IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130003573 


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

2.  The applicant states he proposes the deletion of the diagnosis of Mood Disorder, Not Otherwise Specified (NOS), and the addition of chronic PTSD, combat related, that did not meet retention standards and that was incurred while entitled to basic pay.  The original screening for PTSD at Madigan Army Medical Center was found to be unjust.  Soldiers who underwent a medical evaluation board (MEB) at Joint Base Lewis-McChord underwent a forensic psychiatric evaluation instead of the standard clinical psychiatric evaluation.  The Fusion Cell was established to conduct behavioral health clinical reevaluations.  An MEB addendum reflects the results of the clinical evaluation. 

3.  The applicant provides:

* MEB Psychiatric Addendum
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)





CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 8 September 2005 and he held military occupational specialty 11B (Infantryman).  He served in Kuwait/Iraq from 10 February 2007 to 11 April 2008.  

2.  On 31 August 2009, he complained of chronic abdominal pain status post-surgery.  His narrative summary shows he began having abdominal pain in Iraq. He was taken to the Combat Support Hospital where he was diagnosed with a perforation.  He underwent an immediate and urgent appendectomy.  Upon his return to Kansas, he continued to have and sought medical care for intermittent abdominal pain.  His pain worsened upon arrival at Fort Lewis, WA.  However, as the medication he received did not yield progress, he was issued a permanent physical profile and referred to the MEB process.  

3.  On 29 October 2009, 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.  Chronic pain syndrome secondary to appendectomy

X
2.  Bilateral knee pain 
X

3.  Hemorrhoids
X

4.  Gastroesophageal Reflux Disease
X

5.  Mood Disorder, NOS
X

6.  Right renal cyst
X

4.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation.  

5.  On 24 December 2009, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to multiple conditions.  The PEB rated his medically-unacceptable conditions under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition
Percentage
7301
Peritoneum, adhesions , status post appendectomy 
30%
7804
Tender Abdominal Incision Scar
10%
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 a 40% combined disability rating and permanent disability retirement.  Subsequent to his counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

6.  On 7 January 2010, the Installation Management Command, Fort Lewis, WA, published Orders 007-0001 placing him on the Retired List in his retired rank/grade of specialist (SPC)/E-4, effective 26 March 2010 by reason of physical disability at the rate of 40%.  Accordingly, he retired on 25 March 2010 and he was placed on the Retired List in his retired rank/grade of SPC/E-4 on 26 March 2010. 

7.  On 16 January 2013, Dr. TLAM, 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.  

	a.  Dr. TLAM proposed a change to the applicant's October 2009 MEB Proceedings to delete the diagnosis of "Mood Disorder; meets retention standards" and replace it with the diagnosis of "PTSD, Cannot live in an isolated environment without ready access to psychiatric and psychological care; no exposure to combat training scenarios."

	b.  The MEB Addendum shows a behavioral health diagnosis as follows:

* Axis I: PTSD, chronic, combat-related
* Axis I: None
* Axis III: See medical records. 
* Axis IV: limited social interaction to include occupational social interaction outside immediate family 
* Axis V: Global Assessment and Functioning (GAF) score of 60

8.  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.

9.  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. 

10.  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.

11.  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 212, 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.  The Madigan Fusion Cell conducted clinical evaluations to determine if these Soldiers met appropriate diagnostic criteria.  The MEB Addendum reflects the results of these clinical evaluations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant complained of abdominal pain, status-post surgery secondary to appendectomy.  He was considered by an MEB in October 2009 that referred him to an PEB.  His MEB listed one condition that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found his condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to two conditions.  The PEB rated him at a combined rating of 40% for Peritoneum, adhesions, status post appendectomy (30%) and Tender Abdominal Incision Scar (10%).  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 disability retirement.  Subsequent to his counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He retired in March 2010.

3.  In January 2013, he received a reevaluation of his health conditions to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health specialist changed a PTSD diagnosis.  This behavioral health reevaluation revealed a diagnosis of chronic PTSD, combat-related, characterized by persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment and persistence or recurrence of symptoms resulting in interference with effective military performance. 

4.  The initial MEB forensic psychiatric evaluation has disadvantaged the applicant in this case.  Therefore, the clinical reevaluation is accepted in lieu of the initial forensic evaluation.  The applicant is entitled to correction of his records to show PTSD as a disabling condition that did not meet retention standards and is rated at 50%, effective 26 March 2010, the date of the applicant's original retirement. 

5.  As a result, the applicant's records should be corrected as recommended below.  The VA uses tables to compute the combined disability.  The highest percentage to the lowest percentage is used.  The highest minus 100% gives the "efficiency" for the highest degree of disability.  Then the second is computed and so on to derive at a combined disability.  The combined rating is then rounded up or down to the nearest 10%.  

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:

	a.  amending item 13 of the applicant's DA Form 3947, dated 29 October 2009, to delete the entry "Mood Disorder - NOS; meets retention standards" and replace it with the diagnosis of "PTSD, combat related, failed retention standards";  

	b.  amending item 8 of the applicant's DA Form 199, dated 24 December 2009, to add VASRD Code 9411, PTSD; rated at 50%.

	c.  amending item 9 of the applicant's DA Form 199, dated 24 December 2009, to show the appropriate combined rating; 

	d.  by voiding Orders 007-0001, issued by the Installation Management Command, on 7 January 2010, placing him on the Retired List in his retired rank/grade of SPC/E-4, effective 26 March 2010 by reason of physical disability at the rate of 40%. 

	e.  issuing him new orders retroactively placing him on the Temporary Disability Retired List (TDRL), by reason of temporary disability at the appropriate disability rate effective 26 March 2010, for a minimum period of 6 months; and

	f.  reviewing his pay records and paying him any monies due as a result of this correction.


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 a final disability rating. 



      _______ _   _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)                                         AR20130003573





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003573



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1