IN THE CASE OF:    

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20150004658 


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:

The applicant defers to counsel.

COUNSEL'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. District Court, District of Connecticut.  The court remanded the applicant's case to the ABCMR for further proceedings consistent with the court's ruling.

2.  The applicant filed, through counsel, a civil lawsuit with the U.S. District Court, District of Connecticut, wherein counsel alleges his client should have been medically retired vice honorably released from active duty on 25 September 2003.  Counsel argued, in effect, that the record is incorrect in that the applicant should not have been separated before he had time to recover from his adjustment disorder (AD).  Not giving him up to 6 months violated Army Regulation 635-200, paragraph 5-17, which allows for "ample opportunity to recover."  Given the gray area between AD and post-traumatic stress disorder (PTSD), it is not accepted medical practice to diagnose someone as having AD without first waiting 6 months to allow for recovery.  Had the Army waited, it would have seen he did not recover from his AD symptoms as diagnosed; and the misdiagnosis would have been recognized; and he would have been properly diagnosed with PTSD.  The Department of Veterans Affairs (VA) evaluated the applicant 175 days after his evacuation from Kuwait and diagnosed him with PTSD.  On 2 March 2004, he was rated at 30 percent disabled.  His disability rating was subsequently increased first to 70 percent and then to 
100 percent disabled.  In June 2012, the applicant applied to this Board for a review of his discharge, asking to change his military records so that he could receive the benefits that would have been afforded had he been originally retired due to his physical disability.  The Board denied his request.

3.  On 30 September 2014, the U.S. District Court, District of Connecticut, granted the applicant's motion for summary judgment.  The Court vacated the ABCMR decision to deny the applicant's request for retirement due to his medical condition and remanded the case to the ABCMR for further proceedings consistent with the court's ruling.

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 AR20120011895, on 1 November 2012.

	a.  On 24 February 2003, the applicant was ordered to active duty as a member of the Army National Guard (ARNG) in support of Operation Enduring Freedom.  He served in Kuwait for approximately 28 days.

	b.  The complete facts and circumstances surrounding the applicant's separation were not available for review with this case.  The available evidence showed the applicant entered active duty on 24 February 2003 and was honorably released from active duty on 25 September 2003 to the control of his State under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of other designated physical or mental conditions.

	c.  The available evidence showed the applicant was referred for a mental status evaluation subsequent to exhibiting signs that his immediate commander perceived to have interfered with his ability to perform his duties.  He was diagnosed as having an AD with mixed anxiety and depressed mood.

	d.  He was not diagnosed with PTSD.  His AD diagnosis appeared to have been incompatible with continued military service.  It appeared his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.

	e.  There was no evidence in the available records and the applicant did not provide sufficient evidence showing that at the time of his separation from active duty he had been diagnosed with PTSD or any other condition that would have warranted his entry into the Physical Disability Evaluation System (PDES).  There was no available evidence showing he had a medical condition that did not meet retention standards.

	f.  Subsequent to the applicant's discharge, the VA evaluated him and diagnosed him with depression, AD, and PTSD.  It appeared the VA also awarded him service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

	g.  Counsel submitted a mental status evaluation that confirmed the AD, yet he failed to submit any documentation showing the applicant was diagnosed with PTSD, or that if he did in fact have PTSD, his condition was so severe that it rendered him unable to perform the duties required of his grade and military specialty.

	h.  The findings of the State medical review board were not available for review.  The applicant's disqualifying condition was unclear.  Counsel placed a lot of weight on a statement by a medical doctor in 2012, some 9 years after the applicant's discharge who states she evaluated his service medical records, yet none of these records were made available to the Board.  The doctor also stated the applicant did not meet the criteria for PTSD, but was experiencing delayed onset of PTSD.  The applicant's prior medical history was unclear.  An arbitrary ruling in the applicant's favor without first knowing what was in his medical records could have been prejudicial to the Government.

	i.  The narrative reason for the applicant's separation was assigned based on the fact he was honorably released from active duty under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition - not a disability.  Absent this condition, there was no fundamental reason to process him for separation.  The only valid narrative reason for separation permitted under this paragraph is "Other Designated Physical or Mental Conditions" and the appropriate SPD code associated with this separation action is "LFV."

	j.  In the absence of evidence to the contrary, it was presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His narrative reason for separation was correctly shown on his DD Form 214 and he had provided insufficient evidence to warrant changing this reason.

	k.  The Board denied the applicant's request.

2.  In processing this case, an advisory opinion was obtained from the Office of the Surgeon General (OTSG), which recommended approval of his request.  The advisory official stated:

	a.  The applicant's electronic medical records do not contain documentation of any medical or behavioral healthcare during military service.  Therefore, this advisory opinion was based on the limited documentation submitted for review from the applicant's time in the military service.

	b.  On or about 26 May 2003, the applicant presented to a field hospital in Kuwait with a complaint of severe abdominal and groin pain.  Because no medical etiology for his physical symptoms was found at the time, he was transferred to the fleet hospital in Rota, Spain for further evaluation.  On 28 May 2003, he was administered a combat-stress screening by the mental health department which suggested he was experiencing severe symptoms resulting from upsetting or traumatic memories during an operational deployment.  After further evaluation, it appeared the applicant's symptoms were related to his increasing concerns and anxiety that his abdominal and groin pain was due to gastrointestinal cancer, which was what caused the death of his brother 10 years earlier.

	c.  The applicant was transferred to Walter Reed Army Medical Hospital (WRAMC) where he remained from 31 May to 11 June 2003 as a patient in the psychiatric ward.  He was administered a Post-Deployment Health Assessment (PDHA) to assess his health.  The PDHA indicated the applicant had witnessed members of coalition forces being wounded, killed, or dead, and feeling like he was in great danger of being killed during the deployment.  He denied experiencing any PTSD symptoms at the time.  He also denied feeling down, depressed or hopeless.  However, he had little interest or pleasure in doing things and was bothered by it.

	d.  AD and PTSD are different.  In PTSD, the individual has been exposed to a stressor of extreme severity or potentially traumatic in nature.  AD may be diagnosed following exposure to a stressor of any severity.  AD lasts no longer than 6 months after the stressor or its consequences have ceased.  If the stressor is acute, the onset is usually immediate or within a few days.  The duration is usually brief, no more than a few months.  However, if the stressor or its consequences persist, the AD may also persist longer than 6 months or progress to other, more severe behavioral health disorders.

	e.  Taking into consideration the available record during the applicant's military service and his diagnosis of combat-related PTSD by the VA less than 
2 months following his discharge from the military service, it is highly likely that he qualified for a PTSD or a mood disorder diagnosis that would have warranted referral into the Integrated Disability Evaluation System (IDES) at the time of his discharge.

	f.  Because the normal course of PTSD is such that this illness does not surface suddenly, it is highly likely the applicant had PTSD during his military service despite the lack of medical documentation available during this time period.  In 2003, the Army had not fully deployed the electronic health record, and thus it is possible that hand-written records were created that are no longer accessible.

3.  In his response to the advisory opinion, the applicant's counsel stated:

	a.  After only 6 days since the applicant's misdiagnosis, the Army recommended his discharge which occurred a few weeks later.  This violated the Army's own regulation mandating ample opportunity to recover.

	b.  The advisory opinion affirmed the applicant's PTSD diagnosis by the VA.

	c.  The advisory opinion, combined with the extensive supporting evidence, compels the correction of the applicant's records by removing the current narrative reason for separation and showing he was retired due to a permanent medical disability based on his PTSD.

4.  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.

5.  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.



6.  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.

7. Title 38, Code of Federal Regulations (CFR) sets forth the Veteran’s Schedule for Rating Disabilities (VASRD).

	a.  Section 4.3 provides that when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that 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.

	b.  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 that 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.

	c.  Section 4.130-3 provides the General Rating Formula for Mental Disorders:

	(1).  A 100% 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.

	(2).  A 70% 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; obsession 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 (such 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.

	(3).  A 30% 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-term 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.  The applicant contends that his military records should be corrected by showing he was permanently retired on 25 September 2003 for permanent medical disability due to having PTSD with major depressive disorder.

2.  Military physicians diagnosed the applicant with having an AD.  However, he was not retained on active duty for a sufficient period of time to permit his recovery or to be diagnosed with having a mood disorder or PTSD warranting referral into the IDES.

3.  The available evidence shows that applicant was diagnosed by the VA shortly after his discharge with PTSD, initially rated at 30 percent disabling, effective 26 September 2003.  His disability was subsequently increased to 50 percent effective 15 February 2008, to 70 percent effective 27 October 2009, and to 100 percent effective 23 July 2012.

4.  The OTSG advisory states that because of the normal course of PTSD is such that this illness does not surface suddenly, it is highly likely the applicant had PTSD during his military service despite the lack of medical documentation available from this time period.  In 2003, the Army had not fully deployed the electronic health record, and thus it is possible that hand-written records were created that are no longer accessible.


5.  Based on the applicant’s available medical records and the advisory opinion from the OTSG, his PTSD with major depressive disorder is sufficiently supported by the available evidence at the time of his separation on 
25 September 2003.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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 AR20120011895, on 1 November 2012.  As a result, the Board recommends that the state Army National Guard records and the 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 temporary disability retired list (TDRL) with a 50 percent disability rating on 25 September 2003 and remained on the TDRL until 24 September 2008 due to PTSD with major depressive disorder and subsequently revoking all prior discharge (separation) orders.

   b.  On 25 September 2008, he was placed on the permanent disability retired list with a 100 percent disability rating due to PTSD with major depressive disorder.

   c.  Issue a new DD Form 214, with the following changes from his current DD Form 214:

* Item 9 (Command to Which Transferred): NA
* Item 23 (Type of Separation): Retirement
* Item 25 (Separation Authority): AR 635-40, paragraph 4-24b
* Item 26 (Separation Code): SFK
* Item 28 (Narrative Reason for Separation): Disability, Temporary

2.  Issue new orders placing the applicant on the TDRL effective 25 September 2003 at 50 percent due to PTSD with major depressive disorder and remove him from the TDRL and place him on the PDRL effective 25 September 2008 at 100 percent disability due to PTSD with major depressive disorder.

3.  Paying him any funds due as a direct result of the stated 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)                                         AR20150004658





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ABCMR Record of Proceedings (cont)                                         AR20150004658



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