IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130009423 


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 his diagnosis of Anxiety Disorder should be changed to PTSD as per the Medical Evaluation Board (MEB) Addendum

3.  The applicant provides his MEB Psychiatric Addendum, dated 8 May 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 March 1995 and he held military occupational specialties 63B (Wheeled Vehicle Mechanic) and
15J (OH-58D Armament/Electrical/Avionics Systems Repairer).

2.  He served in Kuwait from 27 July 2006 to 26 October 2006.

3.  On 27 February 2009, an MEB convened.  Item 13 (Diagnosis) of his
DA Form 3947 (MEB Proceedings) shows that 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.  Bipolar Disorder 

X
2.  Anxiety Disorder, Not Otherwise Specified (NOS), multi-factorial etiology

X
3.  Alcohol dependence in remission
X

4.  Right elbow bursitis and cubital tunnel syndrome 
X

5.  Bilateral hearing loss with tinnitus
X

6.  Bilateral hand pain since truck run-over accident
X

7.  Bilateral toe pain due to multiple fractures after truck run-over accident
X

8.  Hypercholesterolemia
X

9.  Hypertension 
X

10.  Bilateral pes planus with bilateral hallux valgus 
X

The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation.

4.  On 27 March 1009, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to bipolar disorder with elements of anxiety, onset in 2006.  Item 8 (The board considered the member's condition described in the records.  Each disability is listed below in descending order of significance) of his DA Form 199 (PEB Proceedings) rated his medically-unacceptable condition under:

* item a.  (VA Code) -- VA Schedule for Rating Disabilities (VASRD) Code 9432
* item b.  (Disability Description) – Bipolar Disorder with elements of anxiety, onset in 2006
* item g.  (Recommended disability percentage) -- 30 percent

5.  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 DA Form 199 further shows in Item 9 (The board finds the Soldier physically unfit and recommends a combined rating of):  the entry "30 percent" and that the 

Soldier's disposition be:  the entry "Permanent disability retirement."  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

6.  On 5 July 2009, he retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), paragraph
4-24B(1), by reason of permanent disability.  On 6 July 2009, he was placed on the Retired List in his retired rank/grade of sergeant (SGT)/E-5.

7.  On 8 May 2013, Dr. M.A. D------, 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 wherein a forensic behavioral health specialist changed a PTSD diagnosis.

	a.  Dr. D------- proposed a change to the applicant's August 2006 MEB Proceedings to delete the diagnosis of "Anxiety Disorder, NOS, multi-factorial etiology, Meets retention standards" and replace it with the medically unacceptable condition of "PTSD – chronic, failed retention standards."

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

* Axis I:  PTSD; chronic, moderate; Bipolar Disorder NOS
* Axis II:  Deferred
* Axis III:  See Medical Records
* Axis IV:  Limited social support and financial resources at the end of the month
* Axis V:  Global Assessment and Functioning (GAF) score of
51 (at time of separation), 51 (current)

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 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 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 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

11.  A memorandum issued by the Deputy Surgeon General, Office of The Surgeon General, subject:  Madigan Fusion Cell Cases, dated 16 April 2013, provided The Surgeon General's support of the Soldiers reevaluated by the Madigan Fusion Cell.  It states:

	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 Soldier 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 was considered by an MEB in February 2009 that referred him to a PEB.  His MEB listed bipolar disorder and anxiety disorder as the conditions that failed retention standards and several other conditions that met retention standards.

2.  The PEB found his mental condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to this condition.  The PEB rated him at a combined rating of 30 percent for bipolar disorder with anxiety.  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 retirement at the rate of 30 percent.  He ultimately retired on 5 July 2009.

3.  In May 2013, he received a reevaluation of his health conditions to assess his current psychiatric fitness for duty following a previous evaluation wherein a forensic behavioral health specialist changed a PTSD diagnosis.  This behavioral health reevaluation revealed a diagnosis of chronic PTSD that failed retention standards. 

4.  The initial MEB forensic psychiatric evaluation has disadvantaged the applicant.  Therefore, the clinical reevaluation is accepted in lieu of the initial forensic evaluation.  The applicant is entitled to correction of his record to show "PTSD, chronic" instead of "Anxiety Disorder, multifactorial etiology" as a disabling condition that did not meet retention standards and is rated at 50 percent, effective 5 July 2009, the date of the applicant's original discharge.

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.  a determination of unfitness for post-traumatic stress disorder, placement on the temporary disability retired list at the rate of 50 percent for a period of
6 months and make a final disability determination as appropriate;

	b.  providing orders showing the individual was placed on the TDRL effective the date of the original medical separation for disability; and

	c.  adjusting the individual's retired pay.

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)                                         AR20130009423



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ABCMR Record of Proceedings (cont)                                         AR20130009423



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