IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130019039 


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 after he had been discharged, the Army changed his medical evaluation board (MEB) diagnosis to show post-traumatic stress disorder (PTSD).  PTSD is a non-retainable medical condition.  The PTSD diagnosis would have changed his rating percentage and medically retired him from active duty. 

3.  The applicant submits his MEB Psychiatric Addendum. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 24 June 1999 and held military occupational specialties 31B (Military Police) and 12B (Combat Engineer).  

2.  He executed two reenlistments, on 9 January 2003 and on 7 September 2005. He served in Yugoslavia from 1 April to 15 November 2002, Bosnia/Herzegovina from 2 September to 1 October 2003, and Iraq from 
1 August 2004 to 5 February 2005 and 2 January 2007 to 5 January 2008.  

3.  On 15 June 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.  Chronic bilateral knee pain secondary to patellofemoral syndrome

X
2.  Migraine headaches, well controlled with medications
X

3.  Cervical strain, status post superficial wound to the neck 
X

4.  Acne vulgaris, facial superficial
X

5.  Rhino sinusitis
X

6.  Persistent left ear tinnitus 
X

7.  Bilateral shoulder impingement syndrome  
X

8.  Mild bilateral tricep tendonitis
X

9.  Left wrist strain
X

10.  Residual numbness of site of canine bite to left forearm 
X

11.  Hyperactive gastro-colic reflex
X

12.  Lumbar spine strain
X

13.  Bilateral shin splints
X

14.  Mild bilateral ankle pain
X

15.  Plantar fasciitis, right heal
X

4.  On 12 October 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 chronic bilateral knee pain.   

	a.  The PEB noted that the applicant first complained of knee pain in basic combat training in 1999.  His condition worsened from intervening injuries, one of which was combat related.  He twisted his right knee when he fell after being grazed by a bullet in Iraq in 2007.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows: 

VASRD Code
Condition
Percentage
5260
Chronic bilateral knee pain secondary to patellofemoral syndrome 
20%
	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 20% 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.

5.  The applicant was discharged on 7 January 2012 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, with entitlement to severance pay.  

6.  On 9 April 2012, Dr. B.A. L----n, a clinical psychologist, conducted a fusion cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty.  Dr. B.A. L----n proposed the addition of "PTSD, chronic, meets retention standards."  Dr. B.A. L----n provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I:  PTSD, Chronic
* Axis II:  Deferred, Cluster B Traits
* Axis III:  Per PEB
* Axis IV:  Unemployment, transition to civilian status, social/familial
* Axis V:  Current Global Assessment of Functioning (GAF) score of 60; highest GAF in the past year 75

7.  Dr. B.A. L----n stated that although the applicant had stated he had been exposed to a traumatic event and meets criteria that is consistent with PTSD, he meets retention standards but would be a risk for decompensation if he were deployed to a combat environment.  

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.  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.  Conditions that meet retention standards and determined not to be unfitting are not ratable.  

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in March 2011 that referred him to a PEB.  His MEB listed only one condition - chronic bilateral knee pain - that failed retention standards and several other conditions that met retention standards.  No behavioral health conditions were diagnosed. 

2.  The PEB found the one 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 20% for chronic bilateral knee pain.  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 20%.  Subsequent to his counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  He was discharged on 7 January 2012.

3.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologist diagnosed him with PTSD; however, he determined this condition met retention standards.  The clinical psychologist recommended the addition of "PTSD, chronic, meets retention standards."

4.  The subsequent reevaluation clearly shows the applicant's PTSD did not fail retention standards and as such was not unfitting.  Medical conditions that are found not to be unfitting are not ratable.  Therefore, there is insufficient evidence to change the applicant's PEB findings or change his disposition to medical retirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __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)                                         AR20130019039



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ABCMR Record of Proceedings (cont)                                         AR20130019039



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