IN THE CASE OF:	  

		BOARD DATE:  24 October 2013

		DOCKET NUMBER:  AR20130004980 


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 he was not given a rating for post-traumatic stress disorder (PTSD).  He was told during the medical evaluation board (MEB) hearing at Madigan Army Medical Center that although he had PTSD, they were not going to give him the rating since the Department of Veterans Affairs (VA) was going to do so.  His PTSD has been confirmed and diagnosed by many doctors while on active duty and after his disability retirement.  In effect, he requests a review of his case file in accordance with a Secretary of Defense directive for a comprehensive review of members who were referred for a disability evaluation between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed during that process.  

3.  The applicant submitted an application to the DOD Physical Disability Board of Review (PBDR) Mental Health Special Review Panel (SRP) with attachments, including a Department of Veterans Affairs (VA) Form 3288 (Request for and Consent to Release of Information from Individual's Records). 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 16 November 1999 and he reenlisted in the RA on 4 January 2002.  He held military occupational specialty (MOS) 13F (Fire Support Specialist).  He served in Iraq from 24 January 2004 to 13 December 2004. 
2.  On 11 December 2004, he was involved in an improvised explosive device (IED) blast and sustained injuries to his leg.  He sustained a closed ankle fracture, left knee dislocation and patellar tendon rupture, and medial collateral ligament tear complicated by compartment syndrome.  His hospital course was lengthy and complicated by symptoms of PTSD, depression, and anxiety.  He was followed as an inpatient by the consult liaison psychiatry team and was seen on an intermittent basis thereafter in the outpatient psychiatry clinic. 

3.  On 10 January 2006, he underwent a psychiatric evaluation after having been referred for PTSD and adjustment disorder with depressed mood status post IED blast injury in Iraq with resulting left leg injuries.  His MEB Addendum shows a diagnosis as below with a conclusion that his PTSD does not meet retention criteria in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness): 

* Axis I: PTSD; Adjustment Disorder with mixed disturbance of mood and conduct (resolved)
* Axis II: Diagnosis deferred
* Axis III: Left ankle injury 
* Axis IV: Moderate with uncertain future, anticipated MEB, recent divorce, limited social support
* Axis V: Global Assessment of Functioning (GAF) score of 60

4.  On 23 January and 14 March 2006, an 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).  He was counseled and agreed with the MEB's findings and recommendation.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Left knee instability

X
2.  Left ankle decrease range of motion 

X
3.  Soft tissue defects of the lower extremities

X
4.  PTSD

X
5.  Soft tissue defect

X
5.  On 31 March 2006, an informal PEB convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to multiple physical conditions.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition 
Percentage
5261
Chronic left knee pain and limited motion
10%
5010
Ankle pain secondary to ankle fracture
10%
7199/7121
Soft tissue swelling (edema)
10%
6.  The PEB also considered the applicant's other condition(s) but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended a 30% combined disability rating and placement on the temporary disability retired list (TDRL).  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 retired on 1 June 2006 and he was placed on the TDRL in his retired rank/grade of sergeant (SGT)/E-5 on 2 June 2006 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2). 

8.  On 11 May 2007, the VA awarded the applicant service-connected disability compensation at the rate of 50% for:

* left ankle lateral malleolus fracture, equinus, status post percutaneous left achillis lengthening
* left knee patellar tendon rupture, anterior cruciate ligament tear, medial collateral tear, status post reconstruction
* left leg compartment syndrome, status post fasciotomies and graft
* scars
* PTSD

9.  On 19 September 2007, the applicant underwent a TDRL examination. His chief complaints are listed as left knee pain, left knee instability, and left ankle pain and decreased range of motion.  

10.  On 11 December 2007, a TDRL PEB convened and found the applicant's conditions did not improve to the extent that he was considered fit for duty and that he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his conditions were considered sufficiently stable for final adjudication.  The TDRL PEB rated the applicant's medically-unacceptable conditions under the VASRD as follows:  

VASRD Code
Condition 
Percentage
5257
Left knee instability and pain
20%
5271
Left ankle limited motion
10%
5312
Muscle injury, left Group XII muscles
10%
The TDRL PEB recommended a 40% combined disability rating and permanent retirement.  Subsequent to counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

11.  On 8 January 2008, the U.S. Army Physical Disability Agency published Orders D008-12 removing him from the TDRL effective 8 January 2008 and permanently retiring him in the rank/grade of SGT/E-5 effective 9 January 2008 by reason of permanent disability.  

12.  On 6 November 2010, he underwent a VA psychiatric evaluation as a follow-up evaluation of PTSD.  His chief complaint was anxiety.  The examiner stated that from a psychiatric standpoint, the applicant's condition is expected to improve in the next 12 months with active treatment.  His diagnosis was as follows: 

* Axis I: PTSD; Depressive Disorder, Not Otherwise Specified (NOS)
* Axis II: None
* Axis III: Deferred to appropriate specialist 
* Axis IV: Psychological stressors during past year, including financial 
* Axis V: GAF score is 55

13.  On 28 January 2011, the VA awarded the applicant service-connected disability compensation for the conditions/at the rates below, effective August 2010:

* PTSD - 50%
* left ankle lateral malleolus fracture, equinus, status post percutaneous left achillis lengthening - 10%
* left knee patellar tendon rupture, anterior cruciate ligament tear, medial collateral tear, status post reconstruction -10%
* scars at the anterior and lateral aspects of the patella, left knee - 10%
* left leg compartment syndrome, status post fasciotomies and graft -10%
* scars on the lateral aspect and medial aspect of the left calf - 0%
* scars on the lateral malleolus and medial malleolus of the left ankle - 0%

14.  On 15 April 2013, the Army Review Boards Agency notified the applicant that on 27 February 2013, the Under Secretary of Defense directed the military services to conduct a comprehensive review of service members who completed a disability evaluation process and whose mental health diagnoses were changed to their possible disadvantage during the process.  The Under Secretary directed this review be conducted by the PDBR who will in turn provide an advisory opinion to the appropriate Board of Correction for appropriate action.  The applicant's case met the criteria above.  As a result, the PDBR would consider all the documentation he previously provided and will also consider his VA records, with his consent, before providing an advisory opinion. 

15.  On 19 April 2013, the applicant completed a VA Form 3288 authorizing the release of information from his records for consideration by the PDBR Mental Health SRP.

16.  The PDBR SRP conducted a comprehensive review of the applicant's records for evidence of inappropriate changes in the diagnosis of his mental health condition during processing through the military disability system.  The SRP finding, dated 3 September 2013, which had been forwarded to the applicant and is attached to this case, recommended no change to the applicant's disability and processing determination.  The SRP stated:

	a.  The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the Disability Evaluation System (DES).  The evidence of the available records shows diagnoses of PTSD and adjustment disorder were rendered; however, the SRP agreed there were no inappropriate changes in diagnoses since PTSD is a more serious condition than adjustment disorder and, therefore, the SRP determined that mental health diagnoses were not changed to the applicant's possible disadvantage in the disability evaluation.  This applicant, therefore, did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project.

	b.  At the time of processing through the DES, no change in diagnosis was made at any time.  Both the MEB and VA Compensation and Pension (C&P) psychiatry examinations diagnosed PTSD and both noted DSM-IV diagnostic criteria had been met.  The SRP noted the psychiatrist’s opinion that the applicant failed retention standards at the time of the narrative summary; however, the VA and PEB agreed there was no disability as a result of the PTSD condition.  VA examiner noted the condition had resolved.  The mental health condition was determined to be not unfitting by the PEB with the presumption of fitness rule.  All panel members agreed, the preponderance of evidence of the record reflected minimal symptoms and good duty performance (as related to mental functioning) in the period of time leading into the MEB and therefore concluded the mental condition was not unfitting at the time of entry onto the TDRL and therefore no mental health diagnosis was subject to an additional disability rating.  The SRP recommends that there be no change of the applicant's disability and permanent disability retirement determination.

17.  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 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.   

18.  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.  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.

19.  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 was considered by an MEB in January 2006 that referred him to a PEB.  His MEB listed several conditions that failed retention standards.  The PEB found these conditions prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due chronic left knee pain, ankle pain, and edema related to a soft tissue defect in the left leg.  The PEB rated him at a combined rating of 30% with placement on the TDRL.  Subsequent to his counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He retired in June 2006. 

2.  His conditions were later considered by a TDRL PEB that found those conditions did not improve to the extent that he was considered fit for duty and that he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his conditions were considered sufficiently stable for final adjudication.  The TDRL PEB rated him for left knee instability/pain, left ankle limited motion, and muscle injury.  The TDRL PEB recommended a 40% combined disability rating and permanent retirement.  Subsequent to counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

3.  The PDBR SRP conducted a comprehensive review of his records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the DES.  The evidence of the available records shows diagnoses of PTSD and adjustment disorder were rendered; however, the SRP agreed there were no inappropriate changes in diagnoses since PTSD is a more serious condition than adjustment disorder and therefore the SRP determined that mental health diagnoses were not changed to the applicant's possible disadvantage in the disability evaluation.  He therefore did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project.

4.  At the time of processing through the DES, no change in diagnosis was made at any time.  Both the MEB and VA C&P psychiatry examinations diagnosed PTSD and both noted the diagnostic criteria had been met.  The SRP noted the psychiatrist’s opinion that the applicant failed retention standards at the time of the narrative summary; however, the VA and PEB agreed there was no disability as a result of the PTSD condition.  The VA examiner noted the condition had resolved.  The mental health condition was determined to be not unfitting by the PEB with the presumption of fitness rule.  The preponderance of evidence reflected minimal symptoms and good duty performance (as related to mental functioning) in the period of time leading into the MEB, and therefore his mental condition was not unfitting at the time of entry into TDRL.  Hence, no mental health diagnosis was subject to an additional disability rating.  The SRP recommended there be no change of the applicant's disability/permanent disability retirement determination.

5.  The SRP findings that there is no evidence any mental condition affected the applicant's overall performance of duties or that his mental condition was unfitting is accepted.  The applicant is not entitled to the requested relief.

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)                                         AR20130004980





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ABCMR Record of Proceedings (cont)                                         AR20130004980



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