IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220004580 APPLICANT REQUESTS: referral of his medical records to the Army Disability Evaluation System (DES) and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Department of Veterans Affairs (VA) Rating Decision, dated 29 April 2020 . VA Statement of Disabilities, date 24 September 2020 . VA Rating Decision, dated 17 February 2021 . VA Rating Decision, dated 2 January 2013 . VA Rating Decision, dated 10 June 2013 . DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 10 January 2005 . DD Form 214 (Certificate of Release or Discharge from Active Duty) . Standard Form (SF) 600 (Chronological Record of Medical Care), dated 24 August 2009 . SF 600, dated 14 October 2008 . excerpt of Army Regulation (AR) 40-501 (Standards of Medical Fitness), dated 14 December 2007 (revised on 23 August 2010) . SF 600, dated 8 October 2008 . SF 600, dated 9 November 2009 . SF 600, dated 9 February 2010 . SF 600, dated 28 June 2010 . SF 600, dated 29 November 2010 . DA Form 3349 (Physical Profile) (blank form) . United States Court of Federal Claims Order and Opinion (Watson v. United States) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 defers to counsel. 3. In a 21-page statement, counsel states, in part: a. In April of 2008, the applicant was injured inside the gunner's turret of his military vehicle after it crashed, after his commanding officer ordered the driver to drive recklessly. He suffered severe injuries from this crash, including a traumatic brain injury (TBI), a back injury, and a large array of broken bones, among many other wounds. He was evacuated to Walter Reed Army Medical Center (WRAMC) and nearly succumb in transit while under anesthesia. He spent the next nearly three years in the Warrior Transition Unit (WTU) while his injuries were being treated, until being separated under honorable conditions on 31 January 2011 on the grounds that his term of service had expired. b. Contrary to Army regulations, he was placed under a temporary profile for most of these three years, despite the rule requiring that he be transitioned to a permanent profile after twelve months. Despite constant requests for a permanent profile and referral to the DES, neither were granted despite being mandated by Army regulations in his situation. He now lives with the constant pain and limited mobility imposed by the many injuries he suffered while serving his country. On 29 April 2020, the VA granted him a 100% service-connected disability rating, backdated to 1 February 2011, the day after his discharge. On 17 February 2021, he was granted a rating of permanent and total disability, as a result of the wounds he suffered in service and their lasting effect. He now requests what he should have received under Army regulations in 2009, referral to the DES for a determination as to whether he was fit for duty at the time. Should the DES find that he was unfit for duty, the ABCMR should grant him the medical retirement he deserved in 2009. In the alternative, he requests that the ABCMR itself finds that he was unfit for duty in 2009. c. On 13 April 2008, while participating in a convoy, the applicant's captain urged his driver to drive faster. The driver followed those orders and started doing burnouts into stops in front of Iraq traffic as their security vehicle headed to the front of their convoy. One of those slide stops resulted in the truck flipping over twice while the applicant was still in the elevated gunner's position. While the sniper wire over the gunner's turret kept him from being thrown out of the vehicle, he was severely injured. Some Soldiers were able to pull him out of the vehicle, and he was immediately medically evacuated to Taji. The applicant understood the pressure his driver was under from the officer; and remains friends and close contacts with the driver to this day. d. After arrival at Taji, the applicant was put into a medically induced coma so that he could be stabilized and flown to WRAMC. This required a flight trough Germany, where his brain activity nearly declined permanently. He only fully came out of the coma on 21 April 2008, more than a week after he was severely injured. When he awoke, he had a feeding tube, a breathing tube, a catheter, and could not move from the atrophy. He sustained a moderate TBI, and a broken nose, left thumb, left index finger, left ring finger, left elbow, left collar bone, and neck. His right shoulder was separated and had a blood clot, his right elbow was injured, three of his ribs were broken, both of his lungs had collapsed, his left and right knees were injured, and he also suffered a back injury which impacted the L4/L5 disks and tailbone. Since those injuries, his back problems have only grown worse, and he has also suffered severe complications from the incident with bone spurs and growths on his big toes. His back injury has also resulted in weight gain. Finally, likely due to the stress from his post-traumatic stress disorder (PTSD), TBI, and the long and arduous recovery from his injuries, he has also suffered from hypertension and blood pressure. e. The applicant would spend the rest of his active duty service, nearly three years from April of 2008 through January of 2011, in the WTU. The WTU is the unit where wounded Soldiers are placed when receiving medical treatment, with the goal of transitioning them either back to the Army, or into civilian life. His expiration of term of service (ETS) date was supposed to be in January of 2009, but he was still receiving intensive amounts of medical care at the time in the WTU. While in the WTU, he had two surgeries on his left shoulder, one on his left thumb, one on his right shoulder, surgery on his back, and tonsil removal surgery because he kept getting sick. He also underwent constant counseling and medical care. During this period, he gained weight, which resulted in him failing a tape test and being denied a promotion to E-5, despite having the points an making the promotion list. f. By 22 July 2008, the applicant was on a temporary profile for his PULHES (the measure of a service members capabilities, rated on a scale of 1 to4 for physical capacity/stamina (P), upper extremities (U), lower extremities (L), hearing and ears (H), Eyes (E), and psychiatric (P)) of 2-1 3-3-1-3 due to the wounds he was suffering from and the moderate TBI and associated PTSD he was undergoing. A 3 in any category in a PULHES means the service member is unavailable for deployment, and temporary profiles, under Army regulation, are not to last more than a year. At that point, barring specific approval by the commander of the medical treatment facility, or his deputy, they are to become permanent. A permanent profile of 3 (P3) leads to screening by a Medical Evaluation Board (MEB) qualified doctor for referral to the DES. g. The applicant repeatedly requested that his command grant him a P3 profile for his injuries, as well as refer him to the DES. Instead, he was repeatedly rebuffed. In late 2008, his doctor issued him a P3 but then quickly rescinded it. Instead of granting him a P3, his temporary profile was instead repeatedly extended through the remainder of his nearly three years of service, in direct contradiction to Army regulations. When he asked for referral to the DES after his back surgery in May of 2010, he was told he had to wait for six months to attempt another surgery on the back and that they would not be doing a referral to DES. h. He did not want to do another invasive surgery, so he was told that the Army would likely just process him out instead of granting him a referral to the DES. This was despite this being contrary to Army regulations, which stated that Soldier should not be denied a DES simply because they were coming up on their separation date. In addition, not only he was long past legally due a screening by an MEB qualified doctor for referral to the DES, but, under Army regulations, a service members' Medical Retention Determination Point (MRDP), the point at which their condition is considered to have stabilized for DES assessment, is to be not more than one year after their injuries. In his case, this would have been in April of 2009, one year after his wounding following the accident in April of 2008. i. The applicant was given the choice of remaining within the WTU for another long period of time to get another surgery on his back, or instead leave the Army and receive care through the VA. Given that he was now two years past his ETS, and the medical treatment staff were constantly refusing to refer him to the DES or grant him a permanent profile, he chose to leave and receive car e through the VA. On 31 January 2011, he was discharged from active duty service. Despite the Army's wrongful treatment of him, the intense pain he was in, and the immense difficulties imposed by the recovery from his TBI, he followed his dream of continuing his education while in the WTU. When he was separated from the Army, he had completed his associate degree, obtained a Bachelor's in Business Management, taken the Law School Admission Test, and begun a Master's in Business Administration. He subsequently went to law school and is now licensed to practice in Arizona and considered a top probate lawyer in the state. j. The applicant, after his separation from the Army, was forced to undergo a long and drawn-out application process with the VA. His application was filed 1 February 2011, the day after he was officially separated from the Army, but he only received a rating of 70% disability, upped to 80%, on 2 January 2013 and 10 June 10 2013, respectively. He appealed this decision in 2014 and did not receive a new decision until 29 April 2020. That decision increased his rating to a 100% service-connected disability rating dated back to 1 February 2011, the day he left active duty service. k. On 17 February 2021, he was finally granted permanent and total disability status. Not only was he suffering from severe medical problems at the time he left service, but these conditions have also only gotten worse. He has suffered multiple blood clots and the impaction of his L4/L5 disks in his back continues to cause him grave pain. He has been referred for two more surgeries on his toes and will need further surgery for other issues in the future. As noted above, his mobility has been greatly constrained by service-connected problems with his big toes, including bone spurs and early arthritis. He had surgery on the left big toe at the VA, but was referred for a second surgery on the same toe and was referred for another surgery on the right toe. l. The applicant was under a temporary profile of 1-3-3- -1-3 for more than two years. He was first issued a temporary profile of 2-3-3-1-1-3 on 22 July 2008 which then was later changed to a 1-3-3-1-1-3 and repeatedly extended through 8 February 2011. AR 40-501, paragraph 7-4(c)(3), as published in 2007 and revised in 2010, specifically stated "[i]n no case will Soldiers carry a temporary profile that has been extended for more than 12 months." Any temporary profile needed for mor than 12 months was required to be changed to a permanent profile. The only exception for this regulatory mandate was if there was explicit approval from the medical treatment facility commander or their designated senior physician approval authority. There is no evidence within the applicant's records that this ever happened, in fact, the only evidence of a permanent profile was the P3 granted and then rapidly rescinded by his doctor in October of 2008, after the doctor improperly decoded that an MEB would have to wait until yet another surgery. His three temporary (T) 3 profiles should thus have become three P3 profiles by July 2009, at the latest. Instead, his primary care manager, wrongfully, and contrary to Army regulations, kept on extending his temporary profiles and continually refused to grant him a permanent profile. m. AR 40-501, paragraph 7-4(b) states that all permanent profiles foo Soldiers on active duty must be reviewed by an MEB physician for an initial screening as to whether or not the Soldier meets retention standards. If the Soldier is determined to potentially not meet retention standards, they must be referred to the DES after attaining the MRDP. This MRDP must be within one year of the diagnosis of the Soldiers injuries though it may be earlier if the screening authority determines that the Soldier would not be capable of returning to duty within one year. n. In addition, AR 40-501, paragraph 3-41(e)(1) stated that Soldiers with conditions and defects that prevent the Soldier from performing the functional activities listed under item number five of DA Form 3349 are to be evaluated by an MEB. This must be substantiated by an individual's commander or supervisor. A DA Form 3349 item number five as published in September 2010 listed these activities as: (1) Carrying and firing individual assigned weapons (2) Evading direct and indirect fire (3) Riding in a military vehicle for at least 12 hour per day (4) Wearing a helmet for at least 12 hours per day (5) Wearing body armor for at least 12 hours per day (6) Wearing load bearing equipment for at least 12 hours per day (7) Wearing military boots and uniform for at least 12 hours per day (8) Wearing protective mask and MOPP 4 for at least 2 continuous hours per day (9) Moving 40lbs while wearing usual protective gear for at least 100 yards (10) Living in an austere environment without worsening the medical condition. While a DA Form 3349 from before 2010 is not available, it is unlikely that much was changed under item number five. When a Soldier has a condition within chapter 3, they were required to be evaluated by an MEB if the condition significantly limited or interfered with the performance of their duties. This requirement for evaluation by an MEB was an active duty imposed on the Army by AR 40-501, paragraph 3-3. "Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB." It even specifically states that "Physicians should not defer initiating the MEB until the Soldier is being processed for disability retirement." o. The applicant hit his MRDP in April of 2009, as that was one year within the diagnosis of his injuries from the crash in April of 2008. As noted above, his temporary profiles should have become permanent in July 2009. Given that he spent more than two and a half years in the WTU before being separated from active service, it is blatantly clear that he was not capable of returning to duty within one year. He should have thus been sent to an MEB for an initial screening as to a referral to the DES by July of 2009, when his temporary profiles should have become permanent under AR 40-501, at the latest. After the initial screening, given that his MRDP had passed three months prior, he should have been immediately referred to the DES. p. Finally, AR 40-501 mandates an MEB, and a referral to the Physical Evaluation Board (PEB) for Soldiers who have conditions which meet the criteria of those listed in Chapter 3 and which significantly limit or interfere with the performance of their duties. One of the conditions listed in Chapter 3 is if a Soldier's collective miscellaneous conditions and defects prevent the Soldier from performing any of the functional activities listed under item number 5 of DA Form 3349. Consider the physical state he was in at the time. He spent two and a half years in the WTU receiving constant surgeries for a large variety of injuries and receiving constant counseling and physical therapy. q. Needless to say, he clearly could not live in an austere environment without worsening his condition, engage in direct combat by evading direct or indirect fire, his back would prevent him from riding in a military vehicle for at least 12 hours per day, and he was in no position to be under the incredible weight of full military equipment, let alone move heavy items while under said weight. In short, he clearly and obviously met the criteria and his conditions obviously significantly limited or interfered with the performance of his duties. If they could not, why did he spend nearly three years in the WTU? The fact that his commander or supervisor placed, and kept him, in the WTU more than substantiates the fact that these conditions interfered with the satisfactory performance of duty. Under AR 40-501, an MEB, and PEB referral, was clearly mandatory in his case, yet he was wrongfully denied one. r. In short, AR 40-501 mandated that the applicant receive a screening for whether he met retention standards for two reasons -what should have been his three P3 profiles as of July 2009 and after his temporary profile had been extended for more than six months and he hit his MRDP in April 2009, as defined by Army regulations. The failures of his primary care manager (PCM) and commanders to engage in this mandated process and refer him for screening for a potential DES referral, was a serious legal error. In addition, his PCM and officers also violated AR 40-501 by failing to send him to an MEB when his conditions under met the criteria for a mandatory MEB and PEB referral, as required. This was another serious legal error and wrongful act by his superiors. To uphold such an error would be contrary to law under the Administrative Procedure Act, Title 5 U.S. Code, section 706(2)(A). s. As noted previously, by July of 2009, the applicant's three T3 profiles should have become three P3 profiles. As detailed above, this mandated referral under AR 40-501 for a screening to determine if he met medical retention standards, which would then result in a potential referral to the DES. Notably AR 40-501 places the responsibility on the profiling officers to refer these matters to the DES, not on the Soldier. Despite these clear rules requiring screening for referral to the DES, he was never referred. In fact, his PCM continually brushed aside his inquiries as to being referred to the DES. In addition, as noted above, he was due a mandatory MEB referral. t. The screening and DES referral rules under AR 40-501 are legally mandatory on the Army. Watson v. United States, 113 Fed. Cl. 615, 632-5 (Fed. 1. 2013). In Watson, a Soldier who was diagnosed with optic nerve atrophy and optic neuritis, but who was not given a DES referral, was convicted under the Uniform Code of Military Justice for refusing to deploy and involuntarily discharged under other than honorable conditions. He filed an application to the ABCMR seeking for his discharge to be voided, to be reinstated to active duty with back pay and at the same grade, and to be referred to an MEB. The ABCMR denied his application, in part on the grounds that the Army was not required to refer the Soldier to an MEB, despite his diagnosed conditions fitting AR 40-501's conditions which required referral. u. The Court of Federal Claims overturned this part of the ABCMR's decision as contrary to law, holding that referral to the MEB under AR 40-501 was mandatory and the responsibility of the Army. What is particularly notable here is that, though the Soldier was diagnosed with two conditions which fit the criteria under AR 40-501, chapter 3, for mandatory referral, he was never given a P3 rating for them. As relief, the Court ordered the ABCMR to refer the Soldier to an MEB to determine if the Soldier met medical retention standards at each of the two points in time at which he would have been legally due for referral to the DES. In a later decision, the Court vacated the MEB's decision as to the Soldier's case and ordered that the matter be referred to the Secretary of the Army for a decision as to whether the MEB could consider medical records created after the Soldier's discharge. Watson v. United States, 2015 U.S. Claims LEXIS 049 (Ct. Fed. Claims August 17, 2015). v. The applicant's case for referral to the DES is even stronger than that of the Soldier in Watson. The Soldier there was never given any profile for his conditions, while here, under Army regulations, his T3 profiles should have automatically become P3's by July of 2009. The extension of his temporary profile past six months in January of 2009 already required a screening by a specialist for DES referral, and the legally required transition of his three T3's to P3's in July of2009 mandated a second. In addition, the applicant just like the Soldier in Watson, was also due a mandatory MEB referral, because he fit a condition under Chapter 3 which significantly limited or interfered with the performance of his duties. Despite these three individual mandatory points of either referral for a DES screening, or flat out mandatory DES processing, at no point did he receive this legally required relief. w. The applicant was due a screening for DES referral on two occasions in 2009, and also due a mandatory MEB referral at that time as well. His PCM and commanders repeatedly failed in their duty under Army regulations to send him to such a screening. Regardless of why they may have done so, it was their legally mandated responsibility under Army regulations, and he should not have to pay for their negligence. Just like the Court of Federal Claims ordered in Watson, the ABCMR should refer him to the DES for an evaluation which considers the entirety of his medical records, not just those created prior to discharge, in order to determine his fitness for duty. Watson, 113 Fed. CL at 632-5. This evaluation should determine whether he was unfit for service in either April or July of 2009. x. Title 10 U.S. Code, section 1201 imposes two conditions for medical retirements for active duty personnel: that they (1) be found unfit for service by the DES and (2) have service-connected disabilities with a combined rating at or more than 30% based on the VA's standard schedule ratings of disabilities. By 10 June 2013, the applicant's service-connected disabilities were rated at 80% as of 1 February 2011, by 29 April 2020, they were rated at 100%, and by 17 February 2021 they were rated as total and permanent. The 10 June 2013 80% disability rating was based on his medical records as of 1 February 2011. Given that this rating was based on his state after years of surgery and recovery in the WTU, it is needless to say that he more than met the 30% threshold for a medical retirement in 2009 and 2010. Should the DES, or the ABCMR, find him to have been unfit for service in 2009 or 2010, he should thus be granted a medical retirement, as he more than exceeds the statutory conditions for it. y. The applicant spent more than two and a half years after the accident in the WTU, under theoretical temporary profiles that limited him to standing for no more than 30 minutes at a time. These temporary profiles were repeatedly extended for more than two years, despite it being blatantly obvious (and required by Army regulation) that he required permanent profiles. He repeatedly sought out such a permanent profile and was even granted one in 2008 before it was immediately rescinded by his PCM, who was seeking to ensure that he was discharged from the Army without disability benefits. He was suffering from conditions which clearly significantly limited or interfered with the performance of his duties and which mandated an MEB and a referral to a PEB. z. Given that the applicant was both undeployable and unable to otherwise serve for the last nearly three years of his active duty service, it is clear that he was unfit for duty. He spent that entire time under constant medical care and receiving counseling for his TBI and associated PTSD. He underwent surgery after surgery for his injuries. As established above, by Army regulation he should have received no less than three P3 profiles, when even only one establishes that a service member cannot be deployed. The fact that he was kept in a WTU for this entire period of time, the specific unit used by the Army for Soldiers who are unable to serve while recovering from their wounds, is further strong evidence in support of the fact that he was unfit for duty. Most importantly, this fact was clear by April of 2009, the latest possible date for his MRDP under Army regulations. As such, should the ABCMR consider the weight of the evidence to be such that it does not need a DES finding for them to find him unfit themselves, thee ABCMR should do so and grant him the medical retirement he deserves. aa. Conclusion. The applicant joined the armed forces at 17 and honorably served his county. He has since paid a terrible physical price for this service. Rather than treat him properly, the Army instead constantly stonewalled him when he requested referral to the DES, as he was due under Army regulations. They constantly extended his temporary profile and then indicated that he would be simply discharged, instead of being evaluated for the medical retirement he more than merited. They ignored that his conditions met the criteria for a mandatory MEB and referral to a PEB. bb. The ABCMR is tasked with the correction of errors or injustice. Here, there is both legal error and deep injustice. This can be resolved through granting the applicant what he should have received more than 10 years ago. The ABCMR should either refer him to the DES for an evaluation of his fitness for duty in 2009 or, should it find the evidence sufficient to find him unfit on its own, it should make such a finding itself. Based on the DES' assessment, or the ABCMR's own finding that he was unfit for service, the ABCMR should grant him a medical retirement and correct his DD Form 214 to reflect that he was separated due to disability. Finally, the ABCMR should grant him all attendant backpay that he should have been due, had he been discharged for disability in 2011 as should have happened. The complete 21-page counsel's statement was provided to the Board for their review and consideration. 4. The applicant enlisted in the Regular Army on 2 May 2002 for a period of four years. He arrived in Iraq on 17 January 2004 and reenlisted on 20 January 2005 for a period of four years. He departed Iraq on 26 January 2005. He served a second tour of duty in Iraq from 6 December 2007 to 13 April 2008. 5. The applicant provided several SFs 600, with dates ranging from 8 October 2008 through 29 November 2010, showing he was undergoing treatment/therapy at the WTU, Tripler Army Medical Center, Hawaii, due to multiple injuries he sustained in a military vehicle rollover on 13 April 2008. The SFs 600 also show he was issued a series of temporary profiles. 6. The applicant's DD Form 214 shows he was discharged from the Army on 31 January 2011 by reason of completion of required active service. The DD Form 214 also shows he completed 8 years, 8 months, and 29 days of active service and was assigned a reentry eligibility (RE) code of 1. 7. The applicant provided several VA Rating Decisions showing he was granted service-connected disability compensation, effective 1 February 2011, for several medical condition that include TBI and PTSD. 8. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 9. Title 38, U.S. Code, 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. 10. Title 38, Code of Federal Regulations, Part IV is the VA Schedule for Rating Disabilities (VASRD). 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. 11. 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 a referral to the Disability Evaluation System (DES). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 2 May 2005 and was honorably discharged on 31 January 2011 at the completion of his required active service under authority provided in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009). Is shows he served in Iraq from 17 January 2004 thru 26 January 2005 and again from 6 December 2007 thru 14 April 2008. His reentry code of 1 denotes he was fully qualified to reenlist. c. A 14 April 2008 Landstuhl Regional Medical Center orthopedic AHLTA encounter shows the applicant had been medically evacuated from Iraq after he sustained multiple injuries on 12 April 2008: “24-year-old active-duty OIF {Operation Iraqi Freedom} soldier, status post incident with suicide bomber on 12 April 2008. Sustained shrapnel wounds to right axilla ant/post {anterior/posterior}. Denies other injuries or complaints, including head, neck, back, left upper extremity, abdomen, pelvis, and lower extremities. To operating room for irrigation and debridement on 12 April with closure of longitudinal wounds ant & post axillary line. No documented description of nerve exploration/visualization in operative report from downrange. Films reportedly negative for fracture. Has minimal complaints of pain but has sensory deficits to RUE {right upper extremity} and hand as well as muscle weakness thru elbow, wrist, and fingers. Right-handed.” d. The examination revealed some neurological deficits in the RUE which would be followed for improvement. e. From a 27 May 2008 TBI Clinic evaluation at Walter Reed Army Medical Center (WRAMC): “Date of Injury: 13 April 2008 Mechanism of Injury: Humvee Rollover; gunner Hospital Course: Sustained immediate/brief LOC {loss of consciousness} at scene and was in "induced coma" for one week at WRAMC; he sustained extracranial injury with a described extracranial hematoma, sustained nasal fx {fracture}, right AC {acromioclavicular} joint separation, right clavicle fx, right ulna fx s/p ORIF {open reduction and internal fixation}, 3 hand fx's, collapsed lungs bilateral status post chest tubes. He was discharged from the hospital 21 May and has been doing well in Mologne house. He is to start OT, PT, no speech therapy ordered. He had formal RBANS and neuropsych testing performed with normal testing, except some irritability, pressured speech noted. He reports to be feeling much better now and not having these issues now.” f. Additional information from a second encounter on 27 May 2008: “The patient states that he is sleeping much better since taking Seroquel 12.5 mg nightly without morning fatigue. He reports stable daytime energy, good appetite, and a cheerful and hopeful mood. He looks forward to completing his tour of duty and attending college and working to support his family. The patient denies any psychiatric issues and is grateful for evaluation, although does not feel that follow up is necessary at this time.” g. He had been transferred to a Veterans Hospital Administration facility in , for rehabilitation, and been discharged on 21 May 2008, and continued his treatment and rehabilitation at WRAMC as an outpatient staying in the . He was transferred to the Warrior Transition Unit at that time. h. He was treated for his RUE injuries, low back pain, and post-concussive syndrome over the summer and returned to his home station at Schofield Barracks, HI in August where he continued outpatient treatment and rehabilitation. A 27 October 2008 neuropsychology encounter shows the plan was for the applicant to continue treatment thru Tripler Army Medical Center(TAMC) for at least 6 more months. “SM {service member} presented for an established appointment with this provider after having reschedule an appointment from last week. SM reported he is doing "okay." Feels more optimistic about his options because ortho at TAMC indicated that they will recommend that he stay in past his DEROS {Date Estimated Return from Overseas} of JAN for additional 6 months of OT {occupational therapy} and PT {physical therapy} prior to making the determination whether to perform another surgery on his elbow. SM spoke about his concerns to work full time at this time with his current level of function in his hand (limited grasp and strength). Reports continued increased irritability that is creating discord b/w him and wife. They initiated marital therapy via military one source.” i. The applicant had been diagnosed with depression which improved with treatment. From a 17 February 2009 psychiatry encounter: “PT {patient} comes in today reporting that he is feeling much better emotionally, not taking Zoloft or amitriptyline, sleep is good, not irritable. He was unable to have his clavicle repair as he had strep infection and hasn't rescheduled yet. He is enrolled in several classes and doing well. Current plan is to finish surgery and then get MEB {medical evaluation board}. PT currently fit for duty from psychiatric perspective and should not need profile for formation as no longer taking meds that are making him tired in AM.” j. Orthopedic encounters show the applicant had developed a non-union of his left clavicle fracture which was treated with open reduction and internal fixation on 12 March 2009. k. The applicant was diagnosed with lumbar degenerative joint disease in April 2009. l. His counsel contends the applicant’s “temporary profiles were wrongfully extended for more than 12 months in violation of Army regulations; he should have been given three Permanent 3 profiles by July of 2009 at the latest.” This would have referred the applicant into the DES. m. Contrary to counsel’s assertion, the applicant was placed on a permanent duty limiting physical profile for “Right Clavicle Fracture, Right AC (acromioclavicular joint) separation, LBP {low back pain} and referred to a medical evaluation board (MEB) on 23 January 2009. This profile was canceled on 7 April 2009 so the applicant could continue with treatment thru Tripler Army Medical Center. Stated on the new physical profile: “Soldier’s MEB (shoulder, knee, and back) is cancelled. He is undergoing surgery/rehab. MEB will re restarted after the Soldier completes rehab and is cleared by ortho. Temporary profiles will be reissued to cover rehab time. This profile supersedes previous U3 profile dated 23 January 2009.” n. In addition, the applicant requested a medical extension of his enlistment and a 9 November 2009 encounter shows it was approved: “WT {Warrior in Transition} into clinic for weekly NCM {nurse case manager} visit. States that he is doing well and attending all scheduled appointments. SM states that he was informed this am that the medical extension for his ETS has been approved. States that he is waiting to hear back from Dr. re: date for left elbow surgery (hardware removal). States that he also need refill on pain medications. SM voices no medical issues or concerns at this time.” o. A 20 November 2009 neuropsychology encounter shows the applicant had been diagnosed with and treated for PTSD. “PT reported that he is doing better this week, feels less irritable and has been sleeping well. Still stressed with finishing school semester. Nervous about his upcoming elbow surgery because each time he has surgery "I get off track with everything" such as his diet, exercise, schoolwork, and others. Expressed looking forward to improvement in his ROM {range of motion} and less pain in elbow after surgery and spoke about his plans to try surfing again which he has not been able to do since his injury. Reports he still notices he is still fairly hypervigilant when in unfamiliar settings and around crowds. This was processed. Reports he continues to have some fear especially at night about his and his family's safety but less so as of late, mostly because there has been no further crime or unusual events in the neighborhood as previously.” p. He continued to have some low back pain and a January 2010 MRI revealed a left paracentral disc herniation at L4-L5. Conservative treatment was initially successful, but symptoms returned worse than before and a repeat MRI revealed an increase in the L4-L5 disc herniation. May 2010 encounters show he was frustrated with still being in the Army, was scheduled for back surgery in August, but “He reports doing well otherwise and feels the Zoloft has helped.” From his 12 May 2010 orthopedic encounter: “The patient is a 25-year-old male with L4-5 herniated disc. I had a discussion with him about the possibility of surgery. The risks, benefits, and options were discussed with the patient. The patient demonstrated understanding of these issues and is in agreement with the proposed course. We filled out an operative request and we will be in contact with him. He does not want to proceed with surgery until August as he is getting his thumb reconstructed at the end of June. q. A 25 June 2010 neuropsychology encounter shows the applicant desired to remain in the Army for health care and was scheduled for upcoming hand surgery: “Pt had to leave a few minutes early to attend road map meeting at WTB. Pt expressed concern and worry about what the purpose of this meeting is and he feels that WTB is looking to "push me out because I have been here for so long." Discussed this and educated pt on purpose of road maps. Spoke about pt's long recovery process and his anticipation of the upcoming thumb surgery. Processed these emotions. r. The applicant underwent his thumb surgery on 29 June 2010 and his lumbar surgery on 26 August 2010. s. His 22 September 2010 neuropsychology encounter shows his diagnosis had been changed to anxiety disorder and that he was doing well: “Pt's anxiety continues to be stable. Discussed his recent back surgery and his recovery from this, which has been going well but has limited his activity. Spoke about his plans for the future which include going to law school vs. going into job market after his MBA is completed.” t. From his 15 October 2010 neuropsychology encounter: “Pt reported that his wife and children left island to move to but the couple has decided to stay together and possibly work on their marriage when he joins her in . Expressed frustration about ongoing medical issues and the fact that he is now being told that he will most likely need to complete more PT before they are able to determine if he should have MEB. Pt now plans to pursue doing WTB to WTB transfer to Ft Huachuca to be closer to family, which is something that I would support and recommend.” u. From his 17 November 2010 neuropsychology encounter: “Pt reported that he has decided that he would ETS rather than wait for another few months of rehab for a determination for a potential MEB. We discussed how he weighed out his options and how he discussed them with his wife and how he came to the conclusion. He already has orders to final out on 6 DEC and flies off island 7 DEC. Reports he is content with this decision because he was frustrated with the long healing process but regrets he is unable to take care of all of his remaining medical issues on active duty but plans to take care of them in VA which is where he is moving.” v. His final encounters, telephone consults with his WTU nurse case manager on 22 December 2010 and 3 January 2011 shows he was doing well: “SM in with family and on transitional leave until 31 JAN 2011. SM reports everything going well and with no concerns. Informed SM that if any concerns/ questions arise to call NCM, SM agrees.” “SM driving from Illinois to Arizona. SM states everything is good and verbalizes no concerns.” w. The applicant was on a temporary duty limiting physical profile at the time of his voluntary separation. While it is certainly possible the applicant would have at some point been referred into the DES, he chose to separate from the Army prior to this decision being made. x. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” y. This concept from the DES’s governing document is incorporated into paragraph 3-2b(1) of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states: “Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.” z. Review of her records in JLV shows she has been awarded multiple VA service-connected disability ratings. The highest is a 50% disability rating “Flat Foot Condition,” and issue which was not part of his WTU care. He also has 40% rating for traumatic brain disease and several 20% ratings related to his lumbar spine and upper extremities. He does not have a rated mental health condition. aa. 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. bb. It is the opinion of the ARBA medical advisor that a referral of the case to the DES is not warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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, an advisory opinion, counsel’s petition, and regulatory guidance were carefully considered. Evidence of record shows the applicant was on a temporary duty limiting physical profile at the time of his voluntary separation. The governing regulation provides that all permanent "3" and "4" profiles, for Soldiers on active duty, will be reviewed by an MEB physician or physician approval authority. If the profile is permanent, the profiling officer must assess if the Soldier meets the medical retention standards of chapter 3. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a referral of his medical records to the Army Disability Evaluation System (DES) was warranted during his period of active service. 3. 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. 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, U.S. 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. 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 DES 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 AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 3. AR 635-40 establishes the Army DES 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. a. 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 or 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 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. b. Service members whose medical condition did not exist prior to service 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. 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. 4. AR 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 7 (Physical Profiling), paragraph 7-4 (Temporary vs Permanent Profiles) of the regulation in effect at the time states: a. Permanent Profile: A permanent profile may only be awarded or changed by the proper authority. All permanent "3" and "4" profiles, for Soldiers on active duty, will be reviewed by an MEB physician or physician approval authority. If the profile is permanent, the profiling officer must assess if the Soldier meets the medical retention standards of chapter 3. Those Soldiers on active duty who do not meet the medical retention standards must be referred to an MEB. b. Soldiers who have one or more condition(s) that do not meet medical retention standards are referred to a MEB/PEB after attaining the MRDP. The MRDP is when the Soldier’s progress appears to have medically stabilized; the course of further recovery is relatively predictable; and where it can be reasonably determined that the Soldier is most likely not capable of performing the duties required of his military occupational specialty (MOS), grade, or rank. This MRDP and referral to a MEB/PEB will be made within 1 year of being diagnosed with a medical condition(s) that does not appear to meet medical retention standards, but the referral may be earlier if the medical provider determines that the Soldier will not be capable of returning to duty within 1 year. The MEB physician or physician approval authority will review all MEB referrals to ensure that MRDP has been achieved prior to initiating an MEB: coordinate inappropriate MEB referrals back through the profiling officer for appropriate disposition; and assist physician approving authorities in reconciling profiling officer’s questions and concerns about MRDP timing and MMRB versus MEB referrals. The MEB physician or physician approval authority will review all profiles to confirm that the MRDP has been reached before obtaining the approving authority signature. c. Those Soldiers who meet retention standards but have at least a 3 or 4 PULHES serial will be referred to a Medical MOS Retention Board (MMRB), unless waived by the MMRB convening authority. Permanent profiles may be amended (following the correct procedure) at any time if clinically indicated and will automatically be reviewed and verified by the privileged provider at the time of a Soldier’s periodic health assessment or other medical examination. d. Temporary Profiles: Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery, will be managed with temporary physical profiles until they reach the point in their evaluation, recovery, or rehabilitation where the profiling officer determines that MRDP has been achieved but no longer than 12 months. A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity. Soldiers on active duty and Reserve Components Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer. e. Temporary profiles exceeding 6 months duration, for the same medical condition, will be referred to a specialist (for that medical condition) for management and consideration for one of the following actions: (1) Continuation of a temporary profile for a maximum of 12 months from the initial profile start date; (2) Change the temporary profile to a permanent profile; (3) Determination of whether the Soldier meets the medical retention standards of chapter 3 and, if not, referral to anMEB. f. The profiling officer must review previous profiles before making a decision to extend a temporary profile and refer the Soldier to a medical specialist for management if the temporary profile has been in effect for 6 months. Any extension of a temporary profile must be recorded on DA Form 3349, and if renewed, item 8 on the DA Form 3349 will contain the following statement: "This temporary profile is an extension of a temporary profile first issued on (date)." In no case will Soldiers carry a temporary profile that has been extended for more than 12 months. If a profile is needed beyond the 12 months, the temporary profile will be changed to a permanent profile. Exceptions to the 12-month temporary physical profile restriction must be approved by the medical treatment facility commander or their designated senior physician approval authority. 5. The Army Recovery Care Program (ARCP) (previously known as the Warrior Care and Transition Program) transitions Soldiers back to the force and/or to Veteran status through a comprehensive program of medical care/rehabilitation management, professional development, and achievement of personal goals. The ARCP provides policy oversight to the 14 Soldier Recovery Units (SRU) (previously known as WTU) located on military installations across the country. SRUs manage the recovery of wounded, ill, and injured Soldiers requiring complex care. The SRU is designed to provide complex case management for Soldiers who meet the ARCP single entry criteria. SRU Single Entry Criteria: Soldier has, or is anticipated to receive, a profile of more than six months duration, with duty limitations that preclude the Soldier from training or contributing to unit mission accomplishment; the complexity of the Soldier's condition requires clinical case management. 6. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and Reserve Components. The regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records and the reason for separation. RE-1 applies to persons completing their term of active service who are considered qualified to reenter the U.S. Army 7. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//