IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130019261 


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 reconsideration of his earlier request for a review of the military disability evaluation of his mental health condition.  

2.  The applicant states in his original application that he was first diagnosed with anxiety, not otherwise specified (NOS).  However, upon reevaluation he received a diagnosis of post-traumatic stress disorder (PTSD).  In its original consideration, the Board only administratively changed the disposition of his separation from temporary to permanent disability.   

3.  The applicant provides a medical evaluation board (MEB) Addendum. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130002026 on 25 July 2013. 

2.  The applicant provides a new argument in relation to his MEB Addendum. 

3.  Having had prior service, the applicant enlisted in the Washington Army National Guard (WAARNG) on 8 February 2002 and he held military occupational specialty (MOS) 21B (Combat Engineer). 

4.  He was ordered to active duty on 18 August 2008 and subsequently served in Kuwait/Iraq from 29 October 2008 to 23 March 2009.  He was transferred from theater through Landstuhl Regional Medical Center and subsequently to Madigan Army Medical Center in March 2009.  He was assigned to the Warrior Transition Unit, Fort Lewis, WA. 

5.  On 21 January 2010, he was referred for an MEB consultation due to a history of treatment for anxiety in the past 6 months.  He was diagnosed with Anxiety Disorder - NOS. 

6.  On 16 February 2010, he underwent a physician-directed MEB.  His narrative summary shows:

	a.  He injured his wrist on 28 October 2008 while walking up a wet, grassy hill carrying a .50-caliber machine gun and wearing body armor, Kevlar, and full gear.  He continued to train and ultimately deployed with his unit.  He was evaluated in theater several times and he was treated conservatively.  He was transferred from theater to Landstuhl Regional Medical Center in March 2009 and subsequently to Madigan Army Medical Center.  

	b.  After several examinations, evaluations, and medical procedures, he was diagnosed with the medically unacceptable conditions of left wrist tenosynovitis and bilateral plantar fasciitis with bilateral heel spurs that did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was also diagnosed with the medically acceptable conditions of anxiety, gastroesophageal reflux disease (GRD), headaches, erectile dysfunction, hyperlipidemia, varicose veins, and irritable bowel syndrome.  

7.  On 9 April 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.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Left wrist tenosynovitis

X
2.  Bilateral plantar fasciitis with bilateral heel spurs, existed prior to service (EPTS) 

X
3.  Bilateral mixed hearing loss, EPTS
X

4.  Anxiety 
X

5.  Gastroesophageal reflux disease 
X

6.  Headaches
X

7.  Erectile dysfunction 
X

8.  Hyperlipidemia
X

9.  Varicose veins 
X

10.  Irritable bowel syndrome
X

8.  The MEB recommended his referral to a physical evaluation board (PEB).  He did not agree with the MEB's findings and recommendation and he submitted an appeal.  In his appeal, dated 4 May 2010, he requested the MEB:

* change the finding that his bilateral mixed hearing loss existed prior to service and had not been permanently aggravated by service
* reconsider and change the anxiety disorder from met retention standards
* update his narrative summary to include his scars
* include his rib pain as a medical condition
* change other administrative errors

9.  On 7 May 2010, he received a response to his appeal as follows:

* non-concurred with his request to change the finding of his bilateral mixed hearing loss from existed prior to service and had not been permanently aggravated by service
* considered his request to reconsider and change the anxiety disorder met retention standards, but no psychiatric restrictions were found
* non-concurred with his request to update his narrative summary to include his scars
* non-concurred with his request to include his rib pain as a medical condition
* changed some other administrative errors

10.  The applicant indicated he reviewed the contents of the MEB packet, narrative summary, and physical profile.  He acknowledged the PEB would consider and review only those conditions listed on his profile and that his profile included all his medical conditions, whether or not they met retention standards.  He agreed that the MEB covered all his current medical conditions.  

11.  On 3 June 2010, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) as below. The PEB also considered the other conditions listed on his MEB.  However, those conditions were determined to meet retention standards by the military treatment facility.  Further consideration by the PEB found the conditions to be not unfitting and therefore not ratable.


VASRD Code
Condition
Percentage
5276
Pes planus described as bilateral plantar fasciitis
30%
9413
Anxiety disorder, NOS
30%
5024
Tenosynovitis of the left wrist
10%
12.  The PEB recommended the applicant's permanent retirement at a combined rating of 60%.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 10 June 2010 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

13.  On 6 August 2010, Joint Base Garrison, Joint Base Lewis - McChord, WA, published Orders 218-0019 releasing him from the Army by reason of disability and, erroneously, placing him on the temporary disability retired list (TDRL).

14.  On 8 September 2010, he was honorably retired under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), due to permanent disability.  The DD Form 214 he was issued shows he completed 2 years and 21 days of creditable active service.

15.  An email, dated 22 July 2013, from an official at the U.S. Army Physical Disability Agency indicated the applicant's permanent retirement orders were in error as they indicated he was placed on the TDRL.  This led to a TDRL examination.  

16.  He submitted a medical evaluation titled "TDRL Evaluation," dated 21 April 2012, that shows a diagnosis of chronic PTSD.  It appears this "TDRL Evaluation" was titled in error and should have stated "MEB Addendum."  On 
11 April 2012, Dr. P.G. Fe-----k conducted a cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health evaluation.  Dr. P.G. Fe-----k provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic, combat 
* Axis II: No diagnosis 
* Axis III: See medical records 
* Axis IV: Economic problems (inadequate finances); Occupational Problems (unable to fulfill current Army duties related to behavioral health concerns)
* Axis V: Global Assessment of Functioning (GAF) score of 50; serious impairment in current functioning

17.  On 23 August 2013, his original orders were rescinded and he was issued a new set of orders retiring him from active duty effective 8 September 2010 by reason of permanent retirement. 

18.  Memorandum, dated 16 April 2013, Subject: Madigan Fusion Cell Cases 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.  The Madigan Fusion Cell conducted clinical evaluations to determine if these Soldiers met appropriate diagnostic criteria.  The MEB Addendum reflects the results of these clinical evaluations. 

19.  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. 

20.  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 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.

21.  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 April 2010 that referred him to a PEB.  His MEB listed his left wrist tenosynovitis and bilateral plantar fasciitis with bilateral heel spurs (EPTS) as the conditions that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found some of his conditions prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to this condition.  The PEB rated him for bilateral plantar fasciitis, anxiety disorder (NOS), and left wrist tenosynovitis.  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 at the rate of 60 percent.  He ultimately retired in September 2010. 

3.  In April 2012, he received a reevaluation of his health conditions to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health specialist changed a PTSD diagnosis.  This behavioral health reevaluation revealed a diagnosis of chronic PTSD that failed retention standards. 

4.  The initial MEB psychiatric evaluation has disadvantaged the applicant.  Therefore, the subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of his records to show "PTSD, chronic" instead of "Anxiety Disorder - NOS" as a disabling condition that did not meet retention standards, effective 8 September 2010, the date of the applicant's original retirement. 

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20130002026, dated 25 July 2013.  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, fails retention standards" and addition of "PTSD, chronic, fails retention standards"; 

	b.  showing, in addition to any existing disabilities (if applicable), a determination of unfitness for PTSD in lieu of anxiety disorder, 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 he was placed on the TDRL effective the date of the original medical separation for disability; and

	d.  adjusting his retired pay if appropriate.




      _______ _ 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)                                         AR20130019261



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019261



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1