IN THE CASE OF:	  

		BOARD DATE:  25 July 2013

		DOCKET NUMBER:  AR20130002026 


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 correction of his medical records to show he was diagnosed with post-traumatic stress disorder (PTSD) and an update to his retirement percentage. 

2.  The applicant states he was first diagnosed with anxiety, not otherwise specified (NOS).  He was then reevaluated and received a diagnosis for PTSD from combat.  The new diagnosis of PTSD needs to be changed in his medical file and the disability percentage needs to be updated as a result. 

3.  The applicant provides his temporary disability retired list (TDRL) evaluation. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army and the U.S. Army Reserve, the applicant enlisted in the Washington Army National Guard (WAARNG) on 8 February 2002 and he held military occupational specialty (MOS) 21B (Combat Engineer). 

2.  He was ordered to active duty on 18 August 2008 and subsequently served in Kuwait/Iraq from 29 October 2008 to 23 March 2009.  He was transferred from theater through Landstuhl Regional Medical Center and subsequently Madigan Army Medical Center in March 2009.  He was assigned to the Warrior Transition Unit, Fort Lewis, WA. 

3.  On 21 January 2010, he was referred for a medical evaluation board (MEB) consultation due to a history of treatment for anxiety in the past 6 months.  He was diagnosed with Anxiety Disorder - NOS. 

4.  On 16 February 2010, he underwent a physician-directed MEB.  His narrative summary shows:

	a.  He injured his wrist on 28 October 2008 while walking up a wet, grassy hill carrying a .50-caliber machine gun and wearing body armor, Kevlar, and full gear. He continued to train and ultimately deployed with his unit.  He was evaluated in theater several times and he was treated conservatively.  He was transferred from theater to Landstuhl Regional Medical Center in March 2009 and subsequently to Madigan Army Medical Center.  

	b.  After several examinations, evaluations, and medical procedures, he was diagnosed with the medically unacceptable conditions of left wrist tenosynovitis and  bilateral plantar fasciitis with bilateral heel spurs, that did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was also diagnosed with the medically acceptable conditions of anxiety, gastroesophageal reflux disease (GRD), headaches, erectile dysfunction, hyperlipidemia, varicose veins, and irritable bowel syndrome.  

5.  On 9 April 2010, an MEB convened and found the applicant was diagnosed as having the medically-unacceptable conditions of left wrist tenosynnovitis and bilateral plantar fasciitis with bilateral heel spurs (existed prior to service).  He was also diagnosed with the medically acceptable conditions of bilateral hearing loss (existed prior to service), anxiety, GRD, headaches, erectile dysfunction, hyperlipidemia, varicose veins, and irritable bowel syndrome.  The MEB recommended his referral to a physical evaluation board (PEB).  He did not agree with the MEB's findings and recommendation and he submitted an appeal. 

6.  In his appeal, dated 4 May 2010, he requested the MEB:

* change the finding that his bilateral mixed hearing loss from existed prior to service and had not been permanently aggravated by service
* reconsider and change the anxiety disorder from met retention standards
* update his narrative summary to include his scars
* include his rib pain as a medical condition
* change other administrative errors

7.  On 7 May 2010, he received a response to his appeal, as follows:

* non-concurred with his request to change the finding of his bilateral mixed hearing loss from existed prior to service and had not been permanently aggravated by service
* considered his request to reconsider and change the anxiety disorder met retention standards but no psychiatric restrictions were found
* non-concurred with his request to update his narrative summary to include his scars
* non-concurred with his request include his rib pain as a medical condition
* changed some other administrative errors

8.  The applicant indicated he reviewed the contents of the MEB packet, narrative summary, and physical profile.  He acknowledged the PEB would consider and review only those conditions listed on his profile and that his profile included all his medical conditions, whether or not they met retention standards.  He agreed that the MEB covered all his current medical conditions.  

9.  On 3 June 2010, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) as follows:

	a.  VASRD Code 5276, Pes planus described as Bilateral plantar fasciitis; rated at 30 percent (30%).  He has a history of foot pain predating his 2008 activation, but pain was exacerbated with running and increased weight-bearing from the time he came to the Soldier readiness processing (SRP) site.

	b.  VASRD Code 9413, Anxiety Disorder - NOS; rated at 30%.  Soldier is diagnosed with an anxiety disorder for which he has been in treatment.  He is noted to maintain military bearing; however, psychological testing indicates the Soldier has longstanding anxiety and with a lot of paranoia and recent worsening due to stress.  Soldier's anxiety impairs his sleep.  He demonstrates depressive features and struggles with chronic pain as well.  Treatment has made only modest benefits.  Condition is considered unfitting for MOS 21B, as Soldier’s ability to tolerate the high-stress military environment and adapt to changing operational environments is impaired by symptoms of anxiety, placing him and other Soldiers at increased risk.  Condition is rated 30% based on occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic, and sleep impairment.  Rating is considered stable.  Soldier is considered competent for MEB/PEB purposes of making his own financial decisions. 

	c.  VASRD Code 5024, Tenosynovitis of the left wrist, dated at 10%.  Soldier had fallen on his wrist at SRP site in full body armor which has resulted in ongoing pain despite conservative therapy.  He underwent tenosynovectomy in late 2009.  MRI shows normal osseous structures and resolving extensor compartment tenosynovitis.  Exam demonstrates dorsiflexion of 65 degrees, palmar flexion of 75 degrees, radial deviation of 30, and ulnar deviation of 45.  Grip strength in left hand 4+ compared to 5 in the right.  Condition is unfitting for 21B, Combat Engineer, as painful motion limits Soldier's ability to prepare and install priming and firing systems.  Condition is rated 10% for satisfactory evidence of painful motion.  

	d.  The PEB also considered his other conditions listed on his MEB.  However, those conditions were determined to meet retention standards by the military treatment facility.  Further consideration by the PEB found the conditions to be not unfitting and therefore not ratable.

10.  The PEB recommended the applicant's permanent retirement at a combined rating of 60%. Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 10 June 2010 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

11.  On 6 August 2010, Joint Base Garrison, Joint Base Lewis - McChord, WA, published Orders 218-0019 releasing him from the Army by reason of disability and, erroneously, placing him on the temporary disability retired list (TDRL).

12.  On 8 September 2010, he was honorably retired under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), due to permanent disability.  The DD Form 214 he was issued shows he completed 2 years and 21 days of creditable active service.

13.  He submitted a medical evaluation titled "TDRL Evaluation," dated 21 April 2012 that shows a diagnosis of chronic PTSD. 

14.  An email, dated 22 July 2013, from an official at the U.S. Army Physical Disability Agency indicated the applicant's permanent retirement orders were in error as they indicated he was placed on the TDRL.  This led to a TDRL examination.  

15.  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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition that is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

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.  Ratings can range from 0% to 100%, rising in increments of 10 percent.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

18.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed with medical conditions that warranted his entrance into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical conditions prevented him from reasonably performing the duties required of his grade and military specialty.  The PEB determined he was physically unfit, rated his conditions, and recommended his permanent retirement.  He concurred. 

2.  When his retirement orders were published, the orders erroneously and inadvertently placed him on the TDRL.  This should not have triggered a TDRL examination 2 years later.  However, through an apparent administrative error, he received one. 
3.  He was never entitled to a TDRL examination.  He received one by a windfall. The results of this examination are invalid.  However, as matter of clarity, he remains entitled to have his retirement orders corrected to show "Permanent retirement" vice "TDRL." 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders 218-0019, issued by Joint Base Garrison, Joint Base Lewis - McChord, WA, on 6 August 2010, to show he was placed on the permanent disability list vice the temporary disability list. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an update to his retirement percentage or a diagnosis of PTSD. 



      _______ _  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)                                         AR20130002026





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ABCMR Record of Proceedings (cont)                                         AR20130002026



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