IN THE CASE OF:	  

		BOARD DATE:	  30 April 2014

		DOCKET NUMBER:  AR20140003348 


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 he was wounded in combat, provide him with orders showing he was separated from the Army, and provide him with medical records documenting his injury.  On 1 April 2014, he revised his request and he now requests permanent retirement. 

2.  The applicant states he was placed on the temporary disability retired list (TDRL) in November 1991.  He was removed from the TDRL in 1996.  The reason for his removal is stated as his failure to complete a final medical examination.  However, he was under the assumption that all subsequent medical examinations and his disability rating would be shared with the Army.  He has no orders placing him on the TDRL, nor any subsequent orders removing him from the TDRL.  He has no documentation showing he was wounded in combat and suffered a debilitating combat injury but he has documentation from the Department of Veterans Affairs (VA) showing his disability rating. 

3.  On 1 April 2014, by letter/email, the applicant stated that he had applied for combat-related special compensation (CRSC) only to be informed by the Army that he had been dropped from the TDRL back in 1996.  The reason given is that he had failed to complete a final medical examination.  He has been receiving medical care through the VA due to his combat wounds received near an Iraqi airfield on 27 February 1991.  His left leg was blown off and his lower right leg shattered.  In November 1992, the VA Medical Center in Madison, WI, removed another 3.5 inches of residual left leg due to the potential of growing a bone spur protruding through the skin.  He now wants the Board to expedite his application for permanent retirement due to current financial hardship.  He has fallen behind on his mortgage and he is in jeopardy of his home going into foreclosure which would make him homeless. 

4.  On 7 April 2014, by email, he added additional narrative to his 1 April 2014 letter and stated that in August 1993 he was hospitalized for post-traumatic stress disorder (PTSD) at the VA Medical Center in Milwaukee, WI, for 6 months and more recently at the VA Medical Center, Denver, CO, from 15 December 2013 to 6 February 2014.  He adds that while taking time to heal from his combat trauma, he has fallen behind on his mortgage and other bills and he is in jeopardy of going into foreclosure.  He needs a wheelchair to get around when not wearing his prosthesis, the thought of being homeless and living on the street is really challenging.  He fears if he lost his home and was forced to live on the street, his PTSD symptoms would further be exacerbated.  

5.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 25 November 1991
* Letter from the U.S. Army Human Resources Command (HRC) and a DD Form 215 (Correction to DD Form 214)
* VA rating decision, dated 10 March 2009
* Orders D106-7 (removal from the TDRL)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. 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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 24 March 1987 and he held military occupational specialty 11M (Fighting Vehicle Infantryman.  He served in Germany from July 1987 to July 1989 and he attained the rank/grade of sergeant (SGT)/E-5.  He also served in Southwest Asia in support of Operation Desert Shield/Storm.  

3.  On 27 February 1991, while in Southwest Asia, he was riding in the back of a Bradley Fighting Vehicle when it was hit by a missile.  He sustained a traumatic amputation of the distal left tibia/fibula with an additional Grade III open, right tibia/fibula fracture.  He went through multiple hospitalizations and procedures and he was ultimately air-evacuated through Germany to Fort Gordon, GA.  He underwent a revision to a long above-the-knee amputation of the left lower extremity.  The right lower extremity was treated with external fixation followed by multiple irrigations and debridement.  He had an external fixator removed and he was treated with casting and tibial splint for his right lower extremity.  He had also been undergoing physical therapy for gait training and prosthetic fitting of the left lower extremity.  

4.  On 19 August 1991, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, determined the applicant had the medically unacceptable conditions of long above-the-knee amputation, left; and Grade III open tibular/fibular fracture, well-healing.  The MEB recommended his referral to an informal physical evaluation board (PEB).  The applicant agreed with MEB's findings and recommendations and indicated he did not desire to continue on active duty.

5.  On 3 September 1991, a PEB convened and found he was physically unfit to perform the duties in his grade and military specialty.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and recommended a combined physical disability rating of 80 percent (%) and placement on the TDRL with future reexamination: 

* VASRD Code 5162, above the knee amputation, left leg, 60%
* VASRD Code 5262, healing open fracture of right tibia and fibula, 40%

	a.  The PEB noted that his condition placed activity limitations and precluded adequate performance of the normal duties associated with his grade and/or military specialty; however, his condition had not stabilized and a period on the TDRL was considered appropriate.  

	b.  After having been advised of the findings and recommendations of the PEB and after receiving a full explanation of the results of the findings, on 13 September 1991, the applicant elected not to concur and demanded a formal hearing without personal appearance but with regularly appointed counsel representation.  

	c.  On 10 October 1991, he indicated that after a careful consideration of his case, he now accepts the informal finding on 3 September 1991 of 80% TDRL and desires to withdraw his request for a formal hearing.   
	d.  On 24 October 1991, an official reviewed the findings and recommendations of the PEB and approved it on behalf of the Secretary of the Army. 

6.  On 4 November 1991, the U.S. Total Army Personnel Command published Orders D221-18 retiring him from active duty effective 25 November 1991 and placing him on the TDRL in his retired rank/grade of SGT/E-5, effective 26 November 1991.

7.  The applicant retired on 25 November 1991 and he was placed on the TDRL on 26 November 1991 under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph          4-24b(2).  His DD Form 214 shows he completed 4 years, 8 months, and 2 days of active service.  Item 23 (Type of Separation) of this form shows the entry "RETIREMENT," item 25 (Separation Authority) shows the entry "AR 635-40, PARA 4-24B(2)," and item 28 (Narrative Reason for Separation) shows the entry "PHYSICAL DISABILITY, TEMPORARY."

8.  Between 9 March 1993 and 1 April 1993, he was seen by the VA for PTSD.  He was admitted as a patient in the PTSD program.  He was found active in all groups and shared from his journal on several occasions.  Overall, he was working appropriately within the program and actively participating.  However, he was discharged from the program after 3 weeks due to a positive screen for drugs. His final summary diagnosis as of 5 April 1993 was: 

* Axis I: PTSD, cannabis dependency with secondary substance abuse of cocaine and cannabis
* Axis II: No diagnosis
* Axis III: Status/post traumatic amputation above the knee
* Axis IV: Four
* Axis V: Global Assessment of Functioning (GAF) in the past year: 55; Current GAF is 50

9.  On 1 June 1994, the applicant underwent a TDRL evaluation at Fort Leonard Wood, MO.  His physical examination shows: 

	a.  History of present illness: he sustained a traumatic injury in the Gulf War conflict in 1991 secondary to a missile.  He has an above the knee amputation on the left side.  He had a right grade III, open tibial fracture which was treated with external fixation and local wound care.  He also suffers from PTSD. 

	b.  His orthopedic condition was stable.  He is fully ambulatory in the prosthesis.  He complains of instability in his prosthesis and should be evaluated for a new one.  The evaluation of the right leg reveals a stable, well-healed fracture with full range of motion about the right knee.  His right lower extremity is neurovascularly intact.  

	c.  His diagnosis is as follows: 

* above the knee amputation on the left side
* right, grade III, open tibia fracture treated with external fixation and local wound care
* PTSD

	d.  Recommendation:  he should be referred to an MEB for this condition; however, he should be thoroughly evaluated by a psychiatric physician to address the condition of PTSD.  He should also see an orthotist for modification or placement of his left prosthesis prior to meeting the board. 

10.  On 7 June 1994, the VA Medical Center in Milwaukee, WI, issued a letter indicating the applicant was a patient in the PTSD/Substance Use Unit (PSU) from 8 October 1993 to 29 April 1994.  His is currently being seen by the staff and his diagnosis is: 

* Axis I: PTSD, cannabis dependency in remission, alcohol abuse in remission, cocaine abuse in remission
* Axis II: No diagnosis
* Axis III: Left above the knee amputation
* Axis IV: Severity of psychological stressors: moderate; coping with physical disability, single parent, physical relocation to Milwaukee, return to school, probation
* Axis V: GF score: past year was 55; current is 66

11.  On 13 July 1994, a TDRL PEB convened and found the applicant's condition had not improved to the extent that he was considered fit for duty.  The TDRL PEB recommended his permanent disability retirement and noted/stated: 

	a.  He remained unfit for the above-the-knee amputation of left leg, fully ambulatory with an AKA prosthesis and rated this condition (VASRD Code 5162) at 60%.  

	b.  The conditions listed on his medical board diagnosis numbers 2 (right, grade III, open tibia fracture treated with external fixation and local wound care) and number 3 (PTSD) were considered by the TDRL PEB but found to be neither unfitting nor ratable.  

	c.  After having been advised of the findings and recommendations of the TDRL PEB and after receiving a full explanation of the results of the findings, on 18 August 1994, the applicant elected not to concur and demanded a formal hearing without personal appearance.  

12.  On 14 October 1994, the TDRL PEB President ordered the applicant's case be returned to the military treatment facility at Fort Leonard Wood, MO for additional processing.  He indicated that:

	a.  The applicant's case had been opened that day in a formal hearing but recessed due to insufficient information.  This was a case that should properly have a rebuttal to the informal decision. 

	b.  The diagnosis of PTSD must be considered in the adjudication of this case which would require a current psychiatric addendum signed by a psychiatrist and contains sufficient current functional information to permit adjudication.  The VA records submitted with the case are over one year old and current records are needed.  

13.  On 16 December 1994, the applicant underwent a special psychiatric examination at the VA Medical Center, Milwaukee, WI, for rating purposes.  He was considered (by the VA) to be service-connected for a left above-the-knee amputation and for PTSD.   His diagnosis is as follows: 

* Axis I: PTSD, chronic; history of poly-substance abuse reportedly now in remission
* Axis II: No diagnosis
* Axis III: Status/post traumatic above-the-knee amputation with continuing pain and stump breakdown; status/post bone and soft tissue trauma with infection in the right leg
* Axis IV: Severe psychological stressors; problems with primary support group, social environment, educational problems, problems with health care, chronic physical disability and history of severe war trauma
* Axis V: GAF score - 55; moderate symptoms and moderate difficulty in social, educational, and family functioning

14.  On 23 December 1994, the applicant was seen by the VA for a social and industrial survey as part of a periodic review of the disability for the Department of the Army.  The summary shows he clearly was struggling with the adjustment of the loss of his leg and this was made more difficult with the complications involved with the prosthesis and his return to a wheelchair.  

15.  On 10 January 1995, the VA psychiatric examination and social/industrial survey were reviewed by the military psychiatrist and the deputy commander for clinical services at Fort Leonard Wood, MO.  The documents were forwarded for processing by the TDRL PEB. 

16.  On 7 February 1995, a formal PEB convened and recommended the applicant be retained on the TDRL with reexamination during February 1996.  The applicant's condition had not improved to the extent that he was considered fit for duty.  Upon reexamination, it was noted his condition had not stabilized and his disability was still rated above 30%.  The PEB noted he remained unfit for: 

* VASRD Code 5162, above-the-knee amputation of left leg with defective prosthesis and requiring a wheelchair
* VASRD Code 5262, fractures of right tibia and fibula, healed
* VASRD Code 9411, PTSD due to initial combat trauma, death of associates, and injuries including amputation; no diagnosis since placed on the TDRL but determined to be directly related to incidents causing disability; not stable for rating at this time

17.  On 15 February 1995, after having been advised of the findings and recommendations of the formal PEB and after receiving a full explanation of the results of the findings, the applicant concurred. 

18.  On 7 March 1995, the formal PEB corresponded with the applicant and informed him that the result of the recent medical examination revealed his medical disability had not reached a point of stability whereby his name may be removed from the TDRL.  Therefore, he is retained on the list with another examination scheduled for February 1996 and he would receive appropriate notices at the time. 

19.  On 30 November 1995 and 18 December 1995, by certified mail, the applicant was advised that his periodic medical examination is being arranged at Fort Leonard Wood, MO, during or before February 1996.  The examination is required by law even if he waived Army retired pay for VA compensation and/or receives medical treatment at the VA or any other facility.  Failure to report to the examination without just cause will result in termination of his eligibility for Army retired pay.  These certified letters were returned to sender with no forwarding address. 

20.  In February 1996, by certified mail, the applicant was advised that information received from the Army showed he failed to report to his periodic physical examination during February 1996.  He was warned that the examination is required by law and he may provide an explanation for his failure to report for the examination.  This certified letter was returned to sender with no forwarding address. 

21.  On 6 March 1996, by certified letter, the applicant was advised that his eligibility to receive disability retirement pay was terminated effective 6 March 1996 under the authority of Title 10, U.S. Code, section 1210 due to his failure to report for his periodic medical examination.  This certified letter was returned to sender with no forwarding address. 

22.  The Chief of Physical Disability Branch, U.S. Total Army Personnel Command reviewed the applicant's case and his failure to comply with statutory requirements for a medical examination.  The Chief approved his removal from the TDRL.  

23.  On 19 December 1996, the U.S. Total Army Personnel Command published Orders D260-8 administratively removing the applicant from the TDRL effective 25 November 1996 by reason of failing to comply with scheduled physical reexamination required by law.  

24.  The applicant provides his VA rating decision, dated 10 March 2009, which shows the VA awarded him service-connected disability compensation for/at the rate of: 

* Hemorrhoids, 0%
* Donor site scar, right thigh, 0%
* Status/post fracture, right tibia and fibula with history of osteomyelitis, 20%
* PTSD, 30%
* Status post above-the-knee amputation, left leg with revision, 60%

25.  An advisory opinion was received on 11 April 2014 from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case.  A USAPDA official stated: 

	a.  Based upon the limited evidence provided, it is difficult to say with any certainty what the final total rating would have been if the Soldier had reported for his final TDRL re-evaluation as required.  It is clear that the rating for his amputation would have remained at 60%.  His December 1994 psychiatric TDRL reevaluation described his PTSD as chronic with "occasional periods of anxiety without obvious cause."  The only VA rating available for review listed his PTSD rating at 30% in 2009.  Based on the information available, the USAPDA opines that if his PTSD was found to be unfitting in 1996, his rating for PTSD would be 30%; occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  His residual symptoms of healing open fractures of the applicant's right tibia/fibula were found to have been unfitting at placement on the TDRL and initially rated at 40%.  However, the 1994 TDRL orthopedic re-evaluation found this condition to be fully healed with full range of motion.  The interim PEB of 1995 found the right leg condition to be healed and it would not have been compensable at removal from the TDRL in 1996.  The PEB found no other conditions ratable.  A combined rating of 60% and 30% results in a final rating of 72%; rounded off to 70%.

	b.  If the applicant were to be permanently retired in November 1996, the VASRD appropriate to his conditions are VASRD Code 5162, above knee amputation of left leg - 60% and VASRD Code 9411, PTSD – 30%.  Total permanent rating = 70%.

	c.  As to the question whether the PTSD diagnosis in December 1994 should be part of the final disposition, the applicant failed to respond to the Army's final requests for TDRL re-evaluation and was properly removed from the TDRL process in accordance with Chapter 61, U.S. Code, and Chapter 7, AR 635-40.  If the Board now decides that, as a matter of equity, said removal action should be voided, then PTSD should be added to the final disposition as the 1994 PEB had decided that the PTSD was a result of his prior unfitting condition of left leg amputation.

	d.  The applicant's PTSD was not considered to be a valid diagnosis at the time of placement on the TDRL in 1991.  There was no diagnosis of any behavioral health condition on his MEB, his physical profile, or his 25 July 1991 Report of Medical Examination.  The PEB did not include it on the 3 September 1991 DA Form 199 as there was no evidence that the applicant was having any significant mental health symptoms at that time.  The applicant concurred in all aspects of his MEB and PEB proceedings.  Therefore, should the Board correct the applicant's records it should only correct it regarding PTSD compensability at removal from the TDRL and not at placement.

26.  The applicant was provided with a copy of this advisory opinion.  On 19 April 2014, he responded with a rebuttal wherein he stated: 

	a.  When he was initially placed on TDRL in November 1991, the Army rated him at 80% disability; 60% for the loss of his left leg and 20% for the residual effects of his right leg being shattered with the subsequent diagnosis of osteomyelitis (bone infection).  The advisory opinion is correct in stating the bone has healed, but they totally disregarded the residual effects of osteomyelitis (bone infection).  The bacterial "bugs" that caused the osteomyelitis can and were sent into remission or dormancy by treating the leg with antibiotics.  The right leg healed from the compound fractures and the bacterial "bugs" were sent into dormancy, but the bacterial infection itself was not cured.  His right leg will probably be with him the rest of his life, but the risk of osteomyelitis returning is very real, and with its return may lead to amputation, resulting in him being a double amputee.  The thought of having dormant bacterial "bugs" (osteomyelitis) in his right leg which could return at any point in the future is emotionally taxing in and of itself and exacerbates his PTSD condition.  Since 1992, he has been receiving his medical care from the VA.  He was under the impression the Army and the VA were sharing his medical history and examinations, but obviously that was not the case.  His understanding is that currently the Army and the VA are working to implement a system whereby they can share, exchange, and reconcile the medical history of service members receiving medical care.  Obviously this system was not in place at the time of his combat injuries, but had it been in place there would have been no need for his current application.  Currently the VA rates his disability at 60% for the left leg, 20% for his right leg, and 50% for PTSD.  He disagrees with the advisory opinion of a permanent rating of 70%.  He believes the advisory opinion minimizes both his physical and emotional wounds related to being wounded in action on 27 February 1991, at Jalibah Airfield in southern Iraq.  

	b.  Since being wounded in action at Jalibah Airfield on 27 February 1991, his PTSD symptoms were evident almost immediately after being blown off the battlefield, and the subsequent decimation of his infantry squad.  One Soldier's (Private First Class Bu--s) leg was severed at the thigh and hip, making it difficult to put a tourniquet on his wounds; he bled to death right next to him, as he lay in the sand bleeding to death also.  Other Soldiers such as Specialist S---h lost his right leg below the knee and a testicle, Corporal T---------s suffered blistering burns from the blast of the explosion, and Sergeant G-----y had a chunk of shrapnel removed from his arm.  He witnessed all this as he lay in the desert with his left leg blown off, his right leg shattered, and bleeding to death as well.  Initially the VA rated his PTSD at 30%, but has since increased it to 50% due to the severity of his PTSD symptoms.  Since being wounded in action, recovering from his physical wounds, and returning home to try to live some resemblance of a normal life, he had been hospitalized on two separate occasions related to PTSD.  In 1993, he was hospitalized at the VA Medical Center in Milwaukee, WI, for 8 weeks due to PTSD, and more recently he was hospitalized at the VA Medical Center in Denver, CO, from 15 December 2013 to 6 February 2014, for PTSD.  He believes given the severity of his physical and emotional wounds and scars, the advisory opinion/recommendation of 70% disability is inadequate, insufficient and does not reflect an in-depth understanding of the nature of his injuries both physical and emotional.  

27.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Paragraph 7-2 provides that an individual may be placed on the TDRL (for the maximum period of 5 years allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

	b.  Paragraph 7-11 (Disposition of TDRL Soldier) states in sub-paragraph 4 (Periodic examination not performed):

		(1)  If a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, or if the Soldier could not be located, the U.S. Army Total Personnel Command will make an effort to discover the reason.  If such action cannot be justified and the fifth anniversary of placement on the TDRL has not been reached, U.S. Army Total Personnel Command will notify the Soldier and the Chief, Retired Pay Operations, U.S. Army Finance and Accounting Center (USAFAC), to suspend retired pay.  U.S. Army Total Personnel Command will keep the Soldier's name on the TDRL until the fifth anniversary unless it is removed sooner by other action.

		(2)  Removal on fifth anniversary.  Soldiers on the TDRL shall not be entitled to permanent retirement or separation with severance pay without a current acceptable medical examination, unless just cause is shown for failure to complete the examination.  Six months before the fifth anniversary of placement on the TDRL, the U.S. Army Total Personnel Command will make a final attempt to contact the Soldier and arrange a final examination.  If this fails and the Soldier does not undergo a physical examination; the U.S. Army Total Personnel Command will administratively remove him or her from the TDRL on the fifth anniversary of placement on the list without entitlement to any of the benefits provided by Title 10, U.S. Code, section 61.

	c.  Paragraph 7-12, states the U.S. Army Total Personnel Command may restore the Soldier's eligibility to receive disability retirement pay if, after failure to report for and complete the required periodic examination, the Soldier later satisfactorily meets the examination requirements.  The U.S. Army Total Personnel Command will notify the Chief, Retired Pay Division, USAFAC, to restore disability retired pay retroactive to the date the Soldier undergoes the examination provided the Soldier is still qualified for retention on the TDRL.  The Soldier's eligibility to receive retired pay may be made retroactive, not to exceed 1 year, if the Soldier can show just cause for failure to respond to official notice or orders.  A Soldier's name may have been removed from the list as provided in paragraph 7-llb(4) of AR 635-40.  If so, the Soldier may take application to the ABCMR.

28.  Department of Defense Instruction 1332.38, paragraph E3.P6.2.4 states that conditions newly diagnosed during TDRL periodic physical examinations shall be compensable when the condition is unfitting and the condition was caused by the condition for which the member was placed on the TDRL or the evidence of record establishes that the condition was incurred while entitled to basic pay or as the proximate result of performing duty and was an unfitting disability at the time the member was placed on the TDRL.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a combat injury on 27 February 1991.  He was riding in the back of a Bradley Fighting Vehicle when the vehicle was hit by an enemy missile.  He sustained a traumatic amputation of the distal left tibia/fibula with an additional open fracture to his right leg.  

2.  He was considered by an MEB that recommended his referral to a PEB.  The PEB rated his two unfitting conditions and recommended a 60% rating for the left leg (above-the-knee amputation) and 30% for the right leg (healing open fracture).  The PEB recommended placing him on the TDRL with a combined rating of 80%.  He concurred.  

3.  The TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  A Soldier may remain on the TDRL for a maximum of 5 years. 

4.  After his retirement, the applicant underwent a TDRL examination in 1993 and in 1994.  An informal TDRL PEB determined his right leg had healed and was no longer unfitting or ratable.  It also determined that although some changes in his medical condition could be anticipated, for the purpose of adjudicating his disability compensation, his condition was considered to have stabilized at a degree of severity to be rated at 60% and recommended his permanent retirement.  He did not concur and demanded a formal hearing.  

5.  In October 1994, as soon as his case was opened in a formal hearing, the TDRL PEB returned his case due to insufficient information.  It noted that the diagnosis of PTSD must be considered in the adjudication of his case and required a psychiatric evaluation signed by a psychiatrist.  As such, in December 1994, he underwent a special psychiatric examination as well as a social and industrial survey by the VA, which led to a diagnosis of chronic PTSD and a history of substance abuse that was in remission at the time.  The military doctors approved this psychiatric evaluation as an Addendum to the TDRL evaluation. 

6.  On 7 February 1995, a formal TDRL PEB convened and determined he remained unfit due to his above-the-knee amputation of the left leg.  The formal TDRL PEB also noted that the fracture of right tibia and fibula had healed and thus was no longer unfitting.  It also added PTSD due to initial combat trauma, death of associates, and injuries including the amputation.  This diagnosis was new and was determined to be directly related to incidents causing the disability and was not stable for rating.  The formal TDRL PEB recommended retaining him on the TDRL with reexamination in 1995.  

7.  In 1996, he was notified multiple times to appear for a TDRL examination but he failed to show.  As required by regulation, Soldiers on the TDRL are not entitled to permanent retirement or separation with severance pay without a current medical examination, unless just cause is shown for failure to complete the examination.  Since the applicant failed to show up for the TDRL examination and since he failed to provide just cause for his failure, he was administratively removed from the TDRL.  

8.  He now comes before the Board requesting correction of his records, still without providing a contemporaneous examination.  Based on the available evidence, it is difficult to say with any certainty what the final total rating would have been if the applicant had reported for his final TDRL re-evaluation as required.  Therefore, in the absence of such examination, the Board is compelled to depend on the available evidence in its adjudication of his case.  As such, there are three conditions that should be considered: 

	a.  Amputation above the knee:  It is clear that the rating for his amputation would have remained at 60%.  It is reasonable to presume this condition would not have improved.  In the absence of a contemporaneous physical examination, it is impossible to determine if this condition worsened.  

	b.  Fracture of right tibia and fibula:  It is also clear that this condition had healed and was no longer unfitting.  By law and regulation, conditions that are not unfitting are not rated.  Therefore, this condition would not have been rated. 
	c.  PTSD:  

		(1)  His PTSD was not considered to be a valid diagnosis at the time of placement on the TDRL in 1991 and there was no diagnosis of any behavioral health condition on his MEB, his physical profile, or his July 1991 medical examination.  The PEB did not include it on the September 1991 DA Form 199 as there was no evidence that the applicant was having any significant mental health symptoms at that time.  

		(2)  The earliest diagnosis came at the end of 1994.  His December 1994 psychiatric TDRL reevaluation described his PTSD as chronic with "occasional periods of anxiety without obvious cause."  

		(3)  A condition is compensable when the condition was caused by the condition that placed a member on the TDRL.  The fact that his PTSD was caused by the amputation of his leg and the injury to his other leg is not in question.  The question is whether his PTSD was unfitting in 1996, had he shown up for his TDRL examination.  

		(4)  As the USAPDA opined, his December 1994 psychiatric TDRL reevaluation described his PTSD as chronic with "occasional periods of anxiety without obvious cause."  The only VA rating available for review listed his PTSD rating at 30% in 2009.  Based on the information available, if his PTSD was found to be unfitting in 1996, his rating for PTSD would be 30%; occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

		(5)  Based on the available evidence it is reasonable to presume, from an equity standpoint, that his PTSD would have continued to be unfitting in 1996, and therefore, would have warranted a rating of 30 percent. 

9.  In view of the foregoing evidence, although there is neither an error nor an injustice in the applicant's case, as a matter of equity only, his records should be corrected to show he was permanently retired by reason of disability at the rate of 60% for amputation of the leg and 30% for the PTSD.  A combined rating of 60% and 30% results in a final rating of 70%.







BOARD VOTE:

____X____  __X______  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing he underwent a TDRL PEB in 1996 and his conditions of amputation of the leg and PTSD were found unfitting
* showing the PEB rated him under VASRD Code 5162 (above-the-knee amputation) and rated it at 60% and VASRD Code 9411 (PTSD) and rated it at 30% 
* permanently retiring the applicant by reason of permanent disability at a combined disability rate of 70% and in the rank/grade of sergeant/E-5 effective 26 November 1996, with entitlement to back retired pay as a result of this correction 




      _______ _   _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)                                         AR20140003348



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20140003348



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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