IN THE CASE OF:	   

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20150005833 


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, in effect, reconsideration of his earlier request for correction of his Physical Evaluation Board (PEB) Proceedings to include post-traumatic stress disorder (PTSD) as an unfitting condition for the purpose of qualifying for Combat Related Special Compensation (CRSC).

2.  The applicant states:

* he is resubmitting his request to have his medical records reevaluated
* his wife has been very helpful throughout his career, thus he asked her to provide information explaining what he has faced throughout this process
* he is very frustrated and aggravated that he has to continue to fight this battle over and over
* he does not know how anyone can argue that he does not have PTSD, malignant melanoma, and thrombocytopenia (low platelet count) when multiple medical specialists have documented that he does have these conditions
* all of his issues are directly related to his service in the military during deployments
* the documentation he has provided shows that not all of his medical conditions were included in the PEB Proceedings and that he was coerced into signing the documents under false pretenses in order to get rid of him and put a halt to a Congressional inquiry



3.  The applicant provides:

* letter from his wife addressed to the Board, dated 19 March 2015
* Department of the Treasury Internal Revenue Service Form 1099-R (Distributions from Pensions, Annuities, Retirement, or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.), dated 2014
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 26 April 2011
* DA Form 3947 (MEB Proceedings), dated 20 June 2011
* partial telefax from a medical doctor, dated 8 February 2011
* Standard Forms 600 (Chronological Record of Medical Care), dated between 19 January 2010 and 21 November 2011
* letter from a medical doctor, dated 22 June 2009
* email between his wife and various individuals, to include the applicant, officials at Moncrief Army Community Hospital, and a constituent liaison, ranging in date from 16 December 2009 to 26 January 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140020974 on 24 February 2015.

2.  After prior enlisted active and Reserve service in the Army National Guard, U.S. Army Reserve (USAR), and U.S. Naval Reserve which began on 28 November 1978 and included a 1990/1991 deployment in support of Operations Desert Shield/Desert Storm, the applicant was appointed as a warrant officer one in the USAR on 30 September 2008.

3.  On 16 April 2009, he entered active duty in support of Operation Iraqi Freedom.  Although his DD Form 214 (Certificate of Release or Discharge from Active Duty) from that period shows he deployed to Iraq on 16 April 2009 in item 18 (Remarks), his MEB NARSUM, dated 26 April 2011, and the letter composed by his wife corroborate his deployment to Iraq was postponed while he underwent examination and treatment at the Warrior Transition Unit (WTU) at Fort Knox, KY, for symptoms of anxiety.

4.  According to his MEB NARSUM, he began treatment with psychotropic medications while at the WTU which were associated with improvements in his symptoms of anxiety and he was subsequently judged to show adequate improvements and clinical stability to be cleared for deployment.

5.  The applicant deployed to Iraq in August 2009, but while deployed he reported experiencing continued symptoms of anxiety in combination with escalating general medical problems which intermittently impaired his occupational functioning.  Thus, in January 2010, he was redeployed early from Iraq.  Since returning from deployment in January 2010, the applicant was treated by behavioral health and his general medical providers.

6.  His records contain multiple Standard Forms 600, three of which, dated 12 April 2010, 16 April 2010, and 29 June 2010, referenced PTSD.  The 12 April 2010 form documented the applicant's first visit with the WTU primary care physician and stated the source of his medical information is the applicant.  He stated he was sent redeployed from Iraq because of chronic lower back pain, torn meniscus of his left knee, and possible PTSD.  He stated he was issued a permanent physical profile on 22 January 2010 for diagnoses of mood disorder, chronic PTSD, and dementia (etiology unknown).  The 16 April 2010 form states one of the reasons for the applicant's visit was observation for a suspected mental health condition and PTSD.  The 29 June 2010 form lists common migraine (without aura) with intractable migraine, cervical intervertebral disc degeneration, lumbar intervertebral disc degeneration, chronic PTSD, and history of traumatic brain injury under assessment and plan.

7.  On 10 March, 17 March, and 19 April 2011, he underwent psychiatric evaluations for the purpose of evaluation by an MEB.  Despite treatments for his general medical and psychiatric conditions, he was unable to return to his full military duties and was subsequently referred to an MEB.  The 26 April 2011 MEB NARSUM referenced combat stressors that he reported being exposed to during his combat deployment in March 1991, to include witnessing multiple dead and mutilated bodies, occasional incoming fire, and feeling threatened by the presence of Iraqis while imbedded with the Iraqi Army.  The MEB NARSUM contains the diagnosis anxiety disorder (not otherwise specified).  It does not contain a diagnosis of PTSD.

8.  His DA Form 3947, dated 20 June 2011, lists the following diagnoses as requiring referral to a PEB due to being medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness):

* anxiety disorder
* chronic right knee pain due to medial meniscal tear and patellar chondromalacia
* chronic left knee pain due to patellar chondromalacia
* chronic neck pain due to cervical degenerative disk disease
* chronic lower back pain due to degenerative disk disease

9.  This same DA Form 3947 lists the following diagnoses as meeting retention standards:

* left arm malignant melanoma
* severe obstructive sleep apnea
* periodic limb movement of sleep
* history of rectal polyp noted on colonoscopy
* history of traumatic brain injury
* chronic migraine headaches
* hypercholesterolemia
* essential hypertension
* thrombocytopenia

10.  On 27 September 2011, the PEB convened and determined the applicant was unfit for continued military service due to the following disabilities:

* anxiety disorder (not otherwise specified)
* lumbar degenerative disease
* cervical degenerative disease
* right knee arthropathy
* left knee arthropathy

11.  His DA Form 199 (Physical Evaluation Board Proceedings) contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* the member'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
* the evidence of record reflects the individual was not a member or obligated to become a member of an Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration or the U.S. Public Health Service on 24 September 1975
* the disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104

12.  As a result, the PEB recommended a combined 80-percent disability rating and permanent disability retirement.  On 25 October 2011, he concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  There is no evidence of record and the applicant has not provided any evidence corroborating his and his wife's claims that he was coerced into concurring with the findings.  On 14 December 2011, his PEB was approved by the U.S. Army Physical Disability Agency for the Secretary of the Army.

13.  On 12 February 2012, he retired from active duty by reason of permanent disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1).  His DD Form 214 shows he was credited with completion of 5 years, 7 months, and 20 days of active service and 27 years, 6 months, and 25 days of inactive service.

14.  On 31 October 2013, the Department of Veterans Affairs (VA) rendered a decision regarding his percentage of service-connected disability.  His VA Rating Decision shows he was granted a combined rating of 90-percent service-connected disability for the following conditions:

* obstructive sleep apnea
* PTSD
* irritable bowel syndrome as due to an undiagnosed illness
* headaches as due to an undiagnosed illness
* spondylosis with myelopathy and degenerative joint disease lumbar spine
* right knee instability
* cervical degenerative disc disease
* right knee postoperative meniscectomy with degenerative joint disease
* left knee degenerative joint disease
* hypertension
* residuals of right inguinal hernia surgery
* thrombocytopenia
* bilateral tinea pedis and tinea unguium
* malignant melanoma lesions

15.  On 9 January 2014, he submitted a CRSC claim for multiple conditions, ailments, or VA-rated disabilities.  On 11 February 2014, the U.S. Army Human Resources Command partially granted his request for CRSC by verifying his diagnosis of irritable bowel syndrome and headaches as combat related, amounting to a combined rating of 50-percent total combat-related disability effective 1 March 2012.  His other conditions, to include PTSD, malignant melanoma, and thrombocytopenia were not verified as combat-related disabilities.

16.  On 22 April 2014, the CRSC Branch denied his request for reconsideration of his CRSC claim.  The CRSC Branch reviewed the existing and newly-submitted documentation and determined they could not establish a link between the claimed conditions, including PTSD, and a combat-related event.

17.  On 10 June 2014, the CRSC Branch again denied his request for reconsideration of his CRSC claim.  The CRSC Branch determined they still could not establish a link between the claimed conditions, including PTSD, and a combat-related event, they were unable to overturn the previous adjudications, and they considered this disapproval to be final.

18.  A 30 April 2014 letter from a clinical psychologist from the Charles George VA Medical Center in Asheville, NC, states the applicant is being seen at the Charles George VA Medical Center where he has been diagnosed with combat-related PTSD and is currently rated with service-connected disability at 90 percent, including 50 percent for PTSD.  He has received mental health treatment since 1994, and has been cared for at the Charles George VA Medical Center since February 2012.  He had multiple combat deployments, thus it is impossible to determine which deployment caused his PTSD; it is highly likely that all of his combat deployments contributed to the symptoms that led to his PTSD diagnosis.  Based on his documented combat exposure, his PTSD symptoms, and his clinical presentation, it is the opinion of the examining psychologist that the applicant is accurately diagnosed with combat-related PTSD and he continues to experience PTSD symptoms despite ongoing treatment.

19.  He provided a copy of his 2014 Internal Revenue Service Form 1099-R and his wife spoke to it being incorrect as he was retired on permanent disability but his benefits are listed as code 7, which she believes to indicate no tax advantage.

20.  According to the Defense Finance and Accounting Service (DFAS) website, military disability retirement is exempt from federal taxes if the military disability rating is deemed combat-related by the U.S. Army Physical Disability Agency upon the Soldier's placement on the permanent Retired List.  If the disability rating is not deemed to be combat related, the retired pay is subject to taxes.

21.  Army Regulation 635-40 establishes the Physical 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 or her office, grade, rank, or rating.  The regulation states a member whose retirement or separation from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict, or caused by an instrumentality of war and incurred in line of duty during a period of war will have the block "is" checked in item 10 of the DA Form 199.  A disability may be considered a direct result of armed conflict if:

* it was incurred while the member was engaged in armed conflict or an operation or incident involving armed conflict or the likelihood of armed conflict
* while interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force
* while escaping or attempting to escape from such prisoner of war or detained status
* a direct causal relationship must exist between the armed conflict or the incident or operation and the disability
* a determination that a disability resulted from injury or disease received in the line of duty as a direct result of armed conflict will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit

22.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it weren't for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  CRSC eligibility includes disabilities incurred as a direct result of:

* armed conflict (gunshot wounds, Purple Heart, etc.)
* training that simulates war (exercises, field training, etc.)
* hazardous duty (flight, diving, parachute duty)
* an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.)

23.  The Office of the Under Secretary of Defense for Military Personnel Policy provided guidance for the processing CRSC appeals.  This guidance stipulated that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war or caused by an instrumentality of war.

24.  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, the award of a VA rating or a comparatively higher VA rating does not establish error or injustice on the part of the Army.  The Army only rates conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB and PEB in 2011.  Although his records contain several Standard Forms 600 containing references to PTSD, his MEB NARSUM lists a diagnosis of anxiety disorder (not otherwise specified), not PTSD.

2.  The applicant's PEB found him unfit for military service by reason of multiple conditions, including anxiety disorder (not otherwise specified) and recommended an 80-percent combined disability rating.  As a result, he was permanently retired by reason of permanent disability.  He concurred with the findings and recommendation and waived his right to a formal PEB hearing despite the absence of PTSD as a documented unfitting condition.  The evidence of record does not indicate the applicant's disability processing was in error or unjust, that he was coerced into concurring with the findings, or that his medical conditions were improperly evaluated by the PEB.

3.  Although the applicant was granted 90-percent service connection by the VA for numerous conditions to include PTSD, this rating does not demonstrate an error or injustice on the part of the Army.  The VA awards compensation to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  A determination of service connection by the VA for a condition does not equate to an Army determination of a combat-related disability.

4.  The CRSC criteria are specific to those military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations is not, in and of itself, sufficient to grant a military retiree CRSC.  In order to qualify for CRSC, the applicant must show that his disability met the established criteria and was incurred while engaged in combat, while performing duties simulating combat conditions, while performing especially hazardous duties, or was caused by an instrumentality of war.

5.  The VA diagnosed the applicant with service-connected PTSD; however, the Army diagnosed the same conditions the VA attributed to PTSD to "anxiety disorder, not otherwise specified."  Neither the applicant's MEB nor PEB Proceedings contain a diagnosis of PTSD.  Additionally, the PEB determined that his diagnosed anxiety disorder was 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.

6.  Without evidence to establish a direct, causal relationship between his rated disability and a combat event, there is insufficient evidentiary basis for granting 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140020974, dated 24 February 2015.



      _______ _   __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)                                         AR20150005833



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150005833



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1