IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20220003197 APPLICANT REQUESTS: disability separation retirement instead of disability severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 17 November 2021 * Self-authored Statement, 11 November 2021 * 28 pages of additional VA medical evidence, 2 November 2021 * Letter of reference 3 November 2021 * Veterans Administration Benefits Summary, 11 November 2021 FACTS: 1. The applicant did not file within the three-year period 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. He was medically separated and would like to be considered for a change in his reason for separation to medical retirement. He was not in a correct state of mind. His injuries were getting more severe. He was unaware of the difference between separation and retirement. b. He continues to deal with post-traumatic stress disorder (PTSD) and other mental health issues and severe physical pain daily. He was battling severe depression, anxiety, and PTSD while he was at Fort Hood. c. When he was going through his medical evaluation board in 2015, he was in an unbelievably bad place physically, mentally, and emotionally. He was young and uninformed about the benefits he was about to receive with his separation. When the Physical Evaluation Board Liaison Officer told him he was eligible for an overall rating of 90% he had not seen someone receive a 90% rating on their initial rating. c. He was afraid to appeal the rating because he did not want to stay a Fort Hood for a longer time during the appeal process. If he had been in a stable state of mind, he would have appealed it for a higher rating to include his right-knee pain, right-wrist pain, along with his shoulder pain. These injuries are still making him not fit for service. d. He is battling PTSD, anxiety, depression, and the pain from his physical injuries during service. His lower back pain can be unbearable at times. It is a never ending cycle of being in pain and battling himself in his head. 3. On 9 June 2010, the applicant enlisted in the Regular Army for a period of 4 years and 32 weeks. He completed Basic Combat Training at Fort Leonard Wood, he completed Advanced Individual Training at Fort Gordon, and he was awarded military occupational specialty 25Q (Multichannel Transmission Systems Operator/Maintainer). 4. On 3 January 2014, he reenlisted for a period of 3 years at grade/pay grade specialist/E-4 and was subsequently promoted to sergeant/E-5. 5. His available records are void of a DA Form 3947 (Medical Evaluation Board Proceedings) or a DA Form 199 (Physical Evaluation Board Proceedings) showing when an MEB or an informal PEB. 6. His records contain orders 335-0100, 1 December 2015, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, showing he was reassigned to the U.S. Army Transition point for transition processing, with a date of separation of 20 January 2016. These orders further show he was authorized disability severance pay in the pay grade of E-5 at a percentage of disability of 10% based on 5 years and 7 months, and 16 days of service as computed by Title 10, U.S. Code Section 1208. His disability was not based on injury or disease received in the line of duty while in a combat zone or during the performance of duties in a combat zone. 7. On 20 January 2016, he was honorably discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 7 months, and 16 days of net active service and was discharged at the grade/pay grade of sergeant/E- 5. It further shows in: * Block 18 (Remarks) – in part, "disability severance pay – $30967.20" and "Service in Afghanistan 27 December 2012 to 6 August 2013" * Block 25 (Separation Authority) – Army Regulation (635-40), Chapter 4 * Block 28 (Narrative Reason for Separation) – Disability, Severance Pay, Non- Combat (Enhanced) 8. On 14 January 2016, he was issued a DD Form 215 (Correction to DD form 214), showing in Block 18, his disability separation pay amended to show $31,370.40. 9. He provided copies of: a. Veterans Administration history of military service, 2 November 2021, showing his history of disabilities and treatment. This document was marked confidential but was reviewed and cleared by ARBA Security for review. b. A character reference from SSG Soldier who served with him in Afghanistan who stated the applicant, and he were particularly good friends when they were stationed together in Hawaii. The applicant was an exceptionally good Soldier, performing well and they both deployed to Afghanistan where he opened up about his mental state and how the deployment in support of Operation Enduring Freedom was affecting him. Once he was back at Fort Bragg, he sustained a major injury to his shoulder and his personality and character began to change. c. A letter from the VA showing he was granted an 100% permanent disability due solely to his service connected disabilities, effective 19 March 2019. 10. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), 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), the Electronic Disability Evaluation System (eDES), and the VA's Joint Legacy Viewer (JLV). The applicant requests a change from medical separation to medical retirement. He stated that he still suffers from PTSD, other mental illness, and physical pain. He contends that had he been in a better state of mind (during the MEB/PEB process), he would have appealed for a higher shoulder rating; and he would have also appealed to have the right knee pain and right wrist pain added as unfitting for continued service. And finally, he mentioned lower back pain, and a weak left ankle. a. 09Oct2015 MEB Proceedings showed that only the Labral Tear, Left Shoulder, Status Post Surgery was determined by the MEB to NOT meet medical retention standards. The applicant concurred with the MEB findings. A request for independent medical review of his case was not found. The PEB convened 16Nov2015 found the Labral Tear, Left Shoulder, Status Post Surgery condition unfitting for continued service at 10% under 5201-5019. The case was adjudicated as part of the Integrated Disability Evaluation System. As such, the rating was applied as proposed in the 04Nov2015 Disability Evaluation System Proposed Rating. The PEB’s recommended disposition was separation with severance pay. The applicant concurred with the PEB findings and waived a formal hearing. He did not request reconsideration of the VA ratings. (1) Records showed that the left shoulder condition was the result of a football injury incurred while at Fort Hood on or about 25Sep2014. He underwent physical therapy both before and after his shoulder surgery that took place on 18Feb2015. Intervention also included injection therapy. (2) Command stated that due to the left shoulder condition, the applicant was unable to wear his gear and that this limited deployment. (3) The 06Oct2015 Shoulder Conditions DBQ showed ROM flexion 0 to 180 degrees (normal); abduction 0 to 160 degrees (normal is to 180 degrees); external rotation 0 to 90 degrees (normal); internal rotation 0 to 70 degrees (normal is to 90 degrees). There was pain with motion, but it did not cause functional loss. There was no evidence of pain with weight bearing. Left shoulder flexion and abduction strength was decreased 4/5. There was no shoulder instability, but impingement tests were positive. b. Left shoulder medical records after the MEB (1) 23Nov2015 Physical Therapy Note. During the final physical therapy visit prior to discharge from service, the provider assessed that the applicant’s complaint of symptoms and limitations did not correlate well with the objective exam. He had nearly full ROM before treatment with some pain in the last few degrees. He responded well to functional dry needling during the visit. He had full ROM with no pain post treatment. The provider noted that the applicant had missed more than half of his previously scheduled physical therapy appointments; therefore, another course of physical therapy was advised. The applicant was agreeable. (2) During the 15Mar2016 Physical Therapy Consult (2 months after discharge from service), the applicant reported continued pain with lifting objects overhead, pushing objects in front at shoulder level, and playing baseball. He also experienced limitations during his light weight gym routine. He stated that his pain had never improved after surgery. He was recommended for physical therapy 1 to 4 times per month for up to 90 days. His rehab potential was good. (3) On 21Sep2016, 9 months after discharge, the applicant was seen for chronic left shoulder pain status post surgery despite physical therapy and exercise program. The pain was severe in intensity and worse at night when recumbent on the left side. He did not take medication for the pain. (4) 30Nov2016 left shoulder MRI revealed mild tendinosis of the superior rotator cuff with likely superimposed mild delaminating tearing of the distal infraspinatus at the footplate. (5) 14Dec2016, the applicant was approved for outside orthopedic medical care to include surgery, for the left shoulder condition. (6) At some point after July 2017 (but before 23Oct2017), the applicant underwent a second left shoulder surgery outside the VA system. c. The MEB did not find that the right knee pain, right wrist pain, lower back pain, and left ankle conditions failed retention standards, and the PEB did not find that the conditions were unfitting for continued military service. The applicant was not on profile for the conditions at the time of the MEB. The conditions are reviewed below. (1) Right Knee Pain (Right Knee, Other Impairment, 10%; Right Knee, Lateral Collateral Ligament Sprain with Shin Splints, Right Lower Extremity Stress Fracture, 10%). The applicant sprained his right knee while descending stairs in June 2015 (just 4 months prior to MEB and 7 months prior to discharge). 13Jul2015 right knee film showed no evidence of fracture or dislocation. There was no significant effusion, or soft tissue swelling. He was placed on temporary L3 profile for 6 weeks on 20150629. The 24Aug2015 Orthopedic note indicated that the applicant could return to activities as tolerated; he was to use a knee brace with activities for 6 weeks; and continue physical therapy. 06Oct2015 Knee and Lower Leg Conditions DBQ showed the following ROM: Right knee flexion was 0 to 105 degrees (normal is to 140); and extension was to 0 (normal). The 13Oct2015 bilateral hip to ankle films showed no fracture, or dislocations. Bony structures, joint spaces and soft tissues appeared unremarkable. In the 23Nov2015 Physical Therapy note, the applicant reported “very minimal symptoms in the knee”. The 02Dec2015 Orthopedic visit showed continued knee pain and the applicant requested a new profile to protect his knee until he was discharged from the Army the following month. (2) Right Wrist Pain (Right Scaphoid Fracture, 10%). On 06Dec2011, the applicant was seen in the emergency room for right wrist pain after re-injuring it in a fall the night prior. This was in the setting of a 10 month history of right wrist pain. A 03Jun2011 x-ray had revealed a mildly displaced fracture of the scaphoid tubercle. A series of multiple right wrist studies through 25Apr2012 showed non healing (nondisplaced) fracture. He underwent right scaphoid distal pole excision for nonunion on 22May2012. There were no complications. 30May2012 postsurgical orthopedic follow evaluation indicated he was doing well. The film on that date showed a well-healed surgical bed, with no evidence of interval fracture or dislocation. There have been no subsequent x-ray evaluations. October 2015 Wrist Conditions DBQ showed palmar flexion to 60 degrees (normal is to 80 degrees); ulnar deviation was to 40 degrees (normal is to 45 degrees); dorsiflexion and radial deviation exhibited full ROMs. (3) Lower Back Pain (Lumbosacral Strain, 10%). On 05Aug2014, the applicant was seen for a 3 week history of right side low back pain with no inciting event. The lumber spine series showed no evidence of osseous injury. The 06Oct2015 Back Conditions DBQ showed forward flexion to 80 degrees (normal is to 90 degrees); and extension was to 25 degrees (normal is to 30 degrees). (4) Weak Left Ankle (Left Ankle Sprain, 10%; Left Ankle, Limitation of Motion, 0%) The applicant underwent an x-ray evaluation of the left ankle on 20131127 to evaluate an 11-day history of pain after an injury. The x-ray showed no fracture or bony abnormality. The 13Oct2015 bilateral hip to ankle films showed no fracture, or dislocations. Bony structures, joint spaces and soft tissues were unremarkable. The 06Oct2015 Ankles Conditions DBQ showed dorsiflexion to 20 degrees (normal); and plantar flexion to 45 degrees (normal). There was no evidence of pain with weight bearing. Strength was normal (5/5) bilaterally. No ankle instability or dislocation was suspected, bilaterally. d. Other Specified Trauma- and Stressor-Related Disorder, 10%. (1) AHLTA review revealed that on 14Oct2011, the applicant first came in contact with BH specialists by way of a Command directed ASAP referral for a 07Oct2011 DUI charge. ASAP eventually assessed that the applicant not have a maladaptive pattern of alcohol/substance abuse or dependence. He did not receive a diagnosis, but he participated in ASAP through December 2011 for education (as opposed to rehab). The applicant sought BH services again at Ft. Hood in 2014 after his sister had almost overdosed on heroin. Her situation influenced him to seek help for his BH symptoms which included deployment related nightmares, hypervigilance, easy startle, and sleep issues. The applicant was seen by a psychologist for about 3 treatment sessions. Then, in August 2015, during the course of the MEB the applicant self referred for help with BH symptoms and family problems. Testing was interpreted to show moderate depression (PHQ9 score 17), and moderate symptoms consistent with PTSD (PCL-C score 56). He had been referred in 2014 for off post BH therapy and medication (Inderal and Wellbutrin) which he took briefly. During the August 2015 Social Work Intake, he desired to restart both. During the 17Sep2015 psychiatry visit, he reported improvement in in his anxiety on Wellbutrin although the provider noted his test scores for reported symptoms of anxiety, PTSD and depression had all worsened. He reported the following combat exposure: He had been shot at by snipers daily, sprayed by AK-47’s, and was subjected to regular mortar attacks. Diagnoses: Depression; Anxiety Disorder Not Otherwise Specified; Insomnia; and Rule Out PTSD. He was seen by psychiatry for about 4 sessions before he was discharged. Treating providers consistently assessed that he met retention standards. The MEB did not find that his BH condition failed medical retention standards; nor did the PEB find that the condition was unfitting for continued military service. (2) The 16Sep2015 Initial PTSD DBQ examiner assessed that the applicant’s symptoms did not meet diagnostic criteria for PTSD under DMS-5. The applicant deployed 8 months in Afghanistan (20121227-20130806). The significant stressor was exposure to incoming mortars. Symptoms noted included depressed mood, anxiety and panic attacks that occurred weekly or less often. There was no concern for substance abuse. The VA BH examiner administered psychometric screening instruments, and psychological testing to assess the applicant’s BH condition. The VA BH examiner observed that since the applicant’s time within a war zone, he continued to experience chronic adjustment issues. The examiner opined that the applicant’s BH symptoms did not cause him "clinically significant" distress or an impairment in his social, occupational, or other areas of functioning—his symptoms were mild or transient. (3) 9 months after discharge from service, the applicant was seen at VAMC as a transfer from to establish care. He reported running out of medication several weeks prior, in the course of moving to; yet he had not had worsening BH symptoms. He was a fulltime student at Guilford Tech in pursuit of a BA in communications. He also worked in the communications department in Greensboro. He played sports for leisure activity. By the 18Nov2016 Initial Psychiatric Evaluation Note, the applicant was seeking medication management of his depression and anxiety symptoms. There was no history of psychiatric hospitalization and no history of violence or suicide ideation. e. 04Nov2015 Disability Evaluation System Proposed Rating showed the following VA disability evaluations: Folliculitis 50%; Painful Scars of the Extremities and Trunk 30%; Labral Tear, Including SLAP Lesion 10%; Right Scaphoid Fracture 10%; Lumbosacral Strain 10%; Right Knee, Other Impairment 10%; Right Knee, Lateral Collateral Ligament Sprain with Shin Splints, Right Lower Extremity Stress Fracture 10%; Tinnitus 10%; Other Specified Trauma and Stress Related Disorder 10%; Left Ankle Sprain 10%; Left Ankle, Limitation of Motion 0%; Superficial and Nonlinear Scars 0%; Linear Scar of the Extremities and Trunk 0%. Notwithstanding that more than 4 years after separation, the11Nov2021 VA Benefits letter indicated that the applicant was 100% service connected by the VA; only the left shoulder condition had been found unfitting for continued service. At the time of the MEB, no other condition had permanent level 3 physical profiles, and there was no evidence that the other conditions interfered with the performance of his 25Q MOS duties. Based on review of available records, there were no other conditions which failed medical retention standards of AR 40-501 at the time of discharge. In addition, VASRD principles were reviewed an no error was found in the VA rating for the left shoulder condition and the rating reflected the severity of the condition at the time of discharge. Recommendation: Further medical discharge processing for consideration of medical retirement is not warranted. BOARD DISCUSSION: 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, a medical review, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined the applicant’s contested medical conditions were dully considered before separation and there is insufficient evidence to increase the disability rating nor refer the case to the DES for further consideration. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 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 their 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. 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 their 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. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Army Regulation 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 their 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 their office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they 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.), their 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 their physical defects raise substantial doubt that they are fit to continue to perform the duties of their 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. 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// ABCMR Record of Proceedings (cont) AR20220003197 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1