IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130004093 


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 her mental health condition.  

2.  The applicant states her original medical evaluation board (MEB) stated she had Factitious Disorder with Cluster B traits that met Army retention standards.  She was reexamined and she was diagnosed with Major Depressive Disorder (MDD) and Post-Traumatic Stress Disorder (PTSD).  

3.  The applicant resubmits her MEB Addendum. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army (RA) on 23 September 2008 and she held military occupational specialty (MOS) 68W (Health Care Specialist).  She served in Iraq from 5 August 2009 to 15 April 2010.  

2.  On 15 June 2011, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions.  The MEB recommended the applicant's referral to a physical evaluation board (PEB).  She was counseled and agreed with the MEB's findings and recommendation.  



Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Intervertebral lumbar disc disease with chronic pain

X
2.  Factitious Disorder with Cluster B Traits; Existed Prior to Service (EPTS)
X

3.  Allergic rhinitis
X

4.  Left ankle strain
X

5.  Left foot strain
X

6.  Bilateral chronic knee strain
X

7.  Sleep apnea
X

3.  On 23 September 2011, 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 her from performing the duties required of her grade and military specialty and determined that the applicant was physically unfit due to lumbosacral pain.  

	a.  The PEB noted that her lumbar disc disease is not a battle injury but occurred while deployed to Iraq.  Onset of back pain began in September 2009 without a specific injury.   The condition was unfitting because of her inability to run, jump or climb on tactical vehicles, wear IBA [Interceptor Body Armor], carry a combat load, or perform functional tasks.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows: 

VASRD Code
Condition
Percentage
5243
Intervertebral lumbar disc disease
20%
	b.  The PEB also considered her other medical conditions but found these conditions not to be unfitting and therefore not ratable.  The PEB recommended a 20% combined disability rating and separation with entitlement to severance pay if otherwise qualified.  Subsequent to counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

4.  The applicant was discharged on 8 January 2012 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, with entitlement to severance pay.  


5.  On 14 February 2013, Dr. M. A. D'An---- and Dr. C. Ca---, licensed clinical psychologists, conducted a fusion cell reevaluation of the applicant's behavioral health to assess her current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health evaluation was conducted.  Dr. M. A. D'An---- proposed:

* the deletion of "Factitious Disorder with Cluster B traits, Meets retention standards, EPTS"
* the addition of "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, recurrent, moderate, fails retention standards"

6.  Dr. M. A. D'An---- and Dr. C. Ca--- provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, Chronic, Moderate; Major Depressive Disorder (MDD), Recurrent, Moderate
* Axis II: Deferred
* Axis III: See medical records
* Axis IV: Limited social support
* Axis V: Estimated Global Assessment of Functioning (GAF) score at time of separation of 60; current is 55 (some worsening of symptoms reported)

7.  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.


8.  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. 

9.  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 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.

10.  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 June 2011 that referred her to a PEB.  Her MEB listed only one condition - intervertebral lumbar disc disease - that failed retention standards and several other conditions, including factitious disorder, not otherwise specified - that met retention standards.  

2.  The PEB found the condition that failed retention standards prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit.  The PEB rated her at a combined rating of 20% for intervertebral lumbar disc disease.  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 at the rate of 20%.  Subsequent to her counseling, she concurred with the PEB's finding and recommendation and waived her right to a formal hearing.  She was discharged on 8 January 2012.

3.  Subsequent to her discharge, she underwent a fusion cell reevaluation.  The clinical psychologists recommended the deletion of "Factitious Disorder with Cluster B traits, Meets retention standards, EPTS" and the addition of "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, recurrent, moderate, fails retention standards."  Her diagnosis at the time she underwent the fusion cell evaluation was that of PTSD and MDD. 

4.  The subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of her records to show, in addition to intervertebral lumbar disc disease as a disabling condition and rated at 20%; PTSD, chronic, also as a disabling condition that did not meet retention standards, effective 8 January 2012, the date of her original discharge. 

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 from her records "Factitious Disorder with Cluster B traits, Meets retention standards, EPTS" and adding "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, recurrent, moderate, fails retention standards"; 

	b.  showing, in addition to her existing rated disabilities, an additional 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)                                         AR20130004093



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ABCMR Record of Proceedings (cont)                                         AR20130004093



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