IN THE CASE OF:  	  

		BOARD DATE:  15 September 2015	  

		DOCKET NUMBER:  AR20150007995 


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, an Army disability rating for his Traumatic Brain Injury (TBI) and post-traumatic stress disorder (PTSD).

2.  The applicant contends he should have received a disability rating for TBI.  He also contends he can't hold a job as a result of TBI and PTSD.  The Medical Evaluation Board (MEB) did not find PTSD or TBI as conditions that failed retention standards.  His TBI has greatly affected him with constant memory lapses and even complete memory loss.  He received a 30 percent (%) rating from the Army for migraines, but nothing for what caused them in the first place.  He believes his TBI condition should have been addressed by the MEB and he is requesting some relief.  The Department of Veterans Affairs (VA) has awarded him a rating of 70% for PTSD.  This condition is worsening with time.  He believes he should have received some rating for his PTSD by the PEB.  His condition is an everyday battle for him and his family.

3.  The applicant provides a copy of his Initial PTSD Disability Benefits Questionnaire and VA rating for PTSD.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the Regular Army on 11 July 2001 and he held military occupational specialty (MOS) 19K (MI Armor Crewman).  He served continuously on active duty through several reenlistments. He served in:

* Iraq from 15 March 2004 through 15 March 2005
* Iraq from 7 April 2007 through 25 June 2008
* Afghanistan from 15 February through 20 December 2011

2.  He provided a copy of his Initial PTSD Disability Benefits Questionnaire, dated 11 July 2014, which shows he underwent an examination for PTSD.  The examining psychiatrist/psychologist diagnosed the applicant with:  chronic PTSD, unspecified depressive disorder, alcohol abuse, and mild neurocognitive disorders due to TBI.  The examining psychiatrist/psychologist stated:

   a.  The applicant reported the onset of his mental health symptoms in 2005 on his return from his first Iraq deployment.  The applicant sought mental health treatment while at Fort Lewis, WA, in 2007/2008.  He also received treatment from 2009 to 2010 while at Fort Knox, KY, and again in Germany from mid-
2012 for 3 months.  He indicated he was unable to obtain consistent counseling since the onset of treatment, although the medication treatment was consistent.  He also received substance abuse treatment for alcohol abuse in TX at an intensive out-patient treatment program in 2005 for 5 weeks.  Additionally, he received medication for migraine headaches.
   
   b.  Based upon the examination, the applicant needed to seek follow-up treatment.  He required ongoing psychiatric medication management, treatment for TBI, and he was interested in pursuing individual counseling.  He was not currently involved in psychotherapy and was requesting this.  The information was conveyed to the applicant during the examination.  He did not appear to pose any threat, danger, or injury to self or others.

3.  On 21 July 2014, an MEB convened and, after consideration of clinical records and physical examination, found the applicant had the following medical conditions and referred him to a PEB:

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Left ankle anterior talo-fibular ligament (ATFL) reconstruction

X
2.  Migraine Headaches Syndrome, Post TBI

X
3.  TBI with Cognitive Disorder, not otherwise specified (NOS)
X

4.  Right Ankle Strain with Instability
X

5.  PTSD 
X
          
6.  Left Knee Patellofemoral Syndrome
X
          
7.  Right Knee Patellofemoral Syndrome
X
          
8.  Lumbar Strain
X

9.  Left Wrist Strain
X

10.  Right Wrist Strain
X

11.  Left Elbow Cubital Tunnel Syndrome
X

12.  Hypertension
X

13.  History of Asthma diagnosed

          X
14.  History of Gastroenteritis
X

15.  Post-Surgical Scar, left ankle
X

16.  Erectile Dysfunction
X

17.  Alcohol Abuse in Full Remission
X

4.  On 23 July 2014, the MEB report was returned for reconsideration of PTSD categorization.  On 31 July 2014, he concurred with the findings and recommendations of the MEB.  His MEB is void of any evidence his diagnosis of PTSD was subsequently referred to the PEB as a condition that did not meet retention standards.

5.  On 1 October 2014, an informal PEB convened and determined he was medically unfit for:

   a.  Left ankle ATFL reconstruction.  The condition was first reported in 2003 and worsened due to continued military service and daily combat operations in three overseas deployments.  He sought post-deployment medical attention in 2011.  He was unfit because the condition prevented him from being able to perform required activities.

   b.  Migraine headaches syndrome which was reported in 2006 after his first deployment to Iraq in 2004-2005, which had worsened due to continued military service and overseas deployments.  He sought medical attention for severe headaches due to numerous encounters with improvised explosive devices during two deployments in Iraq.  Reasonable performance in his MOS required him to perform certain activities.  He was unfit because the condition prevented him from being able to perform required activities.

6.  The PEB determined the following medical conditions were not unfitting:  TBI with cognitive disorder, NOS; right ankle strain with instability; PTSD; left knee patellofemoral syndrome; right knee patellofemoral syndrome; lumbar strain; left wrist strain; right wrist strain; left elbow cubital tunnel syndrome; hypertension; history of asthma; history of gastroenteritis; post-surgical scar, left ankle; erectile dysfunction; and alcohol abuse.  The conditions were not unfitting because the MEB indicated those conditions met retention standards, did not indicate that any 

of those conditions caused profile limitations (functional activities), and did not indicate that performance issues, if any, were due to those conditions. 

7.  The PEB recommended his permanent disability retirement with a combined rating of 40%.  After consulting with the PEB Liaison Officer, he concurred with the PEB and waived his right to a formal hearing.  He also indicated that he did not request reconsideration of his VA ratings.  The PEB was approved on 20 October 2014.

8.  He was honorably retired on 15 January 2015, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of permanent disability.  He was credited with completing 13 years, 6 months, and 5 days of active service.

9.  He provided documentation showing the VA awarded him a 70% service-connected disability rating for PTSD effective 16 January 2015.

10.  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.

11.  Directive-type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES).  It states: 

	a.  The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda.  All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards.  Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process.  If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

12.  PTSD and TBI are two separate conditions, albeit overlapping.  PTSD is a mental disorder, but the associated stress can cause physical damage.  TBI is a neurological disorder caused by trauma to the brain.  It can cause a wide range of impairments and changes in physical abilities, thinking and learning, vision, hearing, smell, taste, social skills, behaviors, and communication. The brain is so complex, the possible effects of a traumatic injury are extensive and different for each person.  There is no easy "either/or" when it comes to describing the impact of TBI and PTSD.  While each diagnosis has distinguishing characteristics, there is an enormous overlap and interplay among the symptoms.



DISCUSSION AND CONCLUSIONS:

1.  With regard to awarding the applicant a disability rating for TBI:

   a.  In November 2014, a VA psychiatrist/psychologist determined the applicant had:  chronic PTSD, unspecified depressive disorder, alcohol abuse, and mild neurocognitive disorders due to TBI.  

   b.  In July 2014, an MEB considered his diagnosed conditions of left ankle ATFL reconstruction and migraine headaches to be unfitting.  The MEB indicated his diagnosed conditions of TBI was not unfitting and there is no evidence this medical condition was determined to be unfitting.  The MEB referred him to a PEB and he concurred with the board.

   c.  A PEB found him to be unfit for left ankle ATFL reconstruction and migraine headaches.  The PEB found him fit for his other medical conditions to include TBI because the MEB indicated those conditions met retention standards and did not cause profile limitations.  He concurred with the PEB's findings and waived his right to a formal hearing.  He also indicated he did not request a reconsideration of his VA ratings.  The PEB recommended permanent disability retirement with a combined 40% rating.  He was separated accordingly on 15 January 2015.  Effective, the next day, the VA awarded him a 70% disability rating for PTSD.

   d.  The available evidence clearly shows that he participated in his Army disability processing and concurred with the findings and recommendation of the MEB, and the informal PEB disability recommendations and ratings regarding his left ankle ATFL and migraine headaches.  

   e.  There is no evidence of record and he did not provide sufficient evidence showing TBI should have been found unfitting at the time.  There is also no evidence and he provided none showing his medical conditions were unjustly or erroneously not rated by the PEB.  The available medical evidence shows all of his medical conditions were considered throughout his medical disability processing.

   f.  The Army assigns disability ratings based on the level of disability at the time of the Soldier's separation.  The PEB determines fitness and disability based on the information at hand.  The fact that the VA awarded him a service-connected disability rating for a condition the Army did not find unfitting is not evidence of an error in his 2014 IDES process.  Therefore, there is insufficient evidence to support granting him the requested relief.

2.  With regard to his PTSD condition:

   a.  The applicant appears to confuse his IDES and service-connected ratings. These are two separate ratings that are proposed by the VA subsequent to the C&P examination.  His case was processed under the IDES.  This means he underwent an examination by the VA and upon completion the VA proposed a disability rating for the unfitting conditions to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable.

	b.  The only two unfitting conditions listed on his MEB were left ankle ATFL reconstruction and migraine headaches.  The VA rating he provides awarded him service-connected disability rating for PTSD effective 16 January 2015.  The VA does not make findings of fitness for military service.  The fact that he received a service-connected rating from the VA for conditions the PEB found were not unfitting is not evidence of an error on the part of the Army.

   c.  In view of the foregoing, there is insufficient evidence to grant him the requested relief.  He has not shown his rating to be in error or unjust.

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)                                         AR20150007995





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150007995



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1