IN THE CASE OF:	  

		BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130011325 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for correction of his records to show he retired by reason of permanent disability with a 100-percent disability rating.

2.  Counsel states this request for reconsideration is based on new evidence in the form of an updated opinion by the applicant's treating psychologist, Dr. J____ L____, Jr., and a secondary opinion by the applicant's treating psychiatrist, Dr. E____ C. H____.  In addition, the applicant is resubmitting his most recent Department of Veterans Affairs (VA) disability summaries which do not appear to have been received by the Army Board for Correction of Military Records (ABCMR) before its first decision.  He states it appears that the ABCMR only considered the first 13 enclosures of the applicant's original brief and did not consider the applicant's updated brief submitted with additional evidence.  This brief includes the applicant's most recent VA rating decisions; two notices of disagreement (NOD's) filed by the applicant's VA attorneys; a recent diagnosis of chronic post-traumatic stress disorder (PTSD) due to military combat by Dr. J____ L____, Jr., an independent treating psychologist; copies of the applicant's social security disability record; a discharge summary from the applicant's most recent inpatient treatment for PTSD; and a memorandum from his former battalion commander.

3.  Counsel also states the ABCMR denied the applicant's initial request based on the following points:

	a.  The ABCMR relied on the physical evaluation board's (PEB's) determination that the applicant's diagnosed condition of major depressive disorder was in full remission at the time of the hearing, thereby removing him from the Temporary Disability Retired List (TDRL).  However, this is an oversimplification of the facts in this case.  As Dr. J____ L____, Jr. points out in his most recent letter, the applicant was rated by Dr. L____ M. C____ only a month before his PEB hearing who stated that additional periods of observation were required to better characterize the nature of the applicant's illness.  Dr. L____ M. C____ stated that his time in remission was relatively brief.  However, the PEB focused on the words "full remission" under the diagnosis of major depressive disorder and chose to separate the applicant.

	b.  The ABCMR found no evidence to show that PTSD rendered him unfit to perform his duties.  This is not the case.  The applicant was found to be unfit for continued service by the PEB.  As stated earlier, this was due to a misdiagnosed condition which is common with mental health disorders with similar diagnostic criteria.  To say there was no evidence of PTSD is simply not accurate when looking back through his medical history.

	c.  The ABCMR stated the VA did not diagnose the applicant as suffering from PTSD and the PTSD did not surface or was not diagnosed until well after his discharge.  This is inaccurate.  On 25 June 2012, the VA made a decision regarding the applicant's claim for service-connected compensation for PTSD.  The decision granted his request for service-connected PTSD, but as the VA can only compensate a service member for one mental disability, the VA combined his bipolar I disorder with PTSD as one disability.  He is currently rated as 
70-percent disabled for the bipolar I/PTSD and 20-percent disabled for his right shoulder joint disease, resulting in a 90-percent disability status with the VA.  He is appealing that decision and requesting a higher rating of 100 percent based on Dr. J____ L____, Jr.'s most recent assessment of his ability to obtain gainful employment.  This information was provided to the ABCMR but does not appear to have been considered in the previous Record of Proceedings.

4.  Counsel provides:

* 20-page brief
* letter from the U.S. Army Physical Disability Agency, undated
* photograph of uniformed Soldiers, dated 9 April 2006
* Walter Reed Army Medical Center (WRAMC) Admittance Note, dated 11 August 2006 (previously considered)
* WRAMC Discharge Instructions, dated 17 August 2006 (previously considered)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 5 October 2006 (previously considered)
* Standard Form 600 (Chronological Record of Medical Care), dated 2 November 2006 (previously considered)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, dated 10 July 2007 (previously considered)
* TDRL Evaluation, dated 1 February 2008 (previously considered)
* DA Form 199 (PEB Proceedings), dated 24 March 2008 (previously considered)
* DA Form 199, dated 25 June 2008 (previously considered)
* WRAMC Psychiatric MEB Narrative Summary, dated 28 September 2008 (previously considered)
* VA Rating Decision, dated 9 February 2009
* letter from the VA, dated 11 February 2009
* letter from the VA, dated 11 June 2009
* Court Order, dated 13 April 2010 (previously considered)
* Forensic Evaluation, dated 10 May 2010 (previously considered)
* Annual Risk Assessment, dated 31 August 2011 (previously considered)
* letter to the VA (from Ms. E____ M. W____), dated 25 April 2012 (previously considered)
* letter from the VA, dated 25 June 2012 (previously considered)
* letter from the Social Security Administration (Social Security Disability Notice), dated 16 July 2012
* memorandum from Colonel (COL) J____ R. M____, dated 12 September 2012
* letter, Dr. J____ L____, Jr.'s assessment to Ms. E____ M. W____, dated 13 December 2012
* Mental Residual Functional Capacity Questionnaire and General Rating Formula for Mental Disorders, dated 21 February 2013
* two NOD's, dated 24 March 2013
* Medication Profile, printed on 12 April 2013
* letter to applicant's Member of Congress, dated 19 March 2013
* letter to applicant's Member of Congress (from his sister), dated 7 May 2013
* five trauma accounts, dated 19 May 2013
* letter from the VA, dated 21 May 2013
* letter to applicant's Member of Congress from Dr. J____ L____, Jr., dated 17 June 2013
* letter to the VA from Dr. E____ C. H____, dated 3 July 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120013280 on 12 March 2013.

2.  The applicant's counsel provided new arguments and new evidence which were not previously considered and, therefore, warrant consideration by the Board.

3.  The applicant was appointed as a commissioned officer in the Regular Army on 31 May 1989 and entered active duty on 29 June 1989.  The highest rank/grade he attained while serving on active duty was major.

4.  As stated in the previous Record of Proceedings:

	a.  In 2006, the applicant was serving in Iraq when he was diagnosed as having a major depressive disorder with psychotic features in full remission manifested by a history of depression and paranoia.  This diagnosis resulted in being air evacuated to WRAMC where he was hospitalized from 11-18 August 2006.

	b.  On 5 October 2006, an MEB convened at WRAMC and diagnosed him as having the following conditions:

* Axis I – severe major depressive disorder, single episode, with mood-congruent psychotic features manifested by continued paranoia, anxiety, depression, and anhedonia (psychological condition characterized by inability to experience pleasure in normally pleasurable acts) –

* external precipitating condition – minimal, divorce and past assignments
* premorbid personality and predisposition – none
* degree of military psychiatric impairment – marked
* impairment for social and industrial adaptability – definite
* medically unacceptable

* Axis II – no diagnosis on Axis II – narcissistic personality traits
* Axis III – none
* Axis IV – past divorce, deployment
* Axis V – Global Assessment of Functioning (GAF) score = 55 (current)

	c.  The MEB recommended the applicant's referral to a PEB.  The applicant concurred with the recommendations and findings of the MEB.

	d.  The original PEB proceedings are not in the available records.  However, his records show he retired on 30 March 2007 and was placed on the TDRL with a 30 percent disability rating effective 31 March 2007.

	e.  On 12 July 2007, he was awarded a combined 70-percent service-connected disability rating by the VA for paranoid-type delusional disorder with narcissistic traits (70 percent) and right shoulder degenerative joint disease (10 percent).

	f.  On 25 June 2008, a TDRL PEB convened at Fort Sam Houston, TX.  The disability description reviewed was major depressive disorder with psychotic features in full remission manifested by a history of depression and paranoia.  The PEB recommended the applicant's separation with severance pay.  The applicant concurred with the findings and recommendation of the PEB and elected not to appeal the determination.

	g.  On 28 July 2008, he was removed from the TDRL and he was honorably discharged by reason of disability with severance pay with a 10-percent disability rating.

5.  Counsel provided a VA Rating Decision, dated 9 February 2009, and a letter from the VA, dated 11 February 2009, showing the applicant was evaluated for:

* carpal tunnel syndrome, status post-carpal tunnel release surgery, right wrist (major), which was increased from 0 percent to 10 percent
* bipolar I disorder – most recent episode (previously rated as paranoid-type delusional disorder with narcissistic traits) was continued at 70 percent

6.  As stated in the previous Record of Proceedings:

	a.  On 20 October 2009, he was arrested for possessing a firearm as a prohibited person and for providing false information to a licensed firearms dealer.

	b.  On 10 January 2010 after being hospitalized for a forensic evaluation, he was sent to the Federal Detention Center in Miami, FL, to determine his competency to participate in legal proceedings.  The evaluator concluded the applicant was competent to participate in legal proceedings but was insane at the time of the offenses.

	c.  On 13 April 2010, the applicant was found not guilty by reason of insanity of the Federal charges against him and he was transferred to the Federal Medical Center (FMC) (a U.S. Federal Prison for male inmates requiring specialized or long-term medical or mental health care) in Rochester, MN, on 21 April 2010 for a risk assessment to determine whether his release would pose a risk to society.

	d.  On 10 May 2010, a forensic evaluation was prepared for the court which echoed the diagnosis of bipolar-type schizoaffective disorder, as well as the added diagnosis of PTSD.

	e.  On 30 April 2010, a risk assessment panel interviewed the applicant and determined that his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.  As a result, he was civilly committed on 9 June 2010.

	f.  On 31 August 2011, an annual risk assessment was completed at FMC Rochester which diagnosed him with chronic PTSD with associated psychotic symptoms; sleep disorder related to another mental disorder; substance-induced mood disorder with psychotic features, in remission; and ruled out persecutory-type delusional disorder.  The risk assessment recommended a conditional release to the Psychosocial Residential Treatment Program at the VA Medical Center in Biloxi, MS.  He was discharged from the Rochester FMC on 27 October 2011 and he completed the PTSD program in Biloxi on 23 December 2011.

7.  Counsel provided a letter from the Social Security Administration (social security disability notice), dated 16 July 2012, showing the applicant was entitled to social security benefits for disability and received a regular monthly payment of $1,943.00.

8.  Counsel provided a memorandum from COL J____ R. M____, dated 12 September 2012, wherein COL J____ R. M____ requested retroactive award of the Combat Infantryman Badge to the applicant.  This memorandum also outlined the applicant's service and experiences in Iraq.

9.  Counsel provided a letter from Dr. J____ L____, Jr. to Ms. E____ M. W____, dated 13 December 2012, wherein:

	a.  Dr. J____ L____, Jr. indicated the following diagnostic impressions:

* Axis I – chronic PTSD due to military combat/bipolar I disorder, most recent episode depressed, with psychotic features/dementia due to head trauma
* Axis II – none
* Axis III – history of chronic obstructive sleep apnea, concussions, and loss of consciousness, orthopedic
* Axis IV – psychological stressors – military combat, chronic illness, unemployment, financial, past incarceration
* Axis V – GAF score = 45 (current)

	b.  Dr. J____ L____, Jr. stated there had been a wealth of potential causes for his impairments.  The applicant clearly suffers from PTSD as a result of his war experiences.  At some point he experienced psychotic episodes, but there is no way to clearly separate what percentage was due to the effects of psychiatric medications or the overwhelming of his psychological defense mechanisms due to life stress and his impaired cognitive function due to dementia.  It is more likely than not that a precipitating factor was a mild traumatic brain injury (TBI) due to repeated head injuries from boxing and other sports at West Point.  The stress of combat and command overwhelmed his defenses.  His treatment to date has been successful to the point that he can control his behavior, but only if he stays within a comfort zone of limited personal relationships and no time stress.  Even so, he is not able to function at all in a competitive work environment due to his PTSD and TBI related deficits.

10.  Counsel provided a Mental Residual Functional Capacity Questionnaire and General Rating Formula for Mental Disorders, dated 21 February 2013.  These forms were completed by Dr. J____ L____, Jr. and show he felt the applicant's service-connected mental impairments should be rated by the VA at 100 percent.

11.  The applicant's sister, a board-certified internal medicine physician, wrote a letter to his Member of Congress, dated 7 May 2013.  She indicated the applicant was diagnosed with PTSD at WRAMC and then placed on the TDRL.

12.  Counsel provided five trauma accounts, dated 19 May 2013.  These accounts are the applicant's self-authored accounts of five traumatic incidents he experienced while serving in Iraq.

13.  Counsel provided a letter from Dr. E____ C. H___, a VA staff psychiatrist, dated 3 July 2013, wherein Dr. E____ C. H____ stated the applicant had been diagnosed with PTSD and bipolar disorder and had a history of medication-induced psychotic episodes.  Dr. E____ C. H____ opined that the applicant first began suffering from PTSD after ground combat in Iraq, that he has had significantly disabling PTSD since then, and that he continues to be significantly disabled by these symptoms.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

15.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

16.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

17.  There is a distinct difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  Military physicians, including Dr. L____ M. C____, diagnosed the applicant as having the condition of major depressive disorder.  There is no evidence of 

record and counsel has not provided sufficient evidence or argument to show this diagnosis was incorrect.

2.  The PEB appropriately placed the applicant on the TDRL after determining that his condition was unfitting.  Prior to his removal from the TDRL, Dr. L____ M. C____ stated the applicant's diagnosed condition of major depressive disorder was in full remission and recommended additional periods of observation to better characterize the nature of the applicant's illness because his remission was relatively brief.  However, full remission indicated an improvement and recovery.  Furthermore, his condition was never re-characterized by this physician.

3.  The physicians and board members of the PEB weighed all the medical documentation prior to making the final decision and removed him from the TDRL after doing so.  Based on the information available in his military records, the PEB determination appears to be accurate and the applicant concurred with the findings.  Therefore, his separation was appropriate.

4.  The physicians counsel referred to, both VA and private, were not involved in the applicant's diagnosis or treatment at the time he was being treated by military doctors and undergoing the PEB.  These doctors did not examine the applicant until later.  Their opinions are based on a cumulative review of the applicant's records which has relied heavily on medical information, treatments, and situations which occurred after the applicant's military service.

5.  The Army found the applicant unfit for continued service based on the diagnosed condition of major depressive disorder which prevented him from performing his duties satisfactorily.  He was removed from the TDRL in July 2008 and he was not diagnosed with PTSD until on or around May 2010 when he received a forensic evaluation.

6.  It is unfortunate that the applicant was involved in criminal activities after his discharge and his mental state deteriorated.  However, changes in his medical status after his discharge are the purview of the VA system.

7.  Based on the foregoing, there is insufficient evidence to grant 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120013280, dated 12 March 2013.



      _______ _   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)                                         AR20130011325



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ABCMR Record of Proceedings (cont)                                         AR20130011325



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