IN THE CASE OF: BOARD DATE: 8 September 2022 DOCKET NUMBER: AR20220000303 APPLICANT REQUESTS: * correction of service record to reflect his medical conditions were incurred in combat * a video/telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement with Images * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Consideration of Discharge Upgrade Requests Memorandum * Combat Related Special Compensation (CRSC) Decision, 21 March 2021 * Medical Records (29 pages) * Medic Statement with Email, 8 May 2021 * Veteran Home Article, 17 April 2016 * Social Security Administration (SSA) Notice of Decision, 16 April 2014 * Department of Veterans Affairs (VA) Letters and Decisions FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is seeking to correct the errors made on his DA Form 199 under section 10, subsection A, and subsection C. The statements are incorrect because it states, “IS NOT based…” and “disabilities DID NOT…” and he would like his military record corrected and any other records that pertain to his disability. He will provide proof that his injuries were incurred in Iraq, while on a mission, and they WERE a direct result of armed conflict or an instrument of war. Once the issue is corrected, he can resume his CRSC claim and his application for the Purple Heart. a. As a result of the errors, he is unable to obtain all the benefits he is entitled to and he was made of aware of the injustices after being told he was eligible to file for CRSC benefits. He was told something different at out-processing during his retirement, but it was all a blur due to the medications he was taking. He has been dealing with PTSD, traumatic brain injury (TBI), and physical injuries since returning from deployment. He is hopeful the documentation he has provided will aid in correcting the error. b. The applicant states his injury of bilateral snapping scapula (left and right shoulders) were caused by the Interceptor Body Armor (IBA) with plate carrier and armor plates. During a deployment mission, his vehicle encountered a deeply buried improvised explosive device (IED) that exploded. Although there was no major damage done to the vehicle, he was jolted up, as the driver, and the IBA plates were shoved under his shoulder blades as he came back down. He believes the plates caused the degeneration of both the thoracic and lumbar area of his lower spine. He brought up the injuries to the medic and his command, he was given a few days to rest and the platoon medic provided some medications to get him through. No one believed he was really injured, and he was not given proper medical treatment. He was hazed and endured verbal abuse because he complained about his injuries. He then attempted to go out on every mission possible to avoid being reprimanded and pushed through his pain. He was also dealing with symptoms of PTSD from reacting to fire (contact) and seeing others killed, maimed, and injured during the deployment. c. In July, his medic sent him to Forward Operating Base (FOB) Kalsu to see the closest doctor. The doctor told him there was nothing wrong with him and he was to return to duty. Although he was showing signs of TBI and PTSD, he was ultimately told to “suck it up and drive on.” He completed the deployment in excruciating pain in his shoulders and back after attempting to seek medical aid for 8 months. Following the deployment, his conditions worsened, and the unit treated him differently. He began receiving disciplinary actions for seeking medical assistance and was subsequently assigned to a new unit in April 2009. The new unit pushed to have a medical evaluation board; however, he was unable to get documentation from the unit he was assigned to during the deployment. The medic assigned to the platoon while deployed and provided his medical treatment provided a statement. The images attached to the last page of the statement show bandages over long incisions on his neck and side. 3. The applicant provides: a. A Consideration of Discharge Upgrade Requests memorandum, dated 24 April 2016, reiterated guidance provided by the Secretary of Defense on 3 September 2014 for the consideration of discharge upgrade requests by Veterans claiming PTSD or related conditions such as TBI. The memorandum is available for review by the Board. b. His medical records (29 pages) for treatment received from approximately 8 July 2008 through 21 December 2012 . c. A statement from Mr. dated 8 May 2021, which stated the applicant was under his care as the platoon medic during the Iraq deployment. The applicant requested care after returning from a team raid at FOB Zulu which took place from 10 April 2008 to 13 April 2008. He found that both the applicant’s shoulder blades, and lower back were inflamed, and his shoulder blades made an audible clicking and grinding noise whenever moved. He had bruising, but no broke skin. The applicant shared with him that his vest had been shoved under his shoulder blades when he came down hard in his seat while in the vehicle on a mission. The applicant was placed on light duty for 2 weeks and placed on anti-inflammatory medication but was ultimately told to return to duty after medical staff at FOB Kalsu told him nothing was wrong. The applicant continued his missions although he was injured and sought medical treatment for his shoulders and lower back upon redeployment. The applicant also began showing mild symptoms of depression and anxiety before redeploying. He was evaluated by Colonel (COL) S at FOB Iskan a few weeks prior to returning home and seeking subsequent help at Hawks Troop Medical Center (TMC) and Winn Army Community Hospital. He was reprimanded by his supervisors for anxiety and panic attacks which led to him being transferred/reassigned and ultimately med boarded. d. An article, dated 17 April 2016, referenced a Veteran receiving “a welcome hand from Purple Heart Homes.” The applicant is the Veteran referenced in the article and Purple Heart Homes provides housing solutions for disabled Veterans. A few of the housing solutions provided included rails in the home to prevent falls and raised garden beds for flowers and herbs. e. A Notice of Decision from the SSA, dated 16 April 2014, notified the applicant of a fully favorable decision which granted him disability and disability insurance benefits from his date of filing on 13 September 2013. f. Six VA letters and decisions for the applicant included the following: (1) A DES Proposed Rating on 26 August 2010, notified the applicant of the ratings he received on the DA Form 199 dated 1 September 2010. He also received the below listed ratings for entitlement to VA benefits: * migraine headaches – 10% * anxiety disorder not otherwise specified (NOS) – 10% * bilateral tinnitus – 10% * allergic rhinitis – 0% * GERD with hiatal hernia – 0% * right knee strain – 0% * human papilloma virus with scars – 0% * vision impairment status post injury – not proposed * right foot cramping – not proposed * right hand cramping – not proposed * ingrown toenails, left foot – not proposed * ingrown toenails, right foot – not proposed * left foot cramping – not proposed * left knee condition with pain and swelling – not proposed * left hand cramping – not proposed (2) A VA letter, dated 27 August 2010, notified the applicant of the above decision and further noted those conditions not proposed were identified as not being related to his military service. (3) A DES Proposed Rating, dated 23 September 2010, notified the applicant the disability determination was being proposed to assign evaluations to the applicant’s unfit conditions for use by the DoD in determining final disposition for unfit conditions as well as to determine the applicant’s potential entitlement to DVA disability compensation. (4) A VA letter, dated 23 September 2010, indicated the VA was proposing the applicant’s total combined disability rating for unfitting claimed service connected disabilities by 60%. (5) A VA Rating Decision, dated 30 December 2010, informed the applicant based on a review of the evidence, the claim remained unchanged for the conditions rated, and those conditions listed as “not proposed,” were denied. (6) A VA letter, dated 7 January 2011, confirmed the applicant was entitled to a 60% combined disability rating and identified his monthly entitlement amount. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 17 May 2006. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated he was generally in good health. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 25 April 2006 * DD Form 2808 (Report of Medical Examination) dated 25 April 2006 c. A DA Form 199 showed on 1 September 2010 a PEB convened and found the applicant physically unfit. The PEB recommended a combined rating of 40% and that the applicant’s disposition be permanent disability retirement. On 8 September 2010, the applicant concurred with the findings and waived a formal hearing of his case. Additionally, the PEB made the following findings in Block 10, the disability disposition was not based on disability or injury received in the line of duty, as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law. The disability did not result from a combat related injury as defined under the provision of 26 USC 104. The case was adjudicated as part of the Pilot Disability Evaluation System (PDES) under the policy and procedure Directive-Type Memorandum (DTM) of 21 November 2007. (1) His unfitting conditions listed in Block 8b (Disability Description): * right shoulder subscapular tendinopathy with snapping shoulder syndrome and associated instability (VASRD Codes 5024 5201) – 20% * left shoulder subscapular tendinopathy with snapping shoulder syndrome and associated instability (VASRD Codes 5024 5201) – 20% * degenerative disc disease (DDD), thoracolumbar spine (VASRD Code 5242) – 10% (2) Other medical conditions found not to be unfitting, listed as MEB Dx 4-12: * right knee strain * migraine headaches * thoracic multilevel DDD * human papilloma with scars * hypersomnia * allergic rhinitis * gastroesophageal reflux disorder (GERD) * intermittent bilateral tinnitus * refractive error d. Orders 263-0005, dated 20 September 2010, released the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his retirement for permanent physical disability with a 40% disability rating effective 13 December 2010. Two amendments were published: * Orders 266-0007 dated 23 September 2010 – effective date 20 December 2010 * Orders 350-0172 dated 16 December 2010 – changed rank from specialist (SPC)/E-4 to Sergeant (SGT)/E-5 e. He was honorably retired from active duty on 20 December 2010. His DD Form 214 shows he completed 4 years, 4 months, and 25 days of active service. He was assigned separation code SEJ and the narrative reason for separation listed as “Disability, Permanent (Enhanced).” 5. The service record contained a single CRSC application, supporting documents, and a CRSC decision letter. a. On a DD Form 2860 (Application for CRSC), dated 28 January 2021, the applicant indicated he was injured when his vehicle ran over a deep buried IED. He sated his injuries included the back plates being buried and shoved under his shoulder blades which caused left and right shoulder subscapular tendinopathy with snapping shoulder syndrome, thoracolumbar DDD with nodes, and radiculopathy for lower right and lower left extremities. Additionally, his PTSD and anxiety disorder resulted from contact with insurgents, to the IED blast, “the rockets,” what he has witnessed, and what he has done. He has flashbacks of being blown up and constant anxiety from witnessing someone killed, shoved in a trunk, and being “rocketed” while on guard duty. In support of his application, he provides: * Self-Authored Statement * DA Form 199 dated 1 September 2010 * DD Form 214 effective 20 December 2010 b. On 16 March 2021, the applicant was notified his application for CRSC was approved for bilateral tinnitus at 10%. The below listed conditions could not be verified as combat related: * PTSD – 100% * anxiety disorder NOS – 30% * thoracolumbar DDD – 10% * left shoulder subscapular tendinopathy with snapping shoulder syndrome – 10% * right shoulder subscapular tendinopathy with snapping shoulder syndrome – 10% * radiculopathy, right lower extremity – 0% * radiculopathy, left lower extremity – 0% 6. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. By regulation (AR 635-40), the Army disability system sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. Armed Conflict. The fact that a Soldier may have incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. b. Combat related. Covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability will be considered combat related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result following armed conflict. * while engaged in hazardous service. * under conditions simulating war. * caused by an instrumentality of war 8. Title 26, USC, section 104, authorizes special rules for combat-related injuries for compensation for injuries or sickness. For purposes of this subsection, the term "combat-related injury" means personal injury or sickness (A) which is incurred (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. 9. Title 10, USC, section 1413a, defines the term "combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (A) as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D) through an instrumentality of war. 10. 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 (Joint Legacy Viewer (JLV)), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. There are four theater encounters for his tour in Iraq, all of which were for minor non-trauma induced issues unrelated to the applicant’s claimed conditions. b. The applicant was first seen for upper back and shoulder pain at an on-post chiropractic clinic on 3 February 2009. The encounter states his back and shoulder pain had been of “insidious onset” over the past year. In a clinic encounter the following day, the applicant stated he had bilateral shoulder pain for many months while deployed. c. Noted for the history of his shoulder pain in a 5 February 2009 evaluation: “19- year-old active-duty male complaining of bilateral shoulder pain x 6 months secondary to carrying a SAW {squad automatic weapon} and associated ammo. Felt the weight of the weapon was excessive. Denies trauma.” d. He was evaluated for these conditions by orthopedics on 14 May 2009. The history as noted on this encounter: “Patient is a 20-year-old male who complains of approximately 1 year history of thoracic back pain with crepitus of the scapulae. He denies any traumatic onset.” e. A 23 August 2010 encounter for his back pain states “Trauma to the back, Was in an MVA [motor vehicle accident] that started the back pain.” f. From a mental health consult for MEB clearance dated 30 November 2009: “[Applicant] was referred to the Behavioral Health Clinic (BHC) for routine evaluation and clearance due to pending MEB associated with a shoulder injury. Pt [patient] notes one deployment to Iraq from October 2007 to December 2008. Pt states the deployment was traumatic due to the multiple missions, firefights, dead bodies, and deaths of friends and co-workers.” g. From a 19 May 2010 behavioral health encounter: “Pt reports being engaged in direct combat activity and reports that while out on mission patrolling the base as part of a MED team with the Iraqi Army, he articulates coming under frequent fire. Consequently, Pt reports taking contact fire “a lot” as he cleared complete cities.” h. From a 21 June 2010 psychology evaluation: “SM [Service Member] has served in the Army since 2006 as a 19K, tanker. He deployed to Iraq from October 2007 to December 2008 (14 months) ... He was engaged in combat activities and reports the following traumas as specific stressors: SM killing an Iraqi and witnessing an Iraqi soldier killing an Iraqi.” i. It is the opinion of the ARBA medical advisor there is insufficient evidence upon which to reverse the non-combat related determinations for his bilateral shoulder and thoracolumbar spine condition, and thus such a reversal would be unwarranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was not warranted. Based upon the available documentation and the findings of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice warranting correction of service record to reflect his medical conditions were incurred in combat. 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 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 5. Title 38, United States Code, Section 1110 (General - Basic Entitlement) sates 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, United States 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 10, U.S. Code, section 1413a, as amended, established CRSC. CRSC provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. CRSC eligibility includes disabilities incurred as a direct result of: * armed conflict (gunshot wounds, Purple Heart, etc.) * training that simulates war (exercises, field training, etc.) * hazardous duty (flight, diving, parachute duty) * an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.) 8. Section 1556 of Title 10, United States Code, 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) AR20220000303 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1