IN THE CASE OF:	  

		BOARD DATE:	    26 November 2013

		DOCKET NUMBER:  AR20130019034 


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 underwent a fusion cell reevaluation of his behavioral health conditions to assess current diagnosis.  

3.  The applicant resubmits his medical evaluation board (MEB) Psychiatric Addendum.  

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Alaska Army National Guard on 16 August 2005, held military occupational specialty 11B (Infantryman), and served through multiple extensions or reenlistments.  

2.  He was ordered to active duty on 6 July 2006 and subsequently served in Kuwait from 15 October 2006 to 12 October 2007.  He was honorably released from active duty on 6 November 2007.  

3.  He transferred to the Washington Army National Guard in or around March 2008.  He was again ordered to active duty on 18 August 2008. 

4.  On 15 April 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 MEB recommended the applicant's referral to a physical evaluation board (PEB).  He was counseled and agreed with the MEB's findings and recommendation.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Left knee patellofemoral syndrome status post surgery

X
2.  Lumbar intervertebral disc syndrome

X
3.  Migraine headaches with post concussive syndrome

X
4.  Persistent bilateral tinnitus
X

5.  Left shoulder tendonitis
X

6.  Right ankle tendonitis
X

7.  Cervical strain
X

8.  Sleep apnea
X

9.  Bilateral carpal tunnel syndrome
X

10.  Left elbow tendonitis
X

11.  Right planter fasciitis
X

12.  Bilateral pes vacus
X

5.  On 21 September 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 two conditions.  

	a.  The PEB noted that his lumbar intervertebral disc syndrome was not a battle injury but did occur in a combat zone (Iraq), onset of back pain that occurred when the military truck he was in tipped over.  The PEB also noted that his left knee patellofemoral syndrome is also not a battle injury but did occur in a combat zone when he twisted his knee in Kuwait in 2006.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows: 

VASRD Code
Condition
Percentage
5242
Lumbar intervertebral disc syndrome
10%
5260
Left knee patellofemoral syndrome
00%
	b.  The PEB also considered his 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 concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

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

7.  On 29 May 2012, Mr. S. L. Pr----n, Resident, Family Practice, and Dr. (Major) T. El---t, PhD, conducted a fusion cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty.  Mr. S. L. Pr----n and Dr. T. El---t ruled out Adjustment Disorder; ruled out PTSD; and ruled out Anxiety Disorder secondary to narcotic pain medication and THC.  His occupational and social functioning is listed as "Moderate."  His symptoms cause significant occupational and interpersonal dysfunction as demonstrated by requirement for profile restricting his ability to complete various mission-required duties, recurrent episodes of irritability and mood swings associated with symptoms.  The MEB Addendum shows a proposed addition of "Anxiety Disorder, Not Otherwise Specified, did not meet retention standards."  His diagnosis was as follows: 

* Axis I:  Anxiety Disorder, Not Otherwise Specified
* Axis II:  No Diagnosis
* Axis III:  Chronic low back pain; Migraine headaches
* Axis IV:  Moderate, financial, occupational, and marital
* Axis V:  Global Assessment of Functioning (GAF) score: 60

8.  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.

9.  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. 

10.  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.

11.  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.

12.  The VASRD states, in the case of mental disorders, the nomenclature employed in this portion of the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  Rating agencies must be thoroughly familiar with this manual to properly implement the directives in §4.125 through §4.129 and to apply the general rating formula for mental disorders in §4.130.  The schedule for rating for mental disorders is set forth as follows.  VASRD Code 9413 applies to Anxiety Disorder, NOS. 

	a.  A 50% rating is assigned in the case of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

	b.  A 30% rating is assigned in the case of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

	c.  A 10% rating is assigned in the case of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

	d.  A 0% rating is assigned in the case of a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.




DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in April 2011 that referred him to a PEB.  His MEB listed only two conditions - left knee patellofemoral syndrome and lumbar intervertebral disc syndrome - that failed retention standards and several other conditions, none of which was a behavioral health condition, that met retention standards.  

2.  The PEB found the conditions 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 10% for those two conditions.  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 separation with entitlement to severance pay at the rate of 10%.  Subsequent to his counseling, he was discharged on 4 December 2011.

3.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologists ruled out Adjustment Disorder, PTSD, and Anxiety Disorder but recommended the addition of "Anxiety Disorder, fails retention standards."  This reevaluation reveals the applicant displayed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  This would have warranted a 30% disability rating.  

4.  The subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of his records to show, in addition to left knee patellofemoral syndrome and lumbar intervertebral disc syndrome as disabling conditions and rated at 10%, Anxiety Disorder also as a disabling condition that did not meet retention standards, effective 4 December 2011, the date of his original discharge, and is rated at 30%. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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.  adding "Anxiety Disorder, chronic, fails retention standards"; 

	b.  showing, in addition to his existing rated disabilities, an additional determination of unfitness for Anxiety Disorder with placement on the TDRL at the rate of 30 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 severance/retired pay.

2.  The Board further determined that the evidence presented was 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 PTSD being an unfitting condition. 




      _______ _   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)                                         AR20130019034



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019034



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1