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ARMY | DRB | CY2005 | 20050004467
Original file (20050004467.doc) Auto-classification: Denied



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 January 2006
      DOCKET NUMBER:  AR20050004467


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his separation for disability be changed to
a disability retirement.

2.  The applicant states post-traumatic stress disorder (PTSD) was
unaddressed by the Physical Evaluation Board (PEB).  He now feels it is in
his best interest to petition for a disability retirement.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states she and the applicant vehemently disagree with the PEB's
findings.  An August 2004 memorandum from Walter Reed Army Medical Center
(WRAMC) noted the applicant had been complaining of symptoms consistent
with PTSD.  He was given an additional Axis 1 diagnosis of PTSD that was
found to be medically unacceptable.  After he separated from the Army, the
Department of Veterans Affairs (DVA) granted him an initial rating of 30
percent for PTSD with major depressive disorder as a DIRECT RESULT OF
MILITARY EXPERIENCES (emphasis in the original).  On 17 May 2005, the
rating was increased to 50 percent.

2.  Counsel states the Board must concede several facts:  1) The applicant
earned several awards to include the Global War on Terrorism Expeditionary
Medal; 2) he had no psychiatric history prior to service; 3) he was
diagnosed with PTSD by WRAMC's psychiatric unit; 4) he provided evidence to
show he was frequently subject to mortar fire attacks and of particular a
slashing attack that critically injured a U. S. military officer; and 5)
the DVA diagnosed him with PTSD with major depressive disorder.

3.  Counsel provides the applicant's PEB packet and an undated letter from
Colonel Frank B___, U. S. Marine Corps.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  The applicant was born on 26 April 1957.  After having had commissioned
service on active duty, he was released from active duty in July 1982.  He
was promoted to Colonel, O-6 in the U. S. Army Reserve on 19 November 2002
in specialty 91B (Tank/Automotive Materiel Management).

3.  The applicant was issued a notification of eligibility for retired pay
at age 60 (his 20-year letter) on 11 June 2003.

4.  On or about 1 December 2003, the applicant was mobilized in support of
Operation Iraqi Freedom.

5.  By letter dated 3 August 2004, the applicant's commander stated that,
prior to the applicant's medical evacuation from the theater, he was not
under any duty limitations.  Prior to receiving word of the need to have
him evacuated and treated, the unit had not received any notification,
written, or otherwise, indicating any problems with his duty performance or
medical state.  It was noted that senior military advisors, working for the
various ministries at the Coalition Provisional Authority, operated very
independently from their assigned units and the Authority was dissolved on
30 June 2004.

6.  The applicant's Medical Evaluation Board (MEB) Narrative Summary, dated
16 July 2004, noted he first presented at the Combat Stress Center in
Baghdad on 29 March 2004 at the urging of a female colonel colleague whom
he met in pre-deployment training in the States.  By the applicant's
account, they had become close friends but, when he deployed to Iraq, he
had the perception that she had abandoned the friendship.  Both the
applicant and the colleague denied any romantic involvement.  He reported
that she made numerous romantic overtures toward him during the pre-
deployment training; she reported, with emails to back up her claim, that
his contact with her was frequent and inappropriate.

7.  The MEB Narrative Summary went on to note the applicant was advised to
break off all contact with the female colonel.  Over the following two
months, he reported an improvement in his mood and denied contact with her.
 However, in June 2004, she returned with more emails to support her claim
the applicant was harassing her.  At that time, he had an insurgence (sic)
of depressive symptoms. His prescription of Zoloft was increased from 150
to 200 mg daily (but he later reported not following through with that).
Prior to leaving the theater, he reportedly violated orders by driving, by
himself and in a non-tactical vehicle, into the Red Zone to accomplish
missions.  He was ambivalent about his intentions (at times claiming it was
necessary for the mission and at other times alluding to a wish to die).
He continued to see the female colonel, against her wishes.  At Landstuhl
Regional Medical Center, he minimized that history and felt things
were "blown out of proportion" or that he was "misunderstood."  Physicians
at the Combat Stress Center and Landstuhl Regional Medal Center were
concerned he had subtle psychotic symptoms.  He was transferred to WRAMC.

8.  At WRAMC, the applicant denied suicidal and homicidal ideation and no
psychotic symptoms were endorsed, observed, or elicited.  Conclusions were
that his test results and clinical history were most consistent with a
nonpsychotic major depressive disorder.  Several options were discussed,
and he was originally to be discharged to the partial hospitalization
program with the idea of returning to Fort Bragg, NC on a temporary
profile.  He decompensated and remained on the psychiatric ward for three
more days.

9.  On 20 August 2004, the MEB referred the applicant to a PEB with a
diagnosis of (1) Axis I: Major Depressive Disorder, single episode, severe
without psychotic features, rated, improved, manifested by over two years
of depressed mood, sleep disturbance, loss of interest in his usual
activities, excessive guilt, poor energy, poor concentration, poor
appetite, and passive thoughts of dying.  External precipitating condition:
 Moderate, deployment to combat zone and separation from primary support
network.  Approximate date of onset:  March 2004.  Premorbid personality
and predisposition:  None apparent.  Impairment for further military duty:
Marked.  Impairment for social and industrial adaptability:   Definite.
Did not exist prior to service; (2) "Axis II:  V71.09 No diagnosis on Axis
II"; and (3) Axis III:  Hypertension, medically acceptable.

10.  By letter dated 31 August 2004, the WRAMC Psychiatry Resident and
Chief, Continuity Services noted that, since submission of the original
MEB, the applicant had been complaining of symptoms consistent with PTSD.
He had recently recalled several traumatic events which he had not spoken
about when the MEB was written.  An additional Axis I diagnosis of PTSD,
manifested by nightmares, emotional detachment, avoidance of crowds or
other situations reminiscent of the initial trauma, restricted affect,
hypervigilance, irritability, and difficulty concentrating.  External
precipitating condition:  Severe, combat.  Premorbid personality and
predisposition:  None.  Degree of military/psychiatric impairment:  Marked.
 Impairment for social and industrial adaptability: Definite. Approximate
date of onset:  July 2004.

11.  On 8 September 2004, the U. S. Army Physical Evaluation Board at WRAMC
returned the case for additional action and/or information.  It was noted
the events resulting in a diagnosis of PTSD must be substantiated by
statements from members of the Soldier's chain of command who were present
at the time of
the event.  Statements should also discuss the Soldier's ability to perform
his duties subsequent to the PTSD precipitating event and discuss or
comment on the Soldier's performance of duty and/or reliability subsequent
to the PTSD precipitating event or events.  Clarification of the
applicant's onset of depressive symptomalogy was requested.  The MEB stated
the applicant had a 2-year history of depression but also stated the onset
was March 2004.  A current mental status examination was requested
specifically addressing if he could work with others, perform duties
appropriate to his grade and training, and could learn new tasks, routines,
and processes.

12.  By memorandum dated 20 September 2004, the applicant responded by
stating the Commander's letter dated 3 August 2004 addressed the request
for PTSD information when it stated the applicant operated very
independently from his assigned unit.  He also stated he did not recount
the events (which resulted in a diagnosis of PTSD) to anybody because at
that particular time improvised explosive devices (IEDs) were so common
that unless the explosion injured a member of the command it was not
considered noteworthy by the command.  He had stated earlier there were no
Americans present with him and he was operating independently in the Red
Zone.  He presumed news stories of that period would have indicated he was
in an area of ground combat and explosive ordnance.  He also stated the
Commander's letter of 3 August 2004 spoke to his ability to perform his
duties.  He further believed his previous office evaluation reports also
spoke to his competence as an officer.

13.  By memorandum dated 4 October 2004, the WRAMC Psychiatry Resident and
Chief, Continuity Services stated the applicant requested a letter from his
chain of command to substantiate the events that led to his PTSD.  He
stated the applicant's depressive symptoms began in September 2002 and were
most severe in March 2004.  He had been observed to perform appropriately
in therapeutic groups that consisted mostly of enlisted Soldiers.  His
ability to work with others in a leadership position was considered to be
impaired at present, he was not able to perform at a level appropriate to
his grade and training, and he would have difficulties learning new tasks,
routines, and processes especially in an unfamiliar environment.

14.  On 21 October 2004, a PEB found the applicant to be unfit for duty
under the Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) code 9434 (Major Depressive Disorder), severe, in the context of
occupational stress, separation from family and deployment to Iraq.
Diagnosis 2 was found to be not unfitting and not rated.  Diagnosis 3 was
found to be medically acceptable.  Depressive symptoms began prior to
activation.  The PEB concluded there was
sufficient evidence to substantiate an EPTS (existed prior to service)
condition for which he was now unfit and his condition had not been
permanently aggravated by service but was the result of natural
progression.  It was recommended he be separated with no separation pay.
It was noted he was eligible for reserve retired pay and he was given the
option of requesting transfer to the Retired Reserve in lieu of being
separated without benefits.

15.  On 22 October 2004, the applicant concurred with the findings of the
PEB and waived a formal hearing of his case.  On this date, also, he opted
to elect transfer to the Retired Reserve.

16.  The applicant's DD Form 214 (Certificate of Release of Discharge from
Active Duty) (a very poor copy) appears to show he was separated from
active duty 3 December 2004 and transferred to the U. S. Army Control Group
(Retired Reserve).

17.  On 25 January 2005, the applicant wrote to the U. S. Army Physical
Disability Agency (USAPDA).  In that letter, he noted he had gone through
four medical evaluations regarding fitness for mobilization or
demobilization since September 2002 and he was found unfit only on the last
evaluation.  He questioned what evidence there was that he had a diagnosed
massive depressive disorder.  He questioned his DD Form 214 indicating he
was unfit for duty but retained in the U. S. Army Reserve.

18.  On 3 March 2005, the applicant wrote to the USAPDA and stated he was
"unable to continue this dispute with your agency, because I find myself
too emotionally unstable and regressing in my emotional outlook."

19.  On 12 January 2006, the USAPDA informed the Board analyst they were
unable to locate any documents concerning an appeal from the applicant of
his PEB findings/recommendation or any other documents related to his 3
March 2005 letter.

20.  On 17 May 2005, the DVA increased the applicant's rating for PTSD from
  30 to 50 percent (in addition to a 10 percent rating for herniated
nucleus pulposus at T5-T8 with degenerative arthritis, lumbar spine; 10
percent for degenerative arthritis for both left and right knee; and 10
percent for tinnitus).

21.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Appendix B states that, for VASRD codes 9200 through 9511 (mental
disorders), loss of function is the principal criterion for establishing
the level of impairment resulting from mental illness.

22.  Army Regulation 635-40, appendix B, paragraph 10 states that, when
considering EPTS cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the degree
existing at the time of entrance into the active service, less natural
progression occurring during active service.  This will apply whether the
particular condition was noted at the time of entrance into active service
or is determined upon the evidence of record or accepted medical principles
to have existed at that time.

23.  Department of Defense Instruction (DODI) 1332.39 (Application of the
Veterans Administration Schedule for Rating Disabilities), under VASRD
codes 9200 – 9511 (Mental Disorders), states loss of function is the
principal criterion for establishing the level of impairment resulting from
mental illness.  Loss of function is reflected in impaired social and
industrial adaptability.  Even psychosis; however, may resolve such that
the impact on economic adjustment is minimal to none.

24.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel.  The VASRD is primarily used as
a guide for evaluating disabilities resulting from all types of diseases
and injuries encountered as a result of, or incident to, military service.
Unlike the DVA, the Army must first determine whether or not a Soldier is
fit to reasonably perform the duties of his office, grade, rank or rating.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.

25.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The DVA; however, is not required by law to
determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended PTSD was unaddressed by the PEB and he now
feels it is in his best interest to petition for a disability retirement.

2.  It appears his PTSD was addressed by the PEB.  On 8 September 2004, the
U. S. Army Physical Evaluation Board at WRAMC returned the PEB case with
concerns regarding the applicant's PTSD and requested additional action
and/or information.  Those concerns were addressed by the applicant on 20
September 2004 and by the Chief, Continuity Services on 4 October 2004.  On
21 October 2004, a PEB found the applicant to be unfit for duty under VASRD
code 9434.  Diagnosis 2 (presumably PTSD, "Axis II") was found to be not
unfitting and not rated.  Diagnosis 3 (hypertension) was found to be
medically acceptable.

3.  In addition, DODI 1332.39 states loss of function is the principal
criterion for establishing the level of impairment resulting from mental
illness.  The applicant had stated that the Commander's letter dated 3
August 2004 addressed the request for PTSD information.  However, that 3
August 2004 letter also stated that, prior to the applicant's medical
evacuation from the theater, he was not under any duty limitations.  Prior
to receiving word of the need to have him evacuated and treated, the unit
had not received any notification, written, or otherwise, indicating any
problems with his duty performance or medical state.

4.  Based upon the commander's 3 August 2004 letter, it does not appear
that the applicant's PTSD caused him to have any loss of function.

5.  The rating action by the DVA does not necessarily demonstrate an error
or injustice in the Army rating.  The DVA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  The DVA is not
required by law to determine medical unfitness for further military service
in awarding a disability rating, only that a medical condition reduces or
impairs the social or industrial adaptability of the individual concerned.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a Soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be determined to be socially
or industrially impaired), an individual’s medical condition may be rated
by the Army at one level (or be determined to be not unfitting) and by the
DVA at another level.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jpi___  __wfc___  __gjp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __John P. Infante_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004467                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060119                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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