IN THE CASE OF: BOARD DATE: 24 October 2013 DOCKET NUMBER: AR20120019281 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 a review of the military disability evaluation of his mental health condition. 2. The applicant states, in effect, in accordance with a Secretary of Defense directive for a comprehensive review of members who were referred for a disability evaluation between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed during that process, his case file should be reviewed. 3. The applicant submitted an application to the DOD Physical Disability Board of Review (PBDR) Mental Health Special Review Panel (SRP) with attachments, including a Department of Veterans Affairs (VA) Form 3288 (Request for and Consent to Release of Information from Individual's Records). CONSIDERATION OF EVIDENCE: 1. The applicant's records show he enlisted in the Regular Army (RA) on 16 September 1998 and he held military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic). He reenlisted in the RA on 13 June 2001 and served in Iraq from 31 October 2003 to 31 October 2004. 2. He complained of leg pain caused by bilateral shin splints since 1999. His pain limited his ability to perform the duties required of his grade and MOS. 3. On 7 May 2002, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with bilateral tibial stress fracture unresponsive to conservative management. The MEB recommended the applicant's referral to a physical evaluation board (PEB). He was counseled and agreed with the MEB's findings and recommendation. 4. On 15 May 2002, an informal PEB convened and reviewed the medical data and other facts presented to include the commander's statement. The PEB found the applicant was fit for duty. Review of his records provided insufficient evidence that he had physical impairments that precluded satisfactory performance of duty. 5. He did not concur and submitted a written appeal. His appeal was considered but it did not change the PEB finding. He returned to duty. 6. On 27 March 2007, another MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions. The MEB recommended the applicant's referral to a PEB. He was counseled and agreed with the MEB's findings and recommendation. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Bilateral shin pain (shin splints) X 2. Mild obstructive sleep apnea X 3. Nightmares X 4. PTSD, chronic X 5. Bilateral maxillary sinusitis secondary to sinus exposure from dental extractions. X 7. On 21 May 2007, an informal PEB convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to chronic leg pain caused by bilateral shin splints since 1999. The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows: VASRD Code Condition Percentage 5003/5099 Chronic anterior leg pain 10% The PEB also considered the applicant's other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable. The PEB recommended a 10% combined disability rating and separation with entitlement to severance pay if otherwise qualified. Subsequent to counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing. 8. The applicant was discharged on 21 August 2007 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3) with entitlement to severance pay. 9. On 28 September 2012, Dr. C.D. C----, PhD, a clinical psychologist, conducted a cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health evaluation. Dr. C.D. C---- proposed the deletion of "PTSD, Meets retention standards" and the addition of "PTSD, Fails retention standards." Dr. C.D. C---- provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows: * Axis I: PTSD, chronic * Axis I: Diagnosis deferred * Axis III: See medical records * Axis IV: Medically retired from the Army * Axis V: Global Assessment of Functioning (GAF) score of 58 (current) and 68 (at time of separation in 2007) 10. An advisory opinion was obtained on 23 January 2013 from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case. An official of the USAPDA stated: a. The applicant requests that his military records be corrected to reflect that he was found unfit for PTSD at the time of his disability separation from the military in 2007 and that his disability percentage be changed to reflect that additional diagnosis. As evidence of error the applicant cites Dr. C----'s, psychologist, 28 September 2012, fusion cell examination. b. As part of the original 2007 MEB process, Dr. E---s-B-------ly, psychiatrist, diagnosed the applicant with PTSD. Dr. B---------ly indicated that the applicant had no psychiatric restrictions and that his recent psychiatric issues appeared due to the applicant's inability to be promoted to go to Primary Leadership Development Course. Dr. B---------ly reported that the applicant endorsed more frequent and more vivid nightmares and fragmented sleep since starting prazosin (which had been started as treatment for PTSD after being tried on other medications). Other symptoms included "flashbacks" (described as reliving some of the stressful events from Iraq); avoidance of driving through the East gate of Fort Lewis if there is a live grenade range active; and dislike of large crowds and noise. Dr. B---------ly noted the applicant's diagnosis of mild obstructive sleep apnea and apparent relationship of this diagnosis and the applicant's vivid dreams and nightmares. Dr. B---------ly concluded by writing that the applicant's PTSD met retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-33. (AR 40-501, 3-33 provides that PTSD does not meet retention standards when persistent or recurrent symptoms require extended or recurrent hospitalization; necessitate limitations of duty or duty in a protected environment; or result in interference with effective military performance). Dr. B---------ly also provided a GAF score of 68. The MEB findings were approved by two other physicians and the MEB approving authority (another physician). The applicant concurred with the MEB findings. c. The applicant completed a DD Form 2807-1 (Report of Medical History) as part of the MEB process. Consistent with what was reported in Dr. B---------ly's report, the applicant reported that he had nightmares; had been seen at two mental health clinics; and had been depressed and worried a lot (appeared to be mainly related to his inability to advance in his military career due to his physical limits). d. Dr. C---- concludes that the applicant's PTSD symptoms must have been impairing his duty performance primarily because the applicant indicated that his command knew he was having behavioral health difficulties and was working with him (although the applicant acknowledged to Dr. C---- that during the 2005/2007 time period he had no profile or performance limitations due to any mental health condition). Also, Dr. C---- finds it particularly relevant that the applicant avoided the East gate of Fort Lewis during live grenade range training because of the noise (a fact specifically considered by Dr. B---------ly). Dr. C----appears to now attribute the applicant's history of nightmares solely to PTSD. Dr. C---- indicates that the applicant's PTSD prevents the applicant from having access to weapons; evading direct and indirect fire; and from living in an austere environment because these would exacerbate the applicant's PTSD symptoms and endanger the applicant's life or the lives of other service members. However, as written, it is unclear whether Dr. C---- believes the limitations were warranted in 2007; are now warranted; or, were warranted in 2007 and continue to be now warranted. Dr. C-----'s opinion that the applicant's GAF is now 51 (vs. 68 at the time of the MEB, as assigned by Dr. B---------ly, and apparently endorsed by Dr. C----) suggests the profile recommendations are current (vs. 2007) recommendations. Other than this current GAF score, Dr. C---- provides no information on the applicant's current PTSD symptoms and manifestations. The current case file does not contain any evidence that Dr. C----'s opinion has been reviewed by any mental health physicians or been processed under the requirements of chapter 7, AR 40-400 (Patient Administration). e. There is no evidence in the case file that the applicant has ever sought treatment from the VA or that he has a current VA rating for a mental health condition. f. An informal PEB found the applicant unfit for the only condition that did not meet medical retention standards and recommended that he be separated from the military with severance pay. After being advised of his rights the applicant concurred with the PEB findings and waived his right to a formal hearing. g. The USAPDA finds insufficient evidence to support that the applicant was unfit for PTSD at the time the applicant was separated from the military. The evidence supports that Dr. B---------ly fully considered the applicant's impairment for further military duty and gauged it as "minimal." Dr. B---------ly fully recognized the applicant had been prescribed antidepressant medications and was having nightmares and did not like loud noise. Dr. B---------ly fully considered AR 40-501, 3-33 (indicating that PTSD does not meet retention standards when persistent or recurrent symptoms require extended or recurrent hospitalization; necessitate limitations of duty or duty in a protected environment; or result in interference with effective military performance). These considerations closely track considerations for unfitness including whether the condition interferes with adequate performance; poses a decided risk to the Soldier or to other service members; and whether the condition imposes unreasonable requirements to maintain and protect the Soldier. The PEB's findings were based on a preponderance of the evidence and were not arbitrary or capricious. The addition of Dr. C---'s opinion, 5 years post separation, does not provide sufficient evidence to overcome that preponderance of the evidence or to mandate that the MEB's and PEB's findings were improper. h. If the Board is of the opinion that Dr. C----'s opinion requires that the 2007 MEB/PEB findings be corrected it is certainly within their discretion and authority to do so and to rate the applicant under whatever standard that it feels is appropriate. 11. The applicant was provided with a copy of this advisory opinion but he did not respond. 12. On 18 April 2013, the Army Review Boards Agency notified the applicant that on 27 February 2013, the Under Secretary of Defense directed the military services to conduct a comprehensive review of service members who completed a disability evaluation process and whose mental health diagnoses were changed to their possible disadvantage during the process. The Under Secretary directed this review be conducted by the PDBR who will in turn provide an advisory opinion to the appropriate Board of Correction for appropriate action. The applicant's case met the criteria above. As a result, the PDBR would consider all the documentation he previously provided and will also consider his VA records, with his consent, before providing an advisory opinion. 13. On 1 May 2013, the applicant completed a VA Form 3288 authorizing the release of information from his records for consideration by the PDBR Mental Health SRP. 14. The PDBR SRP conducted a comprehensive review of the applicant's records for evidence of inappropriate changes in the diagnosis of his mental health condition during processing through the military disability system. The SRP stated: a. The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the Disability Evaluation System (DES). The evidence of the available records shows a diagnosis of anxiety disorder not otherwise specified (NOS) and PTSD were rendered and PTSD was referred by the MEB and considered by the PEB without change in diagnoses. The SRP agreed there were no inappropriate changes in diagnoses and that the applicant therefore did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project. The SRP also considered whether the mental health condition was unfitting for continued military service. All SRP members agreed that evidence of the record reflected minimal mental health related symptoms, and no clear evidence of occupational impairment (as related to mental functioning) in the period of time leading into the MEB and through separation. Except for transient worsening of symptoms in early December 2006, the MSEs were all essentially normal, there was no evidence of acute symptom exacerbation with visits to the emergency room and no hospitalizations; stability of symptoms was maintained even during sporadic absences from treatment. b. Additionally, the applicant indicated medications had been helpful. The applicant reported his chain of command knew he was having mental health problems and was working with him and that he was not cleared for his second deployment due to psychological concerns; however, the Panel could not find confirmatory evidence in the record. The condition was never profiled or implicated in the commander’s statement. The commander’s statement noted the condition of leg pain and stress fractures led to his limited ability to perform his duties in his MOS. The SRP concluded that the preponderance of evidence did not support an unfit determination for the PTSD at the time of evaluation in the DES or prior to separation. c. The SRP discussed The Surgeon General memorandum dated 16 April 2013 requesting that the ABCMR accept the 28 September 2012 clinical reevaluation in lieu of the forensic psychiatry evaluation performed at the time of the original MEB. The SRP found no evidence to suggest the MEB psychiatry evaluation was inaccurate with regard to facts or diagnostic impression. The post-separation examination, 5 years after separation, was similar to the forensic examination in that it also consisted of a clinical interview and records review. The Panel acknowledged the findings recorded in the Fusion Cell examination, 5 years after separation, and noted the significant disparity between that exam and the treatment record prior to separation. The Panel did not conclude the examination 5 years after separation contributed any evidence to demonstrate there was any error or injustice at the time of the original disability evaluation and PEB adjudication. After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that there was insufficient cause to recommend a change in the PEB adjudication for the applicant's mental health condition. The SRP recommends that there be no change of the applicant’s disability and permanent disability retirement determination. 15. The applicant was provided with a copy of the SRP report. He did not respond. 16. A memorandum, dated 16 April 2013, Subject: Madigan Fusion Cell Cases, was initiated by the Deputy Surgeon General, Office of the Surgeon General, in support of the Soldiers reevaluated by the Madigan Fusion Cell: a. From 2007 to 2012, Soldiers undergoing an MEB at Joint Base Lewis- McChord underwent a forensic psychiatric evaluation instead of the standard clinical psychiatric evaluation. However, clinical, not forensic, evaluations are the only recognized type of assessments for routine Integrated Disability Evaluation System cases. The use of forensic evaluations was not consistent with the processes in place at all other military treatment facilities. On 7 February 2012, The Surgeon General suspended the use of forensic evaluations during the conduct of MEBs. b. In early 2012, The Surgeon General directed the establishment of a Fusion Cell under the mission command of Western Regional Medical Command to conduct behavioral health clinical reevaluations and begin a redress process for any Soldiers and former service members who may have been disadvantaged by the Madigan Army Medical Center MEB Forensic Psychiatry Service's practices. 17. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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. 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. Paragraph 4-17 provides guidance for PEBs. Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 18. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. DISCUSSION AND CONCLUSIONS: 1. The applicant was considered by an MEB in March 2007 that referred him to a PEB. His MEB listed one condition that failed retention standards and several others that met retention standards. 2. The PEB found this one condition unfitting and prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to chronic anterior leg pain. The PEB rated him at a combined rating of 10% for this condition. The PEB also considered his other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable. The PEB recommended separation with entitlement to severance pay. He was counseled and concurred with the PEB's finding and recommendation and waived his right to a formal hearing. He was separated in August 2007. 3. The PDBR SRP reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the DES. The available records showed a diagnosis of anxiety disorder NOS and PTSD were rendered and PTSD was referred by the MEB and considered by the PEB without change in diagnoses. The SRP agreed there were no inappropriate changes in diagnoses and that the applicant therefore did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project. The SRP also considered whether the mental health condition was unfitting for continued military service. All SRP members agreed that evidence of the record reflected minimal mental health related symptoms, and no clear evidence of occupational impairment (as related to mental functioning) in the period of time leading into the MEB and through separation. Except for transient worsening of symptoms in early December 2006, the MSEs were all essentially normal, there was no evidence of acute symptom exacerbation with visits to the emergency room and no hospitalizations; stability of symptoms was maintained even during sporadic absences from treatment. 4. Furthermore, the applicant indicated medications had been helpful. He reported that his chain of command knew he was having mental health problems and was working with him and that he was not cleared for his second deployment due to psychological concerns; however, the SRP could not find confirmatory evidence in the record. The condition was never profiled or implicated in the commander’s statement. The commander’s statement noted the condition of leg pain and stress fractures led to his limited ability to perform his duties in his MOS. The SRP concluded that the preponderance of evidence did not support an unfit determination for the PTSD at the time of evaluation in the DES or prior to separation. 5. The SRP findings are accepted as there is no evidence any mental condition of the applicant had affected his overall performance of duties. The applicant is not entitled to 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) AR20120019281 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120019281 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1