IN THE CASE OF:	  

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20120019270 


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.  Having had prior service, the applicant enlisted in the Army National Guard (ARNG) on 1 March 2006 and he held multiple military occupational specialties (MOS) to include 11B (Infantryman), 96B (Intelligence Analyst), and 31B (Military Police).  His primary MOS (PMOS) at the time of his disability separation was 31B.

2.  On 28 April 1999, the ARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  On 7 December 2003, he entered active duty.  He subsequently served in Iraq from February 2004 to February 2005. 

3.  On 13 March 2008, 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
Did Not Meet Retention Standards
Met Retention Standards
1.  Hallux rigidus of bilateral feet 
X

2.  Painful hammertoes of the 2nd toes of bilateral feet and 3rd toe of left foot
X

3.  Intervertebral disk degeneration of cervical spine at multiple levels with moderate stenosis, without radiculomyelopathy
X

4.  Metatarsalgia of bilateral feet

X
5.  Painful peripheral neuropathy of bilateral lower extremities

X
6.  Cubital tunnel syndrome, left

X
7.  Meralgm paresthetica, left

X
8.  Dysthmic disorder

X
9  Partner relational problems

X
10.  Anxiety disorder.

X
11.  Bilateral sensory hearing loss and tinnitus

X
4.  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. 

5.  On 30 April 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 the below conditions.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition
Percentage
5284
Right foot 
10%
5284
Left foot
10%
5242
Degenerative arthritis of the cervical spine
10%
6.  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.

7.  The applicant retired on 29 October 2008 and he was placed on the Retired List in his retired rank/grade of master sergeant/E-8 on 30 October 2008. 

8.  On 3 October 2012, Dr. M.A. D'A-----, 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. M.A. D'A----- proposed the deletion of "Dysthymic Disorder and Anxiety Disorder Not Otherwise Specified (NOS), Meets retention standards" and the addition of "PTSD, chronic, and Depressive Disorder Not Otherwise Specified (NOS), fails retention standards."  Dr. M.A. D'A----- provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, moderate, and Depressive Disorder (NOS), mild
* Axis I: Diagnosis deferred
* Axis III: See medical records 
* Axis IV: Some marital discord reported
* Axis V: Global Assessment of Functioning (GAF) score of 60 (current - minimum improvement reported) and 60 (at time of separation)

9.  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.  Department of Defense Instruction (DODI) 1332.38, E3.P3.3.4. Cause and Effect Relationship provides that "regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors."

	b.  For purposes of determining unfitness, the presumption of fitness rule applies to the applicant.  He entered the "presumptive period" on 25 October 2007 (on his 59th birthday). E3.P3.5.3 provides that the presumption of fitness rule is only overcome when one of three things occur: 3.1.  Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if not retiring; 3.2.  Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or, 3.3.  The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

	c.  The PEB found the applicant overcame the presumption of fitness for conditions impacting his feet.  He was unable to perform the physical activities associated with his PMOS because of associated physical limitations.  The applicant had been assigned to the medical hold in February 2005 for treatment of his feet.  His chief complaint in the NARSUM [Narrative Summary] of the MEB was "painful feet" and the only reason that he was placed in medical hold and referred to an MEB was based on the 10 procedures that he had on his feet and the fact that podiatry referred him for an MEB.  This was further evidenced by the fact that the only limitations noted on his Physical Profile was related to his feet and his commander's statement concurred that it was his profile limitations for his feet that caused him to be unable to perform his assigned duties.  The commander went on to describe that the applicant was otherwise a good Soldier, performed all assigned duties well, and that he had no other problems with him performance wise.  Therefore, the PEB concluded the applicant overcame the presumption of fitness because the applicant, due to the condition of his feet, had not been performing in his PMOS before entering the presumptive period. The presumption of fitness is to be considered for each condition individually and the preponderance of the evidence must be present within the case file to overcome the presumption for each individual condition.  Finding evidence to overcome one or more of the listed conditions does not automatically mean that a Soldier then overcomes the presumption for all listed conditions.

	d.  As part of the original 2008 MEB process, Dr. E----s B---------ey, psychiatrist, evaluated the applicant in January 2008.  At this point, the applicant was within the presumptive period.  In relevant part, Dr. B--------ey concluded that the following:  Axis I, Dysthymic Disorder as manifests a long history of some depressive symptoms starting in the mid 90s which appear to be related to relationship problems and the death of his father under mysterious circumstances.  He was maintained on antidepressant medications since that time.  He currently endorses somewhat decreased mood, some anhedonia, decreased enjoyment of activities, lower energy and weight gain.  The approximate date of origin is 1996.  Impairment for further military duty:  Minimal. Current Functional Status:  The service member is stable, has found counseling helpful and is on maintenance antidepressant medication.  Impact on duty performance:  He reports very good duty performance throughout his military career, good duty performance during his deployment to Iraq.  He denies any decrement in his duty performance due to stress and 'he received a bronze star for his work in Iraq.  Geographic assignment considerations: No restrictions.  Conclusions: the service member meets retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 33-32 and 3-33 providing that a Soldier does not meet medical retention standards for either mood; or anxiety, somatoform, or dissociative disorders when persistence or recurrence of symptoms:  Require extended or recurrent hospitalization; require limitations of duty or duty in a protected environment; or, result in Interference with effective military performance.  These findings were reviewed and approved by two other physicians and the MEB approving authority (also a physician).  The applicant presented additional evidence of trauma while deployed which was reviewed by all MEB participants and the original MEB findings were reaffirmed.

	e.  There is no evidence from either the applicant's 19 February 2008, Commander's statement nor his 5 March 2008 DA Form 3349 (Physical Profile) that the applicant's behavioral health condition impacted duty performance.

	f.  The 3 October 2012 fusion cell examiner concludes, 4 years after the Soldier was retired, that the applicant has PTSD and depressive disorder, NOS.  The USAPDA acknowledges that Dr. M.A. D'A----- believes it is "instructive to note that the applicant's symptoms of anxiety and depression appear to be better conceptualized as PTSD, Chronic and Depressive Disorder NOS rather than Anxiety Disorder NOS and Dysthymic Disorder."  There is no evidence to support that, due to symptoms of one or more behavioral health diagnoses, the applicant required duty limitations or duty in a protected environment, or demonstrated impaired military performance.  Nevertheless, the USAPDA recognizes that 
Dr. MAD concludes the applicant failed retention standards because he required duty limitations or duty in a protected environment, and demonstrated impaired military performance.  Dr. M.A. D'A----- also concluded that the applicant was (apparently due to behavioral health diagnoses) unlikely to successfully complete another combat deployment.  He could not carry and fire an assigned weapon and he could not live in an austere environment without worsening the medical condition.  He was unreliable to effectively lead other Soldiers.  There is no evidence in the case file that her opinion has been reviewed or approved by any physician or completed in accordance with Army Regulation 40-400 (Patient Administration), chapter 7, requirements for MEB actions.

	g.  With reference to the presumption of fitness rule, there is no evidence to support that one of the three DODI 1332.38, E3.P3.5.3 provisions could apply to overcome the presumption in regard to any mental health diagnoses that existed in 2008: PTSD or Dysthymic Disorder- even if either of these two conditions did not meet medical retentions standards. 3.1 cannot apply because the applicant's condition was a chronic condition: it was not acute, grave. 3.2 cannot apply because, even though the applicant's condition was chronic, he did not sustain a serious deterioration of this condition within the presumptive period.  Finally, 3.3 cannot apply because there is no evidence that the applicant, due to a behavioral health diagnosis, was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period.

	h.  The MEB/PEB findings are supported by a preponderance of the evidence and are not arbitrary or capricious.  The 2012 opinion does not provide sufficient evidence to overcome the well reasoned, fully supported 2008 findings.  Even if the 2012 opinion was to be considered as voiding all of the 2008 MEB findings, it would not result in any change to the PEB findings as the condition as described in the 2012 opinion would still not be sufficient to overcome the presumption of fitness regarding the applicant's mental health symptoms at that time.

10.  The applicant was provided a copy of this advisory opinion and he provided a rebuttal (attached) on 22 February 2013.  

11.  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 would also consider his VA records, with his consent, before providing an advisory opinion. 

12.  On 30 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.

13.  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, recommended no change to the applicant's disability and processing determination.  The SRP stated:

	a.  The SRP considered the appropriateness of changes in mental health diagnoses, PEB fitness determination, and if unfitting whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130.  The Panel considered the criteria for diagnosis according to the Diagnostic and Statistical Manuel for Mental Disorders IV 
(DSM-IV) TR including:  The evidence for the stressor (criterion A), re-experiencing of the event (criterion B), persistent avoidance of stimuli associated with the trauma (criterion C), hyper-arousal (criterion D), duration and onset (criterion E), presence of clinically significant distress or impairment in social, occupational or other important area of functioning (criterion F).  The Panel members undertook a careful review of the treatment record in evidence and noted the majority of the mental health therapist notes addressed current events in the applicant’s life. There was no treatment entry addressing or identifying acute stressors outside of psychosocial stressors of marriage and everyday life.  There was no evidence in the treatment record that the applicant met DSM-IV diagnostic criteria for PTSD at any time and the diagnoses of dysthymic disorder, anxiety disorder and partner relational problems were best supported by the evidence of the record. Independent psychiatrist evaluation of the entirety of record indicated that the preponderance of the evidence favors diagnoses of dysthymic disorder, anxiety disorder and partner relational problems.  Although PTSD was listed as a diagnosis by some examiners, one entry recorded the condition as chronic, related to Vietnam and another entry recorded the condition as related to Vietnam and Operation Iraqi Freedom. 

	b.  A therapist note dated 20 July 2007, indicated a treatment approach to help the applicant to "process traumatic events from Vietnam."  The applicant attended seven sessions of a PTSD group in 2007, with good participation.  The Panel also noted the report of nightmares and the absence of other PTSD symptoms such as recurrent, intrusive recollections or feeling as if 
re-experiencing past disturbing events, and avoidance behaviors.  Treatment records did not support the applicant was estranged from others, had restricted range of affect or a foreshortened sense of future.  The applicant reported he felt that he was functioning well occupationally and socially.  Although there were several diagnoses noted throughout the treatment record, the diagnoses in the MEB and PEB were not changed during the MEB and PEB process.  The Panel agreed the evidence supported the diagnoses forwarded to the PEB of dysthymia, partner relational problems and anxiety disorder.

	c.  The SRP next considered whether the mental health conditions, regardless of diagnostic label, were unfitting for continued military service.  The mental health conditions were not profiled or implicated in the commander’s statement, and were not judged to fail retention standards by the MEB NARSUM psychiatrist or the MEB.  The January 2007 examination noted continued high functioning and that the applicant stated he felt that he was functioning well occupationally and socially.  At the January 2008 examination, good duty performance was noted throughout the applicant’s military career including while deployed.  No decrement in functioning was noted during the MEB period. Psychiatry evaluations in January 2007 and January 2008 concluded the applicant met medical retention standards without assignment limitations.  Serial physical profile reports remained S1 throughout the applicant’s final period of active duty.  

	d.  There was no indication from the record that the mental health conditions forwarded to the PEB significantly interfered with satisfactory duty performance. The mental health conditions were determined to be not unfitting by the PEB with the presumption of fitness rule.  All panel members agreed the preponderance of 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 disability rating.  The SRP discussed the Office of the Army Surgeon General memorandum dated 16 April 2013 requesting that the ABCMR accept the 3 October 2012 clinical reevaluation in lieu of the forensic psychiatry evaluation performed at the time of the original MEB.  The SRP found no evidence to suggest the 8 January 2008 psychiatry evaluation was inaccurate with regard to facts or diagnostic impression.  The post-separation examination, 4 years after separation, was similar to the forensic examination in that it also consisted of a clinical interview and records review.  The Panel acknowledged the findings recorded in the fusion cell examination, 4 years after separation, and noted the significant disparity between that exam and the treatment record prior to separation.  The Panel determined although the applicant reported symptoms suggestive of PTSD there was not sufficient evidence in the record to support a PTSD diagnosis.  The SRP further opined there was no evidence the applicant experienced any functional impairment related to any symptoms suggestive of PTSD that rendered him unfit for performance of military duties.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mental health condition, and, therefore, no disability ratings can be recommended.  The SRP, therefore, recommends that there be no change of the PEB’s determination of the mental health condition as not unfitting for service.

14.  The applicant was provided with a copy of the SRP report. 

15.  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.   

16.  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.  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.

17.  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 March 2008 that referred him to a PEB.  His MEB listed three conditions that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found these three conditions prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to Hallux rigidus of bilateral feet; painful hammertoes of the second toe of bilateral feet and third toe of left foot; and intervertebral disc degeneration of the cervical spine.  

3.  The PEB rated him at a combined rating of 30% for his conditions.  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.  Subsequent to his counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He retired in April 2008. 

4.  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.  

	a.  The SRP considered whether the mental health conditions, regardless of diagnostic label, were unfitting for continued military service.  The mental health conditions were not profiled or implicated and were not judged to fail retention standards by the March 2008 MEB NARSUM psychiatrist or the MEB.  His January 2007 examination noted continued high functioning and that the applicant stated he felt that he was functioning well occupationally and socially.  At the January 2008 examination, good duty performance was noted throughout his military career including while deployed.  No decrement in functioning was noted during the MEB period.  Psychiatry evaluations in January 2007 and January 2008 concluded the applicant met medical retention standards without assignment limitations.   

	b.  There was no indication from the record that the mental health conditions forwarded to the PEB significantly interfered with satisfactory duty performance. The mental health conditions were determined to be not unfitting by the PEB with the presumption of fitness rule.  The preponderance of 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 disability rating.  The post-separation examination, 4 years after separation, was similar to the forensic examination in that it also consisted of a clinical interview and records review.  The SRP acknowledged the findings recorded in the fusion cell examination, 4 years after separation, and noted the significant disparity between that exam and the treatment record prior to separation. 

	c.  The SRP determined although the applicant reported symptoms suggestive of PTSD there was not sufficient evidence in the record to support a PTSD diagnosis.  The SRP further opined there was no evidence the applicant experienced any functional impairment related to any symptoms suggestive of PTSD that rendered him unfit for performance of military duties.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mental health condition, and, therefore, no disability ratings can be recommended.  The SRP, therefore, recommends that there be no change of the PEB’s determination of the mental health condition as not unfitting for service.

5.  The SRP findings are accepted by the Board 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)                                         AR20120019270



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ABCMR Record of Proceedings (cont)                                         AR20120019270



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