IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230001152 APPLICANT REQUESTS: an increased physical disability retirement rating. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 states: a. He is requesting the review of his disability retirement percentage. He believes he should have a higher rating due to disabilities that he was nor originally rated for as well as the change to the way things were rated after his decision was made. b. He feels that he was underrated at the time of his retirement. He has since been treated by the Department of Veterans Affairs (VA), as well as civilian doctors for additional issues with his back injury, to include cervicalgia in his neck, radiculopathy, left lower extremity, traumatic brain injury (TBI) as well as increased post-traumatic stress disorder (PTSD). 3. The applicant enlisted in the Regular Army on 24 July 2002. 4. The applicant deployed to Kuwait and Iraq during the following periods: * 17 March 2003 through 22 March 2004 * 17 March 2005 through 14 July 2005 5. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), Medical Evaluation Board (MEB) Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), initial DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), Department of Veterans Affairs (VA) Compensation and Pension (C&P) Exam, and VA Rating Decision are not in his available records for review and have not been provided by the applicant. 6. The applicant’s DD Form 214 shows he was placed on the Temporary Disability Retired List (TDRL) under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), effective 7 March 2007, with a disability rating of 30 percent. He was credited with 4 years, 7 months, and 14 days of net active service. 7. A DA Form 199 shows the following: a. A PEB convened on 20 March 2009, while the applicant was on the TDRL, where he was found physically unfit and recommended a combined rating of 30 percent and that his disposition be permanent disability retirement. b. The applicant’s unfitting conditions were as follows: (1) Chronic low back pain due to improvised explosive device (IED) explosion in Iraq on 5 June 2005, in which the applicant sustained a burst fracture of T-11, requiring spinal fusion of T-9 through L1 with fixation rods and screws. There is no evidence of neurological injury or radiculopathy, no muscle spasm, tenderness to palpitation or deformity. Spinal flexion is to 60 degrees due to underlying spinal fusion. Chronic pain with even moderately strenuous physical activity remains unfitting. Rated for loss of spinal motion in accordance with the VA Schedule for Rating Disabilities (VASRD) General Rating Formula for Disease and Injuries of the Spine. The condition is stable for rating purposes. (TDRL orthopedic evaluation; diagnoses 1 & 2; 20 percent) (2) PTSD arising out of wartime events in Iraq; on TDRL since 8 March 2007. The applicant has discontinued all psychotropic medications due to adverse side effects and is followed at the local VA hospital/clinic on a regular basis. This condition remains unfitting in that returning to active duty status and a military environment would exacerbate the condition, resulting in decompensation. The applicant has some residual anxiety and insomnia symptoms with intrusive nightmares, but is managing to sleep 5 to 6 hours a night. He is fully employed and does not require excessive supervision. Occupational and social impairment are mainly due to anxiety issues as part of the PTSD syndrome complex, causing mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Stable for rating purposes. (TDRL psychological evaluation, Axis 1; 10 percent) c. The applicant’s condition has not improved to the extent that he is now fit for duty. Upon re-evaluation, although some change in his medical condition may be anticipated, for the purposes of adjudicating his disability compensation, the applicant’s conditions were considered to have stabilized at a degree of severity that is equal to or greater than 30 percent, as indicated above. Therefore, permanent retirement was recommended. d. On 24 March 2009, the applicant signed the form indicating he concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 8. U.S. Army Physical Disability Agency (USAPDA) Orders D096-09, dated 6 Aril 2009, removed the applicant from the TDRL because of permanent disability effective 6 April 2009, and on the date following, permanently retired him with a 30 percent disability rating. 9. 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. 10. Title 38, USC, 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. 11. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. 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. 12. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). There were no records in the electronic Physical Evaluation Board (ePEB) due to the age of the case. The applicant requests a higher disability rating. He stated that some conditions were not rated at the time and other conditions should have been rated higher. He mentioned neck, back and left lower radiculopathy, TBI and PTSD. b. The applicant’s records were summarized in the ABCMR ROP. Of note, he entered service in the Regular Army 24Jul2002. He was deployed to Iraq/Kuwait 20030317 to 20040322 and 20050317 to 20050714. The PEB proceedings placing him on TDRL were not available for review. He was discharged from service due to temporary disability 07Mar2007 and he was placed on Temporary Disability Retired List (TDRL) 08Mar2007. The C&P exams detailed below took place 3 months later in June 2007. c. The PEB convened 20Mar2009 found the following conditions unfitting for continued service: Chronic Low Back Pain rated at 20% under DC 5241; PTSD rated at 10% under DC 9411. It was determined that his conditions had stabilized sufficiently to receive permanent ratings. The recommended disposition was permanent disability retirement at 30% total disability rating. The applicant concurred with the informal PEB proceedings and waived a formal hearing of his case. He was removed from TDRL 06Apr2009. d. PTSD. He had symptoms consistent with PTSD regarding an IED hit to his vehicle during which he sustained multiple injuries and 2 other occupants died. He was treated with individual and group psychotherapy and psychotropics. The 08Jun2007 C&P Exam examiner evaluated the PTSD and TBI conditions together. Persistent symptoms included insomnia (about 80% controlled by his psychotropics), and nightmares 2 to 3 times per month. He socialized with some military personnel. He avoided discussions concerning the military and Iraq. He went to dinner, movies, golfing, and barbecues with wife/friends. Some marital discord was noted in the record; however, the relationship with his daughter was normal. There was no history of suicidal ideation, hallucinations/delusions, or psychiatric hospitalizations. The applicant denied substance abuse during the evaluation; however, on 24Jan2007, he was admitted to the Lighthouse for opioid detoxification (Percocet). He participated in ASAAP briefly. Currently, the applicant was employed full time as a sales representative for a communications provider. The examiner assessed that overall, there did not appear to be occupational or social impairment at the time. The applicant’s PTSD and Anxiety Disorder required continuous medication. His GAF score was 58 (moderate difficulty social and occupational functioning). The 06Sep2007 VA Rating Decision showed 30% for PTSD effective from 08Mar2007. The 08Jan2009 Psychiatry TDRL showed behavioral health diagnoses Chronic PTSD and Opioid Dependence in Remission. The DoD TDRL dictation was not available for review; however, there was a 13Jan2009 VA Mental Health Note by a licensed clinical social worker. During this visit, the applicant reported some depression but denied problems with sleep. He had bad dreams 1-2 times per month the content of which he could not recall. He did not drink or use illicit drugs. He remained married to his wife, and they just had their second child in December. He was working fulltime at T-Mobile. His GAF score was 75 (no more than slight impairment in social and occupational functioning). e. TBI. This condition was not rated separately from the PTSD condition. The applicant had amnesia and loss of consciousness at the time of the IED injury. The head CT was normal. The Glasgow Coma Scale (GCS) score was 15/15 (normal) upon arrival on 07Jul2005. During the cognitive assessment portion of the 08Jun2007 C&P Exam, it was documented that cognitive function was within normal limits: He had no difficulty in concentration, short or long-term memory, calculation, or language function. Cognitive function and communication were not impaired. This was also supported by neuropsychological testing. The examiner opined that there did not appear to be any cognitive deficits due to the concussion/TBI. 28Jun2007 Polytrauma Consult assessment: “Patient with positive brain injury screen but screen completely overlaps with patient report of PTSD symptoms”. f. Per Part 4 VA Schedule for Rating Disabilities (VASRD) §4.130 Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30% g. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10% h. Chronic Low Back Pain. The applicant sustained a burst fracture of T11 (thoracic region) due to the IED and underwent back fusion (T9-L2). He participated in physical therapy without resolution of symptoms. He took narcotics for pain for some time. During the 07Jun2007 C&P Exam, he reported sharp pain that was located in the lower back L9 region and did not radiate. He denied any missed time from work for his back. Forward flexion was 0-45 degrees (90 degrees is normal); and extension 0-10 degrees (30 degrees is normal). Right and left lateral flexion and rotation were normal at 0-30 degrees. The 16Jul2008 Orthopedics TDRL Evaluation of the back condition was not available for review. The dictation could not be found in JLV. In the 10Oct2008 Family Practice note, a back exam was not competed. He was pain free on that date. Of note, the PEB’s 2009 Chronic Low Back Pain permanent 20% rating was the same as the VA’s 06Sep2007 VA Rating Decision for Status Post Fusion of T9-L2 following IED Burst Injury with Residual Back Pain at 20% under DC 5235 effective from 08Mar2007. i. Per Part 4 VA Schedule for Rating Disabilities (VASRD) §4.71a Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 20%. j. The following conditions were NOT found unfitting by the PEB and therefore were not rated. k. Neck Pain. Started physical therapy 09Jan2005. During the 07Jun2007 C&P Exam, neck pain was not listed as a current medical condition. The applicant did not report neck pain at the time, and a neck exam was not performed. JLV search showed Cervicalgia first appeared in the problem list in April 2022. The VA rated Cervical Neck Strain at 10%. l. Left Lower Extremity Radiculopathy. During the 07Jun2007 C&P Exam, it was documented that his back pain did not radiate. It was also noted that his gait was normal although he favored the left leg. He did not use a cane or other assistive device for ambulation. In the 10Oct2008 Family Practice note, his gait was normal. m. The applicant’s conditions did worsen after removal from TDRL/discharge from the Army. In the 04Nov2022 Mental Health Consult, he reported struggling with anxiety and being angry all the time. He trusted no one and lacked motivation. He was not taking medications. He was working part time as a realtor. He had worked for T-Mobile for 10 years. It should be noted, per regulation, the PEB rates only conditions found unfitting for continued service. The rating is based on severity of the condition at or near the time of discharge. The applicant was given permanent ratings at the time of removal from TDRL—these rating do not change. The VA operating under different regulations can change ratings as the condition worsens or improves over time. Based on records available for review, medical evidence was insufficient to support that there was an error or injustice in the March 2009 PEB proceedings. Recommendation: No change to the applicant’s current disability ratings is recommended. There were no additional conditions that were found that failed medical retention standards of AR 40- 501 chapter 3. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support that there was an error or injustice in the March 2009 PEB proceedings. The opine noted no change to the applicant’s current disability rating is recommended. Evidence in the record show no additional conditions found that failed medical retentions standards. The Board found the applicant was given a permanent rating at the time of removal from the TDRL—these rating do not change. Based on the preponderance of evidence the Board agreed, there is insufficient evidence to support the applicant’s request for an increased physical disability retirement rating. Therefore, relief is denied. 2. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. 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. 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, 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 physical disability evaluation system (DES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system 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 (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are 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 retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. 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 military service. b. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states 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. 5. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states 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. 6. Title 10, U.S. Code, section 1556 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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. 8. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001152 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1