IN THE CASE OF:	  

		BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20120020256 


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, he underwent a behavioral health reevaluation in October 2012 that diagnosed him with Post-Traumatic Stress Disorder (PTSD) and Dysthymic Disorder. 

3.  The applicant submits his Medical Evaluation Board (MEB) Psychiatric Addendum. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the U.S. Army Reserve (USAR) on 21 August 1984.  He held military occupational specialty 88M (Motor Transport Operator). 

2.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8.  He entered active duty on 27 January 2003. 

3.  On 29 February 2008, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the conditions below.  


Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Chronic neck pain 

X
2.  Chronic left shoulder pain 

X
3.  Chronic low back pain 

X
4.  Chronic right foot pain  

X
5.  Bipolar II Disorder

X
6.  Chronic right shoulder pain 
X

7.  Mild to moderate right carpal tunnel syndrome
X

8.  Bilateral tinnitus
X

9.  Sensorineural hearing loss
X

10.  Essential hypertension
X

11.  Hyperlipidemia
X

12.  Insomnia
X

13.  Mild dysphagia
X

14.  Dry eyes
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 an appeal which was forwarded to the PEB.

5.  On 8 April 2008, an informal PEB convened and reviewed the medical data and other facts presented to include the commander's statement.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined the applicant was physically unfit due to multiple conditions.  

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

VASRD Code
Condition 
Percentage
5241
Chronic cervical pain
20%
5241
Chronic low and mid back pain 
10%
5003
Chronic left shoulder pain
10%
5279
Chronic right foot pain
10%
	b.  The PEB recommended a 40% combined disability rating and permanent disability retirement.  The applicant did not concur with the PEB's finding and recommendation and appears to have elected a formal hearing.



6.  On 5 May 2008, an informal PEB reconsidered his case.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined the applicant was physically unfit due to multiple conditions.  

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

VASRD Code
Condition 
Percentage
5241
Chronic cervical pain
20%
5241
Chronic low and mid back pain 
10%
5003
Chronic left shoulder pain
10%
5279
Chronic right foot pain
10%
9432
Bipolar II Disorder
10%
	b.  The PEB recommended a 50% combined disability rating and permanent disability retirement.  The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  

7.  On 19 August 2008, the applicant retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1) and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 20 August 2008. 

8.  On 23 October 2012, Dr. B. R------t, 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 evaluation.  Dr. B. R------t proposed the deletion of "Bipolar Disorder" and the addition of "PTSD and Dythsthmic Disorder."  Dr. B. R------t provided an MEB Addendum, which shows the applicant's behavioral health diagnosis as follows:

* Axis I:  PTSD, chronic; Dythsthmic Disorder
* Axis II:  Diagnosis Deferred
* Axis III:  See medical records 
* Axis IV:  Unemployment, inadequate social support, marital problems
* Axis V:  Estimated Global Assessment of Functioning (GAF) at time of separation was 65; current is 55

9.  A memorandum, subject:  Madigan Fusion Cell Cases, dated 16 April 2013, 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.

10.  On 7 November 2013, on behalf of the Secretary of the Army, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) issued a memorandum restricting the use of forensic psychiatric evaluations conducted at Madigan Army Medical Center from 2007 to 2012 when determining disability or fitness for duty. 

11.  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.

12.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in February 2008 that referred him to a PEB.  His MEB listed several physical conditions (cervical, back, shoulder, and foot pain) as well as Bipolar Disorder that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found the conditions that failed retention standards prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  The PEB rated his disabilities at a combined rating of 50%.  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 at the rate of 50%.  He retired on 19 August 2008.

3.  Subsequent to his retirement, he underwent a fusion cell reevaluation.  The clinical psychologists proposed a change to his diagnosis.  He proposed the deletion of "Bipolar II Disorder fails retention standards" and the addition of "PTSD and Dysthymic Disorder, fails retention standards." 

4.  The subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of his records to show PTSD, chronic, as a disabling condition that did not meet retention standards, effective 19 August 2008, the date of his original retirement. 


BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 by:

	a.  deleting "Bipolar II Disorder, fails retention standards" and adding "PTSD and Dysthymic Disorder, fails retention standards"; 

	b.  deletion of the rating for Bipolar Disorder and showing, in addition to the existing disabling/ratable conditions, a determination of unfitness for PTSD with placement on the TDRL at the rate of 50 percent for a minimum period of 6 months, and making a final disability determination as appropriate;

	c.  providing orders showing the individual was placed on the TDRL effective the date of the original medical separation for disability; and

	d.  adjusting the individual's retired 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)                                         AR20120020256



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ABCMR Record of Proceedings (cont)                                         AR20120020256



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