IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140021515 


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, in effect, correction of her record to show she was medically unfit for post-traumatic stress disorder (PTSD) and to change her disability percentage to reflect this additional diagnosis.

2.  The applicant states, in effect, she underwent a fusion cell reevaluation that diagnosed her with PTSD. 

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

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Washington Army National Guard (WAARNG) on 8 January 1998 and she held military occupational specialty 63H (Tracked Vehicle Mechanic).

2.  She was ordered to active duty on 9 March 2002 in support of Operation Noble Eagle and she served with the WAARNG State Area Command.  She was honorably released from active duty on 20 February 2003. 

3.  She was ordered to active duty on 5 February 2005 and served in Kuwait/Iraq from 12 April 2005 to October 2005 (she returned early because of family problems).  She was assigned to the 951st Maintenance Company.  

4.  On 10 March 2006, she underwent a mental health evaluation at Madigan Army Medical Center, Fort Lewis, WA.  Her diagnosis was as follows: 

* Axis I:   No psychiatric disorder
* Axis II:  No diagnosis
* Axis III: Per medical board narrative summary 
* Axis IV: Psychological stressors, deployment to Iraq, chronic pain, and some family difficulties with her 2 special needs boys
* Axis V:  Global Assessment of Functioning (GAF), current: 75; maximum functioning in the past 12 months: 75

5.  On 1 May 2006, 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).  She agreed.  



Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Chronic neck pain secondary to degenerative disk disease  

X
2.  Left ankle pain secondary to peroneus brevis tendon tear 

X
3.  Mild right carpel tunnel syndrome
X

4.  Migraines
X

5.  Left planter fascitis
X

6.  Crohn's disease 
X

7.  Fatty liver
X

6.  On 31 May 2006, 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 the two conditions that failed retention standards.  The PEB rated the applicant's medically-unacceptable conditions under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) as follows: 

* VASRD Code 5237, chronic radiating neck pain, 10 percent
* VASRD Codes 5099/5003, chronic ankle pain following an accident not confirmed by the medical records, 10 percent

7.  The PEB also considered her other medical conditions but found these conditions not to be unfitting and therefore not ratable. The PEB recommended a 20 percent combined disability rating and separation with entitlement to severance pay if otherwise qualified.  The applicant was counseled and concurred with the PEB findings and recommendations and waived her right to a formal hearing of her case.   

8.  On 26 July 2006, she was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), paragraph 4-24B(3), by reason of disability with severance pay.  

9.  On 23 May 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 (emphasis added) for duty.  Dr. D'A----o proposed a change to the applicant's May 2006 MEB Proceedings to add a diagnosis of the medically unacceptable condition of "PTSD – chronic, failed retention standards."  Dr. D'A----o provided an MEB Addendum that shows a 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:  GAF at separation 55; current GAF 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 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 percent 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 May 2006 that referred her to a PEB.  Her MEB listed only two conditions, both physical conditions, of chronic neck pain and chronic ankle pain that failed retention standards and several other conditions that met retention standards.  

2.  The PEB found the two 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 disability of chronic neck pain and left ankle pain at a 20 percent combined rating.  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 26 July 2006. 

3.  Subsequent to her discharge, she underwent a fusion cell reevaluation.  The clinical psychologist proposed a change to the applicant's MEB Proceedings to add the medically unacceptable condition of "PTSD – chronic, 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 PTSD, chronic, as a disabling condition that did not meet retention standards, effective 26 July 2006, 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 Proceedings "PTSD, chronic, fails retention standards"; 

	b.  showing, in addition to the existing disabling/ratable condition, 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.  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 as 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)                                         AR20140021515



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ABCMR Record of Proceedings (cont)                                         AR20140021515



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