IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130019268 


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 correction of her records to show her physical disability diagnosis as post-traumatic stress disorder (PTSD) instead of major depressive disorder and anxiety.

2.  The applicant states the 2010 diagnosis of major depressive disorder and anxiety should have been listed as PTSD.  She was diagnosed as having PTSD in 2009 and she is 100-percent disabled because of PTSD.

3.  The applicant submitted her Temporary Disability Retired List (TDRL) Psychological Addendum, dated 27 August 2013.

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve (USAR) and Army National Guard, the applicant again enlisted in the USAR on 12 February 1994.  She served through multiple extensions or reenlistments and attained the rank/grade of first sergeant (1SG)/E-8.

2.  On 3 July 2002, she was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  On 19 April 2004, she was mobilized to active duty in support of Operation Enduring Freedom.

3.  On 18 August 2009, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as follows:

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  major depressive disorder

X
2.  headache syndrome

X
3.  neck pain
X

4.  back pain 
X

5.  restless leg syndrome
X

6.  nonorganic pseudoneurological symptoms
X

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

5.  On 31 March 2010, an informal PEB convened and found the applicant's condition(s) prevented her from performing the duties required of her grade and military specialty and determined the applicant was physically unfit as indicated below.  The PEB rated the applicant's medically-unacceptable conditions under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition 
Percentage
9434
major depressive disorder 
50
8100
headaches
10
	a.  The PEB noted the applicant had a history of depression since childhood.  However, there were no symptoms when she enlisted or during her initial training and any of her three deployments/overseas tours (Honduras, England, Bosnia); she reached the rank of 1SG.  Her symptoms were exacerbated when her sergeant major belittled her.  She was considered unfit for military service due to a risk of decompensation in a high-stress operational environment.  Her psychiatric narrative summary suggested improvement, but she had since gone into an 8-week hospitalization.

	b.  The PEB also considered the applicant's other conditions, but they were not ratable since those conditions did not fail retention standards and/or were not unfitting.  The PEB recommended a 60-percent combined disability rating and the applicant's placement on the TDRL with reexamination during October 2011. 
Subsequent to counseling, the applicant concurred with the PEB's findings and recommendation.

6.  The applicant retired by reason of temporary disability on 23 May 2010 and she was placed on the TDRL in the rank/grade of 1SG/E-8 on 24 May 2010 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2).

7.  On 27 August 2013, Dr. B____ R____, a licensed clinical psychologist, conducted a TDRL psychological evaluation of the applicant's behavioral health to assess her current psychiatric fitness for duty.  Dr. B____ R____ provided a TDRL Psychological Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I – delayed PTSD, chronic
* Axis II – no diagnosis
* Axis III – see medical records
* Axis IV – unemployment
* Axis V – global assessment of functioning score of 55 (current)

8.  On 30 September 2013, a TDRL PEB convened and found her conditions did not improve to the extent that she was considered fit for duty and she remained unfit to reasonably perform the duties required by her previous grade and military specialty.  However, her conditions were considered sufficiently stable for final adjudication.  The PEB rated the applicant's medically-unacceptable conditions under the VASRD as follows:

VASRD Code
Condition 
Percentage
9411
PTSD, previously cited as major depressive disorder 
70
8100
headaches
50
	a.  The PEB noted the summary language in the Behavioral Health Evaluation is suggestive of a lesser impairment; however, the overall narrative supports the assigned rating with disability code modification for diagnostic clarification in accordance with VASRD 4.7, 4.27, and 4.130.

	b.  The PEB recommended a 100-percent combined disability rating and the applicant's permanent retirement.  Subsequent to counseling, the applicant concurred with the PEB's findings and recommendation.

9.  U.S. Army Physical Disability Agency Order D281-15, dated 8 October 2013, removed her from the TDRL effective 8 October 2013 and permanently retired her with a 100-percent disability rating effective 9 October 2013.

10.  The Office of the Surgeon General memorandum, dated 16 April 2013, subject:  Madigan Fusion Cell Cases, was initiated by the Deputy 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 MEB's.

	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 for 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 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-percent disabling or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

	b.  Paragraph 4-17 provides guidance for PEB's.  Specifically, it states PEB's 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 recommendations may be revised.

13.  Army Regulation 40-501 (Standards of Medical Fitness) 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 6-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 August 2009 that referred her to a PEB.  Her MEB listed only two conditions that failed retention standards – major depressive disorder and headache syndrome –and several other conditions that met retention standards.

2.  The PEB found the conditions 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 60 percent for the two conditions.  The PEB also considered her other conditions, but they were not ratable since those conditions did not fail retention standards and/or were not unfitting.  The PEB recommended her placement on the TDRL at the combined rate of 60 percent.  She retired by reason of temporary disability on 23 May 2010 and she was placed on the TDRL in the rank/grade of 1SG/E-8 on 24 May 2010.

3.  Subsequent to her retirement, she underwent a TDRL reevaluation.  The clinical psychologists diagnosed her with delayed chronic PTSD but did not recommend or propose any changes to her 2010 diagnosis.

4.  Nevertheless, the subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of her records to show PTSD instead of major depressive disorder as a disabling condition that did not meet retention standards effective 23 May 2010, the date of her original retirement, compensable at 50 percent.

5.  Since she was rated at 50 percent for the unfitting condition of major depressive disorder and the unfitting condition of PTSD is also rated at 50 percent, a change to her diagnosis does not result in any change to the rating percentage or adjust her retired pay.

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 deleting "major depressive disorder, fails retention standards" from her original MEB/PEB Proceedings and replacing it with "delayed PTSD, chronic, fails retention standards."



      _______ _  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)                                         AR20130019268



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ABCMR Record of Proceedings (cont)                                         AR20130019268



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