IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130019031 


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 his mental health condition.  

2.  The applicant states he was misdiagnosed.  He was reevaluated and he was diagnosed with Post-Traumatic Stress Disorder (PTSD).  

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

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army and the Army National Guard, the applicant enlisted in the Regular Army on 4 April 2000.  He held military occupational specialty 11B (Infantryman) and served through multiple extensions or reenlistments.  

2.  He served in Afghanistan from 12 January to 15 August 2003 and in Iraq from 8 January to 20 April 2004 and 23 September to 24 November 2008. 

3.  On 6 October 2010, 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 MEB recommended the applicant's referral to a physical evaluation board (PEB).  The applicant was counseled and did not agree with the MEB's findings and recommendation.  He submitted an appeal that was forwarded to the PEB.
Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Anxiety Disorder, Not Otherwise Specified (NOS)

X
2.  Periorbital pain with retinal tear
X

3.  Left shoulder impingement
X

4.  Chronic bilateral plantar foot pain
X

5.  Chronic bilateral knee pain
X

6.  Gastroesophageal reflux disease
X

7.  Migraine headaches
X

8.  Seasonal allergies
X

9.  Hypercholesterolemia
X

4.  On 17 March 2011, an informal 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 him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to Anxiety Disorder, NOS.  

5.  The PEB noted that he had intermittent difficulty with anxiety since the summer of 2003, following deployment to Afghanistan.  He had been able to continue on multiple combat tours but now has diminished resilience as a result of repeated combat exposures and commensurate losses, including diminished physical capacity.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows: 

VASRD Code
Condition
Percentage
9413
Anxiety Disorder, NOS
30%
6.  The PEB also considered his other medical conditions but found these conditions not to be unfitting and therefore not ratable.  The PEB recommended a 30% combined disability rating and permanent disability.  Subsequent to counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  The applicant retired on 26 June 2011 and he was placed on the Retired List in his retired rank/grade of sergeant first class/E-5 effective 27 June 2011, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.

8.  On 23 March 2012, the applicant underwent fusion cell reevaluation of his behavioral health to assess his current psychiatric fitness for duty.  The diagnosing official (not revealed in the MEB Addendum) proposed:

* the deletion of "Anxiety Disorder, Not Otherwise Specified" 
* the addition of "PTSD, chronic, combat related, fails retention standards," "Panic Disorder without agoraphobia, fails retention standards," and "Depressive Disorder, Not Otherwise Specified, meets retention standards"

9.  The MEB Addendum shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic, combat-related; Panic Disorder without agoraphobia; and Depressive Disorder, NOS
* Axis II: None
* Axis III: See medical records
* Axis IV: Moderate
* Axis V: Global Assessment of Functioning (GAF) score: 60

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 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.

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 October 2010 that referred him to a PEB.  His MEB listed only one condition - Anxiety Disorder, NOS - that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found the condition that failed retention standards prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  The PEB rated him at a combined rating of 30% for Anxiety Disorder.  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.  Subsequent to his counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He retired on 26 June 2011. 

3.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologists recommended the deletion of "Anxiety Disorder, NOS" and the addition of "PTSD, chronic, combat related, fails retention standards," "Panic Disorder without agoraphobia, fails retention standards," and "Depressive Disorder, NOS, meets 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 26 June 2011, the date of his 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.  deletion of "Anxiety Disorder, NOS" and adding "PTSD, chronic, combat related, fails retention standards," "Panic Disorder without agoraphobia, fails retention standards," and "Depressive Disorder, NOS, meets 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)                                         AR20130019031



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ABCMR Record of Proceedings (cont)                                         AR20130019031



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