ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:    BOARD DATE: 23 November 2021 DOCKET NUMBER: AR20210008727 
APPLICANT REQUESTS: in effect, 
. 
a physical disability retirement 

. 
correction of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) 


. a personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
• 
DD Form 149 (Application for Correction of Military Record) 

• 
Exhibit 1 -Memorandum for Medical Review Board 

• 
DA Form 2173 (Statement of Medical Examination and Duty Status) 

• 
Exhibit 2 -Appendix A -Combat Related Codes 

• 
Exhibit 3 -Admission and Discharge Summaries 

• 
Exhibit 4 -Medical Board Report 

• 
Exhibit 5 -VA Rating Decision 

• 
Exhibit 6 -DA Form 199 

• 
Exhibit 7 -DD Form 214 (Certificate of Release or Discharge from Active Duty) 

• 
Exhibit 8 -VA Acute, Subacute, or Chronic Diseases -§4.71a 

• 
Exhibit 9 -VA Acute, Subacute, or Chronic Diseases -§4.71a (The Skull - 5296 Skull, loss of part of, both inner and outer tables 

• 
Exhibit 10 -Medical Records (21 July 1989-5 January 1993) 171 pages 

• 
Exhibit 11 -Orders 002-39 (Discharge Orders) 

• 
Exhibit 12 -VA Rating Letter 

• 
Exhibit 13 -Letter of Support from P_ 


FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. 
The applicant states: 


a. 
She is asking the Army Review Board Agency (ARBA) to consider reviewing her Military Physical Discharge under the New Liberal Consideration Policy because of her Mental Illness, Traumatic Brain Injury (TBI), and Post-Traumatic Stress Disorder (PTSD). 

b. 
While stationed at Fort Polk LA. She sustained a head injury in the Line of Duty with a field Training Exercise (FTX) during the Desert Storm deployment on July 19, 1989. Please refer to Exhibit 1 which is a copy of the letter from the Medical Review Form dated July 23, 1992 and DA Form 2173. Please refer to Exhibit 2 which encloses Appendix-A, DD Form 2860, Jul 2011 with the Combat Related Codes that includes Instrumentality of War (IN) or in the Performance of Duty Under Conditions Simulation of War (SW). 

c. 
She proudly served in the U.S. Army for 12 years 11 months and 22 days before the accident occurred and being medically discharged on January 19, 1993.  Her career goal was to continue to serve until retirement. 

d. 
Since the accident occurred, she has been hospitalized for different reasons at different hospitals. She has been diagnosed with Bipolar II and has been hospitalized for some of the following reasons: psychotic behavior, depression, headaches, delusions, hallucinations, memory loss, hostility, word repetition, racing thoughts, paranoia fear, rapid speaking.  Please refer to Exhibit 3 for an outline of hospital admission and discharge dates. 

e. 
Before the accident occurred, she was healthy with no physical or mental injuries prior to her medical/mental history of bipolar psychotic behavior, head injury, and cranial osteoma surgically removed in December 1989. Please refer to Exhibit 4 to review letter from Dr.  T_ dated 22 September 1992 from the Physical Evaluation Board (PEB) confirming the diagnosis of cranial osteoma, surgically removed.   

f. 
Misclassification of her injuries has resulted in a loss of entitled benefits. She is hereby asking the board to grant full relief and reclassify her injuries as of 20 January 1993. Please refer to Exhibits 2 and 5 which outline the rating decision from Little Rock Regional Office dated 31 December 1997, indicates that the evaluation of loss of skull, partial, as residual of cranioplasty, which is currently 10 percent disabling, files show permanent disability retired list (PDRL). The misdiagnosis has prevented her from receiving the appropriate medical treatment for her TBI. She has been unable to seek adequate treatment at one of the five TBI hospitals and her inability to receive appropriate therapy has resulted into ongoing issues such as anger, stress, anxiety, repetition of words, bipolar, difficulty concentration, mental confusion, amnesia, dementia, headaches, social isolation, drug and alcohol dependence, and occupations deficiencies.  Her inability to receive the necessary treatment that has resulted in ongoing hospitalizations for ongoing behavioral issues. Please refer to Exhibit 3 for the 


Admission and Discharge records. She has also provided a summary outlining all the dates of admission and discharge dates from various behavioral health treatment centers, medical facilities including the Veteran's Hospital. This has significantly exacerbated her injuries for the last 25 plus years. 
g. 
She was not aware of the error until 17 October 2020 while hospitalized at Carl Vinson VA Hospital in Dublin, GA, for behavioral problems, military sexual trauma (MST), Bipolar II, PTSD and chronic headaches. While receiving treatment, she was conversing with another veteran also receiving treating at the same medical facility. They discussed their branch of service and service connections. During their conversation she informed him she was medically discharged after suffering a head injury that resulted into a loss of skull during a field training exercise (FTX). During their conversation he suggested she review her DA Form 199. Please refer to Exhibit 6 to review the form. After her discharge from the VA Hospital, she reviewed her DA Form 199 (exhibit 6). After reviewing Exhibit 6, she noticed the incorrect VA Code 5003 was assigned for arthritis and not for loss of skull, which is VA Code 5296. If the correct VA Code was given at the time of review, she would have been given an automatic permanent disability retirement rating and put on the Permanent Disability Retired List (PDRL). 

h. 
She is requesting an update of her DD Form 214 (Exhibit 7) to accurately list her diagnosed injuries. The DA form 199, (exhibit 6) which currently includes a misdiagnosis of 5003 (VA code for arthritis) and not 5296 (VA code for Loss of Skull). Please refer to Exhibit 9, which is §4.71a which has the definition of the VA Codes 5003 and 5296. If the correct VA code was provided it would have resulted in an automatic permanent disability and she would not have been provided a Permanent Disability Retired List (PDRL) discharge, which should not have been awarded at 30 percent to 50 percent. 

i. 
She is asking that ARBA review all of her medical and military records as well the additional documents provided confirming the error(s) at the time of review. The medical records that were presented for review at the time of PEB proceeding held on 11 November 1992 was misdiagnosed due to the misclassification of the VA Code 5003. Please refer to Exhibit 7 which provides a completed copy of DA Form 199 enclosed. Also, her VA rating provide pertaining to TBI, PTSD, and mental illness due to cranial osteoma, surgically removed service-connected skull loss, VA code 5296 ­9304. Please refer to Exhibit 4 Organic Mental Disorder Secondary to Traumatic Brain Injury (TBI) from Dr. T_, page 3 of the Medical Board Report. She had no prior medical history, injuries, or underlying conditions when she entered the U.S. Army on 28 January 1980 with no preexisting injuries, illness, or mental conditions. She has always maintained a high level of work ethic. She received a countless number of awards, certificates, and medals. Please refer to Exhibit 7, (DD Form 214 block 13). She was 


unable to maintain her career, because of the head Injury that she sustained on 19 January 1989, followed by cranial osteoma, surgically removed. 
j. Again, she is requesting the Board to review her file and include any relief, benefits, services compensation and any other relief, the board determines she is entitled to receive. She is asking ARBA to rectify all errors to show medically retired and in the line of duty, because it occurred during a FTX while on active duty, which is Instrumentality of War (IN) or in the Performance of Duty under conditions Simulating War (SW). 
3. 
The applicant enlisted in the United States Army Reserve on 25 January 1980 for a period of 6 years in the delayed entry program (DEP). She was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 28 January 1980. She was awarded the military occupational specialty (MOS) of 73C (finance specialist) on 22 August 1980. 

4. 
She reenlisted in the Regular Army on 28 November 1983 for a period of 6 years. On 6 March 1989 she extended her enlistment for a period of 10 months. 

5. 
A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was injured on 19 July 1989. It shows the applicant was on a field exercise when she sustained trauma to the right side of her head from a tree branch. The medical opinion shows she was not under the influence of alcohol or drugs, her injury was not likely to result in a claim against the government for future medical care, and her injury was incurred in the line of duty. The disability was indicated to be temporary. 

6. 
The applicant reenlisted in the Regular Army on 30 January 1990 for a period of 3 years. 

7. 
Medical board proceedings were initiated for the applicant on 7 August 1992. The associated commander’s statement shows the applicant can perform all duties required in her MOS within the limitations of her profile, however, recommend assignment to medical holding. 

8. 
A DA Form 3349 (Physical Profile) shows the applicant received a temporary profile for the medical conditions as status post neurosurgery, and chronic headache. Her PULHES shows 311111. Her conditions prevented her from doing all functional activities and it was recommended she not work more than 40 hours per week. 


A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 
9. 
A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) shows the applicant was referred to a PEB for her condition of cranial osteoma, surgically removed. Her condition was determined to have been incurred while entitled to base pay. The condition did not exist prior to service and was not permanently aggravated by service. The applicant indicated she did not desire to continue on active duty under AR 635-40. The findings and recommendations were approved on 26 October 1992. The applicant agreed with the Board’s findings on 27 October 1992. 

10. 
An accompanying Medical Board Report shows the following: 


a. 
The [applicant] presently has 12 years and 8 months time in service. She entered active duty 25 January 1980. She had basic training on 29 January 1980 at Fort Jackson and attended AIT at Fort Benjamin Harrison. Tours of duty include: October 1980, Wuerzburg Germany in April 1992 for Fort Stewart, and November 1984 Weisbaden Germany and in July 1989 at Fort Polk, LA where she has remained until the present time. 

b. 
The [applicant] is a 30-year-old black female who has a history of head trauma in 1989. The [applicant] was on a field exercise when she had noted trauma to the right side of her head. The [applicant] was hit on the right side of her head with a tree branch. At that time, she noted some pain in the area but noted no other significant problems, but in the ensuing months, she noted a swelling that occurred in that area. In October 1989 she appeared in the emergency room and was evaluated and treated for a possible cyst of the right parietal area. She was subsequently sent to the Surgery Department for follow up of the problem. General Surgery saw her and evaluated her with a CT scan which demonstrated an osteoma of the right temporoparietal area. A subsequent referral was made to the Neurosurgery Department at BAMC on 27 November 1989. The [applicant] was evaluated at Brooke Army Medical Center and it was felt that she should undergo a cranial osteotomy which was accomplished on 11 December 1989 at Brooke Army Medical Center. The [applicant] had a cranioplasty done with a metal plate replaced in the area where the osteoma was removed. In the ensuing months from 1989 until about the middle part of 1990 the [applicant] had complaints of pain in the area where the plate was as well as pain along the temporal area. An evaluation done with the bone scan demonstrated no correlation between the areas of pain and areas that highlighted on the bone scan. It was felt that the [applicant] may have had some nerve trauma to this area and that over time this would resolve itself. She had subsequent follow ups at Brooke Army Medical Center with the basic complaint of head pain and headaches that had persisted over the months. The 


pain, although somewhat severe in nature has been treated with various preparations of medications to include nonsteroidal anti-inflammatories as well as anti-depressant agents and did not seem to improve with time. The [applicant] was evaluated at Brooke Army Medical Center by Neurosurgery on 16 May 1991, at which time it was felt that she was getting somewhat better but she has no significant problems unless there was some problems that occurred after her follow up visits. Bone scan and other evaluation showed no significant difficulties and it was felt, by the physician evaluating the [applicant] at that time, that she was world-wide deployable and has no restrictions. Over the ensuing months, [the applicant] developed a significant amount of headaches and pain that was exacerbated by her wearing a Kevlar. She continued to do physical training but had a significant amount of pain when she had any movement or had any pressure applied to her scalp area. The [applicant] continually reported to the TMC where trials of medications to include Tegretol, 250mg tid were tried. Muscle relaxers, various preparations nonsteroidal anti-inflammatories, relaxation therapy and others were attempted without any other relief of her pain. The [applicant] is a finance clerk and as long as she was working indoors really did not show any significant problems. Although she continued to do her PT, she found it difficult to do strenuous activities, which caused her to have headaches afterwards. At the present time the [applicant] is scheduled for ETS in January 1993. The board is being dictated because the [applicant] has been unable to perform her duties on a regular basis and to be fully evaluated in accordance with the regulation. 
c. 
Head-atraumatic, normocephalic; with close observation near the scalp revealed above and behind the right ear shows an exquisitely tender area with slight swelling measuring approximately 4cm over the right parietal temporal area. There is no erythema noted and no signs of purulence. Face showed no significant changes and neck was supple and nontender with some tightness in the muscles. Scalp is otherwise within normal limits except as noted behind the right temporal area. Nose is patent without edema. Normal sinuses without any tenderness. Mouth was moist without any exudates and throat was clear. Tympanic membranes were intact bilaterally and mobile without injection. Eyes showed pupils to be equally, round, and reactive to light and accommodation and ophthalmologic examination in the fundus was normal. Pupils were equal, round, and reactive to light accommodation. Extraocular muscles were intact. Chest showed symmetrical unlabored respirations. 

d. 
The [applicant] has had an evaluation by Neurosurgery and previously General Surgery Department, and it is felt that no more surgeries will help the individual. In fact, the [applicant] does not want to have any more surgeries done, and she is afraid that she will have more problems with pain and swelling over the previous surgical sites. She was evaluated by Community Mental Health for stress reduction. 

e. 
Present evaluation shows a significant amount of swelling which is probably due to scar tissue and this has caused the [applicant] a considerable amount of pain and 


discomfort. She has chronic headache as a result of this and has been on sick call on numerous occasions without any relief from her present medical management. 
f. Since [applicant] does not meet retention standards per AR 40-501, chapter 3, para 3-41c (1), recommend presentation to the physical evaluation board. 
11. A DA Form 199 shows: 
a. An Informal PEB convened on 19 November 1992, and found the applicant unfit for pain, exacerbated by wearing Kevlar, strenuous activities, status post health cranial ostema (1989). The PEB states [the applicant] reportedly has been unable to perform her duties due to chronic headache. Based on review of the objective medical evidence of record, the PEB finds the [applicant]’s medical and physical impairment prevents reasonable performance of duties required by grade and military specialty. 
b. 
The PEB rated the applicant’s condition under VASRD code 5003 and recommended a rating of 10 percent and that her disposition be separation with severance pay if otherwise qualified. 

c. 
The disability was found not to be the result of intentional misconduct, willful neglect or unauthorized absence. The disability occurred with the applicant was entitled to base pay, in the line of duty, and proximate result of performing duty. 

d. 
Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. 

e. 
The disability did not result from a combat-related injury under the provisions of 26 USC 104. 

f. 
The applicant concurred with the PEB findings on 3 December 1992 and waived a formal hearing of her case. 


12. 
Orders 002-39, dated 5 January 1993, show the applicant assigned to Army Transition Point, Fort Polk, LA and an anticipated date of separation of 19 January 1993. 

13. 
The applicant was honorably discharged on 19 January 1993 under the provisions of AR 635-40, paragraph 4-24e for physical disability with severance pay.  Her separation code is JFL and reentry code 3. 

14. 
The applicant provided a Memorandum for Medical Review Board, dated 23 July 1992, from her commanding officer. It states the applicant sustained an injury to her 

head during a field exercise on 19 July 1989. She has been on a profile continuously since this injury and cannot function physically in her duties in the military. Colonel T_ has request that the applicant’s medical records be reviewed by the board. 

15. 
She provided Appendix A -Combat Related Codes from the DD Form 2860 (Claim for Combat-Related Special Compensation (CRSC) showing the following pertinent information: 


a. 
Direct Result of Armed Conflict (AC) -The disability was incurred in the line of duty as a direct result of armed conflict The fact that a member incurred the disability during a period of war or an area of armed conflict or while participating in combat operations is not sufficient by itself to support a combat-related determination. There must be a definite, documented, causal relationship between the armed conflict and the resulting disability. Armed conflict includes a war, expedition, occupation ·or an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a ·hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. 

b. 
In the Performance of Duty under Conditions Simulating War (SW). -The disability was incurred in the line of duty as a result of simulating armed conflict. The fact that a member incurred the disability during a period of simulating war or in an area of simulated armed conflict or while participating in simulated combat operations is not sufficient by itself to support a combat-related determination. There must be a definite, documented, causal relationship between the simulated armed conflict and the resulting disability. In general, this covers disabilities resulting from simulated combat activity during military training, such as war games, practice alerts, tactical exercises, airborne operations, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses while in full combat gear. Physical training activities such as calisthenics and jogging or formation running and supervised sports activities are not included. 


16. 
The applicant provides a list of hospital admissions and discharges from July 1989 to September 1992. The list is available for the Board’s review. 

17. 
She provides a copy of her VA Rating decision, dated 31 December 1997.  It shows: 

. 
rating for skull loss, partial, as residual of cranioplasty increased from 10 percent to 50 percent effective 20 January 1993 

. organic mental disorder secondary to brain trauma with psychotic features, depression and headaches is granted at 100 percent effective 12 February 1996 

. 
rating for lumbosacral strain increased from 10 percent to 20 percent effective 10 October 1996 

. 
rating for seizure disorder increased from 10 percent to 20 percent effective 10 October 1996 




18. 
She provides an undated excerpt from what appears to be the VASRD, titled Department of Veterans Affairs Acute, Subacute, or Chronic Diseases -§4.71a which shows the code 5003 is arthritis, degenerative (hypertrophic or osteoarthritis).  She provides a second page which shows the code 5296 is skull, loss of part of, both inner and outer tables. 

19. 
The applicant provides 171 pages of medical records from 21 July 1989 to 5 January 1993. 

20. 
She provides a copy of a VA rating letter dated 8 December 2016.  It shows her diagnostic code, disability and percentage of ratings as follows: 

• 
9304, organic mental disorder secondary to brain trauma with psychotic features, with depression and with headaches, 100 percent 

• 
5296, skull loss, partial, due to craniotomy, 50 percent 

• 
5237, lumbosacral strain, 40 percent 

• 
8045-8911, seizure disorder due to cranioplasty, 20 percent • 6260, tinnitus, 10 percent 



21. 
The applicant provides a letter of support from P_. It states: 


a. 
She is hereby providing a statement regarding how the TBI has impacted [the applicant]’s quality of life. She first met [the applicant] on 4 June 2007 at the Carl Vinson VA Hospital in Dublin, Georgia. Their friendship escalated into a relationship and she start noticing a significant change in [the applicant’s] behavior pattern which was very sporadic. She noticed patterns of compulsive behavior including mood swings, agitation, daily changes in [the applicant’s] sleep and eating patterns, random periods of self-isolation. She then realized that [the applicant] concealed a lot of personal information and eventually admitted to her head injury and loss of skull and her need for assistance with all of her daily activities. The VA has appointed a judiciary over [the applicant]’s VA benefits. 

b. 
She has previously worked in the mental health field and very familiar with some of the issues the symptoms and behaviors that she observed. In addition, the medication mental patients are prescribed to manage and treat their condition(s) has side effects that can exacerbate their condition. 

c. 
She currently provides aid and assistance in all of [the applicant’s] daily living activities, including cooking, cleaning, medication management, and assisting with clothing and some personal hygiene. She is currently her representative payee for [the applicant’s] Social Security Benefits. While assisting [the applicant], she has exhibited behaviors of Bipolar II manic behavior that has resulted immediate medical attention that required hospitalization. 

d. 
Despite her ongoing issues, they eventually married, and [the applicant’s] health appeared to improve for a short period of time. Unfortunately, it changed significantly which has created a lot of tension and stress in their relationship and marriage which untimely led to their divorce in 2020. [The applicant] has failed to maintain a positive relationship with family and friends because of her TBI. This has of course worsened her mental health which has started to rapidly decline. 

e. 
She has been with [the applicant] and can personally attest to the toll her diagnosed injuries, suffered while in the Army, has affected her day-to-day life. She is praying that after reviewing [the applicant’s] medical records, notes and documentation provided will immediately overturn her previous medical diagnosis and military rating. Her friends and family are praying that she can finally receive the medical attention she truly deserves. She is hopeful that with the ability to receive the appropriate treatment, [the applicant] can finally have a better quality of life. 


22. 
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. 

23. 
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. 

24. 
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. 

25. 
On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 

and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 

26. 
Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

27. 
Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 

28. 
MEDICAL REVIEW: 


The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation review includes the documents mentioned above under Applicant's Supporting Documents. 
a. 
VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. 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. 

b. 
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 28 January 1980 and was discharged on 19 JAN 1993 with an Honorable Characterization, under the provisions of AR 635-40, paragraph 4-24e for physical disability with severance pay. 

c. 
A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was injured on 19 July 1989.  It shows the applicant was on a field exercise when she sustained trauma to the right side of her head from a tree branch. The medical opinion shows she was not under the influence of alcohol or drugs, her injury was not likely to result in a claim against the government for future medical care, and her injury was incurred in the line of duty. The disability was indicated to be temporary. 


d. Medical board proceedings were initiated for the applicant on 7 August 1992. 
The associated commander’s statement shows the applicant can perform all duties 
required in her MOS within the limitations of her profile, however, recommend assignment to medical holding. 
e. 
DA Form 3349 (Physical Profile) shows the applicant received a temporary profile for the medical conditions as status post neurosurgery, and chronic headache.  Her PULHES shows 311111. Her conditions prevented her from doing all functional activities and it was recommended she not work more than 40 hours per week. 

f. 
DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) shows the applicant was referred to a PEB for her condition of cranial osteoma, surgically removed.  Her condition was determined to have been incurred while entitled to base pay.  The condition did not exist prior to service and was not permanently aggravated by service. The applicant indicated she did not desire to continue on active duty under AR 635-40. The findings and recommendations were approved on 26 October 1992. The 


applicant agreed with the Board’s findings on 27 October 1992. 
g. An accompanying Medical Board Report shows the following: 
(1) 
The [applicant] presently has 12 years and 8 months time in service. She entered active duty 25 January 1980.  She had basic training on 29 January 1980 at Fort Jackson and attended AIT at Fort Benjamin Harrison. Tours of duty include: October 1980, Wuerzburg Germany in April 1992 for Fort Stewart, and November 1984 Weisbaden Germany and in July 1989 at Fort Polk, LA where she has remained until the present time. 

(2) 
The [applicant] is a 30-year-old black female who has a history of head trauma in 1989.  The [applicant] was on a field exercise when she had noted trauma to the right side of her head. The [applicant] was hit on the right side of her head with a tree branch. At that time, she noted some pain in the area but noted no other significant problems, but in the ensuing months, she noted a swelling that occurred in that area.  In October 1989 she appeared in the emergency room and was evaluated and treated for a possible cyst of the right parietal area. She was subsequently sent to the Surgery Department for follow up of the problem. General Surgery saw her and evaluated her with a CT scan which demonstrated an osteoma of the right temporoparietal area. A subsequent referral was made to the Neurosurgery Department at BAMC on 27 November 1989. The [applicant] was evaluated at Brooke Army Medical Center and it was felt that she should undergo a cranial osteotomy which was accomplished on 11 December 1989 at Brooke Army Medical Center.  The [applicant] had a cranioplasty done with a metal plate replaced in the area where the osteoma was removed. In the ensuing months from 1989 until about the middle part of 1990 the [applicant] had complaints of pain in the area where the plate was as well as pain along the temporal area. An evaluation done with the bone scan demonstrated no correlation between the areas of pain and areas that highlighted on the bone scan. It was felt that the [applicant] may have had some nerve trauma to this area and that over time this would resolve itself. She had subsequent follow ups at Brooke Army Medical Center with the basic complaint of head pain and headaches that had persisted over the months. The 

pain, although somewhat severe in nature has been treated with various preparations of medications to include nonsteroidal anti-inflammatories as well as anti-depressant agents and did not seem to improve with time. The [applicant] was evaluated at Brooke Army Medical Center by Neurosurgery on 16 May 1991, at which time it was felt that she was getting somewhat better but she has no significant problems unless there was some problems that occurred after her follow up visits. Bone scan and other evaluation showed no significant difficulties and it was felt, by the physician evaluating the [applicant] at that time, that she was world-wide deployable and has no restrictions. Over the ensuing months, [the applicant] developed a significant amount of headaches and pain that was exacerbated by her wearing a Kevlar.  She continued to do physical training but had a significant amount of pain when she had any movement or had any pressure applied to her scalp area. The [applicant] continually reported to the TMC where trials of medications to include Tegretol, 250mg tid were tried.  Muscle relaxers, various preparations nonsteroidal anti-inflammatories, relaxation therapy and others were attempted without any other relief of her pain. The [applicant] is a finance clerk and as long as she was working indoors really did not show any significant problems. Although she continued to do her PT, she found it difficult to do strenuous activities, which caused her to have headaches afterwards. At the present time the [applicant] is scheduled for ETS in January 1993. The board is being dictated because the [applicant] has been unable to perform her duties on a regular basis and to be fully evaluated in accordance with the regulation. 

(3) 
Head-atraumatic, normocephalic; with close observation near the scalp revealed above and behind the right ear shows an exquisitely tender area with slight swelling measuring approximately 4cm over the right parietal temporal area.  There is no erythema noted and no signs of purulence.  Face showed no significant changes and neck was supple and nontender with some tightness in the muscles.  Scalp is otherwise within normal limits except as noted behind the right temporal area. Nose is patent without edema.  Normal sinuses without any tenderness. Mouth was moist without any exudates and throat was clear.  Tympanic membranes were intact bilaterally and mobile without injection.  Eyes showed pupils to be equally, round, and reactive to light and accommodation and ophthalmologic examination in the fundus was normal.  Pupils were equal, round, and reactive to light accommodation. Extraocular muscles were intact. Chest showed symmetrical unlabored respirations. 

(4) 
The [applicant] has had an evaluation by Neurosurgery and previously General Surgery Department, and it is felt that no more surgeries will help the individual.  In fact, the [applicant] does not want to have any more surgeries done, and she is afraid that she will have more problems with pain and swelling over the previous surgical sites. She was evaluated by Community Mental Health for stress reduction. 

(5) 
Present evaluation shows a significant amount of swelling which is probably due to scar tissue and this has caused the [applicant] a considerable amount of pain 

and discomfort. She has chronic headache as a result of this and has been on sick call on numerous occasions without any relief from her present medical management. 

(6) 
Since [applicant] does not meet retention standards per AR 40-501, chapter 3, para 3-41c (1), recommend presentation to the physical evaluation board. 

h. 
An Informal PEB convened on 19 November 1992, and found the applicant unfit for pain, exacerbated by wearing Kevlar, strenuous activities, status post health cranial ostema (1989). The PEB states [the applicant] reportedly has been unable to perform her duties due to chronic headache. Based on review of the objective medical evidence of record, the PEB finds the [applicant]’s medical and physical impairment prevents reasonable performance of duties required by grade and military specialty. 

i. 
The PEB rated the applicant’s condition under VASRD code 5003 and recommended a rating of 10 percent and that her disposition be separation with severance pay if otherwise qualified. 

j. 
The disability was found not to be the result of intentional misconduct, willful neglect or unauthorized absence. The disability occurred with the applicant was entitled to base pay, in the line of duty, and proximate result of performing duty. 

k. 
The applicant concurred with the PEB findings on 3 December 1992 and waived a formal hearing of her case. 


l. The applicant provided a Memorandum for Medical Review Board, dated 23 July 1992, from her commanding officer. It states the applicant sustained an injury to her head during a field exercise on 19 July 1989.  She has been on a profile continuously since this injury and cannot function physically in her duties in the military.  Colonel T_ has request that the applicant’s medical records be reviewed by the board. 
m. 
She provides a copy of her VA Rating decision, dated 31 December 1997. It shows: 

. 
rating for skull loss, partial, as residual of cranioplasty increased from 10 percent to 50 percent effective 20 January 1993 

. organic mental disorder secondary to brain trauma with psychotic features, depression and headaches is granted at 100 percent effective 12 February 1996 

. 
rating for lumbosacral strain increased from 10 percent to 20 percent effective . 10 October 1996 

. 
rating for seizure disorder increased from 10 percent to 20 percent effective . 10 October 1996 



n. 
She provides a copy of a VA rating letter dated 8 December 2016.  It shows her diagnostic code, disability and percentage of ratings as follows: 

. 
9304, organic mental disorder secondary to brain trauma with psychotic features, with depression and with headaches, 100 percent 

. 
5296, skull loss, partial, due to craniotomy, 50 percent 

. 
5237, lumbosacral strain, 40 percent 

. 
8045-8911, seizure disorder due to cranioplasty, 20 percent . 6260, tinnitus, 10 percent 



o. 
JLV contains Behavioral Health diagnoses of Bipolar Disorder, PTSD, Opioid Abuse, Schizophrenia, Cannabis Abuse, Cocaine Dependence, and Dysthymic Disorder. 

p. 
The applicant has a 100% service connection (100% for Brain Syndrome, 50% for loss of part of skull, 20% seizure disorder). 

q. 
Consider referral to the DES for reconsideration, due to significant Physical and Behavioral Health issues that may have been present at discharge, that may not have been properly rated. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was partially warranted. Board members considered the applicant's evidence, her service records, Narrative Summary, MEB and PEB, and the medical review. Board members agreed that she had several conditions that did not meet retention standards and may have been found unfitting, which could have warranted a disability rating. Due to the history and extensive nature of her medical conditions, as well progression over the years, Board members agreed that her case should be referred to the Disability Evaluation System. Based on a preponderance of evidence the Board determined that reconsideration of her disability processing was warranted due to significant Physical and Behavioral Health issues that may have been present at discharge that may not have been properly rated.  
BOARD VOTE: 
Mbr 1  Mbr 2  Mbr 3  
:  :  :  GRANT FULL RELIEF  
XX:  XX:  XX:  GRANT PARTIAL RELIEF  
:  :  :  GRANT FORMAL HEARING  
:  :  :  DENY APPLICATION  

BOARD DETERMINATION/RECOMMENDATION: 
1. The Board determined the evidence presented is 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 the disability evaluation she received from the Army accurately depicted her conditions as they existed at the time. 
a. 
If a review by the Office of The Surgeon General determines the evidence supports amendment of her disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to her discharge. 

b. 
In the event that a formal 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. 

c. 
Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority 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 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 to any relief without benefit of the review described above. 
X 
CHAIRPERSON 
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, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 


a. 
Paragraph 3-2 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. 

b. 
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: 


(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. Paragraph 3-5 outlines the use of the VASRD.  It states: 

(1) 
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. Under the provisions of 10 USC 61 these ratings are assigned from the VASRD. 


(2) Special guidance concerning Army use of the VASRD, as well as modifications and exceptions to it as prescribed by DODD 1332.18, are set forth in appendix B of this regulation. 
(3) 
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. 

(4) 
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. Any non-ratable defects or conditions will be listed in item 8 of DA Form 199, but will be annotated as non-ratable. 

c. 
 Paragraph 4-19 states in part, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability. Percentage ratings reflect the severity of the Soldier's medical condition at time of rating. The VASRD, as modified by appendix B of this regulation, is used in deriving percentage ratings. The first 31 paragraphs of the VASRD, which provide general policies, do not apply and have been replaced by section I and II of appendix B of this regulation. PEBLOs, raters, and reviewers must be familiar with the VASRD, including introductory paragraphs to sections and italicized footnotes. Appendix B sets forth Army policies (including modifications) on use of the VASRD when rules or ratings provided by the VA schedule are improper for Army use or do not provide a rating basis. 

d. 
Appendix B describes the Army’s application of the VASRD.  It states not all of the general policy provisions of the VASRD apply to the Army. Section I replaces or modifies paragraph 1-31 of the VASRD, which pertain to VA determination of service-connected disabilities, internal VA procedures or practices, and other paragraphs that do not apply to the Army. Rating policies that apply to the Army but are not made clear by the VASRD are addressed. 

(1) 
Paragraph B-8 describes the application of analogous ratings. When an unlisted condition is encountered, it is rated under a closely related disease or injury in which not only the functional, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies, as well as the use of analogous ratings for conditions of doubtful diagnosis, or those not fully supported by clinical and laboratory findings, are to be avoided. The ratings for organic diseases and injuries are not to be assigned by analogy to conditions of psychological origin (VASRD Codes 9000-9511). 

(2) 
Paragraph B-24 provides special instructions and explanatory notes regarding VASRD 5003 -arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis.  It states these are rated as follows: 

(a) 
Each major joint (or grouping of minor joints) with objective limitation of Motion plus X-ray evidence-10 percent. The bilateral factor applies. 

(b) 
X-ray evidence of two or more major joints or groups of minor joints, plus occasional exacerbations of incapacitating symptoms--total 20 percent. With X-ray evidence alone-10 percent. No bilateral factor applies. 

(c) 
When the limitation of motion of the involved specific joint or joints is of sufficient degree, the rating assigned will be under one of the appropriate limitation of motion codes (5200 series or 9905). Bilateral factor applies only to 5200 series. 

(d) 
If more than two major joints or groups of minor joints are involved, rate separately and combine the ratings for those joints which would merit a rating under the 5200 series or 9905. When a rating is assigned under a limitation of motion code (5200 series), it will not be combined with a rating under code 5003 for other joint involvement on the basis of X-ray findings. 

(e) 
For rating purposes, combinations of interphalangeal, metacarpal phalangeal and metatarsal phalangeal joints are groups of minor joints equivalent to a major joint. Likewise, each segment of the spine (cervical, thoracic lumbar) and both sacroiliac joints together constitute groups of minor joints. The lumbosacral joint is a major joint. 

(f) 
Often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain. In as much as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain. However, lack of objective findings does not constitute a valid reason for finding a Soldier unfit by analogy to a neuropsychiatric disability or assuming that the Soldier is malingering. Rating by analogy to degenerative arthritis as an exception to analogous rating policies (para B-8) may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value. To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement. (Severe eye pain is an exception, see code 6009.) 

(3) 
Paragraph B-40 provides special instructions and explanatory notes Regarding VASARD 5296 -the skull.  It states: 

(a) Table B-1 maybe helpful as a reference in determining proper ratings. 

(b) 
Diagnostic burr holes and other bony defects are ratable only when there is loss of both inner and outer tables of bone. Where there is more, than one and defects are contiguous, add the areas of each and rate the total as one defect. 

(c) 
Considering total bone loss for multiple areas, such as in trephining, the Rating should not be assigned based upon "coin measurement" but on the basis of the aggregate area loss in terms of square inches. Attention is directed to the fact that approximately 50 percent of diagnostic burr holes heal within five years. 

(d) 
Loss of part of the skull is not ratable if the defect has been successfully repaired with a prosthetic plate. Residual neurological deficit or cosmetic deformity will be rated separately if appropriate. 

(e) 
Areas of loss where bone regeneration has taken place are not ratable. If regeneration has partially closed the defect, only the remaining area of loss is to be rated. 

(f) 
The rating problem created by the disparity in the criteria for area measurement (50-cent piece = 1.140 square inches; 25-cent piece = 0.716 square inches) will be resolved in favor of the Soldier. 


3. 
Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

4. 
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. 


5. 
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. 

6. 
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. 

7. 
On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 

8. 
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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority.  In determining whether to grant relief on the basis of 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. 

9. 
Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers at the time of retirement, discharge, or release from active duty service or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214.  Chapter 2 (Preparation of Separation Documents) details when and how the DD Form 214 (Report of Separation from Active Duty) will be prepared. Section II, paragraph 2-8 addresses item 18 (Remarks). it states use this block for entries required by HQDA for which a separate block is not available and for completing entries that are too long for their blocks. 


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