BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20120017870 


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 Department of Defense (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 Army National Guard (ARNG) on 20 December 1994 and he held multiple military occupational specialties to include 42A (Human Resources Specialist) and 19K (M-1 Armor Crewmember).  He was ordered to active duty on 24 July 2004.

2.  The applicant's narrative summary shows in June 2003, while in Iraq, the applicant fell and twisted his right knee.  Conservative treatment did not alleviate the swelling and pain and as a result, in September 2003, he was evacuated from the theater and he underwent total knee replacement.  In October 2005, while on active duty, he reinjured his knee.  Since that injury, he continued to experience pain and swelling.  X-rays showed his hardware intact with no loosening and/or failure.  However, pain and his physical profile affected his duty performance.   Examinations showed stable knee, neurologically intact and pain-limited range of motion. 

3.  On 23 October 2007, 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:

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Right knee total joint replacement and chronic pain

X
2.  Hypertension
X

3.  Hyperlipidemia
X

4.  Mild obstructive sleep apnea
X

5.  Right foot plantar fasciitis
X

6.  Cervical degenerative disc disease
X

7.  Lumbar degenerative disc disease 
X

8.  Left acromioclavicular arthritis
X

9.  Anxiety disorder
X

The MEB recommended the applicant's referral to a physical evaluation board (PEB).  He was counseled and did not agree with the MEB's findings and recommendation.  He submitted a rebuttal that was considered and forwarded to the PEB. 

4.  On 15 January 2008, 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 right knee replacement.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition
Percentage
5055
Knee replacement, right
30%
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 30% combined disability rating and permanent disability retirement.  Subsequent to counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

5.  The applicant retired on 22 April 2008 and he was placed on the Retired List in his retired rank/grade of staff sergeant (SSG)/E-6 on 23 April 2008. 

6.   On 16 July 2012, Dr. T. F-----y, 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. T. F-----y proposed the deletion of "Anxiety Disorder, Not Otherwise Specified, meets retention standards" and the addition of "PTSD, chronic, fails retention standards."  Dr. T. F-----y 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: Exposure to combat, limited social support network, financial difficulties, chronic pain
* Axis V: Global Assessment of Functioning (GAF) score of 55 (current) and 65 (at time of separation)

7.  An advisory opinion was obtained on 28 December 2012 from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case.  An official of the USAPDA stated:  

	a.  As part of the original 2007 MEB process, Major (MAJ) K-----r, psychiatrist, examined the applicant on 20 September 2007.  The psychiatrist indicated that the applicant's GAF was between 81 and 90, i.e., "absent or minimal symptoms." General information regarding the GAF scale can be found at: http://www.annals-general-psychiatry.com/content/1 0/1/2.  The psychiatrist rendered a diagnosis of anxiety disorder not otherwise specified.  With specific reference to Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-33, Dr. K-----r indicated that the applicant met medical retention standards. (AR 40-501, paragraph 3-33 provides that anxiety disorders are cause for referral to an MEB when associated with persistent or recurrence of symptoms are: (a) Sufficient to require extended or recurrent hospitalization; (b) necessitate limitations of duty or duty in a protected environment; or, (c) result in interference with effective military performance.)  It is noted that the applicant's DA Form 2807-1 and DA Form 2808 are dated prior to that examination and were the basis for the referral to Dr. K-----r, as seen on the narrative associated with item 17; and DA Form 2808 entry for item 40.)  These findings were reviewed by another psychiatrist; two other physicians, and the MEB approval authority (another physician).  The applicant reviewed the MEB findings and did not object to the findings relating to the mental health diagnosis or that it met medical retention standards.  

	b.  DOD Instruction (DODI) 1332.38, Considerations of Unfitness, include the criteria for finding a Soldier unfit.  These are: (a) Due to manifestations associated with a given diagnosis or injury, a Soldier is unable to reasonably perform their duties; (b) the condition represents a decided medical risk to the Soldier or other Soldiers were the Soldier to continue in the military; and, (c) the condition imposes unreasonable requirements upon the military to maintain and/or protect the Soldier.  DODI 1332.38, E3.P3.6.2 provides that a preponderance of evidence must support a finding of unfitness prior to such finding being made.  Where the evidence is not clear, the PEB must attempt to obtain additional information, as per E3.P3.6.1.  A PEB found the applicant unfit for his knee replacement and fit for all other conditions, to include his mental health condition.  The applicant was permanently retired with a 30 percent disability.  He concurred with these findings and waived his right to a formal hearing.

	c.  Four years after retirement the applicant submitted to another military mental health examination in an attempt to have his 2007 MEB mental health diagnosis changed.  There is no evidence provided with the applicant's petition for correction or case file that during those four years after retirement that he presented himself to the VA for treatment or that he has been rated by the VA for any mental health condition. This new examination by a psychologist was completed on 16 July 2012.  The case file does not contain any evidence that this new opinion was reviewed and approved by any physicians or that it was accomplished in accordance with the MEB process found at chapter 7, AR 
40-400.  The new opinion references a 3-month period of treatment the applicant received through the Boise, ID VA Center (7 July 2006 - 5 September 2006) for "depression, anxiety, feelings of hostility, sleep apnea, excessive alcohol consumption, and difficulty expressing feelings to his wife."  This Agency also takes notice of the applicant indicating that, at the time of the MEB, he did not want to admit to having any problems because he believed he would be labeled as "crazy." 

	d.  With reference to AR 40-501, paragraphs 3-33b and c, Dr. T. F-----y, the clinical psychologist indicates the applicant would not (now) meet medical retention standards for PTSD (i.e., indicating the condition is associated with symptoms that necessitate limitations of duty or duty in a protected environment and result in interference with effective military performance).  The stressor to support the PTSD diagnosis was experienced during the applicant's initial enlistment (1972-1976).  Dr. T. F-----y also indicated that, were the profile to be re-written, it should indicate that the applicant's condition prevents access to firearms; no actual/ simulated combat training; and no deployments to an austere environment.  Dr. T. F-----y indicates the applicant's current GAF is now 55.  Dr. T. F-----y indicated the applicant has severe symptoms of depression.  (This is based on the PHQ-9 score, a score based on severity of symptoms associated with depression within the preceding two weeks (http://www.ncbLnlm.nih.govlpmc/ articlesIPMC1495268D.)  Dr. T. F-----y indicates the applicant's condition has worsened since leaving the military.  The applicant for a period of time indicated "abusing" alcohol to help avoid dealing with PTSD/anxiety related symptoms.

	e.  Dr. T. F-----y assessed the applicant's 2007 GAF score at 65.  As relating to manifestations and symptoms associated with the applicant's behavioral heath conditions, Dr. T. F-----y appears to suggest the military structure had an ameliorative effect and due to loss of this military structure the condition worsened upon exiting the military.

	f.  In this case, the MEB, like the applicant, recognized the applicant had a behavioral health diagnosis.  The evidence indicates that the MEB psychiatrist fully considered this diagnosis in light of specific retention standards that closely mirror DOD considerations of unfitness.  At the time the MEB was performed there was compelling evidence that this applicant was fit for his behavioral health conditions.  The applicant's behavioral health issues were noted and assessed as associated with, at most, minimal symptoms.  There was solid, weighty evidence that the PEB used to support its finding that this Soldier, as a 19K, Tanker, was not unfit for a behavioral health condition.

	g.  The USAPDA views this additional opinion as evidence that the Soldier's service-connected behavioral health diagnoses progressed after leaving the military.  In retrospect, the USAPDA recognizes that the conditions that the MEB determined met medical retention standards, and that the PEB found not unfitting, may have become more severe after the applicant was permanently retired.  However, weighing all of the evidence, it does not appear as if the 2012 opinion provides a clear indication that the 2008 PEB findings are still not supported by a preponderance of the evidence or that their findings were arbitrary or capricious.  Based on the body of affirmative evidence of fitness, notwithstanding any new opinions regarding the severity of the applicant's current symptoms, the USAPDA does not support a retrospective finding that this applicant was unfit due to PTSD in 2008.

	h.  If the Board is of the opinion that the applicant's PEB must be changed based upon the new 2012 opinion they are authorized to do so.  If PTSD is found to be unfitting by the Board in 2008, then the applicant's military records would have to be corrected to reflect that PTSD was unfit at 50 percent with placement on the TDRL with a total rating of 70 percent, with removal within 5 years with a permanent disability retirement at 70 percent.  

8.  The applicant was provided a copy of this advisory opinion on 31 December 2012 and he submitted multiple responses (attached). 

9.  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. 

10.  On 22 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.

11.  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 3 September 2013, attached to this case, recommended no change to the applicant's disability and processing determination.  

12.  The applicant was provided a copy of the SRP report. 

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.   

14.  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.

15.  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 October 2007 that referred him to a PEB.  His MEB listed one condition that failed retention standards and several other conditions that met retention standards.  His only complaint was the pain in his right knee. 

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 due to right knee joint replacement and the chronic pain.  The PEB rated him at a combined rating of 30% 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 permanent retirement.  He concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He retired in April 2008. 

3.  The PDBR SRP reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the disability evaluation system.  The available evidence shows a diagnosis of anxiety disorder was rendered.  At the time the applicant processed through the PDES, no change in his diagnosis was made at any time.  The SRP determined that no mental health diagnoses were changed to the applicant’s possible disadvantage in the disability evaluation.  Although there were some symptoms suggestive of PTSD during treatment in 2006 there were none present at the time of the MEB evaluation in September 2007 or at the initial VA examination in July 2009, which was more than a year after his medical retirement from the Army.

4.  The SRP also considered whether his mental condition, regardless of a specific diagnosis, was unfitting for continued military service.  The SRP agreed that the evidence of the record reflected minimal symptoms and good duty performance (as related to mental functioning) in the period of time leading into the MEB, and therefore concluded the mental condition was not unfitting at the time of separation and not subject to a service disability rating. 

5.  The SRP also noted the applicant’s problems and diagnoses following separation; however, by law, the military service can only rate and compensate for those conditions that were found unfitting for continued military service based on the severity of the condition at the time of separation and not based on possible future changes.  The VA can rate and compensate all service connected conditions without regard to their impact on performance of military duties, including conditions developing after separation that are direct complications of a service connected condition.  

6.  The SRP findings that there is no evidence of any mental condition at the time of the applicant's separation that was found to be unfitting and/or had affected his overall performance of duties is accepted.  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)                                         AR20120017870



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120017870



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1