IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20140001231 


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 her mental health condition.  

2.  The applicant states her physical evaluation board (PEB) should be changed to add post-traumatic stress disorder (PTSD) as a condition that failed retention standards while depression disorder should be shown as having met retention standards.  She underwent a fusion cell revaluation that diagnosed her with PTSD. 

3.  The applicant submits her Medical Evaluation Board (MEB) Psychiatric Addendum. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 August 1998 and she held military occupational specialty 92A (Automated Logistical Specialist).  She served through multiple reenlistments in a variety of assignments and she attained the rank/grade of sergeant (SGT)/E-5. 

2.  She served in Iraq from 30 September 2004 to 22 September 2005.  

3.  On 14 August 2007, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as suffering from the conditions below. 

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Left knee pain

X
2.  Depressive Disorder
X

3.  Headaches
X

4.  Hypertension
X

5.  Back pain status post bilateral breast reduction
X

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

5.  On 12 October 2007, a formal PEB convened and reviewed the medical data and other facts presented to include the commander's statement.  The PEB found the applicant's conditions prevented her from performing the duties required of her grade and military specialty and determined that the applicant was physically unfit due to degenerative arthritis.   

	a.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition
Percentage
5003
Degenerative arthritis
0 percent (%)
	b.  The PEB also considered her other medical conditions but found those conditions not to be unfitting and therefore not ratable.  The PEB recommended a 0% combined disability rating and separation with entitlement to severance pay.  Her concurrence/non-concurrence statement is not available for review with this case. 

6.  On 20 February 2008, the applicant was honorably discharged from active duty in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with entitlement to severance pay. 

7.  On 17 March 2009, the U.S. Army Physical Disability Agency amended her PEB to show a rating of 10% vice 0% for her degenerative arthritis. 

8.  On 3 January 2014, Dr. M.A. D'A----o, PhD, a clinical psychologist, conducted a fusion cell reevaluation of the applicant's behavioral health to assess her current psychiatric fitness for duty.  Dr. M.A. D'A----o proposed the deletion of "Depressive Disorder, meets retention standards" and the addition of "PTSD, chronic, fails retention standards."  
9.  Dr. M.A. D'A----o provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I:  PTSD, chronic, moderate
* Axis II:  Deferred
* Axis III:  See medical records
* Axis IV:  Physically separated from her children due to deployment and her son is involved in legal system
* Axis V:  Estimated Global Assessment of Functioning (GAF) score at time of separation of 55; current is 55

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 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 August 2007 that referred her to a PEB.  Her MEB listed only one condition, left knee pain, that failed retention standards and several other conditions, including depressive disorder, that met retention standards.  

2.  The PEB found the one condition 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 0% (changed in March 2009 to 10%) for degenerative arthritis.  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 on 20 February 2008.

3.  Subsequent to her retirement, she underwent a fusion cell reevaluation, in January 2014.  The clinical psychologists rendered a Behavioral Health diagnosis of chronic PTSD and proposed the deletion of "Depressive Disorder, meets retention standards" and the addition of "PTSD, chronic, fails 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 PTSD, chronic, as a disabling condition that did not meet retention standards, effective 20 February 2008, 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 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.  deleting from her MEB/PEB proceedings "Depressive Disorder, meets retention standards" and adding "PTSD, chronic, fails retention standards" and

	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 for disability; and

	d.  adjusting the individual's retired/separation 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)                                         AR20140001231



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ABCMR Record of Proceedings (cont)                                         AR20140001231



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