BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130019022 


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).  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army (RA) on 31 May 2006 and she held military occupational specialty 91F (Small Arms/Artillery).  She reenlisted on 2 October 2008.  

2.  She was originally considered by an MEB on 26 June 2010 that listed six conditions: Metatarsalgia, Anxiety Disorder, Psoriasis, Chronic chest pain, Irritable bowel syndrome, and Myofascial cervical pain.  However, she submitted additional medical documents that led to a second MEB. 

3.  On 25 May 2011, 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 revised MEB recommended the applicant's referral to a physical evaluation board (PEB).  She was counseled and agreed with the revised MEB's findings and recommendation. 
Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Metatarsalgia, secondary to a vascular necrosis  

X
2.  Anxiety Disorder 
X

3.  Psoriasis
X

4.  Chronic chest pain due to rib fracture
X

5.  Irritable bowel syndrome with lactose and gluten intolerance
X

6.  Myofascial cervical pain 
X

7.  Personality Disorder, Not Otherwise Specified (NOS)
X

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

5.  On 8 August 2011, 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 condition prevented her from performing the duties required of her grade and military specialty and determined that the applicant was physically unfit due to right second metatarsalgia.  

	a.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) Code 5279 (right second metatarsalgia) and awarded her a rating of 10%. 

	b.  the PEB also noted that she contended at the formal PEB that the MEB diagnosis of Adjustment Disorder with mixed emotional features of anxiety and depression, was incorrect.  She contended that the diagnosis was actually Anxiety Disorder that had been precipitated by a military traumatic event (Redacted), and that such diagnosis caused her to be unfit.

	c.  After deliberation, the formal PEB concluded that the applicant's psychiatric conditions documented on the revised MEB (Adjustment Disorder and Anxiety Disorder) may be considered administratively unfitting but are not found medically unfitting.

	d.  The PEB also considered her 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.  Subsequent to counseling, the applicant ultimately concurred with the PEB's finding and recommendation.

6.  The applicant was discharged on 31 October 2011 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, with entitlement to severance pay.  

7.  On 6 December 2012, Dr. M. A. D'An----, licensed clinical psychologist, conducted a fusion cell reevaluation of the applicant's behavioral health to assess her current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health evaluation was conducted.  Dr. M. A. D'An---- proposed:

* the deletion of "Adjustment Disorder with mixed emotional features of Anxiety and Depression, Meets retention standards"
* the addition of "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, chronic, fails retention standards"

8.  Dr. M. A. D'An---- provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic, moderate
* Axis II: Deferred
* Axis III: See medical records
* Axis IV: Some relational stress reported due to her symptoms 
* Axis V: Estimated Global Assessment of Functioning (GAF) score at time of separation of 60; current is 60 (minimal improvement reported)

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 May 2011 that referred her to a PEB.  Her MEB listed only one condition - Metatarsalgia, secondary to a vascular necrosis - that failed retention standards and several other conditions, including Anxiety Disorder and Adjustment Disorder - that met retention standards.  

2.  The PEB found the condition 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 10% for right second metatarsalgia.  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 separation with entitlement to severance pay at the rate of 10%.  She was discharged on 31 October 2011.

3.  Subsequent to her discharge, she underwent a fusion cell reevaluation.  The clinical psychologists recommended the deletion of "Adjustment Disorder with mixed emotional features of Anxiety and Depression, meets retention standards" and the addition of "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, chronic, fails retention standards."

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 31 October 2011, the date of her 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 of "Adjustment Disorder with mixed emotional features of Anxiety and Depression, meets retention standards" and addition of "PTSD, chronic, fails retention standards" and "Major Depressive Disorder, chronic, fails retention standards"; 

	b.  showing 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)                                         AR20130019022



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ABCMR Record of Proceedings (cont)                                         AR20130019022



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