IN THE CASE OF: BOARD DATE: 18 June 2021 DOCKET NUMBER: AR20200008728 APPLICANT REQUESTS: through her counsel, a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release of Discharge from Active Duty) * Counsel case brief, dated 23 December 2019 * 14 exhibits in support of application * Department of Veterans Affairs (DVA) Form 3288 (Request for and Consent to Release of Information from Individual’s Records), 3 copies * Counsel cover letter, dated 23 December 2019 * Counsel CD with documents FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states: a. The physical evaluation board (PEB) determined the applicant’s major depressive disorder (MDD) was not incurred in the Line of Duty (LOD), and that it was in error and created an injustice that should be corrected. The applicant suffers from posttraumatic stress disorder (PTSD) incurred in LOD. The PEB violated applicable regulations by failing to assign a disability rating to the applicant, who is entitled to a medical retirement. b. The applicant enlisted in the US Army Reserve (USAR) in January 1985 (exhibit 1). She served on active duty from 31 January 1985 to 21 June 1985, and again from 1 February 1991 to 15 August 1991 (exhibit 2). She served in the USAR until 6 January 1998, at which time a PEB found her physically unfit for duty (exhibit 3). c. The applicant was hospitalized in 1985 while on active duty. She was assaulted by an Army doctor during the hospitalization (exhibit 4). Thereafter, she began to experience psychiatric problems (exhibit 5), however, she did not report these problems due to her fear of retribution. The psychiatric problems continued between 1986 and 1991, and were exacerbated in 1991 when she was called to active duty (exhibit 6). She began complaining of depression as early as 1993 during a USAR active duty training drill (exhibit 7). d. The applicant was hospitalized for depression no fewer than six times between 1993 and a medical evaluation board (MEB) examination in April 1996. The MEB examination report indicated the applicant’s depression was incurred in LOD (exhibit 6). On or about 12 June 1991, the applicant was diagnosed with PTSD (exhibit 8). However, a PTSD exam conducted on 17 August 1994 concluded that a diagnoses of PTSD would not be appropriate (exhibit 9). On 6 February 1997, the applicant initiated a claim for PTSD due to sexual harassment (exhibit 10). e. An outpatient MEB examination conducted on 6 August 1997 found the applicant’s depression (and asthma) were attributable to her military service. The report of that examination found her medically unacceptable for continued service and referred her to a PEB for a final determination (exhibits 11, 12). The PEB concluded the applicant was unfit for duty, but did not provide a disability rating on the grounds that the disability was not incurred LOD (exhibit 3). f. On 1 October 1997, a report of MEB proceedings found that the approximate date of origin of the applicant’s MDD was August 1991 (exhibit 2). This coincides with the period that the applicant was on active duty. The 1991 diagnoses of PTSD was subsequently confirmed by civilian doctors (exhibit 13) and recognized by the DVA (exhibit 14). g. The applicant was admitted through the DVA (VA) emergency department for depression, and homicidal and suicidal thoughts (exhibit 13). For twelve (12) of the seventeen (17) days hospitalized, the hospital staff was required to check on the applicant every 15 minutes. She sought counseling treatment at the VA citing ongoing problems with dealing with the sexual assault trauma (MST) she experienced while on active duty (exhibit 4). Her care and treatment for depression and PTSD is ongoing through the VA. 2. Counsel argues, that the PEB which found the applicant was unfit for duty due to her MDD in January 1988 incorrectly held the condition was not incurred in LOD. In this respect, the PEB decision was in error and created an injustice that should be corrected. a. The evidence indicates that the applicant’s depression began in August 1991, approximately six years after she was assaulted by an Army doctor while on active duty caring for wounded Soldiers (exhibits 4, 5, 12). Although she began suffering depression at the time, it did not become debilitating until after she was called to active duty in 1991. She was diagnosed with PTSD in 1991. b. Between 1993 and 1996, while in the USAR, the applicant was hospitalized for depression no fewer than 6 times. Her complaints of depression were known to the Army and are documented, among other places, in a general counseling form dated 23 October 1993 (exhibit 7). The absence of hospitalizations and other problems prior to 1991 cannot be reconciled with a conclusion that her condition is not related and due to her military service, given she began to have problems due exclusively to trauma suffered in LOD, namely the assault by the Army doctor and the trauma of caring for wounded veterans (Soldiers). c. Service members are presumed to have been in sound physical and mental condition upon entering active duty except for medical defects and physical disabilities noted and recorded at the time of entrance (Department of Defense Instruction (DoDI) 1332.38 (Physical Disability Evaluation), E3. P4.5 (Evidentiary Standards for Determining Compensability of Unfitting Conditions); Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation), 3-2(a)(2)). The lack of medical evidence supporting the PEB’s erroneous conclusion that the applicant’s depression is not related to her military duty is further highlighted by the contrary conclusions reached by two separate MEB examinations, both of which found her depression occurred in LOD noted as “LOD: Yes” (exhibits 6, 11). d. The government can still rebut the presumption of service-incurrence by showing that a preponderance of the evidence, based on the accepted medical principles, supports a finding that the Soldier’s condition was EPTS (existed prior to service) (AR 635-40). Accepted medical principles are defined as fundamental deductions, consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct (DoDI 1332.38). This evidentiary showing differs from personal opinion, speculation or conjecture. If the PEB finds that a condition was EPTS based primarily on accepted medical principles, then those principles must be cited as part of the decision. When reasonable doubt exists as to whether the condition was EPTS, the government is directed to investigate further and, in the absence of sufficient evidence, resolve any dispute concerning the forgoing presumptions in favor of the service member (AR 635-40, 3-2(a)(5)). e. Two separate MEBs considered the medical evidence and concluded the disability is LOD, and neither MEB stated the applicant’s depression was the “natural progression” of any listed condition or diagnosis. Two PEBs have reached the opposite conclusion without factual support and without citing any accepted medical principal to support their conclusions. Accordingly, the conclusions of the PEBs must be considered to be unsupported by substantial evidence and therefore in error. If there was reasonable doubt as the applicant’s depression was EPTS, absent any further investigation by the PEB, the applicant was entitled to a presumption in her favor that the condition was incurred in LOD. The erroneous conclusions have deprived the applicant of the medical retirement to which she is entitled. 3. Counsel argues, that there is no legitimate dispute that the applicant suffers from PTSD (exhibits 7, 13, 14). The only issue is whether that the condition was incurred in LOD and therefore service related. A determination made by the DVA that a veteran’s mental health condition, including PTSD; TBI; sexual assault; or sexual harassment is connected to military service, while not binding on the DoD, is persuasive evidence that the condition existed or experience occurred during military service. a. Based on the record, it is clear that the PTSD is connected to military service and therefore, incurred in LOD. PTSD is evaluated under 38 CFR (Code of Federal Regulations) § 4.130 diagnostic code (DC) 9411. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) is one of the DoD criteria for a diagnosis of PTSD. The onset of PTSD in 1991, as manifested in the applicant’s depression, corroborates her account of the incident as reflected in medical records (exhibits 4, 7, 13, 14). The only medical evidence which suggests her PTSD was not related to military service is the report of the 1994 PTSD examination. b. In light of the prior and subsequent conflicting diagnoses, the conclusion reached in the 1994 examination appears to be based solely on the fact that the applicant “did not have other serious stress of the kind usually associated with PTSD.” This statement improperly minimizes the trauma associated with treating seriously injured Soldiers. More importantly, this conclusion is based on the absence of a recognized stressor. Given that the conclusion was reached without knowledge of the sexual assault suffered by the applicant in 1985, it must be considered erroneous due to the lack of critical information. c. Had the fact of the sexual assault been known in 1994, the doctor conducting that examination would not have been able to make the statement that the applicant did not have serious stress of the kind usually associated with PTSD. A secretary of Defense memorandum, dated 25 August 2017, states that liberal consideration should be given to the service member’s claim because it is unreasonable to expect the same level of proof for injustices committed years ago when there is now restricted reporting, heightened protections for victims, greater support available for victims and witnesses, and more extensive training on sexual assault and sexual harassment than ever before. Based on the applicant’s own testimony, her medical records, and her behavior, there is more than sufficient evidence to conclude her PTSD was incurred in LOD, directly related to her military service. 4. Counsel argues, that the Army was statutorily required to utilize the VA Schedule for Rating Disabilities (VASRD) to determine the disability rating of a Soldier with an unfitting medical conditions. The failure of the PEB to assign a disability rating to the applicant violated applicable law and Army regulations. a. In Cook v. US, the court analyzed the determination of disability status and benefits for military members discharged for unfitness for duty. The court explained that prior to 2008 “a Soldier with at least 30 days of active duty service who was deemed unfit for duty could either be permanently retired pursuant to 10 USC § 1201, placed on the temporary disability retired list (TDRL) pursuant to 10 USC §1202, or separated pursuant to 10 USC §1203. b. If the Secretary of the Army determined the Soldier’s disability was at least 30 percent under the VASRD at the time of the determination, the Soldier could be permanently retired (10 USC §1201 (b)(3)(B) (2006)), or placed on the TDRL §1202 incorporating the standards set forth in 10 USC §1201. If the Secretary determined the disability was less than 30 percent under the VASRD at the time of the determination, the Soldier could be separated (§1203(b)(4)(A)-(B)); also (§1203 (b)(4)(C)) noting that separation was possible in certain circumstances if a Soldier’s disability was at least 30 percent under the VASRD at the time or placed on the TDRL at the time of determination. c. In other words, the Army was statutorily required to utilize the VASRD to determine the disability rating of a Soldier with an unfitting medical condition. DoDI 1332.39, 4.2 (Chapter 61 of title 10 USC establishes the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel, and DoDI 1332.39, 4.2 (Chapter 61, Title 10 USC, establishes the VASRD as the standard for assigning percentage ratings. The Cook court also held that for members discharged prior to 2007, the Army was required to apply VASRD §4.129 to Soldiers. Accordingly, the PEB was required to determine a percentage rating for each disability rendering the applicant unfit for duty. In failing to assign a percentage rating to the disability that rendered the applicant unfit for duty in 1998 for MDD, the PEB failed to comply with applicable law and regulations. 5. Counsel argues, that the applicant is entitled to a medical retirement. Using the VASRD, the Army should have assigned a disability rating of at least 30 percent for the condition. The Army then had two options: retire the applicant pursuant to 10 USC §1201, or place her on the TDRL pursuant to 10 USC §1202. a. The Army can retire a member who is unfit to perform the duties of their office if the Army makes the determination the disability is at least 30 percent under the VASRD at the time of determination, and either the disability was: * not noted at the time of the member’s entrance on active duty, unless clear and unmistakable evidence demonstrates the disability existed before the member’s entrance on active duty and was not aggravated by active military service * the proximate result of performing active duty * incurred in LOD in time of war or national emergency * incurred in LOD after 14 September 1978 (10 USC §1201) b. A Soldier with a rating of at least 30 percent is eligible for retirement under 10 USC §1201 and retired pay under 10 USC 1401. A Soldier with a rating of less than 30 percent is eligible for separation under 10 USC §1203, and severance pay under 10 USC §1212 (Pearl v. US). The applicant meets these criteria, and there is no evidence her depression or PTSD existed at the time of her entrance on active duty, the disability was incurred in LOD in time of war or national emergency, and the disability is the proximate result of performing active duty and/or was incurred in LOD after 14 September 1978 c. Two separate MEB examinations, conducted over a year apart, concluded her depression was LOD: Yes (exhibits 6, 11). The applicant also claims her PTSD as a result of the assault by the Army doctor in 1985, which due to military climate at the time, was not reported. The PEBs determined these conditions were pre-existing. However, there is no information in her enlistment records which indicate she suffered from MDD or PTSD. Therefore, even assuming the PEBs were correct and the condition was pre-existing, the PEB should have medically retired the applicant because she was unfit for service due to an unknown and undocumented MDD. d. As indicated by the VA disability determination in 1999, her MDD and PTSD rendered her 100 percent disabled. Although the VA ratings do not transfer to Army disability ratings for the purpose of fitness for service, they provide a statutorily mandated guideline which cannot be disregarded. The Army was required to medically retire the applicant instead of administratively discharging her. The Army’s failure to do so was unlawful and she should now be medically retired. 6. Counsel concludes, that for the reasons stated, the evidence supports that the applicant’s PTSD and MDD were incurred in LOD rendering her unfit for continued service, and warrants, at a minimum, a 30 percent disability rating. Therefore, they respectfully request that the Board correct the applicant’s military record accordingly to reflect a medical retirement under 10 USC §1201. 7. Counsel provides the following exhibits: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the US), dated 24 January 1985, that shows the applicant enlisted in the USAR for 8 years. b. DD Form 214, for the period from 31 January 1985 to 21 June 1985, that shows the applicant was released from active duty training (REFRADT) with an entry level characterization of service. c. DD Form 214, for the period from 1 February 1991 to 15 August 1991, that shows the applicant was released from active duty (REFRAD) with an honorable characterization of service at time of the expiration of her term of service (ETS). d. DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 6 January 1998, that shows an Informal PEB convened and found the applicant’s MDD as EPTS without permanent aggravation, and not ratable. e. DVA Form 21-0781a (Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Trauma), that shows the applicant claimed physical abuse by a doctor while hospitalized at a military hospital, which she did not report due to being afraid of what it would do to her military career. f. A medical note, dated 24 September 2010, that shows the applicant discussed the details of her sexual assault while in the military. She reported that she could not say anything as who would believe her. She continued to describe how she had seen many severely injured vets while at WRAMC, and those images continue to haunt her. g. A transcript of the 18 August 2014 hearing before the Board of Veteran’s Appeals. The issues considered include entitlements to service connection for PTSD, to include pain claimed as due to MST, personal assault; entitlement to service connection for gastroesophageal reflux disease (GERD); and entitlement to an increased rating for asthma, currently rated at 30 percent disabling. h. The 19 April 1996 MEB physical evaluation narrative summary (NARSUM), that shows the applicant was out on a pass from the VAMC where she was a patient on the psychiatry ward. This was her sixth hospitalization for her depression with suicidal ideation. She reported ever since completing her 6-month tour at WRAMC during Operation Desert Storm in August 1991, she has had depressed mood, increased sleep, weight gain, intense loneliness, and recurrent thoughts of self-harm. She related that her depression to being furious with her reserve unit for not helping her get her civilian job back. Her first psychiatric hospitalization was in 1993 when she became distraught after being told she was not allowed to attend a school by her reserve unit. i. A general counseling form, dated 23 October 1993, that shows the applicant presented herself to a member of her chain-of-command stating she was frustrated and depressed. She further stated she was in a crisis and would report to the VAMC upon release from her unit that day. j. A DA Form 2700 (Medical Record – Supplemental Medical Data), dated 12 June 1991, that shows an allergy/immunology encounter record requesting a skin test and pulmonary function test. k. A DVA compensation and pension (C&P) exam report, dated 17 August 1994, that shows this was the applicant’s initial claim for benefits related to PTSD, which she claims occurred seeing injured Soldiers at WRAMC from Operation Desert Storm. l. A DVA Form 21-4138 (Statement in Support of Claim), dated 6 February 1997, that shows the applicant filed a claim for her PTSD due to sexual harassment. m. The 6 August 1997 MEB physical evaluation NARSUM, that shows the applicant was being treated at a clinic as an outpatient, and where she had been seen every two weeks. She reported that since her initial MEB evaluation in 1996, she had been hospitalized approximately six or seven times in the past year. n. A DA Form 3947 (MEB Proceedings), dated 1 October 1997, that shows the applicant’s MDD had originated approximately in August 1991, and that it was incurred while entitled to base pay, and not EPTS. The report also shows the applicant’s borderline personality disorder was EPTS. o. A civilian hospital discharge summary that shows the applicant was hospitalized from 12 March 2003 to 29 March 2003 after reporting to the emergency room with depression, and homicidal and suicidal ideations. p. A DVA rating decision, dated 19 April 2016, that shows the applicant was rated for MDD with psychotic features, to include PTSD [Personal Trauma PTSD / Sexual assault/harassment], which the DVA service connected and Gulf War incurred. She was rated at 100 percent effective 22 August 1999 for a static disability. The DVA noted the applicant’s asthma was independently ratable at 50 percent or more from 7 April 2011. 8. She enlisted in the USAR for 8 years on 24 January 1985. 9. A DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments): * 5 April 1985: Duty Military Occupation Specialty (MOS) 76X (Subsistence Supply Specialist), Advanced Individual Training (AIT), Fort Lee, VA * 21 June 1985: Released from Active Duty (REFRAD) Return to unit of assignment 1006th General Support (GS) Company, Fort Meade, MD * 17 July 1987: Duty MOS 91A (Medical Specialist), AIT, Fort Sam Houston, TX * 1 February 1991: Medical specialist, Walter Reed Army Medical Center (WRAMC), Washington, DC * 15 August 1991: REFRAD, Return to unit of assignment, 2290th US Army Hospital (USAH), Rockville, MD 10. Orders 13-17, dated 21 January 1985, published by the Baltimore Military Entrance Processing Station, Linthicum Heights, MD, shows the applicant was activated to Initial Active Duty for Training (IADT) with assignment to her AIT at Fort Lee, VA. Her reporting date was 31 January 1985 for the training period of approximately 15 weeks for completion of both basic combat training (BCT) and MOS training. 11. A DD Form 214 (Certificate of Release or Discharge from Active Duty), service copy 7, shows she was released from active duty for training (REFRADT). She entered active duty on 31 January 1985. She was awarded the MOS 76X, and was given an entry level character of service. The form shows in item 12c (Net Active Service this Period) she served for 0 years, 4 months, and 21 days. 12. Orders 71-15 (P), dated 20 November 1986, published by the 310th Theater Army Area Command, Fort Belvoir, VA, shows the applicant was reassigned in the USAR from the 1006th GS Company, Fort Meade, MD to the 2990th USAH, Rockville, MD on this date. 13. Permanent Orders 15-15, dated 25 January 1991, published by the Headquarters, First US Army, Fort Meade, MD, shows the USAR units and their members were ordered to active duty for a period not to exceed 12 months. The order shows the 2290th USAH was mobilized with reporting dates to their home station no later than 1 February 1991, and their mobilization station no later than 4 February 1991. 14. An Army Achievement Medal (AAM) certificate, dated 30 May 1991, shows the applicant was awarded the AAM for her exceptionally meritorious service while assigned to the WRAMC during Operation Desert Storm. She significantly contributed to the extremely successful mobilization and expansion mission of the medical center. The award was for the period from 1 February 1991 to 1 April 1991. 15. A DD Form 214 (Certificate of Release or Discharge from Active Duty), service copy 2, shows she was REFRAD due to expiration of her term of service. She entered active duty on 1 February 1991. Her MOS was 91A (Medical Specialist), and was given an Honorable character of service. The form shows in item 12c (Net Active Service this Period) she served for 0 years, 6 months, and 15 days. Item 18 (Remarks) shows she was ordered to active duty in support of Operation Desert Shield/Storm. 16. She had an immediate reenlistment in the USAR for 6 years on 13 December 1992. 17. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 January 1994, shows in: * items 6 and 7: applicant was admitted to the VA medical center (VAMC) * item 10: depression, borderline personality disorder * item 11: applicant was not mentally sound at the time; the condition was incurred in LOD; mental condition started after Operation Desert Storm – lost job, financial problems, depression and suicidality * item 15: lost job upon return from active duty – has had difficulty coping – stressors leading to depression and suicidal thoughts * item 30: applicant was released from USAR duty for evaluation for depression at the VA 18. A VAMC self-authored hand-written statement, from L_ Z_, M.D, dated 22 December 1994, shows the applicant was hospitalized at the VAMC during the following periods (from/to): * 23 October 1993 – 31 January 1994 * 25 April 1994 – 27 May 1994 * 26 October 1994 – 22 December 1994 19. A memorandum from the 2290th USAH, dated 19 July 1995, shows the applicant was recommended for a psychiatric evaluation in preparation for the medical review board (MRB) and/or PEB process. The memorandum states, the applicant was an Army Reservist with service during Operation Desert Storm, although she did not serve overseas. She has a history of hospitalizations, but her psychiatric diagnoses (bipolar disorder and borderline personality disorder) do not appear to be related to Operation Desert Storm. She also has been diagnosed with bronchial asthma for which she takes medication. 20. A Staff Coordination/Approval Sheet, dated 25 July 1995, shows a request for an evaluation to begin the MRB/PEB process for the applicant who has a history of a mental disorder. There is an approved LOD. 21. A memorandum from the 2290th USAH, dated 25 July 1995, shows the request for a psychiatric evaluation at the WRAMC in preparation of a possible MRB and or PEB process for the applicant. 22. A memorandum from the WRAMC, Washington, DC, dated 9 February 1996, in part shows the results of the applicant’s psychiatric evaluation. At the time of the evaluation the applicant: * was in her sixth psychiatric hospitalization for depression with suicidal ideations * reported that since completing her 6-month tour of active duty at WRAMC during Operation Desert Storm in August 1991, she had depressed mood, increased sleep, weight gain, intense loneliness, recurrent thoughts of self-harm * relates her depression to being furious with her USAR unit for not helping her get her civilian job back after her active duty tour * in retrospect, she recognized her duties as a reservist had been her only wat to feel useful and valued * in her civilian job, scheduling conflicts, poor attitude, and not showing up for work resulted in her losing various positions, including the most recent one as a hospital technician * she has not worked since 1993, including her USAR weekend drill periods, since her first hospitalization after being told she would not be allowed to attend emergency medical technician (EMT) school by her USAR unit, became acutely distraught, angry, had suicidal thoughts, and brought herself to the VA hospital * her inpatient physicians have felt she has a strong desire to remain in the hospital to relieve her sense of emptiness, boredom, and loneliness outside of the hospital * she is essentially unable to function occupationally or socially since 1993 23. A memorandum from the 2290th USAH, dated 20 March 1996, shows that based on the psychiatric evaluation and approved LOD, the applicant was found unfit for military duty and should receive a MEB. She was an inpatient at the VA hospital on the date of this memorandum. 24. A DA Form 3349 (Physical Profile), dated 10 July 1996, shows the applicant had a diagnoses of MDD, and was limited to no duty assignments away from definitive medical care. 25. Orders 015-25, dated 15 January 1997, published by the 99th Regional Support Command (RSC), Oakdale, PA, shows the applicant was transferred from the 2290th USAH to the USAR Personnel Center (ARPERCEN) (Reinforcement), St. Louis, MO as an unsatisfactory participant. 26. A Standard Form (SF) 93 (Report of Medical History), dated 6 August 1997, shows her reported conditions, among others, her asthma, depression or excessive worry, and nervous troubles. 27. A Standard Form (SF) 88 (Report of Medical Examination), dated 6 August 1997, shows her conditions, among others, her MDD and borderline personality disorder. 28. A WRAMC outpatient MEB narrative summary (NARSUM), dated 6 August 1997, shows, in part, the outpatient psychiatry service completed an examination that was initially started in 1996. The applicant’s chief complaint was depression, which she related to being furious with her USAR unit for not helping her in getting her civilian job back after she completed her active duty tour. a. In her civilian job, conflicts, poor attitude and not showing up for work resulted in her losing various positions. Her first psychiatric hospitalization was in 1993 after being told she would not be allowed to attend (EMT) school by her USAR unit, became acutely distraught, angry, had suicidal thoughts, and brought herself to the VA hospital where she was hospitalized for three months. b. She was hospitalized approximately five times between 1993 and 1996, and approximately six to seven admissions in the year since April 1996 for similar reasons. Her admissions resulted in minimal improvement in symptoms or functioning between hospitalizations. Her inpatient physicians have felt she has a strong desire to remain in the hospital to relieve her sense of emptiness, boredom, and loneliness outside of the hospital. c. her condition at the time was described her as suffering from chronic depression and suicidal thoughts which rendered her essentially unable to function occupationally or socially since 1993. Her diagnoses included her MDD and borderline personality disorder. She was referred to the PEB for a final determination. 29. A DA Form 3947 (MEB Proceedings), dated 1 October 1997 shows, in part, the following: a. MDD, single episode, severe without psychotic features, manifested by chronic low self-esteem, chronic suicidal ideation, poor self-care, weight gain and hypersomnia; stress, moderate, loss of job after return from Operation Desert Storm; predisposition, moderate, pre-existing personality disorder; impairment for further military duty, marked. This condition was determined to be medically unacceptable. The approximate date of origin was indicated as August 1991 while she was entitled to base pay, and not EPTS. b. Borderline personality disorder, manifested by chronic emptiness and loneliness, frequent need to re-admit herself to a hospital to lessen her feelings, manipulative behavior, chronic suicidality and disturbed sense of self-image; impairment for further military duty, marked. This condition was determined to be medically acceptable. The Approximate date of origin was indicated as EPTS, and not incurred while she was entitled to base pay. c. Asthma was found to be medically acceptable. Approximate date of origin was indicated as EPTS, and not incurred while she was entitled to base pay. The applicant disagreed with the finding, stating, she was an activated reservist when it was diagnosed, and that Soldiers are presumed to be fit upon entering active service. 30. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 November 1997 shows, the Informal PEB (IPEB) convened and determined the applicant’s MDD, single episode severe without psychotic features was EPTS and not permanently aggravated by her military service. Therefore, it was not ratable. Other conditions determined by the MEB as to not failing retention standards, were considered by the PEB and determined to be EPTS and not permanently aggravated by her military service. The PEB recommended the applicant be separated without disability benefits. 31. On 1 December 1997, the applicant indicated she did not concur with the PEB findings and demanded a formal PEB hearing with her personal appearance. She also indicated that she would have counsel of her choice from the DAV (Disabled American Veterans). 32. A DA Form 199, dated 6 January 1998, shows, the Formal PEB (FPEB) convened and reaffirmed the Informal PEB determination that the applicant’s MDD, single episode severe without psychotic features was EPTS and not permanently aggravated by her military service, and therefore, not ratable. Other conditions determined by the MEB as to not failing retention standards, were considered by the Formal PEB and determined to be EPTS and not permanently aggravated by her military service. The PEB recommended the applicant be separated without disability benefits. 33. On 6 January 1998, the applicant indicated she concurred with the findings of the Formal PEB. 34. Orders D11-5, dated 16 January 1998, published by the US Total Army Personnel Command, Alexandria, VA, shows the applicant was discharged from the USAR on 6 February 1998 without severance pay. 35. Army Regulation 40-501 (Standards of Medical Fitness) Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. The regulation in effect at the time stated: a. Paragraph 3-31 states the causes for referral to an MEB for disorders with psychotic features includes diagnosed psychiatric condition(s) that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. A second cause is mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 states the causes for referral to an MEB for mood disorders includes persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, symptoms necessitating limitation of duty or duty in a protected environment or symptoms resulting in interference with effective military performance. c. Paragraph 3-33 states for anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to an MEB if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. d. Paragraph 3-35 concerns personality disorders and it states these conditions will be dealt with through administrative channels including Army Regulation 635-200. e. Paragraph 3-36 states situational maladjustments due to acute or chronic situational stress do no render an individual unfit because of physical disability, but may be a basis for administrative separation if recurrent and interfere with military duty. 36. 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. 37. 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. 38. Title 38, CFR, part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 39. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for through her counsel, a medical retirement. b. The physical evaluation board (PEB) determined the applicant’s major depressive disorder (MDD) was not incurred in the Line of Duty (LOD), and that it was in error and created an injustice that should be corrected. The applicant suffers from posttraumatic stress disorder (PTSD) incurred in LOD. The PEB violated applicable regulations by failing to assign a disability rating to the applicant, who is entitled to a medical retirement. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release of Discharge from Active Duty) * Counsel case brief, dated 23 December 2019 * 14 exhibits in support of application * Department of Veterans Affairs (DVA) Form 3288 (Request for and Consent to Release of Information from Individual’s Records), 3 copies * Counsel cover letter, dated 23 December 2019 * Counsel CD with documents d. VA electronic medical record, Joint Legacy Viewer (JLV) were reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 24 January 1985 and was discharged on 6 February 1998 with an Honorable Discharge. g. This medical advisor thoroughly reviewed counsels statement and exhibits. h. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 January 1994, shows in: * items 6 and 7: applicant was admitted to the VA medical center (VAMC) * item 10: depression, borderline personality disorder * item 11: applicant was not mentally sound at the time; the condition was incurred in LOD; mental condition started after Operation Desert Storm – lost job, financial problems, depression and suicidality * item 15: lost job upon return from active duty – has had difficulty coping – stressors leading to depression and suicidal thoughts * item 30: applicant was released from USAR duty for evaluation for depression at the VA i. A VAMC self-authored hand-written statement, from M.D, dated 22 December 1994, shows the applicant was hospitalized at the VAMC during the following periods (from/to): * 23 October 1993 – 31 January 1994 * 25 April 1994 – 27 May 1994 * 26 October 1994 – 22 December 1994 j. A memorandum from the 2290th USAH, dated 19 July 1995, shows the applicant was recommended for a psychiatric evaluation in preparation for the medical review board (MRB) and/or PEB process. The memorandum states, the applicant was an Army Reservist with service during Operation Desert Storm, although she did not serve overseas. She has a history of hospitalizations, but her psychiatric diagnoses (bipolar disorder and borderline personality disorder) do not appear to be related to Operation Desert Storm. She also has been diagnosed with bronchial asthma for which she takes medication. k. A Staff Coordination/Approval Sheet, dated 25 July 1995, shows a request for an evaluation to begin the MRB/PEB process for the applicant who has a history of a mental disorder. There is an approved LOD. l. A memorandum from the 2290th USAH, dated 25 July 1995, shows the request for a psychiatric evaluation at the WRAMC in preparation of a possible MRB and or PEB process for the applicant. m. A memorandum from the WRAMC, Washington, DC, dated 9 February 1996, in part shows the results of the applicant’s psychiatric evaluation. At the time of the evaluation the applicant: * was in her sixth psychiatric hospitalization for depression with suicidal ideations * reported that since completing her 6-month tour of active duty at WRAMC during Operation Desert Storm in August 1991, she had depressed mood, increased sleep, weight gain, intense loneliness, recurrent thoughts of self-harm * relates her depression to being furious with her USAR unit for not helping her get her civilian job back after her active duty tour * in retrospect, she recognized her duties as a reservist had been her only wat to feel useful and valued * in her civilian job, scheduling conflicts, poor attitude, and not showing up for work resulted in her losing various positions, including the most recent one as a hospital technician * she has not worked since 1993, including her USAR weekend drill periods, since her first hospitalization after being told she would not be allowed to attend emergency medical technician (EMT) school by her USAR unit, became acutely distraught, angry, had suicidal thoughts, and brought herself to the VA hospital * her inpatient physicians have felt she has a strong desire to remain in the hospital to relieve her sense of emptiness, boredom, and loneliness outside of the hospital * she is essentially unable to function occupationally or socially since 1993 n. A memorandum from the 2290th USAH, dated 20 March 1996, shows that based on the psychiatric evaluation and approved LOD, the applicant was found unfit for military duty and should receive a MEB. She was an inpatient at the VA hospital on the date of this memorandum. o. A DA Form 3349 (Physical Profile), dated 10 July 1996, shows the applicant had a diagnoses of MDD, and was limited to no duty assignments away from definitive medical care. p. A WRAMC outpatient MEB narrative summary (NARSUM), dated 6 August 1997, shows, in part, the outpatient psychiatry service completed an examination that was initially started in 1996. The applicant’s chief complaint was depression, which she related to being furious with her USAR unit for not helping her in getting her civilian job back after she completed her active duty tour. In her civilian job, conflicts, poor attitude and not showing up for work resulted in her losing various positions. Her first psychiatric hospitalization was in 1993 after being told she would not be allowed to attend (EMT) school by her USAR unit, became acutely distraught, angry, had suicidal thoughts, and brought herself to the VA hospital where she was hospitalized for three months. She was hospitalized approximately five times between 1993 and 1996, and approximately six to seven admissions in the year since April 1996 for similar reasons. Her admissions resulted in minimal improvement in symptoms or functioning between hospitalizations. Her inpatient physicians have felt she has a strong desire to remain in the hospital to relieve her sense of emptiness, boredom, and loneliness outside of the hospital. her condition at the time was described her as suffering from chronic depression and suicidal thoughts which rendered her essentially unable to function occupationally or socially since 1993. Her diagnoses included her MDD and borderline personality disorder. She was referred to the PEB for a final determination. q. A DA Form 3947 (MEB Proceedings), dated 1 October 1997 shows, in part, the following: MDD, single episode, severe without psychotic features, manifested by chronic low self-esteem, chronic suicidal ideation, poor self-care, weight gain and hypersomnia; stress, moderate, loss of job after return from Operation Desert Storm; predisposition, moderate, pre-existing personality disorder; impairment for further military duty, marked. This condition was determined to be medically unacceptable. The approximate date of origin was indicated as August 1991 while she was entitled to base pay, and not EPTS. Borderline personality disorder, manifested by chronic emptiness and loneliness, frequent need to re-admit herself to a hospital to lessen her feelings, manipulative behavior, chronic suicidality and disturbed sense of self-image; impairment for further military duty, marked. This condition was determined to be medically acceptable. The Approximate date of origin was indicated as EPTS, and not incurred while she was entitled to base pay. r. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 November 1997 shows, the Informal PEB (IPEB) convened and determined the applicant’s MDD, single episode severe without psychotic features was EPTS (emphasis added) and not permanently aggravated by her military service. Therefore, it was not ratable. Other conditions determined by the MEB as to not failing retention standards, were considered by the PEB and determined to be EPTS and not permanently aggravated by her military service. The PEB recommended the applicant be separated without disability benefits. s. On 1 December 1997, the applicant indicated she did not concur with the PEB findings and demanded a formal PEB hearing with her personal appearance. She also indicated that she would have counsel of her choice from the DAV (Disabled American Veterans). t. A DA Form 199, dated 6 January 1998, shows, the Formal PEB (FPEB) convened and reaffirmed the Informal PEB determination that the applicant’s MDD, single episode severe without psychotic features was EPTS and not permanently aggravated by her military service, and therefore, not ratable. Other conditions determined by the MEB as to not failing retention standards, were considered by the Formal PEB and determined to be EPTS and not permanently aggravated by her military service. The PEB recommended the applicant be separated without disability benefits. u. On 6 January 1998, the applicant indicated she concurred with the findings of the Formal PEB. v. JLV contains Behavior Health diagnoses of Schizoaffective Disorder, Borderline Personality Disorder, Other mixed Anxiety Disorder, Major Depressive Disorder, Suicidal Ideation, and PTSD. The applicant is 100 % service connected for Dysthymic Disorder. w. While counsel maintains that the applicant’s Behavioral Health diagnoses were incurred in service, the applicant’s IPEB and FPEB both concur that her BH conditions were EPTS. This medical advisor does not see any procedural error on the part of the PEB in reaching their conclusions and did not violate any applicable regulations by failing to assign a disability rating to the applicant. While there does not appear to be any violation in regulation, this advisor, using an abundance of caution recommend a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement from a Behavioral Health perspective. BOARD DISCUSSION: After review of the application and all evidence, the Board found some relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her records to The Office of the Surgeon General for review to determine if she should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void her administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing her type of discharge without evaluation under the IDES. 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. 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. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 40-501 (Standards of Medical Fitness) Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. The regulation in effect at the time stated: a. Paragraph 3-31 states the causes for referral to an MEB for disorders with psychotic features includes diagnosed psychiatric condition(s) that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. A second cause is mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 states the causes for referral to an MEB for mood disorders includes persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, symptoms necessitating limitation of duty or duty in a protected environment or symptoms resulting in interference with effective military performance. c. Paragraph 3-33 states for anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to an MEB if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. d. Paragraph 3-35 concerns personality disorders and it states these conditions will be dealt with through administrative channels including Army Regulation 635-200. e. Paragraph 3-36 states situational maladjustments due to acute or chronic situational stress do no render an individual unfit because of physical disability, but may be a basis for administrative separation if recurrent and interfere with military duty. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) in effect at the time, established the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Chapter 3 states 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. b. Paragraph 3-2a (2) states that the presumption of any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier’s intentional misconduct or willful neglect and was incurred in LOD, will apply to a physical disability evaluation. c. Paragraph 3-2a (3) states if foregoing presumptions are overcome by a preponderance of the evidence, any additional disability resulting from the preexisting injury or disease was caused by military service aggravation. Only specific findings of “natural progression” of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation. d. Paragraph 3-2b (1) 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. e. Paragraph 3-4 states 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: * 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 * 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 f. Paragraph 3-5c states 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 his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. g. Chapter 4 provides guidance on referring Soldiers for evaluation by a MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 5. 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. 6. 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. 7. 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. 8. Title 38, CFR, part IV is the VA’s schedule for rating disabilities (VASRD). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008728 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1