BOARD DATE:	  5 September 2013 

		DOCKET NUMBER:  AR20120017449 


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 he was told he did not have PTSD because he returned fire and did what he was trained to do.  He was also told he was making things up and that he had several other disorders.  In effect, 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 his MEB Psychiatric Addendum.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the California Army National Guard (CAARNG) on 19 October 2001 and he held military occupational specialty 63B (Wheeled Vehicle Mechanic). 

2.  He was ordered to active duty on 16 December 2003 and subsequently served in Kuwait/Iraq from 12 June 2003 to 23 March 2004.  He was wounded in action on 9 April 2004.  Upon return from Iraq, he was assigned to the Warrior Transition Battalion at Fort Lewis, WA.  

3.  On 3 August 2006, 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.  Shrapnel wound right knee with neuralgia 

X
2.  Anxiety Disorder
X

3.  Depressive Disorder, Not Otherwise Specified (NOS)
X

4.  Attention Deficit/Hyperactivity Disorder 
X

5.  Hypertension
X

6.  Hypertrigleveeridema
X

7.  Gastroesophageal Reflux Disease (GERD) 
X

The MEB recommended his referral to a PEB.  He did not agree with the MEB's findings and recommendation and submitted an appeal.  His appeal was considered but it did not change the diagnosis.  

4.  On 7 November 2006, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to an AK-47 wound to his right knee, status post-diagnostic arthroscopic procedure for debridement and shrapnel removal with persistent pain that was neuropathic in nature.  The PEB rated his medically-unacceptable condition under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), VASRD Codes 5099/5003 at 10%.  

5.  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 10% combined disability rating and separation with entitlement to severance pay if otherwise qualified.  It is unclear if the applicant concurred or did not concur with the PEB's finding and recommendation and/or waived his right to a formal hearing.

6.  On 30 November 2006, an informal PEB reconsidered the rating.  The PEB found his condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to an AK-47 wound to his right knee, status post-diagnostic arthroscopic procedure for debridement and shrapnel removal with persistent pain that was neuropathic in nature.  He was rated for pain, moderate and constant.  The PEB rated his condition under VASRD Codes 5099/5003 at 10%.  

7.  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 10% combined disability rating and separation with entitlement to severance pay if otherwise qualified.  He concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

8.  He was discharged on 13 January 2007.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), paragraph 4-24B(3) with entitlement to severance pay.  This form also lists the amount of his disability severance pay as $46,477.80.

9.  On 5 June 2012, Dr. TSB, 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. TSB proposed a change to the applicant's August 2006 MEB Proceedings to delete the diagnosis of "Anxiety Disorder, NOS, meets retention standards" and replace it with the medically unacceptable condition of "PTSD – chronic, failed retention standards." 

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

* Axis I: PTSD; Depressive Disorder, NOS, secondary to PTSD
* Axis II: No Diagnosis
* Axis III: Knee pain resulting from combat gunshot wound
* Axis IV: Occupational, marital
* Axis V: Global Assessment and Functioning (GAF) score of 51 in 2006 and 60 current

10.  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.

11.  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. 

12.  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.

13.  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 August 2006 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 this condition.  The PEB rated him at a rating of 10% for moderate and constant pain, status post-diagnostic arthroscopic procedure for debridement and shrapnel removal.  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 10%.  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 13 January 2007.

3.  In June 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 that failed retention standards. 

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 13 January 2007, the date of the applicant's original discharge. 





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 by:

	a.  amending item 13 of the applicant's DA Form 3947, dated 3 August 2006, to delete the entry "Anxiety Disorder, Not Otherwise Specified, met retention standards" and replace it with the diagnosis of "PTSD, chronic, fails Army retention standards IAW AR 40-501, 33-33b,c";

	b.  amending item 8 of the applicant's DA Form 199, dated 30 November 2006, to add VASRD Code 9411, PTSD, rated at 50%; 

	c.  amending item 9 of the applicant's DA Form 199, dated 30 November 2006, to show the appropriate combined rating and his disposition from “Separation with severance pay if otherwise qualified" to "placement on the Temporary Disability Retired List (TDRL)”; 

	d.  by voiding his discharge orders, ordering his discharge with entitlement to severance pay;  

	e.  voiding his DD Form 214 ending on 13 January 2007; 

	f.  issuing him new orders retroactively placing him on the Temporary Disability Retired List (TDRL), by reason of temporary disability at the appropriate combined rate effective 13 January 2007, for a minimum period of 6 months; and make final disability determination in accordance with the current physical disability process and regulation;

	g.  issuing him a new DD Form 214 showing he was honorably retired and placed on the TDRL by reason of Disability - Temporary, in accordance with AR 635-40, chapter 4, with a separation code of JFL and reentry eode of 3;  and
	h.  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)                                         AR20120017449



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ABCMR Record of Proceedings (cont)                                         AR20120017449



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