IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20130000564 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show his injuries are service-connected.  The applicant is unclear or specific in his request whether he requests:

* his Army disabling condition be service-connected
* his Army disabling condition be combat-related
* the Department of Veterans Affairs (VA) award him service-connected disability compensation for all his injuries

2.  The applicant states:

* his current benefit from the military for his injuries incurred in theater is a disability rating at 30 percent (30%) with permanent retirement
* the injuries that he incurred happened while he was deployed in Afghanistan so he requests a review in order to receive service-connected benefits
* currently, it (one of his records) states that his injuries are not service-connected but a service-connected rating is what is expected for an injury that happened while in theater
* he was deployed and he started having psychotic behavior and he was later diagnosed with schizophrenia which occurred downrange
* a service-connected rating would allow him to expand and increase the utilization of his benefits 
* he is trying to recover and the statement that his injuries are not service-connected is unjust and unfair to him as a Soldier
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A self-authored statement
* Selected service medical records
* Selected VA progress notes and medical documents and VA rating decision

CONSIDERATION OF EVIDENCE:

1.  According to Title 37, U.S. Code, section 101, the term "service connected" means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.  This term is not used by the Army; it is used by the VA in a variety of situations and for variety of reasons. 

2.  Issues related to service-connection and eligibility as well as the award or denial of service-connected disability are strictly VA issues and are outside the purview of this Board.  The applicant is advised to contact that agency for further assistance.  The issue of "service-connection" will not be discussed further in this Record of Proceedings. 

3.  The applicant's records show he enlisted in the Regular Army (RA) on 2 November 2004 and he held military occupational (MOS) specialty 25F (Network Switching Systems Operator/Maintainer).  He served in Iraq from 
5 December 2005 to 21 November 2006

4.  He served in Germany from 26 July 2005 to 8 September 2008.  He was honorably released from active duty on 1 November 2008 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligations. 

5.  He again enlisted in the RA on 29 October 2009 and he held MOS 11B (Infantryman).  He was assigned to 1st Squadron, 75th Armor, Fort Campbell, KY.  He served in:

* Afghanistan, from 16 June 2010 to 19 January 2011

6.  On 19 April 2011, he underwent neuropsychological evaluation at Blanchfield Army Community Hospital, Fort Campbell, KY.  The applicant, having been reassigned to the Warrior Transition Unit, raised concerns about potential cognitive pathology.  The evaluation report shows:

	a.  He showed difficulty understanding verbal communications, repeating what had been said, and/or demonstrating an understanding of what had been said.  These events appeared to be progressive and he acknowledged that his cognitive difficulties were much worse when he was a college student but he thought of it as part of his long-term cognitive style.  

	b.  These behavioral and cognitive problems occur in the context of a history of psychosis that occurred acutely with 2 1/2 days of sleeplessness in January 2011 and which led to a medical evacuation from Afghanistan.  He was not in direct combat.  He was working inside the wire when a psychosis was seen, diagnosed, and led to evacuation.  

	c.  Today, he is quite guarded about any sort of psychotic processing although he does recognize the diagnosis and some signs.  He denied current frank hallucinatory voices or experiences but described - in vague terms- paranoia where part of his mind is present and part is engaged carefully to make sure that he does not slip into some undesirable state of mind.  He recalled in Afghanistan that part of his mind was present and part was spinning.  

	d.  He showed a pattern of cognitive deficits which are indicative of organic pathology.  He should be followed for psychosis and his treating physician should consider the benefits of trial by an anti-psychotic.  

7.  In July and September 2011, he was referred to a medical evaluation board (MEB) by the Psychiatry Department, for paranoid schizophrenia.  His narrative summary shows:

	a.  His paranoid schizophrenia is medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was interviewed on 22 July and 14 September 2011.  He was on medications but that the outlook was that of insufficient recovery to resume an active Army career. 

	b.  He should not carry weapons, handle classified material, or deploy.  He had therapy and medication but neither allowed him to return to duty.  His condition of schizophrenia is chronic and he was not expected to improve.  His commander did not recommend retention. 

	c.  He was also diagnosed with the medically acceptable conditions of tinnitus and retinal scar; history of allergic rhinitis/sinusitis; pseudo folliculitis (persistent irritation); and minimal pes planus, bilaterally (flat feet or fallen arches).

8.  On 16 September 2011, an MEB convened.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the 
applicant was diagnosed as having the medically-unacceptable condition of schizophrenia that existed prior to service but was aggravated by service.  He also had multiple conditions that met retention standards - tinnitus, retinal scar, allergic rhinitis/sinusitis, pseudo folliculitis, and minimal bilateral pes planus.  The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue serving on active duty.  He was further counseled and indicated:

* he had reviewed the contents of the MEB packet and read his narrative summary and physical profile
* he understood the PEB would consider and review only those conditions listed on his DA Form 3349 (Physical Profile)
* the DA Form 3349 includes all his current medical conditions and whether they met medical retention standards
* the conditions that did not meet medical retention standards were properly listed
* he provides all medical documentation of military care to the PEBLO
* he agreed that the MEB accurately covered his current medical condition

9.  On 17 January 2012, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to schizophrenia.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage) of the DA Form 199 (PEB Proceedings), he was granted a 30% rating.  The PEB noted that:

His condition of schizophrenia manifested spontaneously in January 2011 during Afghanistan deployment.  [Applicant] worked repairing objects in the Forward Operating Base (FOB) during this deployment and was not exposed to combat stressors.  His condition is unfitting because of lability of mood, sleeplessness, and periodic auditory hallucinations which impair reliable performance of his 11B MOS.  His commander noted intermittent periods where [Applicant] was unable to perform occupational tasks.  

10.  The PEB noted that the informal findings were changed based on the VA reconsideration, dated 9 January 2012.  The PEB finds that the [Applicant's] current impairment is best described as above.  The DA Form 199 dated 
7 November 2011 is superseded.  

11.  The PEB also considered his other medical condition(s) as listed on the MEB: tinnitus, retinal scar, allergic rhinitis/sinusitis, pseudo folliculitis, and minimal bilateral pes planus; however, these conditions met retention standards and were not found to be unfitting and therefore they were not rated.  The PEB recommended the applicant's permanent retirement at a combined rating of 30%. He concurred and waived his right to a formal hearing of his case.

12.  The applicant's DA Form 199 contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

	a.  Item 10a – The Soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

	b.  Item 10b – Evidence of record reflects the Soldier was not a member or obligated to become a member of the Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975.

	c.  Item 10c – The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

13.  On 5 March 2012, Headquarters, 101st Airborne Division, Fort Campbell, KY, published Orders 065-0612 releasing him from active duty on 22 May 2012 by reason of physical disability and placing him on the permanent disability retired list in his retired grade of specialist/E-4 effective 23 May 2012.  The orders stated:

* Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: No
* Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104: No

14.  On 22 May 2012, the applicant was retired in accordance with chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of Disability - Permanent (Enhanced).  Item 26 (Separation Code) of his DD Form 214 shows the entry "SEJ."

15.  On 25 May 2012, the VA awarded him service-connected disability compensation for/at the rate of undifferentiated schizophrenia (claimed as anxiety and insomnia) at 30%, and bilateral pes planus (claimed as bilateral foot condition), at 0%.  The VA denied service-connection for 

* allergic rhinitis
* sinusitis
* pseudo folliculitis
* headache syndrome

16.  Army Regulation 635-40 establishes the PDES 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 or her office, grade, rank, or rating.  It states a disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

17.  Paragraph 4-19 (PEB decisions – common criteria) states in:

	a.  Paragraph 4-19j (Armed Conflict – Instrumentality of War) certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system (Title 5, U.S. Code, section 3501).  One of those situations is when the disability is unfitting, was caused by an instrumentality of war, and was incurred in Line of Duty during a period of war as defined by law. 

	b.  Paragraph 4-19k disability pay is awarded by reason of a combat-related injury.  Within the meaning of Title 26, U.S. Code, section 104, combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.

	c.  Paragraph 4-19l a Soldier may be performing extra hazardous service even if not directly engaged in combat.  Extra hazardous service includes but is not limited to the following activities: Aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.  Conditions simulating war include, but are not limited to, the following activities: performance of tactical exercises such as the squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling; and negotiation of combat confidence and obstacle courses.  In block 10c of the DA Form 199, the board will record its determination of whether the injury was combat-related as defined by Title 26, U.S. Code, section 104. 

	d.  Section II of the Glossary defines 

		(1)  Combat-related injury as a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict; while engaged in extra hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

		(2)  Conditions simulating war as those circumstances of training so simulating conditions of war that a special personal risk attends the situation.  The mere fact that training (calisthenics) was required, or that training (football) is sponsored by the military, does not equate with "conditions simulating war."

		(3)  Instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

18.  Title 26 U.S. Code, section 104, states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is unclear or specific in his request.  He contends that:

* his Army disabling condition to be service-connected
* his Army disabling condition be combat-related
* the Department of Veterans Affairs (VA) award him service-connected disability compensation for all his injuries

2.  As stated earlier, issues related to service-connection and eligibility as well as the award or denial of service-connected disability are strictly VA issues and are outside the purview of this Board.  The applicant is advised to contact that agency for further assistance.  

3.  The applicant had one episode of psychosis subsequent to 2 1/2 days of sleeplessness in January 2011 that led to a medical evacuation from Afghanistan.  He was not in direct combat.  He was working inside the wire when his psychosis was seen, diagnosed, and led to evacuation.  His episode was not caused by a combat event.  

4.  He appears to have been evaluated by the VA as part of the PDES.  His schizophrenia was determined have failed retention standards.  Accordingly, a PEB convened and rated him for this condition at 30%.  He concurred and retired.  

5.  The applicant does not meet the criteria to have this condition listed as combat-related.  The fact that he was in Afghanistan is noted.  However, his single onset was not caused by any combat event.  The fact that his condition may have been aggravated in the line of duty in a time of war during deployment is not sufficient to change item 10c of his PEB or the resultant retirement orders. 

6.  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 





are insufficient as a basis for correction of the records of the individual concerned.




      ___________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.



ABCMR Record of Proceedings (cont)                                         AR20130000564





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ABCMR Record of Proceedings (cont)                                         AR20130000564



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