash was; the rash went away however 3 months after redeployment * 15.b. Frequent or severe headache: she has had very bad headaches before but they are very infrequent, she has to turn the lights out, curl up in a ball and take a nap * 15.g A period of unconsciousness or concussion: during the summer of 1997, she fell on a wet rock during training and hit the back of her head; she was sent to the hospital for a concussion * 18.c. Any abnormal Pap smears: she had one abnormal PAP smear while at West Point in 1997/1998; the following one was clear * 20. Treatment in an Emergency Room: while at West Point, she was sent to the emergency room in the middle of the night for a migraine headache * 21. Been a patent in any type of hospital: * West Point for a concussion (overnight for observation) * LRMC on 12 December 2003 for an ADCF by Dr * LRMC on 5 February 2004 for screw removal and replacement by Dr. * 22. Had, or have been, advised to have any operation or surgery: yes, in October, she was told by Dr. that she needed surgery for the herniated disk in her neck; she had that surgery in December of 2003; Dr. then advised her in January of 2004 that the screws in her neck were not properly placed from the beginning and that they posed a threat to the disk below her fused vertebrae; to alleviate the risk, he advised her to have the screws reset 7. A DA Form 3349 (Physical Profile), shows the applicant was assigned a permanent physical profile on 7 May 2004 for chronic neck pain. Her PULHES shows 131111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 8. A DD Form 2808 (Report of Medical Examination) shows the applicant underwent an examination for the purpose of a Medical Board. The clinical evaluation shows abnormalities reported as follows: * 17. Head, face, neck, and scalp: cervical stenosis antiunion cervical discectomy and fusion C6-C7 * 20. Mouth and throat: vocal cord dysfunction * 33. Upper extremities: paresthesia right ulna nerve * 36. Spine, other musculoskeletal: see item 17 * 37. Identifying body marks, scars, tattoos: 3.5 centimeter right … neck surgical scar 9. On 18 May 2004, the applicant’s commander provided a memorandum for the MEB. His recommendation states: [the applicant] does not desire to remain on active duty despite her medical limitation because… she does not believe that she will be able to be the type of company commander that she would be otherwise. Recommend [the applicant] be medically boarded. 10. The Medical Board (Narrative Summary) shows the applicant underwent examination on 7 July 2004 for the chief complain of neck pain with radiculopathy. It states in pertinent part: a. History of Present Illness: [The applicant] was in good nutritional and physical condition with no particular chronic complaints, until 1 August 2003 when while in a training exercise in preparation for Iraq and tossing on her load bearing equipment (LBE) she noted a painful snap at the right side of the neck. Later the entire neck had subsequent stiff ness. She found no relief after a few days, however, did not report to medical treatment facility until return to the Schweinfurt area. Upon return in September 2003 the service member was evaluated and sent for x-rays, and later MRIs which indicated HNP at C6/7 with radiculopathy. The [applicant] was seen by neurology at Landstuhl Army Medical Center where conservative care was instituted consisting of cervical traction, massage, etc. The [applicant] found no particular relief with the conservative care and was referred to the neurosurgical service. After evaluation and study of the MRI and x-rays at Landstuhl Army Medical Center the service member was recommended to the surgical suite where a C 6/ discectomy with fusion was undertaken. Postoperative course was complicated by mal-placement of compression screws. This was noted on follow-up evaluation in January 2004, at which time the present neurosurgical consultant advised revision surgery and replacement of this aberrant screw. Postoperative course at this time was benign, and without particular complications, except that the [applicant] continues to have moderately severe residual pain with radiculopathy to the right upper extremity, consisting in burning pain at the elbow and recurrent chronic numbness and tingling at the hand, particularly the ulnar side as well as the forearm on the right. It is to be noted that the [applicant] has this pain 24 hours a day, that is 100 percent of the time during her waking hours. The pain disturbs sleep, requires narcotic type medications, 2 to 3 times weekly as well as chronic anti -inflammatory medications during the day. The [applicant] is severely limited in her social activity as well as in her physical and athletic activities. Activities of daily living are extremely limited. The service member has difficulty for example, parking cars secondary to the increased discomfort and stiffness with rotation of the head and neck. This being the case and with these chronic residuals it was a consideration of the neurosurgical staff that the [applicant] was best served with a permanent 3 profile and recommendation for the MEB determination. b. Diagnosis: neck pain with radiculopathy, secondary to cervical fusion (operation x2) according to AR 40-501, chapter 3, paragraph 39-E and chapter 3, paragraph 30-J the [applicant] may be considered medically unacceptable. This is a condition which had its onset while the service: [applicant] was entitled to base pay. c. Prognosis: for return of the [applicant] to constructive active duty military service is considered very guarded to poor. d. Recommendations: the [applicant] does not desire to remain on active duty with these conditions. The maximum in conservative care has been reached. No further procedures are recommended or advised at this time. e. It is the opinion of this physician and the neurosurgical staff that, the [applicant] may no longer meet the medical standards prescribed in AR 40-501, chapter 3, as noted above. It appears that [the applicant] may be unfit for continuation on active duty for medical reasons. Therefore, this case is referred to PEB for final decision and adjudication. 11. A DA Form 3947 (Medical Evaluation Board Proceedings), dated 23 August 2004, shows the applicant’s diagnosis of neck pain with radiculopathy secondary to cervical fusion (operation x2), was medical unacceptable per AR 40-501, Chapter 3 paragraph 3-39e.j. She was referred to a PEB. The applicant indicated she did not desire to continue on active duty under AR 635-40. The findings were approved on 11 August 2004. The applicant agreed with the board’s findings and recommendation on 16 August 2004. 12. A memorandum, dated 14 September 2004, shows the applicant’s case was returned by the PEB without adjudication. The PEB requested additional actions and/or information stating: a. Please provide a complete neurological examination as an addendum. Does the [applicant] have scar tissue causing the radiculopathy? b. Please provide an ENT consult with PFTS and comment on the vocal cord dysfunction as to etiology and prognosis. 13. In response to the memorandum requesting additional information, an addendum concerning the applicant’s vocal cord dysfunction, was added to the MEB on 12 October 2004. It shows: a. History of Present Illness: 27y/o active duty female with complaint of "I feel like I'm pushing my voice out." She states her voice now is “lower, raspier, scratchy." She is presently undergoing MEB for cervical neck concerns. She is status post cervical fusion [December 2003] and re-explored roughly 2 months later. Following the second surgery she woke up from anesthesia "without any voice." Her voice is considerably better now, but not like the pre-surgery voice and she states she has noted no improvement in voice quality since May 2004. She denies choking or airway concerns and maintains normal oral intake. b. Past Medical History: Right upper extremity pain extending to distal fingers. c. Past Surgical History: Cervical fusion with re-exploration (2 procedures total) – anterior approach for each. d. Physical Exam (directed): Eyes, Ears, Nose, Oral Cavity – normal exams. Voice: mild, raspy, rough quality with good volume/intelligibility. Nasopharynx - clear. Larynx (flexible scope exam): Compared with left side, clearly decreased right vocal fold movement, but motion is detectable. Good compensation by left vocal fold to approximate right side. No pooling of secretions noted. Neck: no adenopathy, thyromegaly noted. Anterior neck scar noted well healed. e. Assessment/Recommendations: (1) Right vocal fold dysfunction with disordered voice likely secondary to surgical intervention with right recurrent laryngeal nerve dysfunction. Airway secure. (2) Recommend observation for at least 1 year from most recent surgery to assess for return of more normal right vocal fold function. (3) Recommend follow-up with ENT surgeon in 3-4 months for reassessment vocal fold function – sooner [if] any airway concerns/new problems. 14. Also in response to the memorandum requesting additional information, a MEB Support Document concerning the applicant’s neurological examination, was added to the MEB on 2 November 2004. It shows, in pertinent part: a. Continued numbness in the right 4th and 5th digits, shooting pain into the right upper arm and severe right scapular/cervical paraspinal spasm approximately 8 months status post (s/p) c5/6 discectomy/fusion followed by operative realignment of a screw that migrated into the interdiscal space. b. [The applicant] states that since her cervical surgeries she has noted exacerbation of the underlying pain that led to her surgery in the first place. She states that the pain makes her unable to carry out her regular military duties, keeps her from participating in the physical fitness training she used to enjoy and has ultimately led to a MEB. She cites continued pin in the right neck and shoulder region radiating down the arm and into the 4th and 5th digits of her right hand – occasionally the radiation will travel down the same distribution into the left. The pain is an intense gnawing ache that has failed management in spite of intensive physical therapy, … steroid injections, and aggressive pain management regimens (to include Topamax, Percocet, flexreil, Neurontin, …). An additional concern of hers is the development of intermittent numbness in the bilateral lower extremity (BLE) as well (most typically occurring when she remains seated for a prolonged period of time), but she denies increased stumbling/falls, loss of bowel or bladder control, or local weakness/… sensory deficits in the legs at this time. c. Impressions/Recommendations: (1) Continued severe radiculopathic pain in bilateral C5/6/7 distribution in spite of two attempts at surgical intervention. Given that she now appears to have BLE involvement, one must surmise that she may have this radiculopathy superimposed on progressive cervical spinal stenosis. She most likely will require additional surgery 3-4 years down the road for further management of these concerns. (2) Exquisitely tender trigger points at the … suprascapular region leading to pain along the bilateral ulnar nerve distributions – non-neurogenic thoracic outlet syndrome. (3) Pain management issues – at this time Lidoderm patch seems to be helping enough to get her through the day, however, the [applicant] will most likely benefit at some point from Botox injections and /or nerve blocks in the bilateral cervical … regions. These can be conducted by the pain management service or in the neurology clinic once she stabilized from her most receive pain service … steroid injections. 15. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows: a. An Informal PEB convened on 22 November 2004, and found the applicant physically unfit and recommended a rating of 20 percent and that her disposition be separated with severance pay. b. The applicant was found unfit for the following conditions: (1) Neck pain with cervical spine fusion and radiculopathy with right upper extremity motor strength of 4/5 in the biceps and 4/5 grip strength on the right. The left triceps is 4/ 5. The rest of the MMT was 5/5 in both upper extremities. Coordination and gait were normal. The range of motion was decreased due to pain. (MEB diagnosis 1) (2) Vocal cord dysfunction secondary to recurrent laryngeal nerve injury during cervical spine surgery. The pulmonary function tests were normal. (MEB diagnosis 2) c. The applicant concurred with the findings and waived a formal hearing of her case. d. The proceedings were finalized on 1 December 2004. 16. The applicant was honorably discharged on 20 January 2005 under the provisions of AR 635-40, paragraph 4-24B(3) for disability, severance pay. Her DD Form 214 shows his separation code as JFL. 17. The applicant applied to the PDBR on 28 September 2016 for a review her disability rating accompanying her medical separation from the Army. The PDBR Record of Proceedings shows the following: a. The Board finding states: In the matter of the neck pain condition and IAW VASRD section 4.71a, the panel majority recommends no change in the PEB adjudication. The single voter for dissent submitted the appended minority opinion. In the matter of the vocal cord dysfunction and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re-characterization of the [applicant’s] disability and separation determination. b. The minority voter, being fully mindful of VASRD section 4.3 (reasonable doubt) respectfully recommends the [applicant]’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of the prior medical separation: neck pain with cervical spine fusion (VASRD Code 5241), 20 percent; vocal cord dysfunction (VASRD Code 8299-8210), 10 percent; combined permanent rating of 30 percent. c. On 6 March 2018, the applicant was notified her PDBR application had been denied. She was further informed the PDBR’s decision was final and her recourse within the Department of Defense or the Department of the Army was exhausted; however, she had the option to seeking relief by filing suit in a court of appropriate jurisdiction. 18. Counsel provided: a. A C&P Examination, dated 2 December 2013. It shows the applicant had a mental disorder diagnosis of other specified depressive disorder, mild depressive episodes with insufficient symptoms for diagnosis of major depressive disorder. b. A VA Rating Decision, dated 2 January 2014. It shows: (1) Service connection for right arm radiculopathy, upper radicular (previously rated as right arm radiculopathy (dominant)) was granted with an evaluation of 40 percent effective 4 April 2013. (2) Service connection for other specified depressive disorder, mild (claimed as depression, anger, irritability) was granted with an evaluation of 30 percent effective 25 July 2013. (3) Service connection for left arm radiculopathy, upper radicular group (previously rated as left arm radiculopathy) was granted with an evaluation of 20 percent effective 4 April 2013. (4) Evaluation of residuals of cervical fusion now with degenerative disc disease, which is currently 20 percent disabling, was continued. c. A lay statement from the applicant. It states: (1) On or about 10 August 2003, she injured her neck during their pre- deployment training to Iraq in support of Operation Iraqi Freedom. The entire 1st Infantry Division was in the box at Hohenfels Training area in Hohenfels, Germany. She was the Adjutant Officer (S1) for the 299th FSB (forward support battalion). On the day of injury, she was located in the tactical operations center (TOC). Opposing force (OPFOR) attacked their battalion's position and she grabbed her weapon (M-16), donned her Kevlar and ran out with her soldiers to hold them off while one of the NCOs held down the radios in the TOC. As she ran, she approached the berm next to her MSG and as she made a clean jump for cover, her neck felt funny as soon as she landed. It wasn’t anything dramatic or wrong with the jump or landing but she immediately knew something was wrong. It immediately hurt and felt different than just a stiff neck. They made it through the ambush exercise and after the OPFOR retreated, she made her way back to the TOC (about 15-20 min later) to cover back down on the radios and maps. Quickly, she couldn't stand at the map board and maintain the radios comfortably. She didn't understand what was happening at the time but she knew her neck and shoulders hurt and she was increasingly getting nervous. She didn't want to let her unit down so she decided to lie down on the floor of the connex (TOC) and continue her job with the radios. Her battalion commander asked if he needed to send her back to Schweinfurt where they were all stationed but she thought she could muster through the pain. The next few days were a blur. She believes she saw a medic but remember that in a short amount of time she was unable to pick up a mug to drink out of without pain and weakness. Car rides quickly became almost intolerable with bumps to the point of tears. Between August and then early December, she saw doctors and started physical therapy on the economy there in Schweinfurl. The German physical therapy was traction: they set her on a platform, wrapped leather straps around her chin and skull - attached those straps to chains and then slowly lowered the seat she was on. As she hung there, she felt relief but the pain and heaviness came back within 10 minutes of walking out the door. She was frustrated and scared. She went for her first MRI and saw the first neurosurgeon in the fall of 2003 and they said she needed surgery (ACDF of C6/7 - anterior cervical disc fusion) to relieve the pressure and nerve pain. She had just turned 27. On the day of surgery at Landstuhl Medical Hospital, the head neurosurgeon, that told her he 'd conduct her surgery, was on leave. The doctor that walked in was a bald reservist from and his head was visibly very sunburnt. Her husband asked where he’d been and he replied that he’d just returned from the Canary Islands last night. (2) She left Landstuhl several days later with a hard neck brace. She was on painkillers so she couldn’t tell if she felt better or not and was humbled and shocked by all the other Solders in her wing that were in agonizing pain with cages around their entire bodies. It was a lesson in perspective that she would never forget. They said any pain she was feeling was associated with the surgery itself and would subside. She was in the hard neck brace for 6 weeks. The pain had subsided and at her follow-up appointment in January, her husband and she were delivered the terrible news that the screws the doctor used for her plate at C6/7 were at the wrong attitude and were protruding into the disc spaces above and below. A that point, her unit and husband's unit were scheduled to deploy. She knew she wasn’t going but it was hard to accept. They let her husband delay going down range to be with her for her second surgery after the head neurosurgeon said he could not in good conscience let her take off the hard neck brace without fixing the screws. So she went in for her corrective surgery February 2004. As she came out of that surgery, she couldn’t speak. The doctor said he’d nicked her vocal cord unfortunately, but her voice should come back after the one side healed and the other begins to overcompensate for the now-damaged one. She felt pain – he said it was from the incision. It wasn’t. (3) Weeks went by - by this time she was alone, high and depressed. She was moved to a soft collar brace. She still couldn't speak over a whisper. As she told doctors about the pain she was experiencing - upper back, neck, arms and weird feelings in both hands; they said it was temporary radiculopathy and it would go away. They sent her more (bottle after bottle) narcotics, muscle relaxers and nerve blockers to ease the pain. She lived in an absolute haze. It was April of 2004 and she’d been taking Percocet at that point for 5 months and could barely answer the precious phone calls from her husband let alone address the spouses left behind in Germany that had decided to not return to the States or help the rear detachment commander (who she was sharing responsibilities with). She doesn’t remember a lot during that time due to all the pills in her medicine cabinet but she remembers feeling fuzzy and generally, pretty crappy. She does not remember the appointment on 4 August 2004 – but she’s sure she was still taking Percocet because her husband came home from R&R on or about the same time. A few weeks after he went back to Iraq, she felt ill. On the advice of her mother, who she’d called to tell her about it, said she should take a pregnancy test. It was then (mid-August or so) that she realized she couldn’t take all these pills that she was addicted to anymore. In a moment of clarity, she took all the bottles (about 15) from the medicine cabinet and flushed their contents down the toilet. She would rather live in pain that hurt her baby and just exist pain-free. (4) Since the two surgeries in December 2003 and February 2004, she has suffered from chronic neck and bilateral shoulder pain, nerve pain in both arms and hands as well as chronic headaches/migraines. Upon her son being born 3 months after she was finally medically boarded from the Army in January 2005, she experienced (what she now understands as) pretty bad post-partum depression. She was depressed about not being in the Army anymore; depressed about still being in pain - let alone all the other emotions a new mom goes through. It hurt her neck a lot to breast-feed pick him up, she carried him as much as she needed to. She experienced elevated neck and shoulder pain for the subsequent children but pushed through the pain because of the benefits totally outweighed any pain she was in. Over the years she has, consistently and continually, without any breaks; not been able to participate in activities she would have otherwise like to or exercised like she would like to. Everything has to be careful, moderate, or not at all, otherwise she’s forced to take harsher medications and she doesn't want to go back to that. She feels fragile. She keeps Percocet in the house but only for the most severe days and she takes it before she goes to bed because she hates how it makes her feel. Exercise is important to her for her mental health. Due to the chronic pain she lives with day in and day out, her temper and patience are always at odds with one another. Her mood is always challenged and it’s her husband and kids that take the brunt of it. She’s just not as happy as she’d like to be. She’s always exhausted from all the pain. So for exercise, she is relegated to walking as running, swimming, or biking hurts too much. She remembers the neurosurgeon telling her she’d probably never run again. For being at the top of her game and as active and as strong as she was - that was tough news. Anything beyond moderate exercise and she suffers the consequences of increased pain from her daily baseline chronic level. (5) Since 2004, she has also suffered from chronic migraines headaches. She experienced them before surgery but the neck pain that radiates up now compounds them. She finds relief from Botox treatments (through the VA) every 90 days. If not for the treatments, the headaches then come back as she approaches the 90-day mark, with intense pain, light sensitivity and nausea. The only thing that helps all of that is a dark room and naps. Naps and work don't mix well. (6) She also experiences tension headaches, which start in the back at the base of her neck. They have been constant since surgery and she is only now aware enough to be able to separate all her sources of chronic pain. Again, they are constant and she assumes that her daily Naproxen regiment is what keeps them in check. On more than 2 days per week they are distractingly painful and absolutely lower more productivity at work because she cannot concentrate. (7) The radiculopathy and neck pain never went away after the surgeries as she was told it would after surgery. Her hands are equally tingly and numb. She has difficulty opening jars on a regular basis and it's getting worse as the years go on. She also experiences upper arm pain on both sides - nerve like and she always has very sore muscles at the shoulders down through her upper back (to the touch). It leaves her feeling upset and frustrated every day. She does her best to keep the pain to herself and not complain but some days it's unavoidable - to the point of tears. Again, she finds her lessened tolerance and patience affects her relationships with her husband, children and friends. (8) Additionally, she is finding it increasing difficult to work at a computer all day, which is required for her job. She can only stay comfortable for so long and she worries about not being able to participate in providing for her family. Her upper body pain is an everyday part of her life and her family's life. She cannot perform daily activities like she should be able to - like driving comfortably, hanging anything on the wall, changing light bulbs in the ceiling, carrying kids, groceries or laundry. She fears of falling all the time and limits her activities accordingly. It is always a factor and the pain in only getting worse. It is increasingly worrisome and overwhelming. (9) It hurts to look up or down for longer than a brief moment. It is difficult to get comfortable and painful to sleep without the perfect pillow (and Tylenol PM). It is very painful to travel which she is required to do for work. Lifting suitcases above her head or sleeping in hotels can leave her in an increased state of pain for a week following the trip. (10) In terms of care, over the years, once she threw away the 15 or so bottles of Percocet, Gabapentin, Tramadol, never blockers, muscle relaxers, etc. – She’s chosen to live with reduced pain with a Naproxen regiment (she used to take Celebrex which was good but the VA stopped carrying it). The Gabapentin, Percocet, Tramadol, etc. left her feeling high and she cannot begin to be a good mother, wife or employee like that. (11) She takes Tylenol PM every night to sleep. She takes 500 mg Naproxen 2 times every day. She worries about the long-term effects of that as well. Traction/PT at the VA brings very brief relief and after she’s gone for a short bought, they usually tell her there’s nothing they can do for her and send her home with another Theracane (she has 3) or a Tens Unit (she’s been through 3 of those unites as well). She finds relief and really like massage as well but that is expensive to do as frequently as she needs to keep the pain decreased. (12) Bottom line, her upper body always hurts. She hates how people feel sorry for her too. She lives a life of pain and she’s terrified of how she’ll feel in 10, 20+ years if she feels like she does now. d. A VA Rating Decision, dated 31 May 2018. It shows: (1) Evaluation of surgical scar, anterior, cervical disc fusion, which was currently 0 percent disabling, was increased to 30 percent effective 16 April 2018. (2) Evaluation of thoracic spine degenerative disc disease and thoracic scoliosis and kyphosis, claimed as chronic upper back condition, which was currently 0 percent disabling, was increased to 20 percent effective 16 April 2018. (3) Service connection for tinnitus was granted with an evaluation of 10 percent effective 16 April 2018. (4) Service connection for left ear, hearing loss was grant with an evaluation of 0 percent effective 16 April 2018. (5) Service connection for left lower extremity, radiculopathy, sciatic was granted with an evaluation of 10 percent effective 16 April 2018. (6) Service connection for painful scar, anterior, cervical disc fusion loss was granted with an evaluation of 10 percent effective 16 April 2018. (7) Service connection for right lower extremity, radiculopathy, sciatic was granted with an evaluation of 10 percent effective 16 April 2018. (8) Service connection for right ear, hearing loss was denied. (9) A decision on entitlement to compensation for traumatic brain injury was deferred. e. A personal letter for record [to the PDBR], dated 31 December 2016. It states: (1) She would like to add a personal statement for record regarding her current PDBR. She specifically wants to highlight chronic conditions that never improved or have gotten consistently worse over the years. The conditions were ultimately present upon separation, but unrecognized or thought to be residual/improvable post-surgery recovery. (2) First, she was in immense pain when she got out of the Army from her two neck surgeries (the second to correct the mistakes made in the first). She did not understand the Army MEB or VA systems and/or the options available to her in pursuit of better/continued quality of care. The doctors and physical therapists told her the radiculopathy down both arms she was experiencing would go away eventually, but the radial pain still persists today. (3) Secondly, she felt an immediate and enormous sense of guilt for having gotten injured in the first place a well as letting her Soldiers down who had all deployed to Iraq with the 1st ID. It would take her several years to speak to the VA or anyone about the effects those feelings have had on her life. She exited the Army after her MEB in January 2005 while stationed in Schweinfurt, Germany and there was only minimal staffing on her installation and at the hospital in Wurzburg. At the time of her separation there was no formal support or education about the post Army/VA medical care available to her. It took several years to understand the magnitude of support options through the VA and VSOs. (4) She believes her current VA rating more closely represents her conditions as they relate to her physical and mental ailments upon separation from the Army. She would have greatly benefitted from having this level of care immediately after leaving the military, which she was unable to access due to her separation rating. f. A declaration from [the applicant], dated 21 January 2021. It states: (1) She had medical conditions that were very much present at the time of her separation that did not get evaluated by the PEB. She did not bring these conditions up to the PEB because she did not know any better and nobody assisted her in the process at the time. (2) These medical conditions were a mild depressive disorder, which resulted from her neck injury and the two surgeries attempting to fix it, and her painful, disfiguring scar. (3) Regarding her depressive order, she never sought help for it before her separation. She did not know better nor understand or appreciate the trauma she was living in at that moment. Additionally, she did not have any advisement. (4) Her separation experience was definitely not ideal, particularly with the depressive disorder. She was on a lot of prescription painkillers – opioids – and they put her in a constant haze, masking her depression. (5) As a result of her surgeries in 2003 and 2004, she also received a painful, disfiguring scar on her neck. Her surgical scar has always been painful. It has hurt as long as she can remember, although the painkillers she took after surgery masked the pain at the time. g. A copy of the applicant’s PDBR application, Record of Proceedings (ROP), and Notice of PDBR denial. These documents are available, in their entirety, for the Board’s review. h. A copy of the applicant’s service treatment record (308 pages). i. A letter from Colonel (Retired). It states: The purpose of this memorandum is to confirm and verify that [the applicant] first injured her neck in the performance of duty under conditions Simulating War or During the Instrumentality of war. She was injured in August 2003 while participating in their Battalions last field training exercise in the maneuver training area of the Combat Maneuver Training Center at Hoenfels, Germany in preparation for the 1st Infantry Division's deployment to Iraq in support of OIF II Rotation. [The applicant], at the time was assigned to HHC, 299th Forward Support Battalion (FSB), 1st ID. He was the 299th FSB, Battalion Commander at the time. j. A memorandum from Colonel US Army. It states: The purpose of this memorandum is to confirm and validate that [the applicant] first injured her neck in the performance of duty under conditions Simulating War and during the Instrumentality of War, while participating in the 299th Forward Support Battalion's (FSB) field training exercise at Combat Maneuver Training Center (CMTC) in Hohenfels, Germany in August of 2003. This CMTC rotation was the battalion's last training opportunity before deploying to Iraq for Operation Iraqi Freedom (OIF) II with the 2d Brigade Combat Team (BCT), 1st Infantry Division. [The applicant] was assigned to the Headquarters and Headquarters Company (HHC), 299th FCB during this time. During this same timeframe, when [the applicant] was injured, she was also assigned to the 299th FSB and I was serving as the Company Commander of B Company. k. A copy VA physical examination, dated 30 August 2004. It states the purpose of the examination is a Veterans Administration comprehensive medical physical examination and for evaluation of special conditions. The document is available, in its entirety, for the Board’s review. l. Copy of the Code of Federal Regulations (CFR), Title 38 (Pensions, Bonuses, and Veterans’ Relief), Chapter 1 (Department of Veterans Affairs), Part 4 (Schedule for Rating Disabilities, Subpart B (Disability Ratings), in effect in 2004: (1) Section 4.118 (Schedule of ratings – skin) provides the rating scheme for VASRD code 7800 (disfigurement of the head, face, or neck). (2) Section 4.130 (Schedule of ratings – mental disorders) provides the rating scheme for VASRD code 9440 (Chronic adjustment disorder). (3) These documents are available, in their entirety, for the Board’s review. 19. MEDICAL REVIEW: The applicant is applying to the ABCMR for a medical disability contending that she had developed depression, as well as some PEB validated chronic physical conditions while on active duty, and that this behavioral health condition (depression) should have been addressed, at that time, for consideration of a PDRL medical disability. a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and her military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and the military electronic medical record (AHLTA) were also reviewed. No hard copy military medical records or civilian medical documentation was provided for review. b. Review of the applicant’s military documentation indicates that she was commissioned in the Regular Army on 27 May 2000. While on active duty, she was deployed to Kosovo from 05 May 2002 - 03 Nov 2002. During her service, her awards included the Army Commendation Medal, Army Achievement Medal (2nd Award), National Defense Service Medal, Kosovo Campaign Medal, Overseas Service Ribbon, NATO Medal (Kosovo), Parachutist Badge and Air Assault Badge. Her occupational positions included Aerial Del Materiel, Platoon Leader and Assistant Battalion S-2/S-3. She received an Honorable discharge on 20 Jan 2005 with DD-214 narrative reason for separation, Disability, Severance Pay. c. The military medical documentation included a Physical Profile rating of 131111 on 07 May 2004. A Medical Board (Narrative Summary), dated 30 Jul 2004 noted, “is a permanent 3 profile with severe limitations…It is the opinion of this physician and the neurosurgical staff that the service member may no longer meet the medical standards…may be unfit for continuation on active duty for medical reasons. Therefore, the case is referred to PEB for final decision and adjudication.” Medical Evaluation Board Proceedings, USA MEDDAC, Wuerzburg, Germany, dated 23 Aug 2004 concluded, “neck pain with radiculopathy secondary to cervical fusion (operation x2).” A Physical Evaluation Board, dated 03 Dec 2004 indicated, “’neck pain with Cervical Spine Fusion and ‘Radiculopathy’ with Right Upper Extremity Motor Strength of 4/5 in the biceps and 4/5 grip strength on the right…Vocal Cord Dysfunction Secondary to Recurrent Laryngeal Nerve Injury…The board finds the soldier is physically unfit and recommends a combined rating of 20%.” d. The military electronic medical record (AHLTA) did not indicate any medical or behavioral health related encounter notes, as well as no entries on the problem list. e. The VA electronic medical record, Joint Legacy Viewer (JLV) did indicate a 100% service connected disability with Paralysis of All Radicular Nerve Groups 40%, Facial Scars 30% x2, Major Depressive Disorder 30%, Spinal Fusion 30%, Paralysis of All Radicular Nerve Groups 30%, Limited Motion of Arm 20% x2, Degenerative Arthritis of the Spine 20%, Superficial Scars 10%, Laryngitis, Chronic 10%, Paralysis of Sciatic Nerve 10% and Tinnitus 10%. A C & P Examination, including Evaluation of Residuals of TBI, dated 25 Jul 2018 indicated, “veteran evaluated in 2013 by Dr. and diagnosed with…Other specified depressive disorder, mild depressive episodes with insufficient symptoms for diagnosis of major depressive disorder at least as likely as not caused by or a result of her s/c Residuals of cervical fusion…The veteran reported a history no engagement with psychotherapy and medication management; she did not endorse any history of inpatient psychiatric hospitalization.” With regard to TBI, the psychologist further noted, “there are no current cognitive or psychological symptoms being attributed to the veteran’s claimed head injury at this time…Cognitive complaints worsening over time is inconsistent with the expected course and prognosis of the identified TBI history, and argues against a TBI-related etiology for these complaints.” The Problem List had one behavioral health related entry, “Migraine Unspecified, Not Intractable with Status Migrainosus.” f. Review of the applicant’s military-medical records indicate the following: (1) A Medical Board NARSUM (30 Jul 2004) indicated a permanent 3 profile with severe limitation. The opinion of this physician and the neurosurgical staff was that SM may no longer meet the medical standards, thereby unfit for continuation on active duty for medical reasons. The case was then referred to PEB for final decision and adjudication (2) Medical Evaluation Board Proceedings (23 Aug 2004) identified neck pain with radiculopathy secondary to cervical fusion, entailing two operations. (3) A PEB (03 Dec 2004) identified neck pain with Cervical Spine Fusion, Radiculopathy with Right Upper Extremity Motor Strength of 4/5 in the biceps and 4/5 grip strength on the right, and Vocal Cord Dysfunction Secondary to Recurrent Laryngeal Nerve Injury. The board concluded the soldier was physically unfit and recommended a combined rating of 20%. (4) The PEB did not identify any behavioral health conditions to include with the physical conditions that had been identified for a disability rating. (5) There is no indication in the available military-medical records that a permanent behavioral health profile had been established. (6) There is no indication in the available military-medical records that an MEB had been considered or pursued for any behavioral health conditions. (7) The AHLTA records did not contain any behavioral health related notes, identified behavioral health conditions and/or diagnoses on the problem list. g. Review of the VA electronic medical record (JLV) did indicate a 100% service- connected disability with Paralysis of All Radicular Nerve Groups 40%, Facial Scars 30% x2, Major Depressive Disorder 30%, Spinal Fusion 30%, Paralysis of All Radicular Nerve Groups 30%, Limited Motion of Arm 20% x2, Degenerative Arthritis of the Spine 20%, Superficial Scars 10%, Laryngitis, Chronic 10%, Paralysis of Sciatic Nerve 10% and Tinnitus 10%. (1) It is important to understand that any VA findings of service connection does not automatically result in a military medical retirement. 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 Department of Defense, however, does not compensate for unsuiting conditions. It only compensates for unfitting conditions. Based on the available military records, there is a lack of evidence that the applicant suffered from unfitting psychiatric conditions during her time on active duty. (2) It is also important to note that the Department of Defense does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. This is a role reserved for the VA. h. In conclusion, the following determinations are made. (1) The applicant’s military-medical records do not support the presence of boardable behavioral health conditions. (2) The applicant’s military medical records suggest that the applicant did meet medical retention standards IAW AR 40-501 pertinent to behavioral health conditions or issues. (3) Applicant’s behavioral health status DOES NOT support separation through medical channels. (4) There is an absence of available military documents indicating the applicant’s medical conditions regarding behavioral health symptoms, diagnoses and adverse impact on her were considered during medical separation processing. However, available military medical documents do not demonstrate that applicant had identified any behavior health issues during her time in service. i. It is the opinion of the Agency psychologist that a referral of the applicant’s record to IDES for consideration of military medical retirement, based on unfitting behavioral health conditions, is not warranted at this time. BOARD DISCUSSION: 1. 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 counsel’s statement, 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 review the Board concurred with the advising official finding that a referral of the applicant’s record to IDES for consideration of military medical retirement, based on unfitting behavioral health conditions, is not warranted at this time. Based on the review, the Board found there is an absence of available military documents indicating the applicant’s medical conditions regarding behavioral health symptoms, diagnoses and adverse impact on her were considered during medical separation processing. The Board determined the applicant and his counsel did not provide sufficient evidence for the Board to grant relief. 2. The Board determined 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. Based on the preponderance of evidence, the Board determined that a reconsideration of his previous request for physical disability retirement in lieu of physical disability separation with severance pay is not warranted. Therefore, 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 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, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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. 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 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. 4. 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. 5. 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. 6. 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. 7. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 8. 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. 9. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013946 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1