IN THE CASE OF: BOARD DATE: 13 October 2022 DOCKET NUMBER: AR20220001802 APPLICANT REQUESTS: in effect, a medical retirement in lieu of separation with severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States (U.S.)) in lieu of DD Form 149 (Application for Correction of Military Record) * DA Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum for Record from Lieutenant Colonel (LTC) , 14 December 2021 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 was injured in the line of duty while serving in Iraq for Operation Iraqi Freedom III. It was his goal to fulfill his obligation and retire. 3. On 16 June 2000, the applicant enlisted in the Army National Guard (ARNG). 4. A DA Form 4700 (Medical Record - Supplemental Medical Data), dated 28 January 2002, shows the applicant was seen at Brooke Army Medical Center at Fort Sam Houston, TX for left knee pain. 5. Orders 205-643 dated 23 July 2004 ordered him to active duty on 15 August 2004 in support of Operation Iraqi Freedom not to exceed a period of 545 days. 6. Orders 302-091 dated 28 October 2004, amended Orders 205-643 dated 23 July 2004, changing the period of active duty from 15 August 2004 - 10 February 2006 to 15 August 2004 - 1 September 2005. 7. On 12 December 2005, the Bennett Family Health Clinic requested a magnetic resonance imaging (MRI) for the applicant’s lower extremity, left (non-joint) due to left knee pain. While in Kuwait in November 2005, the applicant twisted his knee jumping when playing basketball. He experienced a large effusion following what may have been a dislocation/reduction. 8. On 14 December 2005, the MRI of the applicant’s left knee revealed a suspected anterior cruciate ligament (ACL) tear. 9. On 15 December 2005, during a routine visit at the Darnall Army Community Hospital for left knee pain, the doctor discussed physical therapy to increase motion and having surgery on 4 January 2006. 10. On 4 January 2006, the applicant had ACL reconstruction surgery at the Darnall Army Community Hospital. 11. Orders A-01-602363, dated 27 January 2006 retained the applicant on active duty from 16 December 2005 - 12 June 2006 (179 days) for him to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Program for completion of medical care and treatment. 12. A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 27 February 2006, shows his case manager annotated the following: In November 2005, the applicant was playing basketball during physical training, he felt a pop to his left knee. He sought treatment at the troop medical clinic in which Motrin and an ice pack was given. After being demobilized at Fort Hood, his knee was examined closer. An MRI showed an ACL tear and surgery was performed on 4 January 2006. He received three physical therapy sessions at Fort Hood. 13. In support of his application the applicant provides a DD Form 214 that shows he served on active duty from 15 August 2004 - 16 February 2007 (2 years, 6 months, and 2 months). He served in Iraq from 5 January - 5 December 2005. He received $20,628.00 in disability severance pay. He was honorably discharged on 16 February 2007 under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) disability, severance pay with separation code “JFL.” 14. Orders A-01-602363A01, dated 15 May 2006, amend Orders A-01-602363, dated 27 January 2006, changing the period of active duty from 179 days (end date 12 June 2006) to 358 days (end date 8 December 2006). 15. A Functional Assessment Questionnaire from the Community Based Health Care Organization, dated 24 August 2006, shows the applicant could not perform the following activities for 6 months: * March 2 miles carrying a 50 pound pack * Timed 2 mile run * Timed 2.5 mile walk * Jump from the back of a truck approximately 3-4 feet with a 20 pound load * Lift and carry 50 pound loads including overhead lifting 16. Orders A-01-602363A02, dated 6 November 2006, further amended Orders A-01- 602363, dated 27 January 2006, changing the period of active duty from 358 days (end date 8 December 2006) to 537 days (end date 5 June 2007). 17. Orders A-01-602363A03, dated 6 November 2006, further amended Orders A-01- 602363, dated 27 January 2006, changing the period of active duty from 537 days (end date 5 June 2007) to 716 days (end date 1 December 2007). 18. Throughout 2006, due to persistent left knee pain, the applicant continued to participate in physical therapy and followed up with medications including injections of cortisone, 1 percent (%) lidocaine, 0.5% Marcaine and celestone in his knee. 19. An SF 600 shows the applicant’s case manager noted he went through the medical evaluation board (MEBD) process at Fort Hood, Tx between October and November 2006. 20. On 29 December 2006, the applicant’s case manager annotated that he was pending a commander’s memorandum for submission to the Physical Evaluation Board (PEB) that may be due to his post-traumatic stress disorder. The applicant’s available record is void of a DA Form 3947 (MEBD Proceedings) and DA Form 199 (PEB Proceedings) for review and were not provided by the applicant for the Board to review. 21. Orders 045-0127 dated 14 February 2007 shows the applicant was reassigned to the U.S. Army transition point for transition processing on 16 February 2007. He was discharged from the ARNG on 16 February 2007 under the provisions of AR 635-40 with a 10% disability rating. 22. Orders 171-1134, dated 20 June 2007, honorably discharged the applicant from the ARNG and as a Reserve of the Army. Additionally, he received a medical discharge and authorized disability severance pay. 23. On 4 October 2016, the applicant underwent a left high tibial osteotomy and hardware removal from his previous ACL reconstruction due to varus knee with tricompartmental degeneration at Veterans Affairs (VA) Medical Center in,. 24. A VA benefits letter, dated 7 November 2017, shows the applicant is service connected for his left and right knee, however it does not show the VA rating for his knees. This letter is specific to an increase he received for carpal tunnel right and left wrists. Effective 31 August 2017 he was granted a 100% disability rating. 25. In support of his application the applicant provides a memorandum for record from LTC , dated 14 December 2021 that states: a. LTC was the applicant’s detachment commander during Operation Iraqi Freedom III. The applicant served as his primary line medic from approximately August 2004 to the date of his injury. LTC did not participate in the mission that resulted in the applicant’s injuries, however, he was briefed after the incident and he visited the applicant to check on him and obtain a status of the severity of the injuries. b. To the best of his recollection, on or about 8 November 2005, the applicant was involved in a vehicular rollover incident due to the denotation of an improvised explosive device (IED) which directly impacted his military vehicle while conducting convoy security. The applicant was assigned as a line medic in the lead vehicle when the IED detonated causing a rollover and resulting in severe injuries to the applicant. He did not return to duty and was subsequently medically discharged from service in the Army and the TXARNG. 26. On 10 August 2022, an advisory opinion was obtained from Headquarters, U.S. Army Physical Disability Agency, wherein the Legal Advisor states: a. The applicant was found unfit for his left knee condition. The applicant was separated with severance pay on 16 February 2007. Since that time, the applicant’s VA rating has increased to 30% for his left knee and he has added additional conditions that were not present at the time of his separation. The applicant now appeals seeking to have his rating for his left knee condition increased so that his discharge can change from separated with severance pay to medical retirement. It also appears that he would then request combat related special compensation as he claimed the left knee injury was due to an IED attack while he was in Iraq in 2005. However, a 27 February 2006 medical note indicates that the onset was from playing basketball in November 2005 when he felt a snap in his left knee. b. Unlike VA ratings, disability valuation system ratings are a snapshot in time, taken at the time of separation. VA ratings on the other hand, and as this case demonstrates an increase, or decrease, over the course of one’s lifetime. Here it appears the increase occurred later in the applicant’s service. Thus, it would be speculative to say the rating should have been higher at the time of his separation. Likewise, the medical evidence indicates that the onset of the condition was in November 2005 when he was playing basketball. Therefore, the condition does not warrant a combat code. c. The U.S. Army Physical Disability Agency finds his request legally insufficient and recommended that the applicant’s disability rating and military records not be corrected to reflect a higher VA rating post-service and that a combat code not be awarded. 27. On 23 August 2022, the advisory opinion was forwarded to the applicant for acknowledgement and/or response and he did not respond. 28. 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 has applied to the ABCMR requesting an increase in his military disability rating with a subsequent change in his disability separation disposition from separated with disability severance pay to permanent retirement for physical disability. He states: “I was injured while in country while serving OIF3 ( Operation Iraqi Freedom 3) in the line of duty. It was my goal to retire and to fulfill my obligation. I didn't choose to have my inquiry occur.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. The DD 214 for the period of Service under consideration shows the former Guard Soldier entered active duty in support of Operation Iraqi Freedom on 15 August 2004 and was separated with $20,628.00 of disability severance pay on 16 February 2007 under provisions provided in paragraph 4-24(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). It shows service in Iraq from 5 January 2005 thru 5 December 2005. c. Review of the applicant’s records in AHLTA show his first encounter was on 23 November 2005 when he was seen at the Camp Victory troop medical clinic for a knee injury. The injury was later diagnosed and a left knee anterior cruciate ligament rupture for which he underwent arthroscopic reconstruction on 4 January 2006. d. The applicant was referred to a medical evaluation board (MEB) in November 2006 for PTSD and left knee pain. There are no AHLTA encounters for PTSD or any other mental health condition except for his MEB evaluation for his PTSD on 15 November 2006. This AHLTA encounter is not available for review, and the examining provider wrote “Due to multiple power outages during patient's visit, details of patient's visit not recorded in AHLTA--and patient's CBHCO {community-based health care organization} eval simply dictated. Please see dictated MEB (CBHCO) NARSUM (filed in MEB office) for full details of patient's history and presentation.” e. A handwritten nurse case manager note states the applicant was “Going to the VA in, for PTSD counseling biweekly.” Review of his records in JLV revealed he was first seen by a Veterans Hospital Administration (VHA) provider for mental health concerns on 9 March 2006. Excerpts from his psychological testing with evaluation on 12 April 2006: (1) “RESULTS OF EVALUATION: … He spent 12 months in Iraq from 2004 to 2005. The patient indicated having emotional difficulty after he came back from Iraq. He was a combat medic. He witnessed people who were badly injured and killed. He has felt guilt over people who died that he was trying to help. He has had nightmares, intrusive thoughts, decreased appetite, feelings of nervousness and agitation, jitteriness, poor sleep, and interpersonal isolation ... (2) The patient produced a score today that is positive for PTSD on the PCL. He scored 55, a score suggestive of the diagnosis of PTSD. His pattern of responses suggests that all criteria for re-experience of trauma, avoidance symptoms, and hyperarousal are met. (3) {NOTE: The PCL is a self-report measure that can be completed by patients in a waiting room prior to a session or by participants as part of a research study. It takes approximately 5-10 minutes to complete. The cut scores for the U.S Department of Veterans Affair’s National Center for PTSD: (4) The patient endorsed significant re-experience of the trauma of the Iraq war through repeated disturbing memories and thoughts ever since he got back from Iraq in 2005. The patient reports disturbing dreams/nightmares of military twice per week currently. The patient indicates feelings of reliving his military experience quite a bit … He feels that people don't really understand when they ask him about what happened. (5) He also has autonomic arousal symptoms, such as rapid pulse and hands sweating when reminded of things that happened in Iraq. The patient endorsed a number of avoidance symptoms related to his military experience. He also has some emotional numbing symptoms. The patient indicates that he has a tendency to avoid thinking about and talking about the Iraq war. He tends to avoid activities that would remind him of Iraq, such as news coverage of the war. (6) He has decreased interest in activities that he used to enjoy before the military. He said that he never felt anxious like this before the military. The patient also has feelings of distance from other people. (7) In summary, the patient does meet all criteria for PTSD. He also is suffering from some depression. The medical record also indicates that he has been abusing alcohol to help with his emotions, although I did not cover this with him today. (8) DIAGNOSTIC IMPRESSION BASED ON TODAY'S ASSESSMENT: 1. Post-traumatic stress disorder, moderate severity. 2. Depression, not otherwise specified. (9) RECOMMENDATIONS: 1. The patient would likely benefit from an SSRI antidepressant medication. He said that he could probably get antidepressant medication through his personal physician. 2. Continue remaining psychotherapy sessions with Mr. . at the Behavioral Health Clinic.” f. From his 18 May 2006 follow-up encounter: “He was started on Effexor by his private physician, and he reports improvement in his depression and anxiety. He denies SI/HI. His nightmares have lessened with the medication, and he is sleeping better. He is also not as nervous in crowds. g. He was next seen in follow-up on 14 June 2006 and then again “Patient is here for follow up, 45 mins. He reports doing ‘pretty good;’ and his medication ‘helps some.’ He continues to take Effexor from his private physician and may ask for an increase. It has helped with depression and anxiety, but the symptoms are still present. He denies SI/HI. Patient continues to have nightmares about 2 times a week, where he will have a sleepless night. He used to have nights like this 4-5 times a week. He continues to get nervous in crowds.” h. 15 September 2006 was his next and his final visit during this period: (1) “Patient is here for follow-up. He is running late today, so he is only seen for 30 minutes. He reports worsening symptoms. He is having more anger, and this is causing conflict with his girlfriend. He is also having more flashbacks and nightmares. He states he will ‘zone out more.’ His frustration with dealing with his PTSD symptoms are increasing. He denies SI/HI. He denies violence. (2) Patient reports his sleep was getting better with medication, but he goes through spells where he can't sleep. Patient reports the Effexor was causing headaches and low energy, so his physician changed him to Celexa. He reports this working about as well, without the side effects. However, he wishes he could find a medication that helped more.” i. The applicant was next seen by a VHA provider for his PTSD on 6 November 2007. (1) “MENTAL HEALTH HISTORY: (2) Patient is a returning patient, and his last visit was on 9/15/06. He was seeing this worker for counseling while on active duty, and he is a combat veteran ... Patient went before the review board at Ft. Hood and was discharged for the PTSD on 2/14/07. He is here to restart services. (3) Patient was taking Effexor from a private physician in May 2006 and was then switched to Celexa 40 mg twice a day in September 2006. He stopped taking the Celexa for a while but has restarted it. (4) INTERPRETIVE SUMMARY/TREATMENT RECOMMENDATIONS: Patient is a 32-year-old Hispanic male veteran who is getting reestablished for treatment of PTSD. Patient is currently taking citalopram, and reports being prescribed 40 mg twice a day. Patient is still with his fiancé, and she is pregnant. Patient has a job delivering beer for Budweiser, but he is about to go on Worker's Comp for a torn ACL. He has surgery this month. (5) Patient will be scheduled to see a psychiatrist, and he agrees to follow-up with this worker. He is referred to the Vet Center for counseling.” j. Neither the applicant’s medical evaluation board (MEB), physical evaluation board, nor associated documents were submitted with the application or uploaded into iPERMS. k. According to the United States Army Physical Disability Agency’s 22 August 2022 external advisory for this case, a PEB found the applicant’s left knee condition his sole unfitting condition for continued military service. Orders published by Headquarters III Corps and Fort Hood show the applicant was to be discharged on 16 February 2007 with a 10% disability rating and was authorized disability severance pay. l. There is insufficient probative evidence the applicant’s PTSD or other additional medical condition would have failed the medical retention standards of chapter 3, AR 40-501 and thus been subject to a finding of unfitness for continued service and compensable prior to his discharge. Furthermore, there is no probative evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. m. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.” n. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including ratings for PTSD. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. o. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: 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 applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board also considered the findings of the medical advisor. The Board concurred with the advisory official finding there is insufficient probative evidence the applicant’s PTSD or other additional medical conditions would have failed the medical retention standards of chapter 3. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change in the narrative reason for separation. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. Variance in ratings do not indicate an error on the part of either entity. 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. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, chapter 61, and Department of Defense Directive 1332.18. It set 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. Paragraph 3-4a 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. b. Chapter 4 states the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. c. Paragraph 4-24b specifies based on the final decision of the U.S. Army Physical Disability Agency or the Army Physical Disability Appeal Board, U.S. Army Human Resources Command will issue retirement orders or other disposition instructions as follows: * permanent retirement for physical disability * placement on the TDRL * separation for physical disability with severance pay * separation for physical disability without severance pay * transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer, to the Inactive Reserve on the Soldier’s request * separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence * release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit, or * return of the Soldier to duty when he or she is determined physically fit 3. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001802 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1