IN THE CASE OF:	  

		BOARD DATE:	    24 September 2013

		DOCKET NUMBER:  AR20120018825 


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 on 21 August 2007 and held military occupational specialty 68W (Health Care Specialist).  He served in Afghanistan from 9 July 2009 to 15 July 2010. 

2.  On 17 February 2011, he underwent a clinical psychological evaluation at QTC Medical Group, Tacoma, WA.  He reported symptoms of post-traumatic stress disorder (PTSD), anxiety, memory loss, loss of concentration, and insomnia.  The psychological report shows his diagnosis as follows: 

* Axis I:  PTSD; Major Depressive Disorder, moderate; Nightmare Disorder; and Alcohol Abuse
* Axis II:  None reported
* Axis III:  Right shoulder condition, lower back condition, tinnitus
* Axis IV: Upcoming discharge from service, isolation
* Axis V: Global Assessment of Functioning (GAF) Score of 45 

3.  On 5 April 2011, the applicant complained of low back pain.  His narrative summary (NARSUM) shows:  

	a.  He related that he injured his lower back in October or November 2008.  He was seen for it a few weeks later after he had reinjured it lifting boxes in the motor pool.  He sought medical care and was treated with muscle relaxers, pain medications, and a temporary profile.  He improved in the next few weeks but he reinjured it with continued lifting at work and he was seen about 6 weeks later with different medications and a temporary profile and there was some discussion about referral to physical therapy or chiropractic if he did not improve in the coming few weeks.  He deployed to Afghanistan with his unit in July 2009 and was not seen for several months though he believes his back pain got worse in Afghanistan due to lifting injured Soldiers and carrying them as a combat medic.  

	b.  He was medically evacuated for other reasons to Landstuhl Regional Medical Center in Germany in May 2010, when he returned to Joint Base Lewis McChord, WA and entered the Warrior Transition Battalion.  His back pain did not improve despite continued physical therapy, chiropractic treatment and pain meds.  It was determined in April 2011 after a consult to Physical Medicine that he had reached his Medical Retention Determination Point, failed retention standards for low back pain, and he was given a P-3 profile which initiated an MEB.  

	c.  His diagnosis was that of low back pain secondary to lumbar disc degeneration, which failed retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39h.  He was also diagnosed with multiple conditions that met retention standards and included Adjustment disorder with depressed and anxious mood; alcohol abuse/dependence, post concussion headaches; right shin shrapnel injury with scar; and mild left sensor neural hearing loss with bilateral tinnitus.

	d.  His current functional status was as follows: 

(1) Impact on duty:  He is unable to lift and carry wounded Soldiers or carry litters and unable to run, ruck march or wear body armor.  He can do administrative and clerical duties.
  
		(2)  Stability:  His lower back symptoms have not improved over the last 24 months.  

		(3)  Prognosis:  Poor for continued military service though 80% of individuals with low back pain improve over 4 years without surgery.

		(4)  Compliance:  Good. 

	e.  He failed retention standards for low back pain and was recommended for referral to a physical evaluation board (PEB).  

4.  On 3 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.  Low back pain secondary to lumbar disc degeneration

X
2.  Adjustment disorder with depressed mood 
X

3.  Alcohol abuse/dependence 
X

4.  Post concussion headaches
X

5.  Right chin shrapnel injury with scar
X

6.  Mild left sensor neural hearing loss with bilateral tinnitus 
X

The MEB recommended the applicant's referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation.  He indicated that:

* he reviewed the contents of the MEB, physical profile, and narrative summary
* he understood the PEB would only consider the conditions listed on his physical profile
* the physical profile included all his conditions and whether they did not meet retention standards
* the conditions that did not meet retention standards were properly listed
* he provided all medical documents in his possession to be included in the MEB
* he agreed that the MEB accurately covered his medical conditions at the time

5.  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 low back pain with lumbar degenerative disc disease.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition 
Percentage
5242
Low back pain with lumbar degenerative disc disease 
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 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 on 13 December 2011 with entitlement to severance pay.  

7.   On 3 July 2012, Dr. JFS, 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. JFS opined the applicant met the Diagnostic and Statistical Manual for Mental Disorders criteria for PTSD.  The diagnosis was made based on association between the applicant's complaints and symptoms at the time of the evaluation and exposure to traumatic events during his deployment to Afghanistan.  Dr. JFS provided an MEB Addendum, signed by Lieutenant Colonel (LTC) ALC, MD, that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, medically disqualifying 
* Axis I: None
* Axis III: See medical records 
* Axis IV: Occupational dysfunction, social problems, MEB
* Axis V: GAF score of 55

8.  An advisory opinion was obtained on 25 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 correction of his military records to reflect that his past diagnosis of adjustment disorder be changed to PTSD and that his military disability findings and ratings to changed to reflect the new diagnosis.  The applicant cites the 13 August 2012 addendum to the MEB, signed by Dr. JFS, as the sole evidence of error in his case. 

	b.  The applicant's MEB was completed on 3 June 2011.  The only condition that did not meet medical retention standards was the diagnosis of low back pain. All other listed conditions were found to meet medical retention standards, of which adjustment disorder with depressed and anxious mood was one.  The applicant's initial mental health exam was accomplished on 10 November 2012, by Dr. Exxxs-Bxxxxxxxxey, psychiatrist.  She opined that the applicant had an adjustment disorder that was not affecting him to such an extent that it caused him to not meet medical retention standards.  The case file also contains an additional mental health examination report dated 17 February 2011, by Dr. Sxxth, psychologist for the VA.  Dr. Sxxth's opinion was that the applicant was having some mental health symptoms that were impacting his ability to perform his military duties and that he met the criteria for a diagnosis of PTSD.  These two divergent opinions were considered by the MEB and the NARSUM indicated that Dr. Exxxs-Bxxxxxxxxey's findings were best supported by the preponderance of the evidence and that the official military medical findings concerning the status of the applicant's mental health was adjustment disorder. 

	c.  The applicant's Physical Profile listed his low back pain as the only condition that limited his ability to perform his assigned military duties.  These findings were reviewed by two other physicians and the MEB approving authority, also a physician.  The applicant concurred with the MEB findings, waived his right to an independent medical review, and submitted no appeal or rebuttal to the MEB findings.  An informal PEB found the applicant unfit for his low back pain and recommended separation with severance pay.  The applicant was counseled on the findings and his rights and concurred with the PEB findings, waiving his right to a formal hearing.  The VA rated the applicant for PTSD at 30% on 29 July 2011.  The applicant was separated from the military on 13 December 2011.

	d.  Dr. ALC's opinion of 13 August 2012 indicated that he was approving the 16 July 2012 evaluation findings of a Dr. JFS, psychologist.  Dr. JFS evaluated the applicant after he separated from the military and rendered an opinion that the applicant "currently has" PTSD.  The 2012 report continued to reflect the applicant's current symptoms, current functionality, current condition, current diagnosis, and current ability to perform military duties.  Dr. ALC went on to indicate that "were he (the applicant) to be currently on active duty," the condition would be medically disqualifying in accordance with Army Regulation 40-501, paragraph 3-33b,c.

	e.  Even if the MEB diagnosis was changed to PTSD, vice adjustment disorder, the preponderance of the evidence would still have to show that his condition failed to meet medical retention standards and would have been found unfitting while he was still in the military.  Neither the findings of Dr. JFS nor Dr. ALC provide any findings or evidence to support that the applicant's symptoms caused him to meet the criteria for not meeting retention standards in 2011.  Dr. JFS' report did not provide any discussion or evidence to support that the applicant did not meet medical retention standards while he was in the military.  

	f.  A review of all of the evidence does not support that the MEB/PEB findings were incorrect and were not supported by a preponderance of the evidence.  The findings do not appear to be arbitrary or capricious.  

	g.  If the Board is of the opinion that the post-separation opinions overrule the MEB/PEB findings, then the Board should follow the VA ratings provided at the time of separation for his PTSD and place the applicant on the Temporary Disability Retired List (TDRL) at a total rating percentage of 60 percent (50 percent for PTSD  4.129 and 10 percent for his back).  If placed on the TDRL, the applicant should be subsequently scheduled for a TDRL re-evaluation at the earliest time to ascertain his present condition.

9.  The applicant was provided with a copy of this advisory opinion on 29 January 2013 but he did not respond. 

10.  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. 

11.  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.

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 3 September 2013, which had been forwarded to the applicant and is attached to this case, shows the SRP rendered two decisions:  

	a.  A minority recommendation:  the SRP minority recommended a determination of unfitness for PTSD, placement on the TDRL at the rate of 50% for a period of 6 months, and then permanently separated with severance pay by reason of physical disability with a final 10% rating (combined 20%). 

	b.  A majority recommendation:  The SRP, by a vote of 2:1, recommended no change of the applicant's disability and separation determination. 

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 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.  His only complaint was back pain. 

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 10% for low back pain.  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 December 2011.

3.  The PDBR SRP considered the appropriateness of changes in mental health diagnoses; PEB fitness determination; if unfitting, whether the provisions of VASRD 4.129 were applicable; and a disability rating recommendation in accordance with VASRD 4.130.  The SRP considered the criteria for diagnosis according to the DSM-IV including: the evidence for the stressor, re-experiencing of the event, persistent avoidance of stimuli associated with the trauma, arousal, duration and onset, and presence of clinically significant distress or impairment in social, occupational or other important area of functioning.  Additionally, this panel was able to review all relevant evidence in this case. 

4.  The majority SRP decision found no evidence to suggest the November 2010 psychiatry evaluation was inaccurate with regard to facts or diagnostic impression.  The preponderance of evidence did not support a diagnosis of PTSD at the time of Disability Evaluation System (DES) evaluation and separation.  The post-separation examination based its recommendation for not meeting retention standards on evidence of the examination 7 months after separation, not based on evidence at the time of evaluation in the DES.

5.  The SRP majority 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)                                         AR20120018825





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018825



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1