IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230002027 APPLICANT REQUESTS: correction to Section V (Administrative Determinations), third sentence, of DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to reflect “the disability did result from a combat-related injury.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two (2) DA Forms 2173 (Statement of Medical Examination and Duty Status) * Two (2) movement orders 16-255-003 and HO-313-0123 * Four (4) memoranda * Medical documents FACTS: 1. The applicant states, in effect, her disability did result from a combat-related injury; however, on her DA Form 199, Section V, states it did not. She was injured while she was in Iraq heading out on a mission. 2. The applicant provides: a. Two DA Forms 2173, dated 8 July 2018 and 7 January 2019, which both reflect she was injured when she was climbing into a MaxxPro vehicle in Camp Taji, Iraq on 29 December 2018. Her foot got stuck and her knee twisted. b. Two movement orders which reflect the following: * Orders 16-255-0013, dated 12 September 2018, ordered her to active duty in support of Operation Inherent Resolve, with a report date of 4 November 2018 * Orders HO-313-0123, dated 9 November 2018, she was deployed in a Temporary Change of Station in support of Operation Inherent Resolve, with a proceed date of 7 December 2018 c. Four memoranda, dated between 27 May 2019 and 10 June 2019, which reflect the following: 1) 108th Sustainment Brigade Memorandum For Record, dated 27 May 2019, Subject: Command Clearance for Aeromedical Evacuation, approves the applicant to be released from Central Command (CENTCOM) Area of Responsibility (AOR) for aeromedical evacuation to Landstuhl Regional Medical Center. 2) 108th Sustainment Brigade memorandum, dated 27 May 2019, Subject: Release from Theater, reflects the applicant was released from theater on or about 28 May 2019, with a justification cited as medical determination. 3) 349th Combat Support Hospital Memorandum For Record, dated 10 June 2019, Subject: MOD 13 Disqualifying Medical Condition, states it was determined the applicant had a compression type fracture of the left medial tibial plateau which could not be fully treated within theater and was considered a medical disqualifying condition in the USCENTCOM Modification Thirteen Individual Protection and Individual Unit Deployment Policy Section 7, A-8. 4) 108th Sustainment Brigade memorandum, dated 10 June 2019, Subject: Release from Theater, reflects the applicant was released from theater on or about 11 June 2019, with a justification cited as medical determination; MOD 13. d. Medical documents that include the following: * DA Form 3947 (Medical Evaluation Board Proceedings), dated 12 May 2020 * Integrated Disability Evaluation System, Narrative Summary, dated 12 May 2020 * DA Form 3349 (Physical Profile Record), dated 12 May 2020 * Department of Veterans Affairs Disability Benefits Questionnaire 3. A review of the applicant’s service record shows: a. She enlisted in the Army National Guard on 8 August 2003. b. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 16 July 2020, reflects the Board found the applicant physically unfit and recommended a rating of 40 percent and that her disposition be permanent disability retirement. Section V (Administrative Determinations), third sentence, states, “the disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216.” c. U.S. Army Physical Disability Agency order D 225-24, dated 12 August 2020, reflects the applicant was released from assignment and duty because of physical disability incurred and placed on the retired list on 16 September 2020, with a percentage of disability of 40 percent. Further stating: * Disability resulted from a combat related injury as defined in 26 USC 104: No * Disability incurred in the line of duty in a combat zone or result of performing combat related operations: Yes 4. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DODD 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of this regulation are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability; and, provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected. 5. Department of Defense Instruction (DoDI) Number 6040.44, Subject: Physical Disability Board of Review (PDBR), reissues DoD Instruction (DoDI) 6040.44 (Reference (a)) in accordance with the authority in DoD Directive (DoDD) 5124.02 (Reference (b)) to establish policies, assign responsibilities, and provide procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code (Reference (c)). 6. 26 U.S. Code 104 (Compensation for injuries or sickness), paragraph (b)(3) (Special Rules for Combat-Related states for purposes of this subsection, the term “combat- related injury” means personal injury or sickness- a. Which is incurred – * As a direct result of armed conflict * While engaged in extrahazardous service, or * Under conditions simulating war; or b. Which is caused by an instrumentality of war. In the case of an individual who is not described in subparagraph (A) or (B) of paragraph (2), except as provided in paragraph (4), the only amounts taken into account under subsection (a)(4) shall be the amounts which he receives by reason of a combat-related injury. 7. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting they reverse the United States Army Physical Disability Agency’s (USA PDA) determinations that her unfitting disabilities were not combat related. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. d. On 16 July 2020, the applicant’s informal physical evaluation board (PEB) determined she had three unfitting medical conditions for continued military service: “Chronic pain status-post open reduction internal fixation left tibia plateau fracture and traumatic arthritis left knee,” “Anticoagulation use status-post pulmonary embolism and deep vein thrombosis,” and “Chronic deep vein thrombosis, left lower extremity.” e. The PEB made the administrative determination that none of these conditions was combat related: They found no evidence that one of these disabilities was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); the result of combat training; incurred while performing extra hazardous service though not engaged in combat; incurred while performing activities or training in preparation for armed conflict in conditions simulating war; or that he was a member of the military on or before 24 September 1975. f. The PEB applied the VA derived disability ratings of 10%, 30%, and 10% respectively and recommended the applicant be permanently retired for physical disability with a combined military disability rating of 40%. g. On 5 August 2020, after being counseled on the PEB’s findings and recommendation by his PEB liaison officer, the applicant concurred with the board, waived hers right to a formal hearing, and declined to request a VA reconsideration of her disability ratings. h. The mechanism of injury for her left leg fracture is the same in both her medical evaluation board narrative summary and on her Informal Physical Evaluation Board (PEB) Proceedings (DA 199). From the disability rationale on her DA 199: “The Soldier's onset for this condition in December 2018 after the Soldier fell and her foot got stuck and her body turned to continue vehicle entry climbing into a Maxpro vehicle [M1224 MaxxPro Mine-Resistant Ambush Protected (MRAP)] while deployed to Iraq. i. Section b(3) of 26 U.S. Code §?104 requires there be a cause-and-effect relationship in order to establish the finding that a medical condition is combat related: (3) Special rules for combat-related injuries: For purposes of this subsection, the term “combat-related injury” means personal injury or sickness— (A) which is incurred— (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. j. The M1224 MaxxPro is an instrumentality of war, defined as a vehicle, vessel, or device designed primarily for military service and intended for use in such Service at the time of the occurrence or injury. They may also include such instrumentalities not designed primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. k. For a disability to be incurred as a result of an “instrumentality of war” under the Department of Defense’s 2004 Program Guidance, (1) the “disability must be incurred incident to a hazard or risk of the service” and (2) there “must be a direct causal relationship between the instrumentality of war and the disability.” l. Note it states “incurred incident to risk of service” and “in such service at the time the incident occurred.” Thus, just because a Soldier was injured while in, on, around, wearing/carrying, or working on/with an instrumentality of war doesn’t automatically make it a disability caused by an instrumentality of war. The disability must be because the use of the military equipment or the circumstances surrounding the injury is uniquely military and different from the use or occurrences in similar circumstances in civilian pursuits. The applicant’s leg injury was not unique to the design or use of the vehicle and could have been sustained in a similar fall from a civilian vehicle, e.g., truck or an ambulance. m. It is the opinion of the Agency Medical Advisor there is insufficient evidence upon which to base a reversal of the USA PDA’s determinations that her left leg injury was not combat related with this reversal then subsequently reflected on her DA 199. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence does not support a conclusion that the applicant’s injury while attempting to board an M1224 MaxxPro met the criteria to consider her disabling condition as being caused by an instrumentality of war. Based on a preponderance of the evidence, the Board determined the combat-related determinations recorded on her DA Form 199 were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DODD 1332.18 a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that 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 decree of incapacity warranting retirement or separation for disability. 3. Department of Defense Instruction (DoDI) Number 6040.44, Subject: Physical Disability Board of Review (PDBR) establishes policies, assign responsibilities, and provide procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code (Reference (c)). a. Enclosure 3, paragraph 6d, states the Secretary of the Military Department concerned will ensure that, if the PDBR makes a recommendation not to correct the military records of a covered individual, the action taken on the Military Department PEB’s report to which such recommendation relates will be treated and recorded as final as of the date of such action. b. Enclosure 3, paragraph 6e states the Secretary of the Military Department concerned will accept or reject, in whole or in part, the recommendation of the PDBR and will notify the covered individual of such decision. In those cases warranting a record change resulting from a rating increase or retirement, the Secretary of the Military Department concerned will notify the VA of the change. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002027 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1