IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130009022 


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 record 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, in effect, he underwent a fusion cell revaluation that diagnosed him with PTSD with Major Depressive Disorder. 

3.  The applicant submits his Medical Evaluation Board (MEB) Psychiatric Addendum. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the California Army National Guard (CAARNG) on 25 August 1999 and he held military occupational specialty 15M (UH-1 Helicopter Repairer).

2.  He was ordered to active duty on 26 December 2003 and served in Kuwait/Iraq from 4 March to 28 December 2004.  Upon return from Iraq, he was assigned to the Warrior Transition Battalion at Fort Lewis.

3.  On 15 February 2007, 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 his referral to a Physical Evaluation Board (PEB).  He did not agree with the MEB's findings and recommendation and submitted an appeal.  His appeal was considered but it did not change the diagnosis.  



Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Chronic low back pain 

X
2.  Depressive Disorder
X

3.  Anxiety Disorder 
X

4.  Gastroesophageal Reflux Disease (GERD)
X

5.  Hemorrhoids
X

4.  On 25 September 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 chronic low back pain. 

5.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) Code 5299/5237, chronic low back pain, at the rate of 10 percent.  The PEB also considered his other medical conditions but found these conditions not to be unfitting and therefore not ratable. The PEB recommended a 10% combined disability rating and separation with entitlement to severance pay if otherwise qualified.  It is unclear if the applicant did or did not concur with the PEB's findings and recommendation and/or waived his right to a formal hearing.

6.  On 31 December 2007, he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), paragraph 4-24B(3), by reason of disability with severance pay.  

7.  On 7 June 2012, Dr. B. A. L----n, PhD, a clinical psychologist, conducted a cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty.  Dr. L-----n proposed a change to the applicant's August 2006 MEB Proceedings to delete the diagnosis of "Anxiety Disorder.  Meets retention standards" and replace it with the medically unacceptable condition of "PTSD – chronic, failed retention standards."

8.  Dr. L----n provided an MEB Addendum that shows a behavioral health diagnosis as follows:

* Axis I:  PTSD; chronic
* Axis II:  No Diagnosis
* Axis III:  Back pain, frequent headaches
* Axis IV:  Social, Marital, Bankruptcy
* Axis V:  Global Assessment and Functioning (GAF) score of 60 (current), 60 (highest in the last year), and 65 (at time of MEB)

9.   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.

10.  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. 

11.  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.

12.  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 February 2007 that referred him to a PEB.  His MEB listed only one condition, a physical condition, of chronic low back pain that failed retention standards and several other conditions, including Anxiety Disorder that met retention standards.  

2.  The PEB found the one condition that failed retention standards prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  The PEB rated his disability of chronic low back pain at 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 separation with entitlement to severance pay.  He was discharged on 31 December 2007. 

3.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologist proposed a change to the applicant's MEB Proceedings to delete the diagnosis of "Anxiety Disorder.  Meets retention standards" and replace it with the medically unacceptable condition of "PTSD – chronic, failed 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 PTSD, chronic, as a disabling condition that did not meet retention standards, effective 31 December 2007, the date of his 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.  deletion from his MEB/PEB proceedings of "Anxiety Disorder, meets retention standards" and addition of "PTSD, chronic, fails retention standards"; 

	b.  showing, in addition to the existing disabling/ratable condition, 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 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)                                         AR20130009022





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009022



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1