IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130019684 


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

2.  The applicant states, in effect, she received a fusion cell reevaluation that diagnosed her with mental disorders. 

3.  The applicant submitted a DA Form XXXX (Redacted), dated 17 April 2008, and 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 AR20120015788, on 15 October 2013. 

2.  The applicant provides a document (Redacted) confirming the source of her post-traumatic stress disorder (PTSD).  This is considered new evidence which was not previously considered by the Board.  

3.  Having had prior service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 15 July 2004.  She held military occupational specialty 42A (Human Resources Specialist).

4.  On 8 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 her referral to a physical evaluation board (PEB):

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Chronic low back pain secondary to degenerative joint disease

X
2.  Depressive Disorder, Not Otherwise Specified (NOS)
X

3.  Personality Disorder, NOS
X

4.  Bilateral halux valgus
X

5.  Bilateral pes planus
X

6.  Bilateral plantar fasciitis 
X

7.  Bilateral ankle strain
X

8.  Endometriosis
X

9.  Tension headaches
X

10.  Hemorrhoids
X

5.  On 11 July 2011, 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 due to chronic low back pain.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition
Percentage
5242
Chronic low back pain
20 percent
The PEB also considered her other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended a 20 percent combined disability rating and permanent disability retirement.  Subsequent to counseling, the applicant ultimately concurred with the PEB's finding and recommendation.

6.  She was honorably discharged on 26 October 2011 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention Retirement or Separation) chapter 4, in the rank/grade of sergeant/E-5 with entitlement to severance pay.


7.   On 24 May 2012, Dr. T.J. El----, PhD, a clinical psychologist, conducted a fusion cell reevaluation of the applicant's behavioral health to assess her current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health specialist changed a PTSD diagnosis.  Dr. T.J. El---- proposed the:

* deletion of "Depressive Disorder, NOS, Meets retention standards, Existed Prior to Service, Not permanently aggravated by service"
* addition of "Dysthymic Disorder, Meets retention standards, Existed prior to service, Not permanently aggravated by service"
* addition of "Generalized Anxiety Disorder, Meets retention standards; Existed prior to service; Not permanently aggravated by service"
* addition of "PTSD, chronic, Fails retention standards"
* retention of "Personality Disorder, NOS; Meets retention standards; Existed prior to service; Not permanently aggravated by service"

8.  Dr. T.J. El---- provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic; Dysthymic Disorder; Generalized Anxiety Disorder
* Axis II: Personality Disorder NOS, Cluster C Features
* Axis III: See medical records
* Axis IV: Relationship problems
* Axis V: Global Assessment of Functioning (GAF) score of 60 (current) and 60 (highest during past year)

9.  She submitted a document (Redacted) that shows she sustained a traumatic event that most likely led to her PTSD and confirms the diagnosis in the MEB Addendum she submitted. 

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 April 2011 that referred her to a PEB.  Her MEB listed one condition that failed retention standards and several other conditions that met retention standards.  Her only complaint was the chronic low back pain.

2.  The PEB found this condition prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit due to chronic low back pain secondary to degenerative joint disease.  The PEB rated her at a combined rating of 20% for this condition.  The PEB also considered her 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.  She was discharged in October 2011. 

3.  In May 2012, she received a reevaluation of her health conditions to assess her current psychiatric fitness for duty.  This behavioral health reevaluation together with the document (Redacted) she submitted revealed a diagnosis of chronic PTSD that failed 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, in addition to chronic low back pain as a disabling condition and rated at 20%; PTSD, chronic, also as a disabling condition that did not meet retention standards, effective 26 October 2011, the date of her original discharge. 








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 AR20120015788, dated 15 October 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deletion of "Depressive Disorder, NOS, Meets retention standards, Existed Prior to Service, Not permanently aggravated by service"; addition of "Dysthymic Disorder, Meets retention standards, Existed prior to service, Not permanently aggravated by service"; addition of "Generalized Anxiety Disorder, Meets retention standards, Existed prior to service, Not permanently aggravated by service"; addition of "PTSD, chronic, Fails retention standards"; and retention of "Personality Disorder, NOS, Meets retention standards, Existed prior to service, Not permanently aggravated by service"; 

	b.  showing, in addition to any existing rated disabilities, a determination of unfitness for PTSD, 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 she was placed on the TDRL effective the date of the original medical separation for disability; and

	d.  adjusting her 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)                                         AR20130019684



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ABCMR Record of Proceedings (cont)                                         AR20130019684



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