IN THE CASE OF: BOARD DATE: September 29, 2023 DOCKET NUMBER: AR20230002430 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on remand from the United States Court of Federal Claims (hereinafter refer to as The Court). The Court directs the ABCMR to consider the impact of the Army’s recent line of duty (LOD) determination made with regard to the applicant’s 2014 motorcycle accident. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Remand Order, 8 February 2023 * Complaint, 29 September 2016 * Plaintiff's unopposed motion for remand, 3 June 2022 * Remand, 13 February 2023 * Draft 2021 Supplemental Administrative Record * Table of Contents * Second Remand Proceedings * Tab 1 ABCMR Decision letter, 2 April 2021 * Tab 2 ABCMR denial memo, 2 April 2021 * Tab 3 ABCMR ROP (Record of Proceedings), 28 January 2021 * Tab 4 Response to 28 July 2020 Medical Advisory Opinion (17 July 2019) * Tab 4a VA (Veterans Affairs) Medical Record, 21 March 2014 * Tab 5 Email from counsel to ARBA requesting 30-day extension to provide response to Medical Advisory Opinion 29 July 2020 * Tab 6 ARBA memo allowing 30 days to respond to Medical Advisory Opinion, 29 July 2020 * Tab 7 Medical Advisory Opinion from Medical Advisor to ARBA, 28 July 2020 * Tab 8 Response brief and exhibits on remand to 30 August 2018 decision ? Hager memo ? Decision Review Officer Decision, 25 November 2014 ? Route Mapped * Tab 9 US Court of Federal Claims Order Remanding Case 16-1221 to ABCMR and staying proceedings, 6 December 2018 * First Remand Proceedings * Tab 10 ABCMR Determination/Recommendation, 30 August 2018 * Tab 11 Board Vote * Tab 12 ABCMR ROP, 30 August 2018 * Tab 13 Response to 22 March 2018 Medical Advisory Opinion, 21 May 2018 * Tab 14 Medical Advisory Opinion from IDES (Integrated Disability Evaluation System), Fort Bragg OTSG (Office of the Surgeon General), 22 March 2018 * Tab 15 Medical Advisory Opinion from CMD (Case Management Division), ARBA, 14 August 2017 * Tab 16 U.S. Court of Federal Claims Order enlarging remand of Case 16- 1221, 4 August 2017 * Tab 17 Request for relief from PEB (Physical Evaluation Board) findings, with attachments (4 August 2017) * Tab 18 Letter from U.S. Court of Federal Claims to Deputy Assistant Secretary ABCMR ref. Court Order remanding Case 16-1221 for further processing, 14 February 2017 * Tab 19 Remand Order, 13 February 2017 * Tab 20 Additional Medical Records reviewed by ABCMR from USAPDA (United States Army Physical Disability Agency) * Tab 21 Documents from the USAPDA ? a. DA Form 199-2 USAPDA Revised PEB, 15 December 2015 ? b. Memorandum from USAPDA ref. nonconcurrence/rebuttal to PEB findings ? c. Order D 349-28, 15 December 2015 ? d. Army National Guard Retirement Points History Statement, 8 December 2015 ? e. USAPDA memo Ref. Appeal of PEB proceedings, 3 December 2015 ? f. Email from USAPDA approving extension to submit appeal, 20 October 2015 ? g. Brief and Support docs to PEB, 20 October 0215 ? h. PEB letter of instruction for formal PEB proceedings, 7 October 2015 ? i. DA Form 199-1, Formal PEB proceedings, 7 October 2015 ? j. Second contingent to PEB, 1 October 2015 ? k. MEB return to PEB memo, 31 July 2015 ? l. PEB Reconsideration memo, 5 June 2015 ? m. Memo regarding recess of Formal PEB proceedings and allied documents, 13 May 2015 ? n. DA Form 2823 Sworn Statement (Applicant), 12 May 2015 ? o. First Contingent to PEB, 12 May 2015 ? p. Formal Board Notification PEB, 16 April 2015 ? q. Letter from C.N.B., M.D. to SSA (social security administration) ref SSA opinion, 26 March 2015 ? r. Fax memo from C.N.B., M.D. to Secretary Veterans Administration, 26 March 2015 ? s. Fax from C.N.B., M.D. to LTGEN H., 20 March 2015 ? t. Laurel Diagnostic Imaging, MRI (Magnetic Resonance Imaging) Brain without contrast, 10 March 2015 ? u. Memo from PEBLO (Physical Evaluation Board Liaison Officer), Failure to elect, 10 March 2015 ? v. DA Form 199, Informal PEB Proceedings, 7 January 2015 ? w. Health eVet records (349 pages), 18 December 2014 ? x. Medical Records from Choice Medical Center (33 pages), 10 December 2014 ? y. Driver report of traffic crash, 6 August 2014 ? z. Appeal of MEB reply, 19 May 2014 ? aa. Request for review of the VA MEB (Medical Evaluation Board) Narrative Summary by an independent doctor, Dr. C.N.B., (27 pages) 25 April 2014 ? bb. MEB proceedings, 28 March 2014 ? cc. VA C&P (Veterans Affairs (Compensation & Pension) General Medical, 20 March 2014 ? dd. VA C&P Multiple Exam (Intestinal Conditions), 6 March 2014 ? ee. VA C&P Spine, DBQ, 6 March 2014 ? ff. VA C&P Multiple Exam (Elbow and Forearm Conditions), 6 March 2014 ? gg. VA C&P DBQ (Disability Benefits Questionnaire (Elbow and Forearm Conditions), 6 March 2014 ? hh. VA C&P (Shoulder, Elbow, Wrist, Hip, Knee, Ankle) Consultation notes, 5 March 2014 ? ii. VA C&P PTSD (post-traumatic stress disorder), Initial Evaluation, 4 March 2014 ? jj. VA C&P Spine, 28 February 2014 ? kk. VA C&P Examination Scars/Disfigurement, 26 February 2014 ? ll. VA C&P Multiple Exams Ear Conditions, 25 February 2014 ? mm. eDES (Electronic Disability Evaluation System) MDCO (medical data collection object) Patient Demographics, 18 December 2013 ? nn. DA Form 3349 (Physical Profile), 6 December 2013 ? oo. Leave and Earnings Statement email, 1 October 2013 ? pp. DA Form 2173 (Line of Duty Determination), 31 May 2013 ? qq. DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement, 21 March 2013 ? rr. DD Form 214 (Certificate of Release or Discharge from Active Duty), 9 November 2010 ? ss. Military Orders, Retained on Active Duty, 20 November 2009 and 29 October 2009 * 22. Medical Records from DVA (Various dates) (Pages 1771-8612) 6,841 pages * 23. Armed Forces Health Longitudinal Technology Application (AHLTA) Military Electronic Health Records (Various dates) (Pages 8613-9678) 1,065 pages * 24. AMHRR (Army Military Human Resource Record) (Pages 9679-9833) 154 pages * 25. LOD determination for 6 August 2014 Motorcycle Accident, 24 September 2015 FACTS: 1. The Court’s Order for Remand filed on 8 February 2023, states “the parties jointly represent that the case is ready for remand to the Army to determine the impact of the Army’s recent line of duty determination made with regard to the applicant’s 2014 motorcycle accident.” Consistent with the parties’ representation, the court REMANDS the above-captioned case to the ABCMR to consider the impact of the Army’s recent LOD determination made with regard to the applicant’s 2014 motorcycle accident. Pending review by the ABCMR of the impact of the LOD determination made with regard to plaintiff’s motorcycle accident, the case in this court is STAYED. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200000993 on 28 January 2021. 3. Counsel’s complaint from 29 September 2016, states: This is an action seeking judicial review of the applicant’s wrongful discharge from the United States Army. It was wrongful for the United States Army to transfer and then later discharge the applicant before the following medical conditions were addressed: a. On or about 3 December 2015, the Department of the Army’s Physical Evaluation Board (PEB) failed to properly accept some of the applicant’s conditions and ruled an exacerbating accident was not in the line of duty. b. The PEB failed to properly evaluate the applicant for post-traumatic stress disorder (PTSD) as well as his diagnoses for radiculopathy, residual for right clavicle fracture, and gastrointestinal conditions. c. The PEB’s action on 5 December 2015, to deny the applicant proper consideration of his medical conditions and the Army’s subsequent discharge of the applicant was arbitrary and capricious. 4. Counsel also states factual allegations as follows: a. The applicant honorably served in the Marine Corps from 18 January 1982 to 16 March 1982, and from 29 November 1985 to 7 December 1989, and the in the Army from 1 May 2009 to 9 November 2010. b. In September 2009, while on Active Duty in Iraq, the applicant suffered multiple injuries including head, back, and hip injuries following a fall from a Mine-Resistant Ambush Protected vehicle (MRAP). He was Medevac’d to Landstuhl Regional Medical Center in Germany. c. He was transitioned into the Wounded Warrior Unit for rehabilitation with profile limitations. d. In November 2010, he was returned from Title 32, Active Duty, to Title 10 National Guard status. e. He was not provided an MEB prior to being returned to Title 10 National Guard status. f. He continued to suffer from headaches, lower back pain, shoulder, neck, and arm pain. He continued to seek military medical treatment for these conditions. g. On 6 August 2014, the applicant was traveling by motorcycle to Inactive Duty Training (IDT) scheduled for 8-10 August 2014 when he was struck by another car. This accident exacerbated his documented degenerative disc disease in his cervical and lumbar spine. h. On 7January 2015, a Physical Evaluation Board (PEB) found that the applicant was physically unfit and recommended that he be medically retired from the Army. i. Following a 12 May 2015, PEB hearing, the applicant’s case was recessed for further consideration of PTSD, headache syndrome, unspecified trauma disorder with traumatic brain injury (TBI), right upper extremity radiculopathy with left upper extremity, right and left lower extremity radiculopathy, and right clavicle fracture. j. On 25 August 2015, the PEB notified him that his unit determined that he was not on orders at the time of his motorcycle accident and, therefore, conditions that developed as a result of this accident would be determined as non-compensable. k. On 1 October 2015, the applicant appealed the 25 August 2015, LOD determination because, pursuant to AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 2-2(e)(4), he was traveling directly to perform inactive duty training. l. On 3 December 2015, despite his appeal and medical records in support, the PEB found that his right upper extremity radiculopathy was not unfitting and that the disability degenerative disc disease in his cervical spine was not compensable because his motorcycle accident was not in LOD. m. On 15 December 2015, he was notified that he would be permanently retired from the Army with a disability rating of 70%. n. On 19 January 2016, the applicant was placed on the retired list. 5. Counsel requested: * The Army to provide Plaintiff with a rating commensurate to the appropriate ratings and LODs * Remanding the issue to the PEB with specific guidelines in conjunction with the applicant’s arguments and evidence * Awarding the applicant lost pay and benefits, and his costs and attorney’s fees, including Equal Access to Justice Act fees for this action * Grant other relief as the Court deems just and proper 6. On 3 June 2022, Counsel in an unopposed motion for remand stated this case was delayed so that the National Guard Bureau (NGB) may complete their LOD investigation into the applicant’s 2014 motorcycle accident. (The parties had disputed whether his injuries where indeed LOD). On 4 March 2022, the NGB completed their report. In this investigation, the NGB has determined that when the applicant was traveling 940 miles for drill and had a motorcycle accident, it in fact was within the LOD. As a such, the applicant now moves the Court to remand the case back to the ABCMR with the following instructions: a. Order that a MEB/PEB process be conducted to consider whether the applicant is entitled to a medical separation, a military medical discharge or retirement, due to the injuries stemming from the LOD. b. Afford the applicant the opportunity to thoroughly participate in the MEB/PEB process. c. Afford the applicant through his counsel the opportunity to furnish the board with any additional documentary evidence and arguments addressing his entitlement to relief and shall compile an administrative record, including but not limited to the applicant’s military personnel record, military medical record, the pertinent records of the Department of Veterans Affairs and any other necessary records. That board shall provide the applicant’s counsel notice of the contents of the record to be forwarded prior to requesting advisory opinions. d. Afford the applicant any relief the ABMCR determines that he is entitled to receive, issue a decision explaining in detail the rationale supporting its final decision, and forward for filing with the Court an administrative record its decision. e. If the ABMCR does not issue a decision within 90 days of the date of the Court’s remand order, the ABMCR shall advise the Court through counsel of the status of its consideration, estimate when it will be able to issue a final decision, and provide a status report every 90 days thereafter should it be necessary. 7. The applicant enlisted in the Georgia Army National Guard (GAARNG) on 5 April 2007. He was transferred to the New Jersey Army National Guard (NJARNG) on 6 August 2008. He was later transferred to the Mississippi Army National Guard (MSARNG) on 20 April 2009. He held military occupational specialty 19D (Cavalry Scout). 8. Orders 112-016, issued by the MSARNG on 22 April 2009, ordered the applicant to active duty in support of Operation Iraqi Freedom. He served in Iraq from 1 June to 28 October 2009. 9. Orders A-10-929472, issued by Landstuhl Regional Medical Center, Germany, on 29 October 2009, reassigned the applicant to his home unit and attached him to Warrior Transition Battalion, Fort Gordon, GA on 29 October 2009, for medical evacuation of reserve component Soldier for continued medical care for 10 days. 10. Orders A-11-931020, issued by U.S. Army Human Resources Command, St. Louis, MO, on 20 November 2009, retained the applicant on active duty for a period of 358 days (ending 12 November 2010) to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care. 11. On 9 November 2010, the applicant was honorably released from active duty and returned to his MSARNG unit due to completion of required active service. His DD Form 214 shows he completed 1 year, 6 months, and 9 days net active service this period. 12. The applicant was issued a DA Form 3349 (Physical Profile) on 27 July 2011, for lower back strain, back pain, irritable bowel syndrome (IBS) (temporary profile) which expired 25 October 2011. 13. DA Form 2173 completed on 20 September 2011, shows the applicant had a LOD for disc degeneration not otherwise specified (NOS), back, from when he fell from the back of a MRAP in Iraq while deployed in 2009. 14. A DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 21 March 2013, shows the commander indicated that the applicant was unable to perform duties in his military occupational specialty (MOS) of 19D (Cavalry Scout); he was assigned to an appropriate position for his grade and MOS; his medical conditions/limitations affected the unit accomplishing its mission; and the commander did not recommend his retention in military service. 15. His unit commander or unit advisor signed the DA Form 2173 on 29 May 2013. On 31 May 2013, the Chief, Personnel Division at NGB determined that the applicant’s LOD for lumber multilevel degenerative changes that occurred during Operation Iraqi Freedom was approved “In Line of Duty.” 16. On 6 December 2013, the applicant was issued a permanent profile for lung issue (P3), wasp sting allergy (P2), and low back pain. It was marked that he no he did not meet retention standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness) and he needs MEB. 17. A MEB convened on 28 March 2014 to evaluate the applicant's medical conditions. The MEB found the applicant failed medical retention standards based on degenerative disc and joint disease lumbar spine, and degenerative disc and joint disease cervical spine and right upper extremity radiculopathy with muscular atrophy under the provisions (UP) of AR 40-501 and recommended his referral to a PEB. The MEB found the applicant met medical retention standards for the following conditions: * right shoulder strain * subjective right elbow pain * right wrist possible tendinitis * degenerative joint disease left hand second finger distal interphalangeal (DIP) joint * subjective right hand pain * irritable bowel syndrome (IBS) * acute erosive gastritis * inguinal hernia, bilateral status-post repair * bilateral hip pain, no pathology noted * bilateral knee pain, no pathology noted * unspecified trauma related disorder * scar right side of face (right mid-nose to lateral margin of right upper lip) * history of acute otitis media, resolved * allergic rhinitis * GERD * hiatal hernia * asthma * headache syndrome * tinea pedis * TBI 18. On 14 May 2014, the applicant indicated he did not agree with the MEB's findings and recommendation and submitted his appeal. He contended that the diagnoses of TBI and unspecified trauma related disorder should be found to fail medical retention standards. He acknowledged the MEB accurately covered all of his additional medical conditions. 19. A formal PEB convened on 7 October 2015 at Fort Sam Houston, TX. The applicant and his counsel appeared before the formal PEB. The board found the applicant unfit and recommended a rating of 40% and that his disposition be permanent disability retirement. The conditions that were found to be unfitting at the time were: a. Degenerative disc disease (DDD) lumbar spine, rated at 40%. The narrative summary (NARSUM) indicated the condition began in 2009 when the applicant fell to the ground from an MRAP vehicle while deployed to Iraq. b. DDD cervical spine, non-compensable. The preponderance of evidence confirms that this condition was not incurred while the Soldier was entitled to base pay or that it was aggravated by service. During the original adjudication of the Informal Board, the Soldier’s cervical condition was presumed to be in the Line of Duty (LOD) IAW 10 USC 1201-1203 and 10 USC 1204-1206. The NARSUM indicates that this condition began in September 2009 when the Soldier fell from an MRAP vehicle to the ground while deployed to Iraq. The DA Form 2173 dated 29 May 2013 describes the injury as disc degeneration, not otherwise specified, back; and the LOD dated 31 May 2013 is approved for lumbar multilevel degenerative changes. In his sworn testimony the Soldier stated that he was not subsequently injured while on duty after he was released from Active Duty in 2010. The DA Form 3349 from 25 August 2011, does not list permanent medically disqualifying physical limitations attributed to the cervical spine. There are no permanent physical profile limitations attributed to cervicalgia in the e- profile system through March 2014. The MEB found the cervical condition medically disqualifying on 28 March 2014. Thereafter, until July 2015, the DA Form 3349 lists chronic neck and back pain with PUHLES of 233111. The Soldier testified to the exacerbation of his cervical condition due to a motorcycle accident on 6 August 2014 in Florida. The Soldier’s Commander states that the Soldier was not on a period of active duty or entitled to base pay on 6 August 2014. c. Right upper extremity radiculopathy is not unfitting. The Soldier is fit for right upper extremity radiculopathy. In full consideration of Department of Defense Instruction (DoDI) 1332.18, Enclosure 3, Appendix 2, to include combined, overall effect, the condition is not unfitting notwithstanding the MEB indicating this condition does not meet medical fitness standards. The evidence supports that this condition does not prevent reasonable duty performance. Continuing in the military does not pose a risk to the Soldier or to others. This condition does not impose unreasonable requirements on the military to maintain or protect the Soldier. The preponderance of evidence confirms that this condition was not incurred while the Soldier was entitled to base pay or that it was aggravated by service. The medical review of June 2015 indicates that the Soldier’s medical evaluation prior to release from Active Duty demonstrated no evidence of radiculopathy and the medical record reveals no documentation of specific causative trauma incurred in military service subsequent to that examination. The Soldier testified that he was not permitted to perform other than administrative tasks while on duty after his release from Active Duty. The DA Form 3349 from 25 August 2011 does not list permanent medically disqualifying physical limitations attributed to right upper extremity radiculopathy. The Soldier testified that he was involved in a motorcycle accident on 6 August 2014 in Florida. The Soldier’s Commander states that the Soldier was not on a period of active duty or entitled to base pay on 6 August 2014. In June 2015, the Medical Reviewer awarded a diagnosis of right upper extremity radiculopathy, determined that this condition failed Medical Retention Standards, and added it to the DA Form 3349 as a condition meriting physical profile limitations. Exhibits submitted to the Formal PEB by the Soldier’s attorney demonstrate a normal upper extremity neurologic examination in March 2015 with normal muscle tone, no cog-wheeling, spasticity, atrophy, or dyskinesia, no obvious tremor, normal shoulder shrug, normal sensation to light touch, and 1+ reflexes. d. The Soldier is fit for the following conditions MEB Diagnoses 4-23 (right shoulder strain; subjective right elbow pain; right wrist possible tendinitis; DJD left hand send finger DIP joint; subjective right-hand pain; irritable bowel syndrome; acute erosive gastritis; inguinal hernia, bilateral status post repair; bilateral hip pain; bilateral knee pain; unspecified trauma related disorder; scar right side of face - right mid nose to lateral margin of right upper lip; history of acute otitis media; allergic rhinitis; GERD; hiatal hernia; asthma; headache syndrome; tinea pedis; and TBI). In full consideration of DoDI 1332.38, E3.P3, to included combined, overall effect, the conditions are not unfitting because the MEB indicates these conditions meet retention standards; does not indicate that any of these conditions cause profile limitations (functional activities a- h); and does not indicate that performance issues, if any, are due to these conditions. e. Regarding the Soldier’s contention that he is unfit for the following conditions and reasons: * headache syndromes (also claimed as chronic headaches, migraines, prostrating migraines) * unspecified trauma related disorder with history of traumatic brain injury, (claimed as sleep difficulties/disturbance, chronic fatigue syndrome, posttraumatic stress disorder, severe anxiety disorder and serious neurological disorder) * right upper extremity radiculopathy (also claimed as joint pain elbow, wrist; radiculopathy of extremities due to cervical injury; non dominant) associated with cervical spine degenerative disc and joint disease with degenerative arthritis and intervertebral disc syndrome (also claimed as cervicalgia, spinal stenosis, herniated cervical disc, cervical sprain, non-allopathic lesions) and radiculopathy of all extremities * residuals of right clavicle fracture (also diagnosed as strain, claimed as injury to collar bone; non-dominant) * almost all these conditions were caused by the Soldier’s service time in a theater of war from 2009 to 2010; and additional injures or exacerbations of prior service-connected injures caused by the Soldier’s motorcycle accident on 6 August 2014 were suffered in the course of his military duties f. Based upon a review of the objective evidence of record, including exhibits provided by the Soldier’s Attorney and the Soldier’s testimony during Formal Board proceedings; and considering the requirements for reasonable performance of duties required by rank and military specialty, in full consideration of DoDI 1332.18, Enc. 3, App. 2, to include combined, overall effect, these conditions, with the exception of those previously found unfitting by the Informal Board, are not unfitting. g. The case file shows US Army Service from 1 May 2009 to 9 November 2010. The Soldier was not separated for medically disqualifying conditions under AR 40-501 (Standards of Medical Fitness). DD Form 214 shows that the Soldier was released from Active Duty and transferred to 1-98th Cavalry, Fulton, Mississippi, under AR 635-200, Chap 4 (Separation for Expiration for Service Obligation). Neuropsychological Evaluation on 10 December 2009 did not yield evidence of TBI or related cognitive disorder. There are no psychiatric limitations on any of several DA Form 3349’s in the case file. The Soldier’s Troop Commander does not recommend retention; there are no comments describing mental impairment on the DA Form 7652 dated 21 March 2013. In his sworn testimony the Soldier testified that he was not subsequently injured while on duty and he provided no evidence of injury incurred while he was entitled to base pay subsequent to his release from Active Duty. Therefore, the PEB finds insufficient compelling medical evidence to reverse the findings of the Informal Board regarding fitness. h. On 19 October 2015, the applicant indicated he did not concur with the PEB's findings and recommendations. He also requested the VA reconsider his disability ratings. 20. A DA Form 199-2 (U.S. Army Physical Disability Agency (USAPDA) Revised PEB Proceedings) shows in Section II (USAPDA Findings) the USAPDA administratively corrected the findings of the applicant's informal PEB that convened on 7 October 2015. The USAPDA found the applicant was unfit for DDD lumbar spine (40%), DDD cervical spine (30%), and right upper extremity radiculopathy (30%). The board found the applicant physically unfit and recommended a rating of 70% and that his disposition be permanent disability retirement. a. The USAPDA also determined the applicant's MEB diagnoses 4-23 were not unfitting because the MEB indicated the conditions met medical retention standards; did not indicate that any of the conditions caused profile limitations; and did not indicate that performance issues, if any, were due to the conditions. b. Section VII (Instructions and Advisory Statements) of the DA Form 199-2 shows the following entries: (1) The ratings were combined in accordance with VASRD paragraph 4.25, as follows: 40% combined with 30% equaling 58%, combined with 30% equaling 71%, which rounds to 70%. (2) The administrative correction to the previously issued DA Form 199-1, dated 7 October 2015, corrected Section Ill to find MEB diagnoses 2 and 3 unfitting at 30%. The administrative correction did not change the applicant's disposition (permanent retirement); however, his combined rating increased to 70%. 21. On 15 December 2015, the Chief, Operations Division, USAPDA, notified the applicant that, following a review of his entire case, it was determined that an administrative change to his findings was appropriate. He was informed his combined rating for the three unfitting conditions was 70%. 22. Orders D 349-28, issued by the USAPDA on 15 December 2015 directed the applicant's released from assignment and duty, because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability, and placed him on the retired list effective 19 January 2016. 23. Accordingly, the applicant was discharged from the MSARNG on 18 January 2016 and transferred to USAR Control Group (Retired Reserve). 24. In his previous request (AR20200000993) on 28 January 2021, the applicant requested reconsideration of a previous request for correction of his records to show injuries he sustained in 2009 and 2014 were determined to have been incurred in the line of duty and to show he was found unfit by a PEB rated at 100 percent. the Board considered his application under procedures established by the Secretary of the Army and determined that the evidence presented does not demonstrate the existence of a probable error or injustice. The Board denied his request. 25. A DD Form 261, dated 4 March 2022, shows an investigation of Line of Duty and misconduct status was conducted. The status was reflected as IDT/Drill from 6 August 2014, 0000 hours to 10 August 2014, 1700, hours. The basis for the findings shows at 1000 hours on 6 August 2014, the applicant was enroute to IDT in Fulton, MS from home of record (HOR) in Miami, FL when his motorcycle was struck from behind by a SUV while traveling on Killian Parkway. His medical diagnosis was cervical disc degenerations causing stenosis and radiculopathy, Thoracic disc degenerations causing stenosis, and Lumbar disc degenerations causing stenosis and radiculopathy. Remarks shows he was traveling approximately 940 miles for drill when he was involved in a motorcycle accident that resulted in his injuries. The findings were in line of duty. The action by the appointing authority was approved on 22 March 2022. The action by the reviewing authority was approved on 5 April 2022. The final approval signed the LOD on 4 May 2022, showing “IN LINE OF DUTY-EXISTED PRIOR TO SERVICE-SERVICE AGGRAVATION (SA)” for Cervical Radiculopathy, Cervicothoracic Spondylosis with Radiculopathy and Lumbar Intervertebral Disc Degenerations. 26. The applicant provides 9,000+ pages of administrative records in support of his claim which includes: a. Second Remand Proceedings which contains (Tabs 1-9) ABCMR ROP, decision letter, and denial memo 2021, response to 28 July 2020 Medical Advisory Opinion (17 July 2019), VA Medical Record, 21 March 2014, email from counsel to ARBA requesting 30-day extension to provide response to Medical Advisory Opinion 29 July 2020, ARBA memo allowing 30 days to respond to Medical Advisory Opinion, 29 July 2020, Medical Advisory Opinion from Medical Advisor to ARBA, 28 July 2020, response brief and exhibits on remand to 30 August 2018 decision, and US Court of Federal Claims Order remanding Case 16-1221 to ABCMR and staying proceedings, 6 December 2018. b. First Remand Proceedings which contains (Tabs 10-20) ABCMR Determination/Recommendation, 30 August 2018, board vote, ABCMR ROP, 30 August 2018, response to 22 March 2018 Medical Advisory Opinion, 21 May 2018, Medical Advisory Opinion from IDES, Fort Bragg OTSG, 22 March 2018, Medical Advisory Opinion from CMD, ARBA, 14 August 2017, U.S. Court of Federal Claims Order enlarging remand of Case 16-1221, 4 August 2017, request for relief from PEB findings, with attachments, 4 August 2017, letter from U.S. Court of Federal Claims to Deputy Assistant Secretary ABCMR ref. Court Order remanding Case 16-1221 for further processing, 14 February 2017, Remand Order, 13 February 2017, and additional medical records reviewed by ABCMR from USAPDA. c. Documents from the USAPDA including DA Form 199-2 USAPDA Revised PEB, 15 December 2015, memorandum from USAPDA ref. nonconcurrence/rebuttal to PEB findings, Order D 349-28, 15 December 2015, Army National Guard Retirement Points History Statement, 8 December 2015, USAPDA memo Ref. Appeal of PEB proceedings, 3 December 2015, email from USAPDA approving extension to submit appeal, 20 October 2015, brief and support docs to PEB, 20 October 2015, PEB letter of instruction for formal PEB proceedings, 7 October 2015, DA Form 199-1, Formal PEB proceedings, 7 October 2015, second contingent to PEB, 1 October 2015, MEB return to PEB memo, 31 July 2015, PEB Reconsideration memo, 5 June 2015, memo regarding recess of Formal PEB proceedings and allied documents, 13 May 2015, DA Form 2823 Sworn Statement (Applicant), 12 May 2015, first contingent to PEB, 12 May 2015, formal board notification PEB, 16 April 2015, letter from C.N.B., M.D. to SSA ref SSA opinion, 26 March 2015, fax memo from C.N.B., M.D. to Secretary Veterans Administration, 26 March 2015, fax from C.N.B., M.D. to LTGEN H., 20 March 2015, Laurel Diagnostic Imaging, MRI of Brain without contrast, 10 March 2015, memo from PEBLO, failure to elect, 10 March 2015, DA Form 199, Informal PEB Proceedings, 7 January 2015, health eVet records (349 pages), 18 December 2014, medical records from Choice Medical Center (33 pages), 10 December 2014, driver report of traffic crash, 6 August 2014, appeal of MEB reply, 19 May 2014, request for review of the VA MEB narrative summary by an independent doctor, Dr. C.N.B., (27 pages) 25 April 2014, MEB proceedings, 28 March 2014, VA C&P General Medical, 20 March 2014, VA C&P Multiple Exam (Intestinal Conditions), 6 March 2014, VA C&P Spine, DBQ, 6 March 2014, VA C&P Multiple Exam (Elbow and Forearm Conditions), 6 March 2014, VA C&P DBQ (Elbow and Forearm Conditions), 6 March 2014, VA C&P (Shoulder, Elbow, Wrist, Hip, Knee, Ankle) Consultation notes, 5 March 2014, VA C&P PTSD, Initial Evaluation, 4 March 2014, VA C&P Spine, 28 February 2014, VA C&P Examination Scars/Disfigurement, 26 February 2014, VA C&P Multiple Exams Ear Conditions, 25 February 2014, eDES MDCO Patient Demographics, 18 December 2013, DA Form 3349 (Physical Profile), 6 December 2013, LES email, 1 October 2013, DA Form 2173 (Line of Duty Determination), 31 May 2013, DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement, 21 March 2013, DD Form 214 (Certificate of Release or Discharge from Active Duty), 9 November 2010, and Military Orders, Retained on Active Duty, 20 November 2009 and 29 October 2009. d. Medical Records from DVA (Various dates) (Pages 1771-8612) 6,841 pages. e. Armed Forces Health Longitudinal Technology Application (AHLTA) Military Electronic Health Records (Various dates) (Pages 8613-9678) 1,065 pages. f. AMHRR (Pages 9679-9833) 154 pages. g. LOD determination for 6 August 2014 Motorcycle Accident, 24 September 2015. 27. In the processing of this case the Army Review Boards Agency (ARBA) medical staff provided a medical advisory which shows the following: a. The ARBA Medical Advisor was asked to review this case as the result of a voluntary court remand to the ABCMR. Documentation reviewed included the applicant’s voluntary court remand in (Antonio Martin, Plaintiff, v. United States, Defendant, along with counsel’s accompanying brief, accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), Healthcare Artifact and Image Management Solution system (HAIMS), and/or the Interactive Personnel Electronic Records Management System (iPERMS). b. References: * applicable Title 10 and Title 38 statutes * the Veterans Affairs Schedule for Rating Disabilities (VASRD) * Department of Defense Instruction 1332.38 SUBJECT: Physical Disability Evaluation (14 November 1996) * Department of Defense Instruction 1332.18, SUBJECT: Disability Evaluation System (DES) (5 August 2014) * Department of Defense Manual 1332.18, Volume 1, SUBJECT: Disability Evaluation System (DES) Manual: General Information and Legacy Disability Evaluation System (LDES) Time Standards (5 August 2014) * Department of Defense Manual number 1332.18, Volume 2, SUBJECT: Disability Evaluation System (DES) Manual: Integrated Disability Evaluation System (IDES) (5 August 2014) * Army Regulation (AR) 40-400, Patient Administration (8 July 2014) * AR 40-501, Standards of Medical Fitness Paragraph (4 August 2011) * AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004) * AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) c. From the Court Order No. 16-1221C filed 8 February 2023: Consistent with the parties' representation, the court REMANDS the above captioned case to the ABCMR to consider the impact of the Army's recent line of duty determination made with regard to [the applicant’s] 2014 motorcycle accident. Pending review by the ABCMR of the impact of the line of duty determination made with regard to plaintiff’s motorcycle accident, the case in this court is STAYED. d. Background: (1) “The DES compensates disabilities when they cause or contribute to career termination” (Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 SUBJECT: Physical Disability Evaluation (14 November 1996). (2) This concept from the DES’s governing document is incorporated into paragraph 3-2b(1) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) states: Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. (3) This concept was maintained in paragraph 5a in appendix 2 to enclosure 3 of Department of Defense Instruction 1332.18 SUBJECT: Disability Evaluation System (DES), 5 August 2014 which states “The DES compensates disabilities when they cause or contribute to career termination.” e. The applicant sustained multiple injuries when the motorcycle he was driving was struck by a car from the rear. The applicant has stated: At approximately 1000HRS, 6 August 2014, while enroute to the National Guard Armory, for drill, I was struck from behind by a red Kia Sorento SUV, I was moving at the posted speed limit, and the KIA Driver Mr. G. hit me hard enough to accelerate my vehicle, which injured my back and neck, and totaled my vehicle. f. The applicant was referred to the Integrated Disability Evaluation System on 30 January 2013 for "Lumbar DDD" (degenerative disc disease). The medical evaluation board (MEB) subsequently determined the applicant to have two conditions which failed the medica retention standards of AR 40-501: “Degenerative disc and joint disease lumbar spine” and “Degenerative disc and joint disease cervical spine.” The applicant’s case was forwarded to a physical evaluation board for adjudication. g. Following an informal physical evaluation board, a request for reconsideration, a formal physical evaluation board, and a VA reconsideration of his disability ratings, the United States Army Physical Disability Agency (USAPDA) itself made the final decisions on 15 December 2015. h. USAPDA concurred with the formal physical evaluation board’s findings the applicant had three service incurred disabilities which were unfitting for continued military service: “Degenerative disc disease lumbar spine,” “Degenerative disc disease cervical spine,” and “Right upper extremity radiculopathy.” However, they nonconcurred with the formal physical evaluation board’s determination that his cervical spine condition and right upper extremity radiculopathy were not incurred in the line of duty and thus not compensable. i. USAPDA, having determined these two additional disabilities were compensable, applied the VA derived ratings of 30% and 30% respectively and when combined with his lumbar spine condition previously rated at 40%, they recommended the applicant be permanently retired for physical disability with a combined military disability rating of 70% (40% combined with 30% = 58% combined with 30% = 71% which rounds to 70%). j. The Report of Investigation Line of Duty and Misconduct (DD Form 261) referenced by the Court shows that on 4 May 2022 the Army National Guard Bureau found the applicant’s motorcycle incurred injuries of “Cervical Radiculopathy, Cervicothoracic Spondylosis with Radiculopathy and Lumbar Intervertebral Disc Degenerations” had been “IN LINE OF DUTY - EXISTED PRIOR TO SERVICE- SERVICE AGGRAVATION.” k. These are the same three medical conditions which USAPDA had determined to have been incurred in the line of duty and compensable. Orders published by USAPDA on 15 December 2015 show the applicant was to be placed on the retirement list with a 70% disability rating effective 19 January 2016. l. It is the opinion of the ARBA medical advisor that the 4 May 2022 line of duty determination made by the Army has no effect on the compensation the applicant was granted and began to receive on 19 January 2016. 28. As part of the advisory process, the ARBA Medical Staff also provided a behavioral health addendum to the above opinion stating in pertinent part: a. References: * applicable Title 10 and Title 38 statutes * the Veterans Affairs Schedule for Rating Disabilities (VASRD) * Department of Defense Instruction 1332.38 SUBJECT: Physical Disability Evaluation (14 November 1996) * Department of Defense Instruction 1332.18, SUBJECT: Disability Evaluation System (DES) (5 August 2014) * Department of Defense Manual 1332.18, Volume 1, SUBJECT: Disability Evaluation System (DES) Manual: General Information and Legacy Disability Evaluation System (LDES) Time Standards (5 August 2014) * Department of Defense Manual number 1332.18, Volume 2, SUBJECT: Disability Evaluation System (DES) Manual: Integrated Disability Evaluation System (IDES) (5 August 2014) * Army Regulation (AR) 40-400, Patient Administration (8 July 2014) * AR 40-501, Standards of Medical Fitness Paragraph (4 August 2011) * AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004) * AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) * Diagnostic and Statistical Manual of Mental Disorders-IV Edition TR (July 2000) * Diagnostic and Statistical Manual of Mental Disorders 5 (18 May 2013) b. A review of the records showed that while on active duty the applicant was diagnosed with Adjustment Disorder and Occupational Problems. Upon discharge from active duty, he was found to medical meet retention standards per AR 40-501, Chapter 3 and did not have a diagnosis that warranted separation through military medical channels. While serving in the National Guard the applicant underwent a VA C&P Examination (Initial PTSD Disability Benefits Questionnaire) on 21 March 2014 and was found to not meet diagnostic criteria for PTSD but did meet diagnostic criteria for Unspecified Trauma Related Disorder. The examiner also noted a history of TBI. c. Prior to the applicant’s C&P Examination, he was referred to the Integrated Disability Evaluation System on 30 January 2013 for "Lumbar DDD" (degenerative disc disease). The MEB subsequently determined the applicant to have two conditions which failed the medical retention standards of AR 40-501: “Degenerative disc and joint disease lumbar spine” and “Degenerative disc and joint disease cervical spine.” The applicant was not found to have an unfitting behavioral health condition. d. On 14 May 2014, the applicant requested reconsideration of the MEB decision and indicated he did not agree with the MEB's findings and recommendation. He contended that his diagnoses of Unspecified Trauma Related Disorder and TBI should be found to fail medical retention standards. A review of the records by this advisor found no evidence to indicate the applicant failed medical retention standards for either TBI or Unspecified Trauma Disorder. Records showed the applicant PULHES score for psychiatry reflected “1” and there was no evidence that demonstrated Medical Retention Determination Point (MRDP) was met for either diagnosis. e. Following an informal physical evaluation board, a request for reconsideration, a formal physical evaluation board, and a VA reconsideration of his disability ratings, the United States Army Physical Disability Agency (USAPDA) itself made the final decisions on 15 December 2015. The agency found that the applicant’s diagnoses of TBI and unspecified trauma related disorders were not unfitting. f. The Report of Investigation Line of Duty and Misconduct (DD Form 261) referenced by the Court shows that on 4 May 2022 the Army National Guard Bureau found the applicant’s motorcycle incurred injuries of “Cervical Radiculopathy, Cervicothoracic Spondylosis with Radiculopathy and Lumbar Intervertebral Disc Degenerations” had been “IN LINE OF DUTY - EXISTED PRIOR TO SERVICE- SERVICE AGGRAVATION.” g. These are the same three medical conditions which USAPDA had determined to have been incurred in the line of duty and compensable. Orders published by USAPDA on 15 December 2015 show the applicant was to be placed on the retirement list with a 70% disability rating effective 19 January 2016. h. It is the opinion of the ARBA [Behavioral Health] medical advisor that the 4 May 2022 line of duty determination made by the Army has no effect on the compensation the applicant was granted and began to receive on 19 January 2016. 29. On 14 July 2023, a copy of the ARBA medical advisory opinion with the behavioral health addendum was provided to the applicant and his representing Counsel and they were given an opportunity to provide comments. 30. On 14 August 2023, Counsel responded and provided five exhibits: * VA Case Summary letter, 23 June 2023 * Board of Veterans’ Appeals decision, 20 July 2022 * partial PTSD and spine DBQs * partial headache DBQ * VA disability rating code sheet and decision, 25 November 2014 31. Counsel’s reply to the advisory opinion states in part, there are two points of contention/concern they wish to address. a. They agree that [the applicant’s] various injuries occurred in the line of duty (LOD). But it is unclear, based on the later paragraphs of the 7 July 2023, Medical Advisory Opinion, if the Opinion is consistent in acknowledging the LOD was originally not found by the PEB in 2014-2016. Compare 9 with 10. As the crux of this matter has been the LOD determination, they want to ensure the military consistently acknowledges that the LOD determination was corrected because of the Veteran's court action. b. They agree that the [applicant’s] Cervical Radiculopathy, Cervicothoracic Spondylosis with Radiculopathy, and Lumbar Intervertebral Disc degeneration are all unfitting conditions. ARBA has [the applicant] rated at 70% total disability. But this is not a complete assessment. They acknowledge that the maximum percentage for disability retirement is 75%. See 10 U.S.C. §1401(a). But based on the following, the [applicant] requests that the ARBA revise the decision and grant him entitlement to 75% or higher for disability retirement. (1) [The applicant] was fit for service when he joined the service. See generally Attachment EE. Despite having Honorably served, the Veteran has been fighting for his appropriate military compensation and recognition for nine years. This prolonged process has caused the Veteran financial hardships and needless mental anguish. (2) The [applicant] is a veteran of the Peacetime and Gulf War Era. The [applicant] honorably served in the Marine Corps from 18 January 1982 to 16 March 1982, and from 29 November 1985 to 7 December 1989, and in the Army from 1 May 2009 until 9 November 2010. On 23 January 2014, the [applicant] filed a new claim for benefits from the VA. (3) Recall that the [applicant] served in Iraq. On 17 September 2009, the [applicant] was driving an MRAP. The [applicant] was hit six times by the gunner’s heavy metal seat. After 18 hours of driving, the [applicant] nearly passed out. Before losing consciousness, the gunner kicked him out; otherwise, the [applicant] would have driven the MRAP off the road and likely killed the MRAP’s occupants. (4) Later, [the applicant] passed out at a security stop. Once he came through, he got out of the driver’s seat, hitting the ground headfirst and hurting his head, back, hip, and right leg. On 3 October 2009, the [applicant] was Medevac’d from the CSH to BALAD, then to the Medical Hospital. (5) On 6 August 2014, the [applicant] was involved in a motorcycle accident while traveling to the National Guard Armory for drill. The [applicant] injured his back and neck, among other extremities. The [applicant] sought and received medical treatment for his trauma. (6) The Board is well versed in the [applicant’s] history before it: Counsel avers to the record. But since then, the [applicant] has consistently been treated by the VA for various service conditions. Thus, the 7 July 2023, Memorandum appears to be incomplete and arbitrary as it did not review the [applicant’s] VA medical treatment records since his discharge. While the agreed upon unfitting conditions do not appear to have worsened over time, there are several conditions that either should have been considered unfitting at that time or unstable to warrant placing the member on TDRL (Temporary Disability Retired List). The BCMR has a mission to correct an injustice before it. See generally Haselwander v. McHugh, 878 F. Supp. 2d 101 (D.D.C. 2012) Here, the military must correct its failure in not properly discharging the [applicant] seven years ago; in doing so, it must look at the [applicant’s] entire medical record. This includes the [applicant’s] history since his discharge. The following conditions should be part of his medical retirement. c. The 1 July 2015, IPEB and recent 7 July 2023 ARBA Memorandum did not consider or insufficiently assessed several individually unfitting conditions for the same LOD that awarded him disability retirement for Right Upper Extremity Radiculopathy, Degenerative Disc Disease, Lumbar Spine, and Degenerative Disc Disease, Cervical Spine. Several unfitting conditions include PTSD, Headache Syndrome, unspecified trauma-related disorder, right upper extremity radiculopathy, residuals of right clavicle fracture, right lower extremity sciatic radiculopathy, tinnitus, asthma, and gastroesophageal reflux disease. Note, the Board of Veterans Appeals found on 20 July 2022, his left hip condition, right hip condition, left knee condition, right knee condition, left leg condition, right leg condition, and plantar fasciitis may also be service connected. These conditions were remanded back to the VA for further development. See Attachment BB. Based on the final findings of the VA, they, too, should be considered as potentially unfitting. A review of the record appears to reflect the lack of consideration for the following conditions: (1) PTSD. It is unclear if the [applicant] was prescreened for PTSD upon his return to Iraq. But the [applicant’s] mental health condition is a clear medical issue that would make him “unfit for duty.” On March 21, 2014, during a PTSD screening, the examiner noted that the [applicant] met all the criteria except for one (to support a PTSD diagnosis). See Attachment CC at 1-3. It is unclear if any examination was conducted to determine if this (or any other listed below) condition had stabilized; thus we must turn to his contemporaneous and future VA treatment records. A formal PTSD exam needed to be completed and reviewed before the PEB should have evaluated whether the condition was unfitting or not. Continued treatment by the VA reflects that the [applicant] was diagnosed with PTSD in 2014 when he was discharged. See Attachment CC at 3. Thus, it was premature for the PEB to decide there was no PTSD diagnosis when the records support one. PTSD can lead to intrusive thoughts, flashbacks, and severe anxiety. This might affect a Soldier’s ability to focus and make clear decisions in high- stress situations. This impairment in judgment and emotional control could compromise not only the individual’s safety but also the safety and effectiveness of the entire unit. For these reasons, the Veteran should be found unfit for service. (2) Headache Syndrome. This condition did not exist prior to military service; instead, records show a diagnosis of headaches in September 2009. See Attachment EE at 6. A rating of 50% for service-connected migraines notes "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The severity of [the applicant’s] condition, including dizziness, has significantly interfered with his ability to work in the civilian workforce. See Attachment DD at 1. Considering the severity of the [applicant’s] condition, which prevents him from working in the civilian workforce, it is illogical to believe that he could handle the more demanding duties of military service. (3) Unspecified Trauma-Related Disorder with History of Traumatic Brain Injury. The [applicant] suffered from TBI related to his time in the middle east. On 26 January 2010, [the applicant] sought a follow-up at a TBI clinic. A "history of TBI" was diagnosed. Attachment EE. Treatment records from November 2010 show an exacerbation of mental health, including anxiety and depressed mood, as evidence of exacerbation from service. The records appear void of any TBI-specific exam while he was in service. Dr. C___ B___, a civilian doctor the [applicant] was seeing, submitted a medical opinion on 28 May 2014, stating the [applicant] likely suffers from traumatic brain injury residuals. The [applicant] was assigned a 50% evaluation for TBI because of social impairment, reduced productivity, forgetting directions, chronic sleep impairments, forgetting recent events, and mental health, among others. The condition continued to worsen when the [applicant] was released from active duty instead of placed on the retirement list. The [applicant’s] symptoms at this rating hinder his decision-making, response time, and coordination. Further, it inhibits his ability to understand and accurately carry out orders. This poses serious risks to the [the applicant] and his unit, making him unfit for military service. He should be found unfit for service due to this condition. (4) Residuals of Right Clavicle Fracture. Contrary to the evidence, the PEB found this condition was not unfitting because the MEB found it met medical retention standards and indicated no profile limitations or performance evidence. Yet, the VA attributed the [applicant’s] right clavicle fracture to his 2009 MRAP fall in Iraq, assigning a 20% rating effective 23 January 2014, based on the [applicant’s] painful, limited arm motion at the shoulder level. Attachment EE at 15. The PEB disputed the VA's findings, stating that the medical records did not show evidence of diagnosis for this condition. However, the [applicant’s] record has evidence of a fracture, including x-ray reports from January 2010. See Attachment CC at 7. The medical records should have supported the contention the [applicant] was unfit for duty based on his condition. It is posited that the same physical profile limitations relating to his Right Upper Extremity Radiculopathy, Degenerative Disc Disease, Lumbar Spine, and Degenerative Disc Disease, Cervical Spine are related to his Residuals of Right Clavicle Fracture. (5) Right Lower Extremity Sciatic Radiculopathy. The [applicant] was medically evacuated from Iraq after a fall from a vehicle, and imaging revealed a fracture of the right 12th rib. Attachment EE at 15. This fall resulted in limited motion of the arm at shoulder level. The VA assigned the Veteran with a 20% disability rating effective 23 January 2014, the date the IDES claim was received. Yet, the PEB found that the [applicant’s] right lower extremity sciatic radiculopathy condition was not unfitting because it met the medical retention standard since his 2010 electromyography and nerve conduction studies were normal. However, the [applicant] has suffered from severe pain, decreased sensation, and numbness in the right lower leg, ankle, foot, and toes. See Attachment CC at 5-6. Additionally, the [applicant’s] medical records show that the right sciatic nerve and his lower radicular nerves were affected. Id. at 7. Further, the medical review appears to fall short because it did not consider the aftereffects of his motorcycle incident. The condition appears not to be fully examined. Given this condition would likely severely impede a Soldier's mobility, agility, and ability to carry out physical tasks, it should be found to make the [applicant] unfit for military service. (6) Tinnitus. The [applicant] has recurrent tinnitus, i.e., constant ringing in his ears. In a private medical opinion received on 28 May 2014, the examined opinioned "at least the 50 percent level of probability that his current hearing loss and tinnitus problems are due to his experience/ trauma that the patient had during military service." Attachment EE at 17. The [applicant] was exposed to loud noises and acoustic trauma while in Iraq. Despite the condition being denied initially in 2012, the [applicant] was awarded the highest schedular for this condition with an effective date of 10 November 2010. (7) Bilateral Hearing Loss. This condition was first denied on 12 October 2012, as a service-connected disability until a 16 June 2023, rating decision granting an evaluation of 10% effective November 10, 2010. See Attachment AA 1 and Attachment EE at 5. When other unfitting conditions were examined in the aforementioned 2014 decision, bilateral hearing loss was not determined to be service connected nor subject to compensation. On 28 May 2014, in a private medical opinion, the examiner noted, "hearing loss and tinnitus problems are due to his experience/trauma that the patient had during military service." Attachment EE at 17. Despite medical evidence supporting the [applicant’s] hearing loss, it took nearly a decade to acknowledge the [applicant’s] bilateral hearing loss condition and assign a rating. Hearing loss can impede a Soldier's ability to receive and understand verbal commands and situational cues, which is critical for teamwork and responsiveness in combat. Tinnitus, or ringing in the ears, can be a constant distraction, potentially reducing focus and awareness of the environment, both of which are vital for effective performance in military operations. This [applicant] should be found unfit due to his hearing loss and tinnitus. (8) Asthma. Recall, the [applicant] was found fit for duty when he joined the military. Service treatment records have shown dyspnea, wheezing, and tightness in the chest while deployed to Iraq. In June 2010, a treating physician noted that the [applicant] would likely need an MEB for asthma, but he was REFRAD in November 2010 before this exam could occur. See 30 August 2018, ABCMR Record of Proceedings, at 28. The MEB did not evaluate the [applicant] after the incident in Iraq. The VA found the [applicant] to have service-connected Asthma with a rating of 30% in 2014. See Attachment EE at 11. The reliance on medication and the risk of being in environments that may trigger an attack can make it a liability, hindering the effectiveness and readiness of the individual and the unit as a whole. Thus, this condition should make the [applicant] not worldwide deployable and unfit for service. (9) Gastroesophageal Reflux Disease. The [applicant’s] gastroesophageal reflux disease is an unfitting condition that was not considered. Eventually, this condition was determined service connected with a 30% rating effective 10 November 2010. The [applicant] noted in July 2010 that his abdominal pain, nausea, and vomiting had been present for 10-11 months. See Med. Op. at 9. In March 2011, his doctor noted that his diet did not need improvement. AHLTA Rec. at 162. In fact, the [applicant’s] physician noted these symptoms are consistent with irritable bowel syndrome. AHLTA Rec. at 299. In the same appointment, the [applicant] presented symptoms of nausea, hyperactive bladder, GERD, esophageal reflux, and constipation. Id. In June 2010, the [applicant’s] treating physician noted that they could not rule out gastrointestinal abnormality. 10 Jun. 2010, CT Pelvis Report. The [applicant] was released with duty restrictions through 2010 and 2011 due to his pain and gastrointestinal symptoms. AHLTA Rec. at 305, 323, 340, 348, 356, 362, 377, 385, 390, 394, 409, 413, 421; Med. Rec. D.D. Eisenhower AMC at 192, 197, 200, 210, 259, 262, 273, 284. The [applicant] reported his abdominal pain in nearly every appointment for almost one year as of July 2010. The VA assigned the [applicant] a 30% rating for gastrointestinal conditions. The record shows complaints of diarrhea in September 2009 and January 2010. See attachment EE at 12. On 8 April 2010, the [applicant] was diagnosed with irritable bowel syndrome, gastroesophageal reflux disease, hernia, and acute erosive gastritis. Id. The PEB erred in departing from the VA's rating and failing to explain the reason for the deviation. GERD or IBS impedes the [applicant’s] ability to perform strenuous activities and maintain focus during critical missions. These conditions can also require ongoing medical care or dietary restrictions, which is feasible in various military environments or operations. Thus, making the [applicant] not worldwide deployable and fit for service. (10) Left Hip Condition, Right Hip Condition, Left Knee Condition, Right Knee Condition, Left Leg Condition, Right Leg Condition, and Plantar Fasciitis based on the July 20, 2022, BVA Remand. The VA through the Board of Veterans Appeals determined that the [applicant’s] left hip condition, right hip condition, left knee condition, right knee condition, left leg condition, right leg condition, and plantar fasciitis may also be service connected. See Attachment BB. It is posited that the same physical profile limitations relating to his Right Upper Extremity Radiculopathy, Degenerative Disc Disease, Lumbar Spine, and Degenerative Disc Disease, Cervical Spine are related to these conditions. These conditions will need a thorough review by the Board pending the VA's conclusions. d. They agree that the [applicant’s] various injuries occurred in LOD. The military should acknowledge that the LOD determination was corrected because of the Veteran's court action. Following the LOD determination for the motorcycle accident, which exacerbated preexisting conditions, they want to ensure the record is correct to reflect the [applicant] being placed on the retirement list with at least a minimum of 75% disability rating. Numerous conditions were not considered unfitting, and each disability rating should reflect the recent LOD determination for the motorcycle incident. As a matter of justice, this needs to be corrected. The entire rebuttal statement with attachments was provided to the Board for their review and consideration. 32. 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. 33. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 34. Title 38, Code of Federal Regulations, 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. 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 counsel’s contentions, including those raised during the course of the applicant’s appeals in the Disability Evaluation System and all three remands, the service records, the medical records, and the advisory opinions obtained in connection with the previous cases as well as the current case. 2. The United States Court of Federal Claims remanded this case to consider the impact of the Army’s recent line of duty (LOD) determination regarding a 2014 motorcycle accident on the applicant’s final disposition. The Board first notes that the applicant was medically retired in 2016 for three unfitting conditions that caused or contributed to the termination of his career: degenerative disc disease lumbar spine, degenerative disc disease cervical spine, and right upper extremity radiculopathy. All three conditions were determined to be incurred in the line of duty and were compensable. 3. The applicant’s 2014 motorcycle accident occurred during the processing of his case through the Disability Evaluation System. The LOD determination issued in 2022 stated the motorcycle accident resulted in cervical disc degeneration causing stenosis and radiculopathy, thoracic disc degeneration causing stenosis, and lumbar disc degeneration causing stenosis and radiculopathy. 4. The Board compared the medical conditions listed on the LOD with the conditions already deemed unfitting and noted that they are similar. Next the Board reviewed the record to determine whether additional medical conditions should be added as unfitting. The Board first considered the treatment records from the period after the accident. The applicant received medical treatment primarily for a cervical injury with cervical radiculopathy in the right upper extremity documented on an EMG. The records also noted complaints of mid and low back pain with intermittent numbness and tingling in his legs and nonspecific leg pain. An EMG of the right lower extremity was normal. 5. Multiple ARBA medical advisers have considered this case. The Board found two advisory opinions in particular to be compelling. The Board first considered the advisory opinion obtained in connection with the current remand, dated 7 July 2023. The ARBA medical advisor opined that the LOD conditions were already included in the compensable conditions and the LOD determination had no effect on the compensation the applicant was granted and began receiving in 2016. For a more detailed consideration of the medical conditions at issue, the Board turned to the advisory opinion provided in the previous remand, dated 28 July 2020. The medical advisor summarized the pre- and post-accident medical records and opined that the weight of the evidence did not support a finding that radiculopathy (in extremities other than the right upper extremity) was unfitting at the time of military discharge. The medical advisor stated that the applicant’s medical conditions were fully and appropriately assessed, and the medical evidence did not support a change in the disability determination in this case. The Board found these opinions persuasive in combination with the contemporaneous medical records. 6. The Board also considered arguments by counsel and notes that counsel repeatedly confuses the Army rules of medical unfitness with the VA regulations about service connection. Rather than focusing on the conditions in the LOD, counsel lists all the applicant’s VA rated medical conditions (and some that do not even have ratings yet) and contends they make the applicant unfit. The Board addressed these conditions at length in its previous decision. 7. The Board determined that a preponderance of the evidence shows the LOD determination does not change the applicant’s medical retirement disposition. The applicant’s medical conditions have been thoroughly evaluated and he has had the opportunity to participate, through counsel, throughout this lengthy process. The applicant did not sustain his burden of proving that an error or injustice occurred. The Board denies relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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, 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 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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 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. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 3. 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. 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. AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) states line of duty determinations are essential for protecting the interest of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death. Soldiers who are on active duty (AD) for a period of more than 30 days will not lose their entitlement to medical and dental care, even if the injury or disease is found to have been incurred not in LD and/or because of the soldier’s intentional misconduct or willful negligence, Section 1074, Title 10, United States Code (10 USC 1074). A person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in LD. Such a person stands to lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in LD only be made after following the deliberate, ordered procedures described in this regulation. Reason for conducting a line of duty includes (paragraph 2-2e a soldier of the National Guard or U.S. Army Reserve (USAR) is entitled to hospital benefits, pensions, and other compensation, similar to that for soldiers of the Active Army for injury, illness, or disease incurred in LD, under the following conditions prescribed by law (10 USC 1074a): subparagraph (4)(b) inactive duty training. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002430 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1