IN THE CASE OF:	   

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140009230 


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 she underwent a fusion cell revaluation that diagnosed her with Post-Traumatic Stress Disorder (PTSD) with Major Depressive Disorder. 

3.  The applicant provides:

* Congressional correspondence
* DD Form 2870 (Authorization and Disclosure of Medical or Dental Information)
* Madigan Fusion Cell Letter
* Medical Evaluation Board (MEB) Psychiatric Addendum
* Award certificate
* Letter from Madigan Army Medical Center to her Member of Congress
* Separation orders
* Fit for Duty Physical Evaluation Board (PEB) Proceedings
* Unfit for Duty PEB
* Enlisted Record Brief
* Department of Veterans Affairs (VA) medical records

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 November 1999 and she held military occupational specialty 68W (Health Care Specialist).  She served through multiple extensions and/or reenlistments in a variety of stateside or overseas assignments, including Iraq from 29 October 2005 to 28 October 2006. 

2.  In early 2007, she was referred to the Army Physical Disability Evaluation System (PDES) after having been issued a restrictive physical profile.

3.  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 insufficient evidence that her condition of Diabetes mellitus, Type II, precluded satisfactory performance of duty of a Soldier of her rank and military specialty.  The PEB found her "Fit for Duty" and ordered her returned to duty. 

4.  On 20 August 2009, 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.  Diabetes mellitus, Type II

X
2.  Migraine headaches without aura

X
3.  Chronic left shoulder pain, due to tendonitis of rotator cuff musculature 

X
4.  Right foot pain and neuropathy due to cut by nail polish glass bottle  

X
5.  Left foot pain status post fracture and open reduction internal fixation
X

6.  Neck pain, status post motor vehicle accident
X

7.  Back pain, status post motor vehicle accident
X

8.  Phase of life problem
X

9.  Occupational problems 
X

10.  Bilateral hip pain due to Ilio-tibial band syndrome 
X

11.  Bilateral knee pain
X

12.  Secondary infertility status post right fallopian tube surgery 
X

13.  Bilateral temporal mandibular joint syndrome
X

14.  Hyperlipdemia
X

15.  Hypertension
X

16.  Periodontal disease and gingivitis
X

15.  Myopia with astigmatism
X

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

6.  On 3 November 2009, an informal 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 below conditions.  

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

VASRD Code
Condition
Percentage
8024
Tendinopathy, left shoulder with history of chronic pain 
10 percent
8100
Migraine headaches without aura
Zero percent
	b.  The PEB considered the two unfitting conditions of Diabetes mellitus, Type II and right foot pain and neuropathy but did not find those conditions unfitting.  It also considered her condition of secondary infertility status post right fallopian tube surgery but determined this condition is not a physical disability and therefore is not reviewed by the PEB.  Finally, the PEB considered her other medical conditions but found those conditions not to be unfitting but did not find therefore not ratable. 

	c.  The PEB recommended a 10 percent combined disability rating and separation with entitlement to severance pay, if otherwise qualified.  Subsequent to counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing of her case.

7.  She was honorably discharged from active duty on 25 February 2010, by reason of physical disability with entitlement to severance pay in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  Her DD Form 214 show she completed 10 years, 3 months, and 24 days of active service. 

8.  On 3 April 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 addition of "Post-Traumatic Stress Disorder, chronic, fails medical retention standards, in accordance with paragraph 3-33(b) and (c), Army Regulation 40-501 (Standards of Medical Fitness), incurred while entitled to basic pay, did not exist prior to service."  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:  Exposure to war
* Axis V:  Estimated Global Assessment of Functioning (GAF) score at time of separation of 55; current is 60

9.  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.

10.  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. 

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.  
   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.

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.  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 2009 that referred her to a PEB.  Her MEB listed only four conditions, all physical conditions: Diabetes mellitus, Type II; Migraine headaches without aura; Chronic left shoulder pain, due to tendonitis of rotator cuff musculature; and Right foot pain and noeuropathy due to cut by nail polish glass bottle.   

2.  The PEB found two of the conditions that failed retention standards were unfitting and 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 10 percent for Tendinopathy, left shoulder with history of chronic pain; and Migraine headaches without aura.  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 her separation with entitlement to severance pay of otherwise qualified.  She concurred and she was separated on 24 March 2010. 

3.  Subsequent to her discharge from active duty, she was identified as one of those Soldiers who needed a reevaluation.  Accordingly, she underwent a fusion cell reevaluation.  The clinical psychologist proposed/recommended a change to her diagnosis.  The clinical psychologist rendered a Behavioral Health diagnosis of chronic PTSD.  

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 25 February 2010, 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.  adding to her MEB/PEB "PTSD, chronic, fails retention" 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 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)                                         AR20140009230





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ABCMR Record of Proceedings (cont)                                         AR20140009230



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