IN THE CASE OF:	  

		BOARD DATE:	 4 June 2015 

		DOCKET NUMBER:  AR20150003185 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims.  The court directs the ABCMR to reconsider the applicant's request for a medical retirement. 

2.  The applicant filed, through counsel, a civil lawsuit with the U.S. Court of Federal Claims wherein counsel alleges his client should have been medically retired vice honorably discharged from the Regular Army on 28 July 2008.  Counsel argued that the record is incorrect in that the applicant should have been medically retired with a rating of 100 percent or 70 percent, or at a minimum be transferred to the Temporary Disability Retired List (TDRL) until the expiration of the five-year statutory period for TDRL placement, which expired on 30 March 2012, and thereafter be placed on the Permanent Disabled Retired List (PDRL) with a rating of 100 percent or at least 70 percent based on his post-traumatic stress disorder (PTSD) or other compensable mental health condition.   

3.  On 5 December 2014, the U.S. Court of Federal Claims issued an unopposed motion to remand the case back to the ABCMR to adjudicate the merits of the applicant's claim for disability retirement, and the ABCMR (the Board) has stated it will reconsider his application.  

4.  The applicant provides all arguments and evidence through counsel.




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel essentially requests reconsideration of the applicant's request for a medical retirement with a disability rating of 100 percent or 70 percent.  He also requests a personal appearance before the Board.

2.  Counsel states:

* the applicant had several serious medical conditions that, under the governing regulations, should have rendered him unfit and medically retired due to, but not limited to, PTSD and major depressive disorder with psychotic features
* the governing regulations, Army Regulation (AR) 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), rebut the presumption of regularity
* the applicant had much more than a mere presence of a physical impairment which should have found him unfit at a Physical Evaluation Board (PEB)
* the evidence strongly suggests a finding that at the time of separation the applicant's disabilities met at least the 30 percent threshold required by law
* the factual determination made by the Department of Veterans Affairs and civilian mental health documentation strongly supports a finding that a PEB should have granted him at least a 30 percent rating 
* the applicant satisfies all the other requirements for a medical retirement

3.  Counsel requests that the applicant's record be corrected to show that he was not separated from the Army on 28 July 2008, but instead was either:

   a.  Permanently retired as a result of his "in the line of duty" mental health disability, properly rated at 100 percent disabling, or at least 70 percent; or
   
   b.  Continued on the TDRL until such time as his mental health disability was stable for rating purposes or until 30 March 2012, at which time he was  permanently retired with a rating of 100 percent, or at least 70 percent; and
   
   c.  Whichever alternative relief is warranted, that in either case, his condition(s) be found to be combat related.

4.  Counsel provides:

* An email response, dated 10 April 2015, to the advisory opinion from the Office of the Surgeon General (OTSG), undated
* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* Memorandum in support of the application
* Federal District Court decision to remand
* DA Form 199 (PEB Proceedings), dated 6 December 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Physical Disability Agency letter, dated 28 July 2008
* DA Form 199, dated 25 June 2008
* U.S. Army PEB letter, dated 25 June 2008

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 ABCMR in Docket Number AR20120013280, on 12 March 2013, and in Docket Number AR20130011325, on 1 April 2014.

2.  The applicant was appointed as a commissioned officer in the Regular Army on 31 May 1989 and entered active duty on 29 June 1989.  The highest rank/grade he attained while serving on active duty was major/O-4.

3.  As stated in the previous Records of Proceedings:

   a.  In 2006, the applicant was serving in Iraq when he was diagnosed as having a major depressive disorder with psychotic features in full remission manifested by a history of depression and paranoia.  This diagnosis resulted in the applicant being air evacuated to the Walter Reed Army Military Medical Center (WRAMC) where he was hospitalized from 11-18 August 2006.  A 
17 August 2006 note in his records reflected a discharge diagnosis of delusional disorder and acute PTSD.

	b.  On 5 October 2006, a Medical Evaluation Board (MEB) convened at WRAMC and diagnosed him as having the following conditions:

* Axis I – severe major depressive disorder, single episode, with mood-congruent psychotic features manifested by continued paranoia, anxiety, depression, and anhedonia (psychological condition characterized by inability to experience pleasure in normally pleasurable acts) 

* external precipitating condition – minimal, divorce and past assignments
* premorbid personality and predisposition - none
* degree of military psychiatric impairment - marked
* impairment for social and industrial adaptability - definite
* medically unacceptable

* Axis II – no diagnosis on Axis II – narcissistic personality traits
* Axis III – none
* Axis IV – past divorce, deployment
* Axis V – Global Assessment of Functioning (GAF) score = 55

	c.  The MEB recommended the applicant's referral to a PEB.  The applicant concurred with the recommendations and findings of the MEB.

	d.  The original PEB proceedings are not in the available records.  However, his records show he retired on 30 March 2007 and was placed on the TDRL with a 30-percent disability rating effective 31 March 2007.

	e.  On 12 July 2007, he was awarded a combined 70-percent service-connected disability rating by the VA for paranoid-type delusional disorder with narcissistic traits (70 percent) and right shoulder degenerative joint disease 
(10 percent).

	f.  On 25 June 2008, a TDRL PEB convened at Fort Sam Houston, TX.  The disability description reviewed was major depressive disorder with psychotic features in full remission manifested by a history of depression and paranoia.  The PEB recommended the applicant's separation with severance pay.  The applicant concurred with the findings and recommendation of the PEB and elected not to appeal the determination.

	g.  On 28 July 2008, he was removed from the TDRL and he was honorably discharged by reason of disability with severance pay and a 10-percent disability rating.

	h.  On 20 October 2009, he was arrested for possessing a firearm as a prohibited person and for providing false information to a licensed firearms dealer.

	i.  On 10 January 2010, after being hospitalized for a forensic evaluation, he was sent to the Federal Detention Center in Miami, FL, to determine his competency to participate in legal proceedings.  The evaluator concluded the applicant was competent to participate in legal proceedings, but he was insane at the time of the offenses.

	j.  On 13 April 2010, the applicant was found not guilty by reason of insanity of the Federal charges against him and he was transferred to the Federal Medical Center (FMC) (a U.S. Federal Prison for male inmates requiring specialized or long-term medical or mental health care) in Rochester, MN, on 21 April 2010 for a risk assessment to determine whether his release would pose a risk to society.

	k.  On 30 April 2010, a risk assessment panel interviewed the applicant and determined that his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.  As a result, he was civilly committed on 9 June 2010.

	l.  On 10 May 2010, a forensic evaluation was prepared for the court which echoed the diagnosis of bipolar-type schizoaffective disorder, as well as the added diagnosis of PTSD. 

	m.  On 31 August 2011, an annual risk assessment was completed at FMC Rochester which diagnosed him with chronic PTSD with associated psychotic symptoms; sleep disorder related to another mental disorder; substance-induced mood disorder with psychotic features, in remission; and persecutory-type delusional disorder was ruled out.  The risk assessment recommended a conditional release to the Psychosocial Residential Treatment Program at the VA Medical Center in Biloxi, MS.  He was discharged from the Rochester FMC on 27 October 2011 and he completed the PTSD program in Biloxi on 23 December 2011.

	n.  The annual risk assessment indicates the applicant was entered into a Mobile, AL, infirmary and was later committed to a hospital for paranoid and strange behavior.  In 2009, after his release from this commitment, he was arrested for denying ever being admitted to a mental institution on the Bureau of Alcohol, Tobacco, and Firearms forms necessary to purchase several firearms.  This was also the behavior that led to his trial and ultimate commitment into the Rochester FMC after being found not guilty by reason of insanity.

4.  Counsel provided a letter from the Social Security Administration (social security disability notice), dated 16 July 2012, showing the applicant was entitled to social security benefits for disability and received a regular monthly payment of $1,943.00.

5.  Counsel provided a memorandum from COL J____ R. M____, dated 12 September 2012, wherein COL J____ R. M____ requested retroactive award of the Combat Infantryman Badge to the applicant.  This memorandum also outlined the applicant's service and experiences in Iraq.

6.  Counsel provided a letter from Dr. J____ L____, Jr. to Ms. E____ M. W____, dated 13 December 2012, wherein:

	a.  Dr. J____ L____, Jr. indicated the following diagnostic impressions:

* Axis I – chronic PTSD due to military combat/bipolar I disorder, most recent episode depressed, with psychotic features/dementia due to head trauma
* Axis II – none
* Axis III – history of chronic obstructive sleep apnea, concussions, and loss of consciousness, orthopedic
* Axis IV – psychological stressors – military combat, chronic illness, unemployment, financial, past incarceration
* Axis V – GAF score = 45 

	b.  Dr. J____ L____, Jr. stated there had been a wealth of potential causes for the applicant's impairments.  The applicant clearly suffers from PTSD as a result of his war experiences.  At some point he experienced psychotic episodes, but there is no way to clearly separate what percentage was due to the effects of psychiatric medications or the overwhelming of his psychological defense mechanisms due to life stress and his impaired cognitive function due to dementia.  It is more likely than not that a precipitating factor was a mild traumatic brain injury (TBI) due to repeated head injuries from boxing and other sports at West Point.  The stress of combat and command overwhelmed his defenses.  His treatment to date has been successful to the point that he can control his behavior, but only if he stays within a comfort zone of limited personal relationships and no time stress.  Even so, he is not able to function at all in a competitive work environment due to his PTSD and TBI-related deficits.

7.  Counsel provided a Mental Residual Functional Capacity Questionnaire and General Rating Formula for Mental Disorders, dated 21 February 2013.  These forms were completed by Dr. J____ L____, Jr. and show he felt the applicant's service-connected mental impairments should be rated by the VA at 100 percent.

8.  The applicant's sister, a board-certified internal medicine physician, wrote a letter to his Member of Congress, dated 7 May 2013.  She indicated the applicant was diagnosed with PTSD at WRAMC and then placed on the TDRL.

9.  Counsel provided five trauma accounts, dated 19 May 2013.  These accounts are the applicant's self-authored accounts of five traumatic incidents he experienced while serving in Iraq.

10.  Counsel provided a letter from Dr. E____ C. H___, a VA staff psychiatrist, dated 3 July 2013, wherein Dr. E____ C. H____ stated the applicant had been diagnosed with PTSD and bipolar disorder and had a history of medication-induced psychotic episodes.  Dr. E____ C. H____ opined that the applicant first began suffering from PTSD after ground combat in Iraq, that he has had significantly disabling PTSD since then, and that he continues to be significantly disabled by these symptoms.

11.  The OTSG recommended approval of his request.  The advisory official stated:

	a.  PTSD is sufficiently supported by the applicant's available medical record in accordance with the criteria established by the Diagnostic and Statistical Manual of Mental Disorders current at the time of his evaluation and treatment.  He was exposed to potentially traumatic events during his deployment to Iraq.  Criteria were additionally met for re-experiencing, avoidance, and hyper-arousal.  The duration of his symptoms was greater than the required one month.  He also experienced clinically significant distress and impairment in occupational or other important areas of functioning.  His disability was determined to have been incurred in a combat zone or during the performance of duty in combat-related operations as designated by the Secretary of Defense.

	b.  Taking into consideration the available record during the applicant's military service, there is sufficient documentation to conclude that he qualified for a PTSD diagnosis and a psychotic disorder with clinically significant impairment in occupational or other important areas of functioning.  Documentation also supports that he would have been unable to work full time in any civilian position.

12.  In his response to the advisory opinion counsel stated that while they were substantively in agreement with the advisory opinion, it did not address all of the issues raised in the application for correction of his Army records; therefore, they do not have a response to the advisory opinion, as it appears to support the issues that they did raise and were addressed within the advisory opinion.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

14.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

15.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

16.  Title 38, Code of Federal Regulations (CFR) sets forth the Veteran's Schedule for Rating Disabilities (VASRD).  Section 4.3 provides that when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  Section 4.7 provides where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.

17.  Title 38, CFR, Section 4.129, covers mental orders due to traumatic stress.  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 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

18.  Title 38, CFR, Section 4.130-3 provides the General Rating Formula for Mental Disorders:

	a.  A 100-percent rating is appropriate when total occupational and social impairment exists due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.

	b.  A 70 percent rating is appropriate when an occupational and social impairment exists with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to such symptoms as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control 9such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

	c.  A 70 percent rating is appropriate when occupational and social impairment exists with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g. retention of only highly learned material forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

DISCUSSION AND CONCLUSIONS:

1.  Military physicians, including Dr. L____ M. C____, diagnosed the applicant as having the condition of major depressive disorder with psychotic features.  There appears to be evidence of record to show the applicant also had PTSD at the time of his PEB, but he was only placed on the TDRL due to his major depressive disorder.  

2.  The PEB appropriately placed the applicant on the TDRL after determining that his condition was unfitting.  Prior to his removal from the TDRL, Dr. L____ M. C____ stated the applicant's diagnosed condition of major depressive disorder was in full remission; however, he recommended additional time for observation to better characterize the nature of the applicant's illness because his remission was relatively brief.  The applicant's PTSD was not addressed by the PEB.

3.  It appears the physicians and board members of the PEB did not weigh all the medical documentation prior to making the final decision to remove him from the TDRL.  Based on the information available in his military records, the PEB determination appears to be inaccurate even though the applicant concurred with the findings.  The conclusion that he had a mental health condition warranting a higher percentage rating is bolstered by his admission into a psychiatric hospital shortly after his reevaluation by a PEB.

4.  The physicians counsel refers to, both VA and private, were not involved in the applicant's diagnosis or treatment at the time he was being treated by military doctors and undergoing the PEB.  These doctors did not examine the applicant until later.  Their opinions are based on a cumulative review of the applicant's records which has relied heavily on medical information, treatments, and situations which occurred after the applicant's military service.

5.  The Army found the applicant unfit for continued service based on the diagnosed condition of major depressive disorder with psychotic features which prevented him from performing his duties satisfactorily.  That said, his in-service Army medical records do include reference to a PTSD diagnosis at one point prior to his MEB and PEB.  He was removed from the TDRL in July 2008 and he was not diagnosed with PTSD by the VA until on or around May 2010 when he received a forensic evaluation.

6.  Based on the applicant's medical records and the advisory opinion from the OTSG, his PTSD and major depressive disorder with psychotic features were sufficiently supported by the available medical records at the time of his separation on 31 March 2007.  He met the criteria established by the Diagnostic and Statistical Manual of Mental Disorders current at the time of his evaluation and treatment.  

7.  Title 38, CFR, Section 4.130-3, the General Rating Formula for Mental Disorders provides sufficient guidance that the applicant met, and should have rendered him unfit and medically retired under the TDRL at 70 percent due to, but not limited to, PTSD and major depressive disorder with psychotic features.  

8.  Furthermore, a forensic evaluation was prepared for the court which echoed the diagnosis of bipolar-type schizoaffective disorder as well as the added diagnosis of PTSD.  Later it was determined that his release from civil confinement would create a substantial risk of bodily injury to another person or serious damage to the property of another.  Therefore, under the appropriate guideline from the General Rating Formula, it would have been appropriate to have transferred the applicant to the PDRL with a 100 percent rating, since it is clear his condition only worsened after being placed on the TDRL.

9.  Based on the foregoing, there is sufficient evidence to grant the requested relief.

BOARD VOTE:

____X_____  ___X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant an amendment of the ABCMR's decisions set forth in Docket Number AR20120013280, on 12 March 2013, and in Docket Number AR20130011325, on 1 April 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the applicant's record to show:

   a.  He was placed on the TDRL with a 70 percent disability rating on 31 March 2007 and remained on the TDRL until 30 March 2012 due to major depressive disorder with psychotic features and PTSD.

   b.  On 1 April 2012, he was placed on the PDRL with a 100-percent disability rating due to major depressive disorder with psychotic features and PTSD.
   
   c.  His disability is determined to have been incurred in a combat zone or during the performance of duty in combat-related operations.

2.  The applicant will be authorized all back pay he is due as a result of these corrections.
      
      
      
      ____________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)                                         AR20150000498



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ABCMR Record of Proceedings (cont)                                         AR20150003185



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