IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130016020 


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 her mental health condition.  

2.  The applicant states she underwent a fusion cell revaluation that diagnosed her with Post-Traumatic Stress Disorder (PTSD) with Major Depressive Disorder. 

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

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army Nurse Corps (ANC) and executed an oath of office on 15 February 1993. 

2.  She completed the Army Medical Department Officer Basic Course.  She served in a variety of assignments and she was promoted to captain (CPT) in the U.S. Army Reserve on 13 August 2001. 

3.  She was ordered to active duty on 25 January 2007 and subsequently served in Iraq from 27 April 2007 to 22 April 2008.  

4.  On 20 August 2009, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as suffering from the conditions below. 
Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Left hip pain status post surgery 

X
2.  Back pain status post surgery for L5-S1 diskectomy and laminectomy 

X
3.  Depressive Disorder, Not Otherwise Specified (NOS)
X

4.  Bilateral plantar fasciitis with pes planus 
X

5.  Seasonal allergies with intermittent wheezing
X

6.  Cervical metaplasia
X

7.  Nephrolithiasis with hydro-nephrosis
X

8.  Bilateral knee pain
X

9.  Small sliding hiatal hernia 
X

10.  Dysfunctional uterine bleeding
X

11.  Multiple parapelvic renal cysts 
X

5.  The MEB recommended the applicant's referral to a Physical Evaluation Board (PEB).  She was counseled and agreed with the MEB's findings and recommendation.

6.  Her informal PEB is not available for review with this case.  

7.  On 11 June 2010, a formal PEB convened and reviewed the medical data and other facts presented to include the commander's statement.  The PEB found the applicant's conditions prevented her from performing the duties required of her grade and military specialty and determined that the applicant was physically unfit due to chronic low back pain and chronic left hip pain. 

	a.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition
Percentage
5299/5243
Chronic low back pain
20 percent
5099/5033
Chronic left hip pain
10 percent
	b.  The PEB also considered her other medical conditions but found those conditions not to be unfitting and therefore not ratable.  The PEB recommended a 30% combined disability rating and permanent disability retirement.  Subsequent to counseling, the applicant concurred with the PEB's finding and recommendation.


8.  On 17 September 2010, the applicant retired and she was placed on the Retired List in her retired rank/grade of CPT, effective 18 September 2010, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  

9.  On 7 June 2012, Dr. B. G. Ha----s, PhD, a clinical psychologist, conducted a fusion cell reevaluation of the applicant's behavioral health to assess her current psychiatric fitness for duty.  Dr. B. G. Ha----s did not propose any changes to the applicant's diagnosis.  Dr. B. G. Ha----s provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I:  PTSD, chronic; Major Depressive Disorder, recurrent, moderate
* Axis II:  Deferred, Cluster C Personality features
* Axis III:  See medical records
* Axis IV:  Chronic PTSD symptoms, chronic pain, limited social support, occupational stressors
* Axis V:  Estimated Global Assessment of Functioning (GAF) score at time of separation of 58; current is 62

10.  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 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.




11.  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. 

12.  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.

13.  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 August 2009 that referred her to a PEB.  Her MEB listed only two conditions, both physical conditions, of chronic low back pain and chronic left hip pain, that failed retention standards and several other conditions, including Depressive Disorder - NOS that met retention standards.  

2.  The PEB found the two conditions that failed retention standards prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit.  The PEB rated her at a combined rating of 30% for chronic low back pain and chronic left hip pain.  The PEB also considered her 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%.  She retired on 17 September 2010.

3.  Subsequent to her retirement, she underwent a fusion cell reevaluation.  The clinical psychologists did not propose or recommend a change to her diagnosis; however, he rendered a Behavioral Health diagnosis of chronic PTSD and recurrent/moderate Major Depressive Disorder. 

4.  The subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of her records to show PTSD, chronic, as a disabling condition that did not meet retention standards, effective 17 September 2010, the date of her original retirement. 

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.  deleting from her MEB/PEB proceedings "Depressive Disorder, NOS, meets retention standards" and adding "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, recurrent, moderate, fails retention standards"; 

	b.  showing, in addition to the existing disabling/ratable conditions, 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)                                         AR20130016020



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ABCMR Record of Proceedings (cont)                                         AR20130016020



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