IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20120022138 


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 the original medical evaluation board (MEB) evaluation at Madigan Army Medical Center, Fort Lewis, WA, in 2007 resulted in a diagnosis of Anxiety Disorder after a forensic assessment.  This was despite multiple medical diagnoses of post-traumatic stress disorder (PTSD).  In March 2012, a re-evaluation was preformed resulting in a diagnosis of Chronic PTSD and Major Depressive Disorders.  As such, he believes his MEB should be corrected and his disability rating percentage should be adjusted in light of corrected diagnoses and eligibility for medical retirement.  On 23 March 2012, he received notification from Department of the Army, Southern Regional Medical Command that due to circumstances surrounding the original MEB evaluation a re-evaluation was required.  The original 2007 diagnosis of Anxiety resulted in a disability rating of 10 percent (10%).  The subsequent re-evaluation, performed in July 2012, resulted in a diagnosis of Chronic PTSD and Major Depressive Disorder.  This diagnosis would have resulted in a higher disability rating and eligibility for medical retirement.  The injustice suffered is more than 6 years of lost medical care and other military benefits.

3.  The applicant submitted his MEB Psychiatric Addendum.




CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 24 September 1998 and he held military occupational specialty (MOS) 68W (Health Care Specialist).  

2.  He reenlisted in the RA on 30 November 2001 and on 20 February 2004.  He also served in Iraq from 6 April 2003 to 15 March 2004 and in Kuwait from 6 December 2004 to 11 July 2005. 

3.  He underwent a psychiatric evaluation on 10 July 2005 in Kuwait.  His narrative summary (NARSUM) shows he served as ambulance driver during his second deployment and required medical evacuation and treatment for anxiety related symptoms in July 2005.  

	a.  He participated in 6 days of intensive outpatient psychotherapy and he was determined to be in need of longer-term therapy and not short-term crisis intervention.  He steadily deteriorated in theater due to depression related to chronic PTSD.  

	b.  The staff clinical psychologist opined the applicant is in a depressive episode triggered by acute PTSD that would clearly worsen in theater.  He was recommended for evacuation out of theater to begin assessment and treatment for a clinical depressive episode and acute PTSD.  

	c.  His diagnosis was as follows: Axis I: Acute PTSD and Major Depressive Disorder, single episode; Axis II: None; Axis III: None; Axis IV: Combat zone; and his Global Assessment of Functioning (GAF) score was 45.

4.  He was evacuated through Landstuhl Regional Medical Center in Germany and ultimately arrived at Fort Lewis, WA, where he was evaluated and received treatment at Madigan Army Medical Center.  He was issued a permanent physical profile on 15 February 2007 for Anxiety Disorder, Not Otherwise Specified (NOS).

5.  On 21 December 2006, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with Anxiety Disorder, NOS.  The MEB recommended the applicant's referral to a physical evaluation board (PEB).  He was counseled and agreed with the MEB's findings and recommendation.  


6.  On 27 February 2007, 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 condition prevented him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to Anxiety Disorder, NOS, onset after service in Iraq from June 2003 to March 2004.  

	a.  The PEB noted that he served in Kuwait as an ambulance driver during his second deployment and required medical evacuation and treatment for anxiety related symptoms in July 2005.  Since then, he was incompletely engaged in treatment, spending considerable time performing administrative duties and/or playing video games.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition 
Percentage
9413
Anxiety Disorder, NOS
10%
	b.  The PEB recommended a 10% combined disability rating and separation with entitlement to severance pay if otherwise qualified.  Subsequent to counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  The applicant was discharged on 5 June 2007 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) with entitlement to severance pay.  

8.  On 23 July 2012, Dr. T.L. A---- M----, 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. T.L. A---- M---- proposed the deletion of "Anxiety Disorder, NOS, Fails retention standards" and the addition of "PTSD, Chronic (Combat Related), Fails retention standards" and "Major Depressive Disorder, Chronic (Combat Related), Fails retention standards."  

9.  Dr. T.L. A---- M---- provided an MEB Addendum, which shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic; Major Depressive Disorder
* Axis II: None
* Axis III: See medical records 
* Axis IV: Occupational, limited social support and interaction outside immediate family
* Axis V: Global Assessment of Functioning (GAF) score of 40 (current)
10.  A memorandum was initiated by the Deputy Surgeon General, Office of the Surgeon General, dated 16 April 2013, subject:  Madigan Fusion Cell Cases, 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 MEB's.

	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.

11.  On 7 November 2013 on behalf of the Secretary of the Army, the Acting Assistant Secretary of the Army for 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.

12.  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 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 percent or the Soldier must have 20 years of service as computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

	b.  Paragraph 4-17 provides guidance for PEB's.  Specifically, it states PEB's 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.

13.  Army Regulation 40-501 (Standards of Medical Fitness) 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 6-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 December 2006 that referred him to a PEB.  His MEB listed one condition - Anxiety Disorder, NOS - that failed retention standards.  

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 Anxiety Disorder, NOS.  The PEB rated him at 10% for this condition. The PEB recommended the applicant's separation with entitlement to severance pay.  He concurred.  He was honorably discharged on 5 June 2007. 

3.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologist proposed the deletion of "Anxiety Disorder, NOS, fails retention standards" and the addition of "PTSD, Chronic (Combat Related), fails retention standards" and "Major Depressive Disorder, Chronic (Combat Related), 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 chronic PTSD as a disabling condition that did not meet retention standards effective 5 June 2007, the date of his original disability retirement.
BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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.  deletion from his MEB/PEB Proceedings of "Anxiety Disorder, NOS, fails retention standards" and the addition of "PTSD, Chronic (Combat Related), fails retention standards" and "Major Depressive Disorder, Chronic (Combat Related), fails retention standards";

	b.  showing that 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 he was placed on the TDRL effective the date of the original medical separation for disability; and

	d.  adjusting his pay as a result of these corrections.



      _______ _  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)                                         AR20120022138



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ABCMR Record of Proceedings (cont)                                         AR20120022138



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