IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130012746 


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 records to show he was medically unfit due to post-traumatic stress disorder (PTSD) and amendment of his disability rating percentage to reflect this additional diagnosis.

2.  The applicant states he did not receive a behavioral health examination prior to his medical retirement.

3.  The applicant provides his Medical Evaluation Board (MEB) Psychiatric Addendum, dated 30 May 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 March 1997 and he held military occupational specialties 63B (Wheeled Vehicle Mechanic) and 11B (Infantryman).  He served through multiple reenlistments.

2.  He served in Afghanistan from 10 October 2001 to 11 April 2002 and in Iraq from 25 September 2009 to 8 March 2010.

3.  On 18 May 2011, 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.  post-concussion migraine headaches with aura (dizziness) secondary to traumatic brain injury, focal head injury, stabilized  

X
2.  back pain due to degenerative joint disease of the lumbar spine
X

3.  major depression, recurrent, moderate
X

4.  mild supine dependent obstructive sleep apnea
X

5.  hypertriglyceridemia
X

6.  snoring, secondary to hypertrophied nasal turbinates 
X

7.  benign non-obstructive Thornwaldt's cyst on posterior nasopharynx
X

8.  neck pain due to degenerative disc disease of the cervical spine
X

9.  left hip pain 
X

10.  erectile dysfunction 
X

11.  allergic rhinitis with eosinophilia
X

12.  bilateral tinea pedis (foot fungus)
X

13.  PTSD 
X

14.  cognitive disorder, not otherwise specified 
X

15.  right ear tinnitus
X

16.  vertigo
X

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

5.  On 7 December 2011, 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 8100
* item b (Disability Description) – migraine
* item g (Recommended Disability Percentage) – 50 percent

6.  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 the entry "50 percent" in item 9 (THE BOARD FINDS THE SOLDIER PHYSICALLY UNFIT AND RECOMMENDS A COMBINED RATING OF:) and the Soldier's disposition as "permanent disability retirement."  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

7.  He retired by reason of permanent disability on 20 March 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), paragraph 4-24b(1).  He was placed on the Retired List in the rank/grade of sergeant first class/E-7 on 21 March 2012.

8.  On 30 May 2013, Dr. M____ A. D____, a clinical psychologist, conducted a reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health specialist changed a PTSD diagnosis.

	a.  Dr. M____ A. D____ proposed a change to the applicant's May 2011 MEB Proceedings to delete the diagnosis of "PTSD, meets retention standards" and replace it with the medically-unacceptable condition of "PTSD – chronic, failed retention standards."

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

* Axis I – PTSD; chronic, moderate
* Axis II – deferred
* Axis III – see medical records
* Axis IV – stress related to child support payment
* Axis V – Global Assessment and Functioning score of 55 (at time of separation), 51 (current)

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 placement on 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 PEB's.  Specifically, it states PEB's 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 (Standards of Medical Fitness) 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.

11.  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.

12.  A memorandum issued by the Deputy Surgeon General, Office of the Surgeon General, dated 16 April 2013, subject:  Madigan Fusion Cell Cases, 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 MEB's.

	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 May 2011 that referred him to a PEB.  His MEB listed his post-concussion migraine headaches as the condition that failed retention standards and several other conditions that met retention standards.

2.  The PEB found his migraine headaches 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 50 percent for migraine headaches.  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 50 percent.  He ultimately retired on 20 March 2012.

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 records to show "PTSD, chronic, failed retention standards" instead of "PTSD, met retention standards" as a disabling condition that did not meet retention standards and is rated as 50-percent disabled effective 20 March 2012, the date of the applicant's original retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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.  showing an additional determination of unfitness for PTSD with placement on the TDRL at the rate of 50 percent for a period of 6 months (combined 100 percent), 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 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)                                         AR20130012746



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ABCMR Record of Proceedings (cont)                                         AR20130012746



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