IN THE CASE OF:	   

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130021126 


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, in effect, he underwent a mental health evaluation that diagnosed him with post-traumatic stress disorder. 

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

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army and the Army National Guard (ARNG), the applicant enlisted in the Nevada ARNG (NVARNG) on 12 August 2005 and he held military occupational specialty 11C (Indirect Fire Infantryman). 

2.  He served through an extension in the ARNG as well as an active duty mobilization from 16 August 2004 to 12 August 2005.  He again entered active duty on 31 July 2008 and subsequently served in Afghanistan from 31 July 2008 through 31 December 2009. 

3.  On 3 March 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 his referral to a physical evaluation board (PEB).  He was counseled but failed to indicate his agreement or disagreement within the allotted time.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  L4-5, L5-S1 degenerative disc disease S1 radiculopathy Existed Prior to Service (EPTS)

X
2.  Degenerative arthritis of cervical spine

X
3.  Status post arthroscopic surgery, left shoulder, with scar with residual anterior instability 

X
4.  Status post labral tear
X

5.  Post concussive headaches 
X

6.  Bilateral tinnitus
X

7.  Bruxism
X

8.  Tooth hypersensitivity
X

9.  Adjustment Disorder
X

4.  His records were considered by two PEBs.  The first convened on 9 August 2011 but it is not available for review with this case.  The second PEB informally reconsidered his case on 31 October 2011 based on a review of additional information and his case file.  

5.  The informal PEB reconsidered his case and found that some condition(s) prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the below conditions.  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
5237
L4-5/L5-S1 degenerative disc disease
20 percent
5242
Degenerative arthritis of cervical spine 
20 percent
5201
Left shoulder interior instability 
20 percent
8250
Right lower extremity radiculopathy
10 percent
6.  The PEB also considered the applicant's other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended a 50 percent combined disability rating and permanent disability retirement.  Subsequent to counseling, the applicant ultimately concurred with the PEB's finding and recommendation.

7.  The applicant retired on 14 March 2012 and he was placed on the Retired List in his retired rank/grade of sergeant first class (SFC)/E-7 on 15 March 2012 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention Retirement or Separation) chapter 4.

8.  On 9 July 2012, Dr. T.D. Fo----y, a clinical psychologist, 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 specialist changed a PTSD diagnosis.  Dr. T.D. Fo----y proposed the retention of "Adjustment Disorder, Meets retention standards" and the addition of "PTSD, chronic, Fails retention standards."

9.  Dr. T.D. Fo----y provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic; Adjustment Disorder with Depressed Mood, chronic
* Axis II: Deferred
* Axis III: See medical records
* Axis IV: Exposure to combat; interpersonal problems; problems with family relations 
* Axis V: Global Assessment of Functioning (GAF) score of 60 (current) and estimated at the time of separation 65

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.  Army Regulation 635-40 establishes the Army 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.

12.  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 that referred him to a PEB.  His available MEB listed several physical conditions that failed retention standards.  This MEB also listed several other conditions that met retention standards. 

2.  It appears that after his PEB convened in August 2011 additional information was provided which necessitated a reconsideration of his case in October 2011.  The October 2011 PEB found several physical conditions prevented him from performing the duties required of his grade and MOS and determined he was physically unfit due to those physical conditions.  None was for a behavioral/mental health condition.  The PEB rated him at a combined rating of 50% for these conditions.  The PEB also considered his other conditions but since those conditions did not fail retention standards/were not unfitting, they were not ratable.  The PEB recommended permanent retirement.  He retired on 14 March 2012.  

3.  Subsequent to his retirement, he underwent a fusion cell reevaluation.  The clinical psychologist proposed a change to the applicant's MEB Proceedings to retain "Adjustment Disorder, Meets retention standards" and add "PTSD, chronic, Fails retention standards."

4.  The subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of his records to show PTSD, chronic, as a disabling condition that did not meet retention standards, effective 14 March 2012, the date of his original retirement. 

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:

	a.  addition to his MEB/PEB Proceedings of "PTSD, chronic, fails retention standards"; 

	b.  showing, in addition to the existing disabling/ratable conditions, a determination of unfitness for PTSD with 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 the individual was placed on the TDRL effective the date of the original medical separation/retirement for disability; and

	d.  adjusting the individual's retired pay.




      _______ _   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)                                         AR20130021126



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ABCMR Record of Proceedings (cont)                                         AR20130021126



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