BOARD DATE: 19 November 2013 DOCKET NUMBER: AR20130019015 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 his mental health condition. 2. The applicant states that at the time of his discharge he was diagnosed with "Anxiety Disorder" that met retention standards. He was reevaluated and he was diagnosed with Post-Traumatic Stress Disorder (PTSD). 3. The applicant submits a Medical Evaluation Board (MEB) Psychiatric Addendum. CONSIDERATION OF EVIDENCE: 1. Having had prior service, the applicant enlisted in the Army National Guard (ARNG) on 20 May 1998 and he held military occupational specialty 88M (Motor Transport Operator). He served through multiple extensions and he attained the rank/grade of sergeant (SGT)/E-5. 2. He was ordered to active duty on 16 December 2001 for Active Duty for Special Work and he was honorably released from active duty on 29 July 2002. He also appears to have been mobilized in 2004; however, there is no indication (e.g., a DD Form 214 - Certificate of Release or Discharge from Active Duty) if he entered active duty or served in any theater. 3. On 8 December 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 the applicant's referral to a physical evaluation board (PEB). The applicant was counseled and did not agree with the MEB's findings and recommendation. He submitted an appeal that was forwarded to the PEB. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Chronic right knee pain secondary to degenerative joint disease, status post meniscal debridement - Existed Prior to Service (EPTS) X 2. Anxiety Disorder X 3. Hyperlipidemia, EPTS X 4. Tinnitus X 4. On 9 February 2007, 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 condition prevented him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to right knee degenerative arthritis. 5. The PEB noted that he had a history of civilian work injury in 2000 followed by patellar tendon repair and patellar cartilage debridement with subsequent symptoms of chronic anterior knee pain prior to mobilization. The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows: VASRD Code Condition Percentage 5003 Right knee degenerative arthritis (EPTS) 0% 6. The PEB also considered his other medical conditions but found these conditions not to be unfitting and therefore not ratable. The PEB recommended a 0% combined disability rating and separation with entitlement to severance pay. Subsequent to counseling, the applicant elected not to concur with the PEB's finding and recommendation and demanded a formal hearing. 7. His formal PEB is not available for review with this case. 8. The applicant was honorably discharged from the ARNG on 19 May 2007 by reason of being medically unfit for retention in the ARNG in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j. 9. On 1 June 2012, the applicant underwent fusion cell reevaluation of his behavioral health to assess his current psychiatric fitness for duty. The diagnosing official, Dr. T.S. B--ch, PhD, a clinical psychologist, proposed the deletion of "Anxiety Disorder, meets retention standards" and the addition of "PTSD, fails retention standards. The MEB Addendum shows the applicant's behavioral health diagnosis as follows: * Axis I: PTSD, chronic * Axis II: None * Axis III: Non contributory * Axis IV: Marital, occupational * Axis V: Global Assessment of Functioning (GAF) score: 55 10. On 31 January 2012, his records were considered by the Physical Disability Board of Review (PDBR). His contention was PTSD and right meniscus. The PDBR recommended his prior determination be modified to show an unfitting condition of right knee degenerative arthritis. 11. On 8 March 2013, the ABCMR accepted the recommendation to modify the applicant's disability rating to 10% without re-characterization of his separation. 12. 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. 13. 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. 14. 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% 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. 15. 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 December 2006 that referred him to a PEB. His MEB listed only one condition - chronic right knee pain - that failed retention standards and several other conditions that met retention standards. 2. The PEB found the condition that failed retention standards prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit. The PEB rated him at a combined rating of 0% for knee pain. The PEB also considered his 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. He was discharged on 19 May 2007. 3. Subsequent to his discharge, the PDBR considered his case and although it did not find a diagnosis of PTSD as an unfitting condition, the PDBR recommended his prior determination be modified to show an unfitting condition of right knee degenerative arthritis, rated at 10%. On 8 March 2013, the ABCMR accepted the recommendation to modify the applicant's disability rating to 10% without re-characterization of his separation. 4. Prior to this finding, the applicant had undergone a fusion cell reevaluation. The clinical psychologist recommended the deletion of "Anxiety Disorder, meets retention standards" and the addition of "PTSD, chronic, fails retention standards. The reevaluation is accepted in lieu of the initial evaluation. The applicant is entitled to correction of his records to show PTSD, chronic, as a disabling condition that did not meet retention standards, effective 19 May 2007, the date of his 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. deletion of "Anxiety Disorder, meets retention standards" and adding "PTSD, chronic, fails retention standards"; b. showing, in addition to his right knee degenerative arthritis rated at 10%, 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 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) AR20130019015 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130019015 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1