IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20120021027 


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 her records to show she was medically unfit for post-traumatic stress disorder (PTSD) and to change her disability percentage to reflect this additional diagnosis.  

2.  The applicant states Madigan Army Medical Center did not follow the correct process for behavioral health evaluations.  While she was going through the medical evaluation board (MEB) process, she did not receive a behavioral health assessment for PTSD even though she stated on the VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim) that she incurred PTSD while on active duty. 

3.  The applicant provides:

* Letter from the Southern Regional Medical Command (MEDCOM), Fort Sam Houston, TX
* Invitational Travel Orders IT-015
* Medical Source Statement
* Clinical psychologist report

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army on 25 January 2008 and she held military occupational specialty 92G (Food Service Operations Specialist).  She served in Afghanistan from 28 May to 7 October 2009.  

2.  On 27 May 2011, she was issued a permanent physical profile for complex regional pain syndrome, left foot.  Her physical profile assigned the functional limitations of no sit-ups, no push-ups, and no running, jumping, or other high impact activities.  

3.  On 29 July 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.  Complex regional pain syndrome, left foot

X
2.  Restless leg syndrome
X

3.  Left knee pain
X

4.  Left ankle strain
X

5.  Bilateral hip bursitis
X

6.  Lumbar strain
X

7.  Hypertension
X

8.  Anxiety disorder
X

4.  The MEB recommended her referral to a physical evaluation board (PEB).  She did not agree with the MEB's findings and recommendation and submitted an appeal.  Her appeal was considered but was found not to contain any medical evidence that would change the MEB findings and recommendation.  The MEB proceedings were approved on 15 August 2011

5.  On 24 February 2011, she completed a VA Form 21-0819.  She agreed to participate in the VA/DOD joint disability evaluation system and to have her medical condition of complex regional pain syndrome of the left foot for compensation as the basis of fitness for duty determination.  She also listed several other conditions, including PTSD, that she believed were incurred or aggravated by service.  

6.  On 22 September 2011, an informal PEB convened and found the applicant's conditions prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit as shown below.  The PEB rated her medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition
Percentage
8599/8521
Complex regional pain syndrome, left foot, not a combat injury
10%
7.  The PEB also considered her 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 severance pay, if otherwise qualified.  Subsequent to her counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

8.  She was discharged on 20 December 2011 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), chapter 4, by reason of disability with entitlement to severance pay. She completed 3 years, 10 months, and 26 days of active service.  

9.  On 23 March 2012, an official of the Southern Regional Medical Command, Fort Sam Houston, TX, notified the applicant that an administrative review of the medical records of individuals who went through an MEB at Madigan Army Medical Center was conducted and that the review identified individual cases with circumstances that might suggest the need for a follow-up behavioral health reevaluation.  MEDCOM was offering her the opportunity for an additional clinical assessment to re-evaluate her claim related to a previous behavioral health diagnosis.  

10.  She completed a Medical Source Statement (About what the claimant can do despite mental impairments) and she underwent a behavioral health evaluation on 23 July 2012.  Her behavioral health memorandum, authored by Dr. A.J. M---, a clinical psychologist, states: 

As you are aware, you received this re-evaluation of behavioral health conditions to determine whether you meet or fail medical standards for retention set forth in AR [Army Regulation] 40-501 [Standards of Medical Fitness] related to Behavioral Health concerns.  My clinical judgment as examiner indicated that you showed good reliability as reporter of facts related to your current/past psychological status.  Important findings include:  Reported cognitive deficits: No history of head trauma, but you have recent VAMC report of nodule on pituitary gland with undetermined sequealae pending further assessment.  On examination, your attention span and planning capacity were grossly intact.  You did report a history of intermittent and unpredictable memory deficits to include naming difficulties for own daughter, loss/misplacement of objects such as money, household items, and car keys. These events were not associated with medication regimen change/misuse, alteration in sleep routine or alcohol/ substance abuse.  You indicated that compensation for possible difficulties by leading a restricted level of activity.  Diagnostically, you currently meet criteria for Posttraumatic Stress Disorder and Dysthymic Disorder. Your Permanent PULHES Profile 
(1-1-3-1-1-1) dated 07 Aug 07 [7 August 2007].  Is [sic] recommend [sic] for change in S profile to Permanent S-3 status for PTSD Chronic and Dysthymic Disorder.  Related functional limitations are to note that you should not live in austere environment.  This will be my recommendation to MEB for consideration.

11.  On 22 April 2013, the applicant was advised of her right to have her request with all records reviewed by the DOD Physical Disability Board of Review (PDBR) and that in order for the PDBR to review her VA medical records, she must sign a VA Form 3288 (Request for and Consent to Release of Information from Individual's Records).  However, she did not respond. 

12.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case.  The USAPDA official, after conducting a comprehensive review of the applicant's available records, including the behavioral health evaluation submitted by Dr. A.J. M----, recommended no change to the applicant's records.  The USAPDA official stated: 

	a.  The applicant requests that her military records be corrected by adding the condition of PTSD to her military disability findings and that her disability ratings be increased.  The applicant cites her 24 July 2012 re-evaluation by Dr. A.J. 
M----, clinical psychologist, as the only evidence to support correction of her military records.  This new evaluation opines that the applicant "currently meet(s) the criteria for" PTSD and Dysthymic disorder (which may include the assumption that the condition currently does not meet medical retention standards in accordance with chapter 3, AR 40-501.  The reevaluation continued to opine that the applicant's "2007" physical profile should now be changed to reflect the current reevaluation findings.

	b.  DOD Instruction 1332.38, E3. P3.6.1. (Factual Findings), provides, in part, that a Soldier is unfit when the evidence supports that "[f]indings will be made on the basis of objective evidence as distinguished from personal opinion, speculation, or conjecture."  E3:P3.6;2. (Preponderance of Evidence), provides that when the "preponderance (that is, more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made.  If, on the other hand, a preponderance of the evidence indicates fitness, the Service member may not be separated or retired by reason of physical disability.

	c.  As background, the initial MEB referred to the applicant's behavioral health (BH) condition as anxiety disorder.  The MEB case file included an examination performed by the VA contractor, QTC.  Dr. A---kh, the QTC examiner, determined that the applicant did not meet the DSM-IV criteria for PTSD because she "had no re-experiencing of the events."  As such, Dr. A---kh did not diagnose PTSD. Accordingly, the MEB did not change any diagnosis.  Thus, it would appear that the basis for the invitation from the Army to re-evaluate her BH condition, post-separation, was not appropriate.
	d.  Dr. A---kh reported that the applicant stated she had been working for the previous five months as an administration clerk; that she had a good relationship with her supervisor and CQ workers; and that she had not lost any time from work.  Later in the report, Dr. A---kh indicated that the best description of the applicant's psychiatric impairment was: "[anxiety] causing occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally function satisfactory. Dr. A---kh also reported the applicant had obsessive compulsive behavior that was severe enough to interfere with routine activities.  Dr. A---kh included an example of this behavior: having to fake a shower whenever she leaves her home.  Dr. A---kh was aware of the applicant had been diagnosed with Dysthymic disorder in 2007. 

	e.  As a matter of course, the MEB provider reviewed Dr. A---kh's report prior to completing the MEB Narrative Summary and the DA Form 3947 (Physical Profile).  The MEB indicated the Soldier's BH diagnosis (as it was then described, i.e., anxiety disorder, not otherwise specified (NOS), met medical retention standards.  The information within the MEB indicates the Soldier's BH diagnosis was not cause for profile limitations because none were listed on the DA Form 3349 (Physical Profile).  The narrative summary indicates that the condition, along with seven other conditions, met retention standards because they are conditions which have either not reached a medical retention determination point or have not been demonstrated to result in duty limitations, as per AR 40-501, paragraph 7-4B(2).  These MEB findings were reviewed and approved by four physicians, with one being a staff psychiatrist. 

	f.  A condition meets medical retention standards when the condition does not interfere with duty performance; does not compromise the Soldier's health or well-being; does not compromise the health or well-being of other Soldiers; and does not prejudice the best interests of the Government as per AR 40-501, paragraph 3-1 and 3-41e(1 -3).

	g.  The applicant's BH condition traces back to 2007.  The applicant had been treated for many years for BH issues.  Therefore, they assume that the MEB provider meant to indicate that the applicant's BH diagnosis met retention standards because it had not resulted in her duty limitations as a food preparer (cook).  As a matter of course, USAPDA officials assume the MEB provider considered the content of the QTC examination to determine whether continuing in the military would have compromised the Soldier's health or other considerations for not meeting retention standards, as per AR 40-501, paragraph 3-33, Anxiety, somatoform, or dissociative disorders (a-c).  The applicant did not contest the MEB findings that her BH diagnosis met medical retention standards.

	i.  USAPDA noted that the applicant's commander's statement may have suggested that the Soldier's BH diagnosis caused intermittent periods where the applicant was unable to perform occupational tasks.  However, the Commander also indicated they had not observed the Soldier enough to comment on whether the applicant completed assigned tasks to standard.  The Commander indicated the applicant had difficulty in establishing and/or maintaining effective work relationships with supervisors.  However, the Commander did not explain or discuss the basis for this block check.  In toto, USAPDA finds the Commander's statement of little probative value on the issue of whether the Soldier's BH condition failed retention standards (or was unfitting).  Of note is the applicant's Noncommissioned Officer in Charge (NCOIC), who indicated on 21 July 2011 that the applicant's main performance problem was physical pain, the condition for which she was found unfit. 

	j.  Relying on the MEB findings that the BH diagnosis met retention standards and was not cause for profile limitations, the PEB found the condition was not unfitting.  The applicant concurred with the PEB findings and waived her right to a formal hearing.  

	k.  Dr. A.J. M---- indicates the applicant now meets the criteria for PTSD and Dysthymic Disorder.  This appears based on a "checklist" completed by the applicant and Dr. M----s' telemedicine examination.  Dr. M---- also provided the statement that "related functional limitations are to note that you should not live in austere environment."  The report does not address limitations present at the time the Soldier was separated from the military. 

	l.  Dr. M----s' report does not address the issue of whether the applicant, in his professional opinion, met or failed medical retention standards at the time the applicant was going through the MEB.  The report format is more conclusory than other reports seen by USAPDA.  The report does not include sufficient discussion to get a clear understanding of the examiner's basis for the conclusions and do not address whether the examiner believes the applicant did not meet medical retention standards (and whether the applicant did, in fact, have PTSD vs. Anxiety Disorder, NOS) at the time she left the military.  There is no evidence that Dr. M----s' opinions/revelations have been reviewed and approved by any other medical professionals or physicians and it was not accomplished in accordance with any present MEB standard found in chapter 7 of AR 40-400.

	m.  Insufficient information supports finding the applicant was unfit for a BH diagnosis at the time of separation. The MEB (and VA/QTC) diagnosis was Anxiety disorder.  Having a BH diagnosis and some evidence of impact on social/occupational function is compatible with fitness for the military.  Specifically, the level of social and occupational functioning that is required to not meet medical retention standards is that it be such that the symptoms and manifestations significantly limit or interfere with the Soldier's performance.  In the applicant's situation, there is evidence that at the time of her separation she was able to safely continue in the military without further compromising her BH condition and was adequately performing, from a BH perspective.

	n.  Given the available facts and in full consideration of DODI 1332.38, E3.P3, USAPDA would need to resort to (impermissible) speculation and conjecture versus objective evidence, to recommend any change to the applicant's military records.  Having the condition rated by the VA is not indicative of any error by the MEB/PEB in determining if the Soldier met military medical retention standards or if she was unfit for further military service for that condition.

	o.  The applicant has not met her burden of proof that the present MEB/PEB findings were not supported by a preponderance of the evidence, were arbitrary or capricious, or that the findings were in violation of any statute, directive, or regulation.

13.  The applicant was provided with a copy of this advisory opinion.  She did not respond within the allotted timeframe. 

14.  Army Regulation 635-40 establishes the Army 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.  

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 complained of a foot injury or pain.  She was considered by an MEB in May 2011 that referred her to an informal PEB.  Her MEB listed only one condition that failed retention standards and several other conditions that met retention standards.  PTSD was neither diagnosed nor listed at the time. 

2.  She agreed to have her unfitting condition considered by the VA/DOD joint disability evaluation system.  She listed several other conditions, including PTSD, on the required form but none were found unfitting and therefore there was no reason to rate these conditions.  

3.  The PEB found her foot condition prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit due to this condition.  The PEB rated her at a combined rating of 10% for her foot.  The PEB also considered her 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.  Subsequent to her counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

4.  In July 2012, she received a behavioral health evaluation.  The evaluation report stated she "now meets the criteria for PTSD and Dysthymic Disorder."  The evaluation letter does not address limitations present at the time the applicant was separated from the military.  Likewise, the evaluation does not address the issue of whether the applicant met or failed medical retention standards at the time she was going through the MEB.  The report does not provide a clear understanding of the examiner's basis for the conclusions and does not address whether the examiner believes the applicant did not meet medical retention standards (and whether the applicant did, in fact, have PTSD vs. Anxiety Disorder, NOS) at the time she left the military.  

5.  There is insufficient evidence in the available records and in the examiner's report that indicates the applicant was unfit for a behavioral health diagnosis at the time of her separation.  The MEB diagnosis was Anxiety Disorder.  There is insufficient evidence to show the symptoms and manifestations significantly limited and/or interfered with her performance.  Having a behavioral health diagnosis and some evidence of impact on social/occupational function is compatible with fitness for the military.  

6.  The applicant has provided insufficient evidence that she was diagnosed with PTSD or that this condition was unfitting at the time of at the time of her separation from the Army.  The fact that she listed PTSD on the joint VA/DOD form does not equate to a finding of unfitness.  

7.  The PEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Based upon the existing military medical and performance evidence reviewed, and the criteria for retention standards in 2011, there is no basis to conclude that the condition of PTSD should have been included in the applicant's MEB as a condition that did not meet medical retention standards or should have been included in the applicant's PEB as ratable and compensable condition. 
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)                                         AR20120021027



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ABCMR Record of Proceedings (cont)                                         AR20120021027



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