IN THE CASE OF: BOARD DATE: 18 August 2022 DOCKET NUMBER: AR20220003551 APPLICANT REQUESTS: in effect, an increase of his physical evaluation board (PEB) disability rating from 10% to at least 50% and medical retirement. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's brief in support of application * CBS News/Associated Press Article, 9 January 2008 * New York Times article, 14 January 2008 * Globe Gazette article, 26 January 2008 * Medical Record, 17 November 2008 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), 22 July 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 1 November 2009 * DVA letter, 2 February 2010 * DVA letter, 4 June 2017 * C&P Examination, 31 July 2017 * DVA letter, 19 October 2017 * DVA letter, 20 October 2017 * eBenefits printout, Department of Veterans Affairs (DVA) * Various medical documents 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 the Army PEB, and Army Medical Evaluation Board (MEB) errored in not considering the full extent of his injuries. He served honorably during Operation Iraqi Freedom. In August 2007, he and his squadron were clearing a building in Sinsil, Iraq that, unbeknown to them, was rigged with improvised explosive device (IED)s. Upon setting foot in the building, an explosion was set off by a trigger wire, killing six Soldiers and wounding four, including himself. As a result of the blast, he suffered injuries to his right foot, ankle, and neck, among other things. He also continues to suffer from post-traumatic stress disorder (PTSD) as a result of the explosion. Neither the PEB nor the MEB considered the full extent of his lower leg injuries, and altogether failed to consider his PTSD when assigning him a disability rating. He therefore appeals to the ABCMR and requests that it increase his combined disability rating from 10% to at least 50% and grant him a Medical Retirement. The full onset of his PTSD occurred after his PEB and MEB examinations. Here, the error or injustice was not discovered until he obtained counsel through a volunteer lawyer program. 3. His counsel states the PEB erred when it failed to find the applicant’s numerous impairments unfitting for continued service in the Army. If the PEB properly evaluated all the applicant’s conditions, it would have found that they rendered him at least 50% disabling, consistent with the findings of the Veterans Administration (VA) medical examiners and his underlying medical records. As a result of this failure, he was medically separated from active duty instead of being medically retired. a. Counsel provides background of the applicant’s career and annotates awards he received. Counsel describes the events in which the applicant was injured. b. Counsel detailed the applicant’s injuries which include but are not limited to: * Right foot scars and soft tissue injury * PTSD c. The MEB process on 18 June 2009, considered the applicant’s right ankle and determined it did not meet the medical retention standards. The MEB did not consider his PTSD as not meeting medical standards. The PEB process on 22 July 2009, deemed the applicant’s ankle unfitting and assigned him a 10% rating. d. The applicant after receiving a rating of 10% from the PEB was honorably discharged on 1 November 2009 without medical retirement. On 1 February 2010, the VA issued a combined rating of 40%. Counsel detailed his disabilities by the VA. e. Counsel describes the conditions that rendered that applicant unfit for continued service. Counsel suggests the Army should have found the applicant’s PTSD unfit for service as well and warranted a disability rating of at least 30%. Overall, the applicant’s PTSD, right ankle injuries, right foot scars and soft tissue injury warrant a combined rating of at least 50%. In the interest of justice, and pursuant to its authority under 10 U.S.C. § 1552(a)(1), the ABCMR should (1) revise the applicant’s disability rating from, 10% to at least 50% to account for all his unfitting injuries caused by the explosion that resulted in a Purple Heart, and (2) grant him a medical retirement. 4. The applicant enlisted in the Regular Army on 22 August 2005. He held military occupational specialty 11B (Infantryman). He served in Iraq from: * 11 August 2007 until 9 January 2008 * 27 July 2008 until 28 October 2008 5. On 22 July 2009, a PEB convened and found the applicant physically unfit and recommended a combined rating of 10% and that his disposition be separation with severance pay if otherwise qualified. The conditions which were found unfitting were: a. Right ankle pain and limitation of motion secondary to a fracture and ORIF (hardware subsequently removed) due to an IED blast in Iraq, 9 January 2008. Imagery reveals that the hardware has been removed and the fractures have healed. Range of motion (ROM) indicates 10 degrees of flexion and 50 degrees of plantar flexion all of which causes pain. Physical exam indicates mild tenderness and swelling just posterior to the distal right fibula, normal pedal pulses over the right foot. Soldier has a normal gait. Soldier uses over the counter medications for pain. b. Right Lower leg (distal fibula) pain appears now to involve only the ankle. Soldier is unfit for this duty as it prevents the ability to react to fire and or bear a load over uneven terrain. Soldier is rated for painful motion of one joint; and, in accordance with (IAW) Veterans Affairs Schedule for Rating Disabilities (VASRD) 4.10; 4.40; 4.45; and 4.59, the above ratings include consideration of functional loss due to factors such as pain, including pain on repeated use and painful motion; fatigability; incoordination; weakness with repetitive use and flare-ups. c. PTSD was not reflected as a disabling condition at the time. d. The applicant concurred and waived a formal hearing of his case. 6. Orders 225-0001, issued by Installation Management Command -Europe, on 13 August 2009, shows he was to be discharged from the Army on 1 November 2009. He was to received disability severance pay at 10% rate, at the E-5 rate based on 4 years, 2 months, and 10 days of service. * Disability resulted from a combat related injury as defined in 26 USC 104: Yes * Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008 Sec 1646): Yes 7. On 1 November 2009, he was honorably discharged under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, or Separation), chapter 4, for disability severance pay, combat related. His DD Form 214 shows he completed 4 years, 2 months, and 10 days of net active service this period. It also shows: * Item 18 (Remarks): Disability Severance Pay of $28,018.80 * Item 26 (Separation Code): JFI * Item 27 (Reentry Code): 3 * Item 28 (Narrative Reason for Separation): Disability, Severance Pay, Combat Related 8. The applicant provided multiple medical documents to support his claim. He also provided articles which described his injuries and how they occurred. He provided the following DVA letters: a. DVA letter, 2 February 2010, showing the VA awarded him compensation at the 40% rate effective 1 December 2009. He was service connected for: * PTSD at 30% * Right distal tibial fracture at 10% * Tinnitus at 10% * Traumatic-Brain Injury at 0% b. DVA letter, 4 June 2017, showing he was combined service connected at 50% rate effective 1 May 2017. c. DVA letter, 19 October 2017, showing he filed an appeal of disagreement. d. DVA letter, 20 October 2017, showing his entitlement amount and payment start date and what the VA decided. 9. 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 additional medical conditions be determined to have been unfitting for continued military service, a subsequent increase in his military disability rating with a change in his current disability separation disposition from separated with disability severance pay to permanent retirement for physical disability. He states through counsel: “Sgt. {Applicant} respectfully requests that the ABCMR revise his assigned disability rating from 10% to at least 50% and grant him a Medical Retirement, consistent with the findings of the Veterans Administration, medical examiners, and his underlying medical records ... Neither the PEB {physical evaluation board} nor the MEB {medical evaluation board} considered the full extent of Sgt. {Applicant}'s lower leg injuries, and altogether failed to consider his PTSD when assigning him a disability rating ... Overall, Sgt. {Applicant}'s PTSD, right ankle injuries, right foot scars and so tissue injury warrant a combined rating of at least 50%.” 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 he entered the regular Army on 22 August 2005 and was separated with $28,018.80 of disability severance pay on 1 November 2009 under provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). c. On 22 July 2009, the applicant’s informal PEB found “Soldier has right ankle pain and limitation of motion secondary to a fracture and ORIF {open reduction with internal fixation} (hardware subsequently removed) due to an IED blast in Iraq, 9 January 2008” to be the sole unfitting medical condition for continued service. They derived and then applied a rating of 10% to this condition and recommended the applicant be separated with disability severance pay. On 30 July 2009, after being counseled on the informal PEB’s findings by his PEB Liaison Officer (PEBLO), the applicant concurred with the informal PEB’s findings and waived a formal hearing. d. Review of his 1 February 2010 VA Rating Decision shows the 10% derived by the PEB was also derived by the VA: “Service connection for residuals, right distal tibial fracture is granted with an evaluation of 10 percent effective November 2, 2009.” e. The applicant marked the boxes on his DD 149 noted that PTSD and TBI were conditions related to his request. f. Review of the applicant’s Compensation and Pension Examination for Mental Disorders completed on 30 September 2009 show he was diagnosed with “Post traumatic stress disorder, mild.” The provider stated “Currently, the veteran is not in mental health treatment, not taking psychoactive medications.” g. In the same document, the provider went on to discuss the applicant’s history of mild traumatic brain injury (TBI): “With regard to the issue of memory difficulty, the patient is reporting mild memory difficulty now. Previous statements from the veteran and providers seem to categorize this as mild or transient only. He appears to be regarded by military providers as having suffered a concussion. The patient has already been referred for TBI evaluation by the TBI.” h. Following his 23 November 2009 evaluation of his TBI by a VA neurologist, the physician opined the symptoms from his TBI had resolved: “Impression: TBI with transient cognitive difficulties but which seem to have resolved. Plan: At this point no further intervention is needed. I explained that if he should notice difficulties after starting school then he is to contact the TBI clinic for follow up at that time. Also, he knows that he is free to contact us if anything further or new should develop or if he should ever have any other questions.” i. The conclusions from the VA’s “TBI Evaluation/Assessment – Psychology” completed on 23 November 2009: (1) “SUMMARY: Results suggest no continuation of cognitive deficits. He does not appear to meet the criteria for depression or PTSD, at least according to his self-report on the BDI-II and the PCLM {psychology assessment tools}. However, his records do include indication that he may be experiencing symptoms of PTSD. It is suggested that these symptoms continue to be monitored as he continues to adjust back into the routine of school and work. (2) REFERRAL FOR ADDITIONAL NEUROPSYCHOLOGICAL ASSESSMENT: No . (3) REFERRAL FOR MENTAL HEALTH OR OTHER VA SERVICES: Not at this time. If his symptoms of PTSD worsen, a referral for mental health services may be warranted at that time. (4) Veteran was informed of the results and recommendations of this assessment and voiced understanding of the same.” j. The applicant’s final NCOER covered the period just before his separation, form 1 November 2008 thru 29 July 2009. His rater top-blocked him as “Among the Best,” stating “promote ahead of peers” and “unlimited leadership potential; always willing to take charge regardless of the situation.” His senior rater top-blocked the applicant for both overall performance and overall potential. k. There is no probative evidence the applicant had additional medical conditions which 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 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. l. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. However, the DES compensates an individual only for service incurred 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. m. Given no evidence of error or injustice, 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: 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 and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s disability ratings and/or narrative reason for separation. 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. X 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 (AR) 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. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. 4. AR 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 2-1 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b (1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b (2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. f. The regulation states that after the Soldier has been processed through the PDES and a PEB has made a determination that the Soldier is qualified for disability retirement but for the fact that his or her disability is determined not to be of a permanent nature and stable can be placed on the temporary disability retired list (TDRL). The TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. 6. 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. 7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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//