IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20210017358 APPLICANT REQUESTS: revocation of his permanent physical disability retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * two self-authored letters * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 3 August 2014 * Installation Management Command, Retirement Services memorandum, dated 4 September 2014 * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 239-0611, dated 27 August 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * U.S. Army Physical Disability Agency (USAPDA), letter, dated 14 October 2015 * USAPDA memorandum, dated 14 October 2015 * Headquarters, U.S. Army Medical Department Activity letter, dated 5 November 2015 * Department of Veterans Affairs (VA) letter, dated 18 January 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was medically boarded out of the Army and got put on a permanent retirement for injuring himself. He jumped from Jacobs Ladder during physical training (PT) and injured his knee. He got back from deployment and was getting out in a year, but he was called for Air Assault School and didn’t want to go. He suffered from sleep apnea and waking up extra early was hard. Anyhow, one morning he was just not feeling okay and instead of talking to someone, he jumped about 30 feet from the ladder to get out of it. He really didn’t think he would get hurt because there was padding below, but he ended up tearing three ligaments in his knee as well as his meniscus and he suffered from a fractured tibia in his right knee. b. He was just drained from everything and wasn’t thinking clearly. He didn’t tell anyone that he did it purposely until after he got out of the Army. He made it look like an accident. He was too embarrassed. He did write a letter and confessed about one year after getting out. He is writing this current letter because he wants to cancel his physical disability retirement from the Army and was directed to apply to the Army Review Boards Agency (ARBA), as the Board would have the capability to remove him from the retired list. c. He feels that he doesn’t deserve to be retired for the reason he got medically boarded out of the Army. He would feel better having it all cancelled and removed from retirement. Aside from those injuries to be put before the Medical Evaluation Board (MEB), the doctor who examined him had added other conditions to his discharge which he had claimed with the VA that he feels weren’t debilitating. He was just trying to help him out, so he added his back condition, numbness and tingling in his hands, and post- traumatic stress disorder (PTSD). d. He pushed to have the PTSD on there at the time. He had severe depression and anxiety, but he had that before he was in the military. It just worsened, especially when he went to Iraq and Afghanistan. The only thing he feels he had with regard to PTSD was that he would get jumpy from the explosions of the indirect fire (IDF) attacks in Iraq, but he doesn’t have that anymore. He didn’t see actual combat, but there were a lot of explosions form the enemy firing IDF rounds at them. e. The doctor also added his back condition as well as the numbness and tingling in his hands. He actually didn’t realize his back condition was on his medical retirement paperwork until the other day when he was reading through the paperwork and saw it. He initially thought there were two different conditions related to his knee, but now he sees one was listed as his back. He guesses he didn’t read through it all very thoroughly at the time or wasn’t paying attention. He should not be retired for his back. He has degenerative disc disease and he thinks he might have a bulging disc, which occasionally might slip. He forgets how exactly it is described, but it is nothing to be retired for though because he is able to manage day to day and he works full-time. Most days he can hardly tell it hurts. It’s just some days a disc might slip or other days it will get sore. He takes a glucosamine supplement and calcium that help a lot. f. As for the numbness and tingling in his hand, he doesn’t’ think he has it how it’s specified in the medical description. It states that he had damage to his long thoracic nerve, but they were not able to properly test his nerve to see if it was damaged. He does have scapular winging and that is why they thought he might have damage to that nerve. He doesn’t know if he has damage to that nerve or not. He does occasionally get tingling, but that happens because of poor circulation; however, it is not debilitating and it does not affect him on a daily basis at all. He was only seen for that condition because he thought it was something he could claim through the VA. The VA representative said to be seen for anything we thought we might have while we were still in the Army so we could make our claims. He doesn’t even remember telling the doctor this was from the fall, but it’s listed on his paperwork, although he did not try to get his back or hand condition added to his MEB. The doctor just added that to help him out. The only reason an MEB was initiated was because of his knee. The other stuff was just added and the description for the numbness and tingling diagnosis does not even properly describe what he has. g. He didn’t think much about it at the time, but now he feels awful about it because if it were not for messing up his knee, he would have just been discharged at his expiration term of service (ETS) without being put through an MEB and these other conditions would not have been added. He wants to make an honest living and feels it is not right to be retired for these things. He tried to cancel his retirement through the Army not long after getting out because his conscience started to eat him up; it caused nothing but problems in his life. Trying to cancel his retirement put a wedge between him and his wife and they are now divorced. He just wants it all cancelled now so he can start over and put this behind him and have a clear conscience. h. He wants to reiterate one thing he stated above in his application. He is trying to have his Army disability retirement revoked and his reasons for wanting to do so he fully explains in his application, so he won’t go over that explanation again, but there are some things about his upper extremity radiculopathy and the tingling in his hands he wants to go into more depth about. i. After he injured his knee from the fall, he went to physical therapy, and he was being seen for a number of things so he could get rated through the VA. He has scapular winging in his right shoulder and the physical therapist asked him if he had numbness and tingling in his hands or fingers. He told him that he did without realizing that he did. When he was in doing his exercises, he realized that he did have slight tingling in his hands. His intentions were to just try to make a faulty claim through the VA and he later realized that he actually did have numbness and tingling. He just noticed a slight tingling in my hands and fingers in that appointment, more in his left hand though. He thinks it has actually gotten worse since he got out. His right-hand tingles on occasion, but it is worse in his left hand. When he was at his appointment observing it was so mild that he shouldn’t have even claimed it. j. He wanted to be honest writing this about why he wanted to cancel his retirement through the Army. His VA representative told him that he could claim anything through the VA whether he had it or not. She actually told him he could claim that he was missing his hand, but that doesn’t mean that the VA was going to give it to him or not, so he made a bunch of dumb claims. Well, when he got through his medical board, his doctor put some stuff on there from the VA, trying to help him out. When the doctor was reviewing everything, he wasn’t paying much attention and he added that it was incurred from the fall where he injured his knee, but it was not. He also added to the paperwork that scapular winging and degenerative disc disease were a result of the fall. He was just reviewing the paperwork and noticed that. He doesn’t recall telling him that it was from the fall. It kind of made him question whether or not he did, because he might have been trying to make it look service-connected so he could claim it through the VA. He didn’t think he did that, because even though the stuff he put on the paperwork said it was related to the fall where he injured his knee happened before the military, the conditions may have worsened, and the VA accepts those claims. From what he remembers he was just trying to get everything documented after he injured himself so he could claim them, so he thinks that there was confusion because he was at the same time being seen for those things by the physical therapist who was also treating my knee. That is why he thinks it was documented as being related to the incident with the fall where he injured his knee or maybe that doctor just got confused reading through his paperwork. k. The doctor reviewed his claims through the VA and added them on his MEB paperwork, but he didn’t ask him to do that. From what he remembers, he said he would send them through and see if they get accepted. He was just trying to help him out. He felt like it was just handed to him when he walked in there. He didn’t think at the time whether it was right to be put out for those things. He thinks he remembers the doctor saying if it gets approved then it gets approved, so we’ll send it and see what happens, then he said ok. The only thing he was getting out for was his knee that was truly debilitating because he needed a complex surgery after getting out and he wouldn’t be able to do physical activities in the military. He wanted to clear that up because other conditions were added to his MEB. l. He wants his retirement through the Army canceled and he is also trying to renounce his benefits through the VA because he doesn’t feel that it is right to get benefits for the stuff that he claimed. He had some of the conditions that he claimed, but he did make a lot of faulty claims through the VA. He tried canceling the VA benefits and his retirement explaining why back in 2016 because his conscience started to eat him up, but he was unsuccessful. He got out of the Army at the end of October 2014. He works full time and wants to make an honorable living for himself. He pleads with the Board to please remove him from the Permanent Disability Retired List (PDRL) so he can sleep at night and have a clear conscience. A lot of the money that he receives from the VA he gives to charities because he doesn’t feel right receiving it. Especially after his divorce, he gave away even more because he and his wife fought about it. His actions caused him to get a divorce and he wants everything canceled so he can move forward in his life and put his miserable past behind him. Thank you. Once everything is complete, please send him some sort of verification showing that he will be losing his retirement so he can have that for his records. 3. The applicant enlisted in the Regular Army on 27 April 2009. He was awarded the Military Occupational Specialty (MOS)11B (Infantryman), which he held for 5 years and 3 months, and the MOS 91E (Allied Trade Specialist), which he held for 3 years and 3 months. 4. The applicant deployed to the following locations for the following periods: * Iraq, from 1 January 2010 through 13 August 2010 * Afghanistan, from 27 August 2012 through 22 April 2013 5. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), Medical Evaluation Board (MEB) Narrative Summary (NARSUM), and DA Form 3947 (MEB Proceedings), VA Compensation and Pension (C&P) Examination, and VA Rating Decision are not in his available records for review and have not been provided by the applicant. 6. A DA Form 199 shows the following: a. An informal PEB convened on 3 August 2014, wherein the applicant was found physically unfit and the IPEB recommended a disability rating of 70 percent and that his disposition be placement on the Temporary Disability Retired List (TDRL) with reexamination during May 2015. b. The following documents were available to the PEB and used in making their determinations: * behavioral health evaluations * DA Form 7652 * DA Form 3349 * DA Form 3947 * NARSUM * VA C&P Examination * VA Rating Decision c. The following medical conditions were determined to be unfitting: (1) PTSD (MEB diagnosis 1); 50 percent rating (not permanent and stable “N”); the examiner attributed this condition to combat stressors from deployment to Iraq and Afghanistan. The applicant is unfit because this condition prevents him from being able to perform required activities including carrying and firing a weapon and living in an austere environment. (2) Internal derangement and tibial posterior lateral corner and medical-tibial plateau fractures, right knee, (MEB diagnoses 1 and 2); 20 percent rating (permanent and stable “Y”); this condition began September 2013 at Fort Campbell, KY when the applicant fell 25 feet at an obstacle course during physical training. He is unfit because this condition prevents him from being able to perform required activities including lifting and lowering 100 pounds, reaching, climbing, bending, stooping, kneeling, crawling to make repairs and fabrications, and prolonged standing required for his PMOS. (3) Right upper extremity radiculopathy secondary to traumatic fall (MEB diagnosis 4), 20 percent rating (permanent and stable “Y”); this condition began September 2013 at Fort Campbell, KY when the applicant fell 25 feet at an obstacle course during physical training. He is unfit because this condition prevents him from being able to perform required activities including lifting and lowering 100 pounds, reaching, climbing, bending, stooping, kneeling, crawling to make repairs and fabrications, and prolonged standing required for his PMOS 91E. (4) Right scapular winging/shoulder strain (MEB diagnosis 6); 10 percent rating (permanent and stable “Y”); this condition began September 2013 at Fort Campbell, KY when the applicant fell 25 feet at an obstacle course during physical training. He is unfit because this condition prevents him from being able to perform required activities including lifting and lowering 100 pounds, reaching, climbing, bending, stooping, kneeling, crawling to make repairs and fabrications, and prolonged standing required for his PMOS 91E. (5) Cervical spine intervertebral disc disease (MEB diagnosis 3); 10 percent rating (permanent and stable “Y”); this condition began September 2013 at Fort Campbell, KY when the applicant fell 25 feet at an obstacle course during physical training. He is unfit because this condition prevents him from being able to perform required activities including lifting and lowering 100 pounds, reaching, climbing, bending, stooping, kneeling, crawling to make repairs and fabrications, and prolonged standing required for his PMOS 91E. d. The following medical conditions were determined not to be unfitting: (1) Left upper extremity radiculopathy secondary to traumatic fall (MEB diagnosis 5). This condition is not unfitting individually and/or in combination with the applicant's other conditions. The applicant is a machinist. The evidence supports that the left cervical radiculopathy is mild. The NARSUM states the applicant has only occasional left arm numbness and tingling. The VA C&P exam states he has no pain in the left upper extremity and only mild paresthesias. The VA C&P states the Soldier’s neck condition does not impact his ability to work. The VA C&P exam states that pain, weakness, fatiguability, and lack of coordination do not significantly limit functional ability of the upper extremity. The applicant has normal strength of the left upper extremity and normal reflexes in the left upper extremity. The mere presence of a medical condition does not constitute a physical disability. (2) Allergic rhinitis; traumatic brain injury (TBI); right foot mild arthritis; left foot mild arthritis; sleep apnea; right hand status post boxer’s fracture; lumbar spine degenerative disc disease, L5-S1; hyperlipidemia; subjective tinnitus; erectile dysfunction; right ankle sprain; narcolepsy; dry eye syndrome, bilateral; accommodative disorder, bilateral; subjective visual disturbance, bilateral; and unspecified sleep wake disorder (MEB diagnoses 8-23). In full consideration of their combined, overall effect, these conditions are not unfitting because the MEB indicates they meet retention standards, it does not indicate any of these conditions cause physical profile limitations of functional activities, and the MEB does not indicate that performance issues, if any, are due to these conditions. e. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). The specific VA Schedule for Rating Disabilities (VASRD) codes to describe the applicant’s condition and the disability percentage were determined by the VA and are documented in the VA memorandum dated 11 July 2014. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). f. The PEB recommended placement on the TDRL because the preponderance of the evidence shows at least one unfitting condition will change enough to cause a rating change and/or fit (vs. unfit) finding. The applicant would retain the rating for each unfitting, stable (block III d “Y”) condition. On TDRL re-evaluation, the PEB will re-rate only unfitting, unstable (block III d “N”) conditions. A new unfitting conditions developing on TDRL is compensable when caused by one or more of the above-noted unstable, unfitting conditions; or, directly related to its treatment. All other new conditions developing on the TDRL (to include unfitting conditions caused by unfitting, stable (block III d “Y”) conditions or their treatment) are not compensable. g. Based on results of a future TDRL evaluation, for each unfitting unstable condition, the PEB will determine whether the unstable condition remains unfitting (and compensable). When the PEB determines condition remains unfitting but is now stable, it will determine whether to retain the initial rating or award a higher or lower rating. The PEB will retain the applicant on TDRL (not to exceed 5 years) when the condition remains unfitting and unstable; and combined rating at the time of re-evaluation is at least 30 percent; or if combined rating is less than 30 percent and he has at least 20 years of service. The PEB will find the condition no longer compensable when the condition is no longer unfitting. h. On 18 August 2014, the applicant signed the form indicating he concurred with the findings and recommendations of the IPEB and waived a formal hearing of his case. He additionally indicated he did not request reconsideration of his VA ratings. 7. An Installation Management Command, Retirement Services Office memorandum, dated 4 September 2014, shows the applicant would be retired from the Army on 30 October 2014 and that his gross amount of retired pay was estimated at $1,600.00 per month. 8. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 239- 0611, dated 27 August 2014, released the applicant from assignment and duty because of physical disability incurred while entitle to basic pay and under conditions that permit his placement on the TDRL. His effective date retirement was 30 October 2014, with his effective date of placement on the TDRL being 31 October 2014, with a 70 percent disability rating. 9. The applicant’s DD Form 214 shows he was retired due to disability, temporary (enhanced) effective 30 October 2014 and he was credited with 5 years, 6 months, and 4 days of net active service. 10. A USAPDA, TDRL Branch letter, dated 14 October 2015, shows the following: a. The applicant was informed he was placed on the TDRL for the unfitting, unstable condition of PTSD. Although the PEB found him unfit for other conditions, the PTSD was the only condition the PEB determined to be unstable. b. A VA Rating Decision, dated 23 June 2015, and a C&P Examination, conducted on 22 June 2015, relating to his disability rating and evaluations were obtained. Although these documents appear sufficient for the PEB to adjudicate his case, the ultimate decision lies with the PEB whether or not they are sufficient. If the PEB agrees that the information in these documents is sufficient for adjudication, the PEB will issue their findings. If, however, the PEB determines the information is insufficient to determine whether his PTSD remains unfitting, the applicant may be scheduled for a re- examination at a later date. These documents have been forwarded to the National Capital Region PEB. c. Under the IDES, the rating for each condition the PEB determined to be stable and unfitting is preserved unchanged, while the applicant is on the TDRL. The PEB will not re-evaluate any stable, unfitting conditions. When the applicant is removed from the TDRL, the ratings for these stable and unfitting conditions will be included in his final rating. He cannot appeal the ratings for these following stable, unfitting conditions: * internal derangement and tibial posterior lateral corner and medial-tibial plateau fractures, right knee, 20 percent * right upper extremity radiculopathy secondary to traumatic fall, 20 percent * right scapular winging/shoulder strain, 10 percent * cervical sine intervertebral disc disease, 10 percent d. When the PEB issues its findings, they will be forwarded to the Physical Evaluation Board Liaison Officer (PEBLO) at Ireland AMC, who will contact him and provide him a copy of the disability findings and counseling. 11. A USAPDA memorandum for the President, National Capital Region PEB, dated 14 October 2015, shows the applicant was placed on the TDRL for his unfitting and unstable condition of PTSD and that it did not appear he needed a re-examination, based on the recent VA Disability Ratings and C&P Examination. The PEB was advised to review the documentation and make a determination as to whether or not to apply the VA ratings without reexamination 12. A Headquarters, U.S. Army Medical Department Activity letter, dated 5 November 2015, informed the applicant that the National Capital Region PEB found him physically unfit to continue in the military and recommended his removal from the TDRL and placement on the PDRL with a disability rating of 70 percent. The applicant was advised he had the right to either agree or disagree with this recommendation and that he had the right to a formal board, with or without personal appearance and with legal representation of his choice. The applicant had 10 days to make an election. 13. A VA letter, dated 18 January 2022, shows the applicant’s combined service- connected evaluation is 100 percent and that he is considered totally and permanently disabled due solely to his service-connected disabilities. The effective date of when he became totally and permanently disabled due to his service-connected disabilities is 27 July 2020. 14. 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. 15. 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. 16. In the adjudication of this application, an advisory opinion was obtained from the USAPDA legal advisor, dated 3 March 2022, showing the following: a. This memorandum responds to a request for an advisory opinion regarding the applicant’s request to have his permanent disability retirement (PDR) terminated. For the reasons below, the request is found to be legally insufficient. b. On 20 October 2014, the USAPDA caused an order to be issued to the applicant, placing him on the TDRL. The applicant was placed on the TDRL for his PTSD, right knee, right upper extremity radiculopathy and right shoulder conditions. His overall rating was 70 percent. On 20 November2015, the applicant was placed into PDR with an overall rating of 70 percent. c. While the applicant claims that he should not have been placed on the TDRL, let alone PDRL, a review of the case file does not reveal any irregularities or errors in the processing of his case. The USAPDA appreciates that the applicant may have recovered from the conditions that caused him to be placed on the TDRL, and eventually onto the PDRL, but the ratings he received from the Army are a snapshot in time. In other words, unless there is evidence that the conditions should have been rated differently at the time of separation/retirement then the ratings must stand. The USAPDA also notes that the applicant’s VA rating is 100 percent; thus, indicating that he still suffers from the conditions as VA ratings are subject to change over the course of a lifetime. d. Given the above, the USAPDA finds the applicant’s request to be legally insufficient. 17. On 11 March 2022, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 14 March 2022, stating the following: a. He received the advisory opinion pertaining to his application stating that his request was found to be insufficient, and he was given the option to comment on this. The opinion asks for evidence that the conditions should have been rated differently and even mentioned how he is still rated 100 percent from the VA, which shows he still suffers from these conditions. He is now rated 0 percent from the VA. He no longer receives disability compensation from the VA. He canceled his VA benefit because he was dishonest about some of the stuff that he claimed, and the doctor was trying to help him out and he put some of his claims from his VA disability onto his Army retirement claims. He wrote a letter going through everything. He wants to be taken off the PDRL because he was dishonest. It’s a confession so there should be no evidence required. He wants a clear conscience with himself and with God. It wrecked his marriage and the only way he will be able to live with himself is by canceling it. He works full-time and wants to make an honest living. He doesn’t want to be retired for what he feels are lies and disgrace. He will explain everything in case you didn’t receive the letter where he went into detail about it all. b. He was medically retired for an incident that had happened in Fort Campbell, KY during PT. He was forced to go to Air Assault PT because they wanted me to go to Air Assault School. They weren’t giving people a choice. That morning he jumped about 35 feet off of the top of Jacobs Ladder because he was worn out from everything. He didn’t say he didn’t want to go to Air Assault School because he tries not to complain. Jacob’s Ladder is part of an obstacle course. He didn’t tell anyone that he jumped until after he was medically retired from the Army. As far as everyone knew, they thought it was an accident because he made it look like an accident and no one never knew that he jumped on purpose. He did have surgery on his knee, and it was a success. He sent letters about a year after getting out confessing and he tried to cancel everything like he is trying to do now. c. This is the deal with the other conditions aside from his knee which were added to his MEB paperwork and for which he was eventually medically retired the doctor was under the impression looking through his VA rating that his back, right shoulder, right upper extremity radiculopathy was all from the fall, so he added that to his Army disability paperwork. He doesn’t know why he thought that. He knows he was trying to help him out by adding those conditions to his MEB/PEB, since it wasn’t debilitating. It was just conditions that he claimed through the VA. He saw that same doctor at the Troop Medical Clinic (TMC) after he hurt his leg, so he thinks that he felt bad for him. He may have been confused thinking those other conditions were from the fall. He knows he had those prior to the fall, but he was trying to get things documented as he was being seen for his knee, so it might have gotten documented that all of the injuries were incurred together at the time of the fall. He may have acted like the fall incident worsened the conditions, so he could have it claimed through the VA. It was a long time ago and he doesn’t remember the exact details. He knows that he was trying to get a high rating from the VA so he wasn’t honest with some of his claims from the VA. His VA representative told him that he could claim anything whether he had it or not. She told him he could claim he was missing his arm even if he wasn’t, but it doesn’t mean that they wouldn’t give it to him. He was wrong for lying. He did have back problems and scapular winging before the Army. The fall didn’t do anything to his shoulder and neither of them are debilitating. He does physical work as a machinist every day. d. The one thing he really wasn’t honest about was right upper extremity radiculopathy. The physical therapist asked him if he had that, and he thought that was one extra thing to claim so he told him he had numbness and tingling in his hands and fingers. He went and did a test to see if his long thoracic nerve was damaged and they weren’t able to do a proper test because they couldn't reach it with a needle, so they gave him that rating. When the doctor put these conditions in his MEB/PEB documentation, he didn’t think whether if it was wrong or right. He just said this is what he was able to do for you and if it gets approved then it gets approved. We can send it and see what happens. He said ok and since it had gotten approved by the VA, the Army approved those claims. He shouldn’t have had those other conditions on there because I could do all the activities with those conditions except for his knee. He was wrong. He didn’t live with as much of a moral code as he does now. As for the PTSD, he was deployed and witnessed indirect fire rounds going off with several explosions. He never got into a fire fight. He suffered from bad depression and anxiety and is doing much better now. He is no longer rated for PTSD by the VA, so that condition shouldn’t be on there because the Army rating is dependent upon the VA rating. When I was in the Army, he knew that PTSD received a high rating from the VA, so he told them that he had nightmares when he didn’t have nightmares. He wanted to make that confession as well. He shouldn’t be retired for that condition. He asked to have PTSD on his rating because it was a high rating. It was about the money, not the condition, and that is the reason he tried to have PTSD added. He is sorry and his actions haunt him every day. e. Hopefully now the Board can see why he needs his physical disability retirement revoked. He lost a lot of sleep over this and it destroyed his life. He wants to put it all in the past. He said earlier how it wrecked his marriage because he was trying to revoke his disability retirement and his ex-wife disagreed. It messed up his conscience that bad. The one thing that was truly debilitating was his knee from the fall and he did that to himself. He needs this to be canceled. He hopes that the Board makes the right decision and revokes his disability retirement. He thinks of it as dirty money and all he wants is a peace of mind because he has to live with this. As long as he has this disability retirement he will have no peace in his life, because long as he is receiving it, he will always be reminded of his actions. He wants it to just go away so he can live with himself in the future. He hopes the Board understands and hope that you don’t find this request insufficient after reading this. He pleads with the Board to take him off of the PDRL so that he can move forward with his life. 18. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting they revoke Orders D324-42 published by the United States Army Physical Disability Agency on 20 November 2015. These orders removed the applicant from the Temporary Disability Retirement List and permanently retired him for physical disability on 20 November 2015 with a military disability rating of 70%. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows he entered the regular Army on 27 April 2009 and was placed on the temporary disability retirement list (TDRL) on 30 October 2014 under the authority in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). Discharge orders published by the United States Army Physical Disability Agency on 20 November 2015 show the applicant was removed from the TDRL and permanently retired for physical disability on 20 November 2015 with a military disability rating of 70%. c. On 4 March 2014, the applicant was referred to the Integrated Disability Evaluation System (IDES) for “Right ACL {anterior cruciate ligament} and PCL {posterior cruciate ligament} tears with residual pain and decreased range of motion.” A medical evaluation board (MEB) determined the applicant had seven conditions which failed the medical retention standards of AR 40-501, Standards of Medical Fitness: “Right Knee Internal Derangement,” “Displaced right knee tibial posterior lateral corner fracture and nondisplaced fracture at the posterior medial tibial plateau,” “Cervical spine intervertebral disc disease,” “Right upper extremity radiculopathy,” “Left upper extremity radicular-like pain,” “Right scapular winging,” and “PTSD, chronic.” On 21 April 2014, the applicant agreed with the board’s findings and recommendation and the case was forwarded to a physical evaluation board (PEB) for adjudication. d. On 3 August 2014, the applicant’s informal physical evaluation board (PEB) found six of the seven conditions the MEB determined failed medical retention standards to also be medically unfitting for continue service: They determined the “Left upper extremity radicular-like pain” to not be medically unfitting for continued military service either individually and/or in combination with the applicant's other conditions. They determined his PTSD to be unstable for final rating purposes. e. After applying the applicable VA disability ratings, they and recommended the applicant be placed on the TDRL with a combined military disability rating of 70% (50% combined with 20% = 60% combined with 20% = 68% combined with 10% = 71% combined with 10% = 74% which rounds to 70%). On 18 August 2017, after being counseled on the PEB’s findings and recommendation by his PEB Liaison Officer (PEBLO), he concurred with the PEB, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability rating(s). f. The PEB used contemporaneous/recent Veterans Administrant documentation to reevaluate his PTSD in the fall of 2015. Under the IDES, the rating for each condition the PEB had previously determined stable and unfitting are preserved as the conditions were determined stable for rating purposes at the time the Soldier was placed on the TDRL. In general, these conditions are not reevaluated as part of a TDRL reevaluation. g. When the PEB convened on 4 November 15, they determined his PTSD was now stable and the condition continued to be 50% disabling. His combined military disability rating remained 70% and the PEB then recommended the applicant be permanently retired for physical disability. On 13 November 2014, after being counseled on the PEB’s findings and recommendation by his PEBLO, he concurred with the PEB and waived his right to a formal hearing. h. Paragraph 4-19d(1) and 4-19d(2) of AR 635-40 states the primary basis for determining a condition fit or unfit for continued military service: “d. Decision on fitness. (1) The first and most important determination made by the PEB is whether the Soldier is physically fit or unfit to perform the duties of the Soldier’s office, grade, rank, or rating. All other actions are directly or indirectly tied to this one finding. (2) The determination of physical fitness will be made by relating the nature and degree of physical disability of the Soldier to the requirements and duties that the Soldier may reasonably be expected to perform in their primary military occupational specialty (MOS).” i. No medical documentation was submitted with the application and review of his records in JLV showed he continues to require significant medical care for his disabilities. Thus, there is no evidence the applicant’s conditions could all be determined not unfitting for military service. j. It is the opinion of the ARBA Medical Advisor the revocation of Orders D324-42 published by the United States Army Physical Disability Agency on 20 November 2015 which permanently retired the applicant for physical disability is not warranted. 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 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 and behavioral health review, the Board concurred with the advising official finding no medical documentation was submitted with the application and review of his records in JLV showed he continues to require significant medical care for his disabilities. Evidence of record shows the applicant was placed on the TDRL, reevaluated and subsequently placed on the PDRL by a properly constituted PEB and continues to receive VA benefits and treatment because of the conditions determined unfitting. 2. However, he contends he should not be on the PDRL because he caused his injury and a doctor fabricated other diagnosis that led to his disposition. The Board agreed to advise the applicant that they are not an investigative body and that if he is attempting to report himself for fraud, he should contact the U.S. Army Criminal Investigation Division (CID) who may review his case and determine a course of action. Based upon a preponderance of the evidence, and the findings and recommendation of the medical reviewing official, the Board determined there is insufficient evidence that shows there was an error or injustice when the applicant was placed on the PDRL. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (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, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. 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. 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. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. These ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). (1) The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. (2) There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. c. 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. d. Appendix E (Personnel Processing Actions), in effect at the time, states for Soldiers who are found unfit because of physical disability and are processed for retirement or discharge, discharge will be affected usually within 20 days of the Secretarial approval of the determination of physical unfitness and retirement must be completed by the effective date established in the Department of the Army orders. A request for deviation from the established discharge date or amendment or revocation of retirement orders for other than medical reasons will be submitted with justification to the U.S. Army Human Resources Command. If the Soldier is re-hospitalized and the presence of substantial new evidence indicates that the initial disability decision or percentage of disability should be changed, the Medical Treatment Facility Commander will notify the PEB that adjudicated the case. The U.S. Army Physical Disability Agency (USAPDA) will decide whether the case should be reconsidered by the PEB. The USAPDA may request the cancelation of discharge instructions or amend or revoke retirement orders. 4. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. 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. 6. 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. 7. 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. 8. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017358 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1