BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20120016620 


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, correction of his records to show he was medically unfit for post-traumatic stress disorder (PTSD) and to change his disability percentage to reflect this additional diagnosis.  

2.  The applicant states the previous evaluation from the forensic behavioral health provider changed the PTSD diagnosis.  The original screening for PTSD at Madigan Army Medical Center was found to be unjust.  Soldiers who underwent a medical evaluation board (MEB) at Joint Base Lewis-McChord underwent a forensic psychiatric evaluation instead of the standard clinical psychiatric evaluation.  The Fusion Cell was established to conduct behavioral health clinical reevaluations.  An MEB addendum reflects the results of the clinical evaluation. 

3.  The applicant provides:

* MEB Psychiatric Addendum
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Washington Army National Guard (WAARNG) on 25 July 2006 and he held military occupational specialty 88M (Motor Transport Operator).  

2.  He was ordered to active duty on 8 March 2009 and subsequently served in Kuwait/Iraq from 5 may 2009 to 25 February 2010.  He was honorably released from active duty on 25 April 2010.  

3.  He reentered active duty on 14 July 2010 and he was assigned to the Warrior Transition Battalion at Fort Lewis, WA.  

4.  On 20 June 2011, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with:

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Anxiety disorder, not otherwise specified (NOS)

X
2.  Degenerative arthritis of the lumbar spine
X

3.  right shoulder tendonitis
X

4.  Right elbow lateral epicondylitis
X

5.  Status post right foot fracture
X

6.  Benign thyroid nodule
X

7.  Degenerative arthritis of the cervical spine
X

8.  Tension headaches
X

9.  Erectile dysfunction
X

10.  Allergic rhinitis
X

11.  Hiatal hernia with reflux
X

12.  Left elbow degenerative joint disease 
X

13.  Bilateral hip degenerative joint disease 
X

14.  Right ankle tendonitis
X

15.  Left ventricular hypertrophy with stage 1 diastolic dysfunction
X

16.  Hypertension
X

The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation.  

5.  On 19 August 2011, an informal PEB convened and found one of the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to Anxiety Disorder, NOS.  The PEB rated his medically-unacceptable condition under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), VASRD Code 9413, Anxiety Disorder, NOS, at 50%.  

6.  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 a 50% combined disability rating and permanent disability retirement.  Subsequent to his counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  On 23 November 2011, the Soldier Readiness Center, Joint Base Lewis-McChord, WA, published Orders 327-001 placing him on the Retired List in his retired rank/grade of sergeant first class (SFC)/E-7, effective 23 December 2011 by reason of physical disability at the rate of 50%.  Accordingly, he retired on 22 December 2011 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 23 December 2011. 

8.  On 24 May 2012, Dr. BGH, 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 specialist changed a PTSD diagnosis.  

	a.  Dr. BGH proposed a change to the applicant's June 2011 MEB Proceedings to delete the diagnosis of "Anxiety Disorder, NOS" and replace it with the medically unacceptable condition of "PTSD – failed retention standards" and the addition of a diagnosis of "Major Depressive Disorder, recurrent, severe with psychotic features" that also failed retention standards. 

	b.  The MEB Addendum shows a behavioral health diagnosis as follows:

* Axis I: PTSD, chronic; Major Depressive Disorder, recurrent, severe, with psychotic features
* Axis II: Diagnosed, Deferred, Cluster A Personality features
* Axis III: See Medical Records 
* Axis IV: Chronic PTSD, symptoms, exposure to combat, chronic pain, occupational and social stressors
* Axis V: Global Assessment and Functioning (GAF) score of 60

9.  Army Regulation 635-40 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.  

   a.  Paragraph 3–9 provides guidance for the temporary disability retired list (TDRL).  Specifically, it states 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.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30% or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  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.

10.  Army Regulation 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. 

11.  The VASRD, section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly-stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

12.  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.  The Madigan Fusion Cell conducted clinical evaluations to determine if these Soldiers met appropriate diagnostic criteria.  The MEB Addendum reflects the results of these clinical evaluations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in June 2011 that referred him to a PEB.  His MEB listed one condition that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found his condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to two conditions.  The PEB rated him at a combined rating of 50% for Anxiety Disorder, NOS.  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 permanent disability retirement at the rate of 50%.  Subsequent to his counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He retired in December 2011.

3.  In May 2012, he received a reevaluation of his health conditions to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health specialist changed a PTSD diagnosis.  This behavioral health reevaluation revealed a diagnosis of chronic PTSD and Major Depressive Disorder, chronic, recurrent, severe and with psychotic features. 

4.  The initial MEB forensic psychiatric evaluation has disadvantaged the applicant.  Therefore, the clinical reevaluation is accepted in lieu of the initial forensic evaluation.  The applicant is entitled to correction of his records to show "PTSD, chronic" instead of "Anxiety Disorder - NOS" as a disabling condition that did not meet retention standards and is rated at 50%, effective 22 December 2011, the date of the applicant's original retirement.  Also, add “Major Depressive Disorder, recurrent, severe with psychotic features.”

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x______  ___x_____  __x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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

	a.  amending item 13 of the applicant's DA Form 3947, dated 20 June 2011, to delete the entry "Anxiety Disorder, Not Otherwise Specified, failed retention standards" and replace it with the diagnosis of "PTSD, chronic fails Army retention standards IAW AR 40-501, 33-33b and add “Major Depressive Disorder, recurrent, severe with psychotic features; fails Army retention standards IAW AR 40-501, 3-32b,c.”

	b.  amending item 8 of the applicant's DA Form 199, dated 19 August 2011, to delete VASRD Code 9413 and add VASRD Code 9411, PTSD and Major Depressive Disorder; rated at 50%.

	c.  by voiding Orders 327-001, issued by the Soldier Readiness Center, on 23 November 2011, placing him on the Retired List in his retired rank/grade of SFC/E-7, effective 23 December 2011 by reason of physical disability at the rate of 50%. 

	d.  issuing him new orders retroactively placing him on the Temporary Disability Retired List (TDRL), by reason of temporary disability at the rate of 50% effective 23 December 2011, for a minimum period of 6 months; and make final disability determination in accordance with current physical disability process and regulation.

	e.  reviewing his pay records and paying him any monies due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a final disability rating at this time. 


      _______ _  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)                                         AR20120016620





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ABCMR Record of Proceedings (cont)                                         AR20120016620



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