IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220000951 APPLICANT REQUESTS: in effect, * to be permanently retired based on physical disability * personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision * News Article 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, in effect: a. On 28 June 2007, at approximately 1400 hours, four convoy patrol vehicles were about to get off and head back to base. However, an Improvised Explosive Device (IED) went off on the road underneath the lead vehicle of the convoy killing instantly all four men in that vehicle. He and his fellow Soldier, Sergeant (SGT) were on the second vehicle. He was the gunner, and he was knocked out from the IED blast wave. He remembers SGT, who was the medic and was sitting behind him, hitting him in the head to wake him up. He woke up and got out of the vehicle. He followed SGT momentarily and then he saw SGT standing in front of him then seconds later he was laying down on the ground face up. SGT had wounds in his forehead and his brain came out. At the time he thought he had accidentally hurt SGT, his mind went black, and he thought he would be in trouble because SGT was dying because of him. b. Later, he had post-traumatic stress disorder (PTSD) and wanted to shoot himself because he thought that he accidentally killed his fellow Soldier. His life was over. He contends he suffered with PTSD and traumatic brain injury (TBI) and is struggling with how to go on with his life after the military. He is appealing the 10 percent disability rating he received for his PTSD. He is unsure of going back to work because he is always thinking about the loss of his friend. c. In 2021, he found out from another friend that SGT was hit by a grenade but was able to run a short distance before dying from his injuries. He was not the one that had killed his friend. He continues to suffer from chronic PTSD. 3. The applicant's record shows he enlisted in the Regular Army on 10 March 2003. 4. His record contains a DA Form 199, which shows, on 22 February 2008, the PEB found the applicant unfit for continued service due to his PTSD. His TBI with intermittent prostrating headaches and moderate cognitive disorder, independently unfitting. The evidence showed that there was no significant cognitive disorder due to brain injury and the health record showed that his headaches had largely resolved with medical management. This form further shows that the PEB recommended a combined disability percentage of 50 percent with placement on the TDRL. On 25 February 2008, the applicant concurred with the PEB's findings and waived his right to a formal hearing. 5. On 27 March 2008, the applicant was retired by reason of temporary disability in the rank of specialist, pay grade E-4. He served 5 years, and 18 days of net active service and was awarded the Purple Heart. 6. On 16 June 2011, the PEB reevaluated the applicant's PTSD and determined he was competent to participate in Medical Evaluation Board/PEB proceedings but remained unfit to return to military duty due to the risk of decompensation and should not carry or fire a weapon. His PTSD was stable. The PEB recommended a combined disability percentage of 10 percent. The applicant concurred with the PEB's findings and waived his right to a formal hearing on 12 July 2011. 7. On 14 July 2011, the applicant was administratively removed from the TDRL by law with entitlement to severance pay. 8. The applicant provides: a. His VA Disability Rating dated 28 March 2018, which shows the VA evaluated his PTSD and TBI as 100 percent disabling. b. A news article titled, "Great Read: Army Veteran's Guilt Over Surviving Iraq Is A Wound That Won't Heal." This article features the applicant and tells the story of how he took responsibility for the death of a fellow Soldier despite significant evidence to the contrary, and how he struggled with, and continues to have, survivor's guilt. This article also indicates the applicant was suffering from schizophrenia or a related condition. 9. Regulatory guidance states the permanency of a disability, is based on accepted medical principles. A disability will be considered as "may be permanent" if it has not stabilized, and one of the following occurs: a. The Soldier may recover so as to be fit for duty. b. The defect is expected to change in severity within the next 5 years so as to change the compensable percentage rating. 10. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing. 11. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). In essence the applicant contends that it was an error for his 50 percent disability rating at the time of placement on TDRL (in 2008), to be decreased to 10 percent disability rating after the TDRL reevaluation (in 2011). a. The PEB convened 22Feb2008 found that the PTSD condition due to combat, was unfitting for continued service. The condition was temporarily rate at 50% for reduced reliability and productivity. The condition was evolving and not stable for permanent rating; therefore, he was place on TDRL. Upon review of the applicant’s record to include the April 2011 TDRL reevaluation, the 16Jun2011 PEB found that the PTSD condition was still unfitting for military service. The condition was considered to be stable for permanent rating. The condition was rated at 10% for symptoms that were transient or mild. His disposition was separation with severance pay. At the time, the applicant concurred with PEB findings and waived a formal hearing of his case. (1) 29Jun2007 Combat Support Hospital-Tallil. While conducting operations in Iraq the vehicle in which he was the gunner came under attack by a VBIED, RPG, Grenades, and small arms fire. He suffered wounds to his elbow, right leg, and face. He noticed hearing loss following the incident and was diagnosed with tympanic membrane (eardrum) perforations. He spent a few days in the combat support hospital. Of note, he had a prior significant blast exposure 04Mar2007. (2) 16Aug2007 CSH-Baghdad. He was psychiatrically admitted for suicide ideation. A severe headache and ongoing marital conflict were the reported stressors; but PTSD symptoms were also found during admission. (3) 25-29 August 2007 Cedar Springs Behavioral Health System hospitalized for suicide ideation for the following stressors: Concussion from IED blast; Wife requested divorce; ''Posttraumatic Stress Reaction''; and Headaches. (4) 07Nov2007 Psychiatry Evans ACH/ MEB Exam. The provider wrote: “This was a somewhat disheveled male dressed in loose-fitting civilian attire who related in a somewhat dazed fashion with the examiner. He had an intense eye contact and sat alertly in his chair, but did not initiate conversation”…“he had difficulties managing day-to-day interactions with his supervisors even with highly structured requirements…” (5) 21Jul2009 Neurological Disorders C&P Exam. He was living at Canyon Manor Mental Health Rehabilitation Center, a residential facility under psychiatric care and came to the appointment accompanied by a social worker from that place. He had been there for approximately four weeks after an admission to San Francisco VAMC (in May 2009) for suicidal ideation and psychosis. His problems included PTSD, depression, polysubstance abuse, and decreased concentration and executive functioning. The general course of his condition was assessed to be that of gradual waxing and waning with no improvement, except he had currently managed 6 week sobriety from substance abuse. (6) 22Jul2009 Mental Disorders C&P Exam. The exam was completed in response to a request for increase for Post-concussive Head Syndrome, Status Post Closed Head Injury with Concussion that was rated at 10% at the time; while he was under conservatorship and involuntarily hospitalized at Canyon Manor Mental Health Rehabilitation Center after being in the intensive care unit at San Francisco VAMC. The history obtained included a psychiatric hospitalization from 27May2009 through 23Jun2009 at the San Francisco VAMC with a diagnosis of Unspecified Schizophrenia, PTSD, Obsessive/Compulsive Disorder, and Tinnitus NOS. He had also been hospitalized on the same unit from 08May2009 through 11May2009 for generally the same diagnoses, but drug psychiatric disorder with delusions was also noted. Another report also included gambling and relationship issues. Prior neuropsychiatric testing had been completed with final assessment indicating that cognitive disorder was generally resolved. This examiner felt that the current evaluation revealed the presence of an enduring cognitive disorder NOS, though it was of mild severity. Mental Status Exam: He was hearing voices daily, hypervigilant, and speech was slow/halting. Diagnoses: PTSD, Psychosis NOS, and Cognitive Disorder, Mild. His disability was thought to be due to PTSD and psychosis, and mild cognitive dysfunction (25% of the cause of impairment) and less likely substance abuse, but it wasn’t ruled out completely. At the time, the examiner felt that the applicant should be seen as totally disabled relative to employability. GAF (global assessment functioning) score was 30 (unable to function in almost all areas). Prognosis was deemed “hopeful” given his age, but otherwise “guarded”. (7) 15Sep2009 VA Rating Decision (in part) in response to a request for increase showed PTSD change from 50% to 100%. (8) 26Jan2010 Psychiatry Outpatient Note. He was hospitalized at Canyon Manor Mental Health Rehabilitation Center for 5 months (June-October of 2009). Since then, he reported that he stayed at home watching movies; slept about 9 hours/night without trouble falling asleep, and he no longer had nightmares. (9) 22Feb2010 TB C&P Exam. He reported feeling vulnerable, depressed, anxious about the future, and powerless and unmotivated to do something with his life. Of particular note, the applicant acknowledged a history of irritability, but endorsed that this was not a problem now that he was on medication. Similarly, his prior significant history of impulsivity and mood lability had also improved with medication (Risperdal and Trazodone) and PTSD counseling. (10) Manilla VAMC Social Work Telephone Notes from 23Jul2010 through 20Jan2011, social workers kept in contact with the applicant after he returned to the Philippines after spending 5 months in residential rehab for drugs/alcohol. After rehab, he was taking Lexapro daily, and going to Capstone College for a degree in Business Management 4-5 hours/day, 5 days/week. His sleep was okay and without problematic dreams. He denied flashbacks. He reported still being emotional and feeling tensed. His Lexapro was increased and Prolonged Exposure Therapy (PET) was discussed. In the 20Jan2011 Manilla VAMC Social Work Telephone Note, no mental health concern was mentioned. (11) 14Feb2011 Manilla VAMC Psychology Outpatient Note. PCL-C (civilian version of PTSD self-checklist) score 53. Scores 45-85 were suggestive of high severity of PTSD symptoms. The applicant was logical, he admitted past mistakes, he was agreeable restarting BH service, in particular Prolonged Exposure Therapy (PET) was discussed again. (12) 25Feb2011 Psychiatry Outpatient Consult. He was enrolled in college. He stopped studying after one semester, he felt he just wanted to do workouts in the gym which he did for 2 months, now he jogs. The exam showed “somewhat blunt affect slightly dysphoric mood, with some smiles”. His judgment was “good”; insight was “fair”; and impulse was “fair to good”. (13) 18Apr2011 Outpatient Psychiatry Tripler AMC (TDRL Exam). The applicant had undergone a MEB/PEB three years prior. In the interim, he moved to. He was divorced. He became engaged in March 2010. He did not work at all while on TDRL because he thought he could not work while receiving disability pay. He did housework. He quit smoking and drinking 9 months prior. (He had been drinking approximately 10 beers per night.) He denied sleep issues and irritability. He had nightmares 1x/month. He reported being able to feel close to others and to have loving feelings. He denied a foreshortened sense of the future. He reported being able to go to the shopping mall or to restaurants without being fearful or uncomfortable in crowds. His Mental Status Exam was essentially normal, of note his speech rate was slow and he had some difficulty with word finding (both were attributable to English being his second language). TDRL Diagnosis: Anxiety Disorder NOS, as manifested by nightmares involving combat trauma and persistent guilt about not being able to complete his tour in Iraq. This resulted in transient panic attacks. The examiner stated it was difficult to determine the applicant’s occupational impairment because he wasn’t working. However, since his current level of symptomatology was mild and transient, the examiner opined that the applicant would experience a decrease in work efficiency and ability to perform occupational tasks during periods of significant stress. He had responded well to treatment, but he would likely decompensate if he were returned to military duty. The GAF score was 65 (mild symptoms, generally functioning pretty well). (14) 19Apr2011 Social Work Telephone Note. Collaborative information obtained from his fiancée: She indicated that the applicant was doing fine. He was going to the gym every day (workouts, jogging, stretching). He had totally stopped his vices (alcohol and illicit substances). He was planning to return to the United States for possible employment. (15) 07Jul2011 Social Work Telephone Encounter. The applicant reported playing badminton three times per week to keep himself busy and to avoid panic attacks. He enjoyed doing household chores in his free time. His medicine regimen helped to relax him and to control negative thoughts. He stated that he felt better and that he and his fiancée were planning to work in the United States. (16) 14Jul2011, the applicant was removed from TDRL and discharged from service. (17) 04Aug2011 Psychiatry Consult. He denied irritability. He was able to go places alone. He flew to. He was having less nightmares, although he was still having some intrusive thoughts. The applicant had signed up for Prolonged Exposure Therapy (PET) to continue his progress. (18) 26Sep2011 Psychiatry PET Note. PET was suspended after this second session because he was too unstable. He was drinking daily. He reported at least 4 instances of poor impulse control/violence (used pepper spray twice on persons who were a perceived threat, slapped a guy, hit his brother); frequent reactivity; and ongoing conflict between his ex-girlfriend and his fiancé. (19) To further demonstrate the waxing and waning nature of the applicant’s condition, the results of testing showed the following in 2013: BDI-II score 0, consistent with no depression; BAI score 1, consistent with minimal anxiety; PCL- M score 24 which was below the cutoff consistent with PTSD; and his performance on measures of executive functioning ranged from borderline impaired to average (14Jun2013 Neuropsychology Consult). At the time he was consuming 3-4 beers/month; he was smoking 1 gram of medical marijuana per day (prescribed for his headaches); he was married since March 2010; he did not report working or going to school; he was attending church weekly; he was taking his medication regularly with his wife’s help and managing his own finances. (20) After discharge the applicant continued to be hospitalized periodically 07Oct2014 (PTSD, Psychosis, Gambling and Substance Abuse); 29Jan2015 (Psychosis, PTSD etc); 14May2017; 08Jun2021; and 10Nov2021. b. The PEB convened 22Feb2008 did NOT find TBI with Intermittent Prostrating Headaches and Moderate Cognitive Disorder, independently unfitting for continued service. It was indicated that the headaches had largely resolved with medical management. This review covered these conditions because they were specifically considered for ruling out by the MEB and were also reassessed during the TDRL exam. Post-concussive Headaches (1) 18Aug2007 Landstuhl. The applicant reported prior treatment with Tylenol, Naprosyn, Propranolol, and Zoloft, and indicated his headache pain (3/10) was under good control. (2) 25Sep2007 TMC Fort Carson. He was started on Midrin without relief. (3) 04Dec2007 Neurology 10th Medical Group. He was started on Topomax. (4) 11Jan2008 Neurology 10th Medical Group. The applicant’s headaches demonstrated moderate improvement. Topamax was increased from 25mg twice a day to 50mg twice per day. (5) 17Jan2008 Psychiatry Evans ACH note. The provider wrote: “…headaches have all but resolved since starting on the Topamax”. (6) 21Jul2009 Neurological Disorders, Miscellaneous VA C&P Exam. He had a history of daily headaches that lasted about an hour, that he would wake up with that range in severity from a 2/10 to a 10/10 but they generally only lasted an hour. They were most reminiscent of tension like headaches and had resolved. The VA rating authority deemed that this exam was insufficient to thoroughly evaluate his headache condition (15Sep2009 VA Rating Decision). (7) 22Feb2010 TBI C&P Exam. He had experienced a significant problem with headaches from the day of the explosion until his discharge but basically these had resolved over the past several months. He had also had significant dizziness and vertigo on a daily basis from the day of the incident until about a year ago but these had also (spontaneously) resolved. (8) 19Apr2011 Neurology Clinic Tripler AMC. Interim history: The headache frequency had improved a great deal to once every 3 months, with duration 1 to 2 hours. The provider concluded that the applicant’s Headache Condition was not disqualifying for military service. (9) 06Sep2011 Neurology Outpatient Consult. Since June or July 2010 his headaches had decreased in frequency to once a month and lasted for less than a minute. Follow up 6 months. c. Cognitive Disorder Not Otherwise Specified.. (1) 30Jun2007 MACE score 20/30. He was felt to have had a concussion with no loss of consciousness. Dizziness, confusion/disorientation, and speech difficulties (speech was slow) were present. There was no vertigo, no convulsions, no decrease in consciousness, no motor disturbances, and coordination was good. “The mean MACE (Military Acute Concussion Evaluation) cognitive test score in military populations is 28, and a score of <25 points (2 standard deviations from the mean), represents potentially clinically relevant cognitive impairment (Front Neurol. 2020; 11: 839)”. (2) 12Jul2007 CSH-Tallil Clinic. While still in theatre, his MACE score was 29/30. (3) 20Aug2007 MACE Questionnaire. MACE score 29/30. It was recorded that there was a concussion with loss of consciousness. Head CT scan was normal. (4) 11Sep2007 Warrior Family Medicine. The neuropsychological testing was completed to rule out TBI effects. He had some cognitive slowing, but he did well on MMSE (Mini Mental Status Exam) that morning. (5) 17 and 28Sep2007 Neuropsychological Evaluation. Intellectual baseline was estimated to be at the low end of the normal range with Performance IQ of 90. Neuropsychological testing did NOT confirm clinically significant organic brain damage. (6) 07Nov2007 Psychiatry Evans ACH. Cognitive Disorder, generally resolved, manifested by acute memory impairments following concussive blast injury that had resolved to the point of little or no change from limited baseline cognitive functioning. The severity was considered to be mild. Childhood trauma; pre military history, as well as current difficulty with interpersonal relationships were also considered to be contributing to his clinical condition. Cognitive Disorder, Mild was deemed to MEET retention standards, and merited a permanent S-2 physical profile. (7) 24Feb2009 Psychiatry Outpatient. He reported that he did not notice any cognitive or affective sequelae from the head injury. (8) 10Apr2009 Neuropsychology Consult. Diagnoses: Cannabis Dependence, Alcohol Dependence in early remission, PTSD, Depressive Disorder NOS, and rule out of Cognitive Disorder NOS. It was noted that cognitive difficulties were "patchy" and mild, and the etiology was somewhat unclear. During the exam, he reported prior neuropsychological testing in Colorado which showed low cognitive functioning. He also provided the history that he had repeated sophomore year in high school multiple times due to lack of enjoyment or conflicts with teachers. He performed better in school when he was incentivized to come to the US contingent on good academic status. His time in service was the longest job he ever held. (9) 21Jul2009 Neurological Disorders C&P Exam. MMSE score 27 out of 30. (10) 22Feb2010 TBI C&P Exam. MMSE score was 30/30. The examiner indicated that the applicant did not have any subjective symptoms from a neurologic perspective that interfered with work. The examiner also affirmed that the head injury and psychiatric issues were 2 separate conditions. Of note, the provider appeared to conclude that it was very difficult to attribute the applicant’s current symptoms to the head injury given his perfect performance on the MMSE on that day, and also given his apparent and significant psychiatric issues the year prior. (11) 09Mar2010 VA Rating Decision. Evaluation of Post-concussive Headache Syndrome, Status Post Closed Head Injury with Concussion which had been currently rated at 10% was increased to 40%. The 40% was assigned for level 2 severity for the memory, attention, concentration, and executive functions facet indicating that the examiner found objective evidence on testing of mild impairment. The narrative also indicated that the applicant was not competent to handle disbursement of funds, but this was NOT based on neurologic findings. (12) 19Apr2011 Neurology Clinic Tripler AMC. This provider felt the Post- concussion Syndrome/Cognitive Disorder NOS conditions were disqualifying. The PEB convened on 16Jun2011 did not mention the Post-concussion Syndrome/Cognitive Disorder NOS conditions—they had previously been determined by the PEB to be NOT unfitting. The 2018 VA Rating Decision evaluated the PTSD condition in combination with the Cognitive Disorder. (13) 28Mar2018 VA Rating Decision showed PTSD with TBI currently rated at 100%, was continued. Post-concussive Headache Syndrome previously rated at 40% was decreased to 0%, effective 07Sep2017. d. Review of the applicant’s BH history was complicated by the presence of his Mild Cognitive Disorder, and substance abuse. Based on his entire clinical picture, the applicant’s PTSD and Depression with Psychosis conditions were manageable when he took his psychotropic medication regularly and abstained from illicit substances. That notwithstanding, substance abuse is a common comorbidity for both PTSD and TBI. The applicant reported first use of alcohol was in 2003. However, alcohol use did not become a problem until after the blast injury in 2008. Similarly, although he reported first use of marijuana was due to depression after a relationship break up; this also took place after the blast injury in 2008. Alcohol and drug abuse are not ratable conditions; however, for this applicant the impact on his psychiatric conditions and cognitive dysfunction was undeniable and yet it was difficult to assess the severity of the ratable conditions in isolation from his substance abuse because abstinence was difficult for him. The period from March 2010 when he had stopped use of alcohol and marijuana until the psychiatrist endorsed that he was clinically unstable in September 2011, was 18 months. Thirteen months into this 18 month period, he had the April 2011 TDRL exam during which he was doing well and the condition was deemed stable for permanent rating. Per regulation as stated at the time, a condition was stable for rating when with reasonable expectation, the compensable percentage rating will remain un- changed during the following 5-year period (AR 635-40 4-19 h(1)(a)). However, two months after removal from TDRL, the applicant’s BH condition worsened again. The applicant’s wife divulged a few months later that he had not been taking his medication regularly. At the time of the TDRL exam, the PTSD condition was clinically stable and in addition, the condition appeared to be stable for rating—the thirteen month period was the longest period of clinical stability yet for the applicant and it was reasonable to presume that the condition was stable for permanent rating. In the ARBA Medical Reviewer’s opinion, if the applicant’s rating was based solely on the April 2011 TDRL exam, then the 10% rating would be accurate. However, VASRD principles provide that “Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all of the evidence of record (§4.130 Evaluation of psychiatric disability). In contemporaneous telephone notes by Manilla VAMC Social Work during the first half of the 18 month period, despite abstinence from alcohol and marijuana, the applicant reported feeling emotional and tense and not doing much with his time except watching tv all day and going to appointments. In addition, during mental status exams, examiners frequently and consistently commented on the applicant’s affect. Generally, it was described as ‘flattened’ or ‘constricted’. It was noted during the TDRL exam and others during that time period, mood was ‘euthymic’ and affect ‘normal’ (19Apr2011 Neurology Clinic and 20Apr2011 ENT Clinic Psychiatric Exam). And finally, during the 14Feb2011 Manilla VAMC Psychology Outpatient Note, the applicant’s test results were suggestive of high severity of PTSD symptoms. Based on review of all of the available evidence, it is the ARBA Reviewer’s opinion, that the 50% rating for PTSD should have been continued. It should be stated that the reviewer considered whether the VA’s 100% rating at the time should be adopted; however, the 100% rating at the time appeared to be based on the 22Jul2009 Mental Disorders C&P Exam which was completed while the applicant was inpatient; had been experiencing psychosis; and was under conservatorship. The Medical ARBA Reviewer concurred with the PEB that the Post-concussion Syndrome and Mild Cognitive Disorder NOS conditions were NOT unfitting. BOARD DISCUSSION: 1. The Board determined 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, and regulatory guidance were carefully considered. a. The evidence of record shows a PEB found the applicant unfit for continued service due to his PTSD. His TBI with intermittent prostrating headaches and moderate cognitive disorder, independently unfitting. The evidence showed that there was no significant cognitive disorder due to brain injury and the health record showed that his headaches had largely resolved with medical management. The PEB recommended a combined disability percentage of 50% percent with placement on the TDRL. He concurred and retired by reason of temporary disability. A TDRL PEB reevaluated his PTSD and determined he remained unfit to return to military duty due to the risk of decompensation and should not carry or fire a weapon. His PTSD was stable. The PEB recommended a combined disability percentage of 10%. He concurred and was administratively removed from the TDRL by law with entitlement to severance pay. b. The Board determined it is premature to permanently retire the applicant. The Board determined if the applicant’s rating was based solely on the April 2011 TDRL exam, then the 10% rating would be accurate. However, VASRD principles provide that “Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all of the evidence of record. As such, the Board determined the applicant’s TDRL PEB should be re-reviewed by the U.S. Army Physical Disability Agency (USAPDA) for the correct disposition. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his TDRL PEB, dated 16 June 2011, and supporting medical exam to the U.S. Army Physical Disability Agency (USAPDA) for re-evaluation/re-look. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation by the USAPDA. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. The temporary disability retired list (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. b. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, United States Code, Section 1208. In addition, the condition must be determined to be temporary or unstable. c. A Soldier is placed on the TDRL if fully qualified for permanent retirement except that the disability "may be permanent." The Soldier may not be placed on the TDRL for any other reason. Based on accepted medical principles, a disability will be considered as "may be permanent” if it has not stabilized, and one of the following occurs: (1) The Soldier may recover so as to be fit for duty. (2) The defect is expected to change in severity within the next 5 years so as to change the compensable percentage rating. 3. Title 38, USC, section 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38, USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000951 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1