IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20120016930 


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 Fort Lewis doctors misdiagnosed PTSD in order to save the Army money at the time of his medical evaluation board (MEB) evaluation.  The doctors were caught and he has since been reevaluated by the Fusion Cell doctors. 

3.  The applicant submitted an application to the DOD Physical Disability Board of Review (PDBR) 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 enlisted in the Regular Army on 27 September 2001 and he held military occupational specialty 11B (Infantryman).  He served through multiple reenlistments in a variety of assignments including service in Kuwait/Iraq from 28 June 2006 to 11 September 2007.  He was assigned to the 1st Battalion, 23rd Infantry, Fort Lewis, WA.  He was promoted to sergeant (SGT)/E-5 in March 2007. 

2.  It appears he underwent a medical examination on 10 February 2009 that led to a finding of medically-unacceptable conditions.  The available evidence shows he was involved in an improvised explosive device (IED) explosion in July 2006.  The detonation caused him to slam against the back of the Stryker vehicle he was riding in, injuring his back. 

3.  On 10 February 2009, 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. Chronic lumbar myofascial pain

X
2. Mild right peroneal nerve injury, mainly involving the superficial peroneal sensory nerve 
X

3. Status post decompressive fasciotomy to the right calf secondary to gunshot wound trauma
X

4. Anxiety disorder with elements of post-trauma combat 
X

5. Status post concussion syndrome, mild impairment due to intermittent moderate headaches
X

6. Status post uvulopalatopharyngoplasty complicated by tonsillar fossae bleeding
X

7. History of heat stroke
X

8. Right knee pain
X

The MEB recommended the applicant's referral to a PEB.  He was counseled and disagreed with the MEB's findings and recommendation.  He submitted an appeal.  His appeal was considered but did not add new information to the MEB's findings and recommendation.  The MEB was approved on 24 April 2009. 

4.  On 12 September 2011, 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 Lumbosacral strain from exposure to an IED.  The PEB noted he had constant pain that increased with impact and weight-bearing activities which prevented him from wearing IBA/combat load; his examination noted he did not appear to be in any significant distress and noted positive tenderness to palpation; he had painful motion flexion limited to 31 degrees, 167 degrees combined range of motion; and he passed the APFT and received a badge.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition 
Percentage
5237
Lumbosacral strain from exposure to an IED
20%
5.  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 20% combined disability rating and separation with entitlement to severance pay if otherwise quailed.  Subsequent to counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

6.  The applicant was discharged by reason of disability on 24 August 2009 with entitlement to severance pay.  

7.   On 14 August 2012, Dr. CFJ, 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.  Dr. CFJ proposed the addition of "PTSD, fails Army retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33b and c."  The MEB Addendum shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic 
* Axis I: None
* Axis III: See medical records 
* Axis IV: Exposure to combat; chronic PTSD symptoms; traumatic grief, interpersonal and occupational stressors, chronic pain
* Axis V: GAF score of 60 (current) and 60 (at separation)

8.  An advisory opinion was obtained on 7 January 2013 from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case.  The USAPDA official recommended a correction to the applicant's records to reflect he was unfit for PTSD and that his disability ratings be corrected to reflect this finding.  He added:

	a.  Dr. CFJ performed the fusion cell re-evaluation on 14 August 2012.  She opined that the applicant had PTSD in 2008/9 and that it did not meet medical retention standards.  Dr. CFJ cites the following statement from the commander's statement as evidence that the applicant's PTSD had an impact on duty performance: "unable to perform assigned MOS duties in the unit."  There is no indication that the inability to perform his assigned MOS was due to the applicant's behavioral health diagnosis.  The sole condition listed on the Soldier's DA 3349 (Physical Profile) was lumbar myofascial pain. Without more, reliance on the commander's statement as evidence of PTSD-associated duty impact is misplaced.  

	b.  The original MEB mental health report was completed on 20 November 2008 by Dr. Snxxxxxss.  The report opined that the applicant had a diagnosis of anxiety disorder with elements of post-trauma combat; with the condition meeting medical retention standards.  The fact that the 2008 diagnosis did not diagnose PTSD is not really relevant to the issue before the USAPDA as both anxiety disorder and PTSD would be rated identically in accordance with the VASRD, if either were found unfit.  The remaining issue is: Was the finding that any mental health condition that the applicant had in 2008/9 met medical retention standards supported by a preponderance of the evidence? On its face, it appears that Dr. Snxxxxxxss' original (psychiatric) MEB Consultation supports that the applicant (PMOS11B, combat infantryman) did not meet medical retention standards.  If so, it would have been most likely that the PEB would have found the applicant unfit for his mental health condition.  With respect to "impact on duty," Dr. Snxxxxxss indicated that the applicant's "military duties are moderately affected by his ongoing insomnia and anxiety disorder."  Dr. Snxxxxxss indicated that the applicant "should not be assigned away from available individual and medication management."  Dr. Snxxxxxss recommended that the applicant be referred to mental health treatment for psychotherapy and appropriate medication management.  It is also noted that the applicant nonconcurred with the 2008 findings and indicated that he was not doing as well mentally as expressed in the report.  Based upon all of the above, it is more likely than not that any mental health condition that the applicant had in 2008/9 did not meet medical retention standards.

	c.  Notwithstanding Dr. Snxxxxxss' conclusion that the applicant's condition did not fail retention standards, the USAPDA is of the opinion that this behavioral health diagnosis (now diagnosed as PTSD) was unfitting at the time the applicant was separated from the military (See VASRD 4.125 (b) (recognizing that a new diagnosis (i.e., PTSD) may represent the progression of a prior diagnosis)).  The applicant was unfit because continuing in the military as an 11B (e.g., to include continued combat experiences) would have represented a decided medical risk to the applicant of worsening psychiatric symptoms.  This is based on Dr. Snxxxxxss' geographical assignment considerations and treatment recommendations.  The USAPDA endorses referring to the applicant's diagnosis as PTSD.  See also the 10 April 2012 OTSG/MEDCOM Policy Memo 12-035, SUBJECT: Policy Guidance on the Assessment and Treatment of Posttraumatic Stress Disorder (PTSD) (recommending rendering a PTSD diagnosis even if patient does not meet A2 criterion (response to the trauma of "fear, helplessness, or horror")).

	d.  The applicant was rated by the VA at 30% for PTSD on 20 October 2009.  Had the applicant been rated for anxiety disorder or PTSD when he left the military on 25 August 2009 the rating would also have reflected VASRD 4.129, which would require a rating of 50% for the condition with placement on temporary disability retired list (TDRL).  Recommend that the applicant's military records be corrected to reflect an unfit finding for PTSD, with a rating of 50% and placement on the TDRL at a total of 60%.  The applicant's case should be immediately scheduled for a medical re-evaluation (unless there has been a recent VA re-evaluation of his PTSD that is complete and sufficient for disability adjudication) to determine his present condition and continued status on the TDRL.

9.  The applicant was provided with a copy of this advisory opinion on 15 January 2013 but he did not respond. 

10.  On 19 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. 

11.  On 27 April 2013, the applicant completed a VA Form 3288 authorizing the release of information from his records for consideration by the PDBR Mental Health SRP.

12.  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 finding, dated 10 September 2013, which had been forwarded to the applicant and is attached to this case, shows the SRP rendered the following decision: "The SRP recommends the applicant be found unfit for PTSD (change from not unfitting PEB diagnosis of anxiety) and that his prior separation be modified to reflect that he was placed on the TDRL at 60% for a period of 6 months (PTSD minimum 50% in accordance with 4.129 of DOD directive) and then permanently retired by reason of physical disability rating, 10% for PTSD and 20% for lumbosacral strain." 

13.  The applicant submitted a rebuttal of the SRP's findings.  His rebuttal, dated 17 September 2009, is attached to this case.  

14.  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 212, 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.   

15.  Army Regulation 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.  

   a.  Paragraph 3–9 provides guidance for 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.  

   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.

16.  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. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in February 2009 that referred him to a PEB.  His MEB listed one condition - chronic lumbar myofascial pain - that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found this condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  The PEB rated him at a combined rating of 20% for lumbosacral strain from exposure to an IED.  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 at the rate of 20%.  Subsequent to his counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He was discharged on 24 August 2009.

3.  The PDBR SRP reviewed his case and based on that review recommended a change of the applicant's disability and separation determination.  The SRP recommended a finding of unfitness and a rating for PTSD as well as a final disposition of the applicant's case.  This finding is accepted.  The applicant is entitled to relief.  

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:

	a.  by finding the PEB made a determination of unfitness for PTSD (change from not unfitting PEB diagnosis of anxiety), and that his prior separation be modified to reflect that the applicant was placed on the TDRL at 60% for a period of six months (PTSD at minimum 50% IAW 4.129 and DoD directive) and then permanently retired by reason of physical disability with a final 30% rating as indicated below:	
	
UNFITTING CONDITION
VARSD CODE
TDRL RATING
PERMANENT RATING
Posttraumatic Stress Disorder
9411
50%
10%
Lumbosacral Strain
5237
20%
20%

COMBINED
60%
30%
	b.  providing orders showing the individual was placed on the TDRL  effective the date of the original medical separation for disability.

	c.  providing orders showing the individual's final disposition was permanent disability retirement.

	d.  amending the applicant’s pay to show the appropriate retired pay in lieu of severance pay. 




      _______ _   _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)                                         AR20120016930





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ABCMR Record of Proceedings (cont)                                         AR20120016930



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