BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20140018382 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20140018382 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by a. Amending the DA Form 199 for the PEB convened on 26 September 2012 by deleting the disability rating of 30 percent for PTSD with elements of bipolar disorder, and replacing it with the disability rating of 50 percent. b. Amending Orders Number D298-11, dated 24 October 2012, issued by the U.S. Army Physical Disability Agency as follows: deleting the disability rating of 30 percent, and replacing it with the disability rating of 50 percent. 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to increasing the retired service member's disability rating for PTSD with associated bipolar disorder to either 70 percent or 100 percent. ___________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. Enclosure 1 BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20140018382 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, the spouse of a retired service member, requests, in effect, the retired service member's disability rating, as reflected on his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 26 September 2012, be revised from 30 percent for post-traumatic stress disorder (PTSD) with associated bipolar disorder (hereafter referred to only as PTSD) to the 100 percent disability rating given by the Department of Veterans Affairs (VA). 2. The applicant states, in effect: * as a result of a PEB conducted on 28 January 2008, the retired service member was placed on the Temporary Disability Retired List (TDRL) with a disability rating of 30 percent for PTSD and 0 percent for bilateral plantar fasciitis * a VA rating decision, dated 12 April 2011, stated the retired service member was found not competent to handle the disbursement of funds; additionally, his PTSD was rated at 100 percent effective 19 November 2008 * in March 2011, the retired service member was treated at Petersburg Mental Health Services in Petersburg, AK; the records of the treatment received at that time were forwarded to the Medical Evaluation Board (MEB) at Bassett Army Community Hospital, Fort Wainwright, AK * on 6 June 2011, the applicant was named the fiduciary for the retired service member and in August 2011, she was identified his caregiver * Orders Number 290-0901, dated 17 October 2011, issued by Headquarters, U.S. Army Signal Center of Excellence, increased the retired service member's disability rating from 30 percent to 50 percent, citing a U.S. Army Physical Disability Agency (USAPDA) memorandum * on 17 October 2011, a doctor with the MEB at Bassett Army Community Hospital evaluated the retired service member's PTSD; the purpose was to determine if he should remain on or be removed from the TDRL, and be permanently retired * the information sent to the PEB by the MEB physician was wrong; the physician's report stated the retired service member was mentally competent to manage his finances, and able to understand and participate in the disability review process; this despite VA's finding to the contrary * based on inaccurate information from the MEB physician, the PEB, on 26 September 2012, provided a final disability rating of 30 percent for the retired service member's PTSD; the retired service member was subsequently placed on the permanent disability retired list * it was an error and was unjust that the MEB physician did not accurately report the retired service member's condition; his final disability rating should have been higher than 30 percent 3. The applicant provides: * DA Form 199, dated 26 September 2012 * VA Rating Decision, dated 12 April 2011 * General Power of Attorney, dated 30 September 2004 * letter, dated 9 December 2011, addressed to the retired service member * Orders Number 290-0901, dated 17 October 2011 * Adult Comprehensive Behavioral Health Assessment, dated 14 March 2011 * Semi-Annual Functional Assessment, dated 23 March 2011 * TDRL medical examination, dated 17 October 2011 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After prior service in the Regular Army, the U.S. Army Reserve, and the Wisconsin Army National Guard (WIARNG), the retired service member enlisted in the Alaska Army National Guard (AKARNG) on 13 December 1996. 3. After a brief transfer to the WIARNG, he returned to serve in the AKARNG for the balance of his military service. He deployed twice to Kuwait/Iraq, from 27 January 2005 to 26 January 2006 and from 28 October 2006 to 1 April 2007. 4. On 28 January 2008, a PEB found him to be unfit for continued military service. a. He was recommended for placement on the TDRL for the following conditions: * PTSD associated with bipolar disorder, 30 percent * bilateral plantar fasciitis with bilateral foot pain, 0 percent b. The retired service member concurred with the PEB's recommendations and waived his right to a formal hearing on 15 February 2008. 5. On 15 May 2008, he was honorably retired and placed on the TDRL. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the separation authority as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2) (placement on the TDRL). The narrative reason for separation was disability, temporary. 6. On 12 April 2011, VA issued a rating decision stating the retired service member was not competent to handle the disbursement of funds. Additionally, the VA increased his service-connected disability rating for PTSD from 70 percent to 100 percent, effective 19 November 2008. The evidence used for their decision included their previous rating decision, dated 13 October 2009 and VA treatment records for the period 15 October 2009 to 3 February 2011. 7. On 17 October 2011, a follow-up TDRL examination was conducted by a doctor in the psychiatric unit of Bassett Army Community Hospital. The evaluation essentially stated: a. Records from the VA and the outpatient provider at Petersburg Mental Health Clinic were available for assessment by the doctor. b. This evaluation was a review of his status. While on the TDRL, the retired service member: * participated in outpatient treatment and attended a support group 3 times a week * had an individual appointment once a week and attended Alcoholics Anonymous (AA) regularly * had been hospitalized twice while on the TDRL, and spent 90 days in residential treatment for PTSD * could not recall the medications he was taking but stated they were working fine * was meeting with his psychiatrist at the VA hospital on a quarterly basis and at his last visit the month prior he was told he was doing fine c. Mental Status: * he was seen to be interacting appropriately with his wife; his speech was fluent, had good spontaneity, and a regular rate and rhythm * his mood was anxious but he became calm with reassurance; his judgment was good, his insight fair, and he denied either suicidal or homicidal thoughts d. The doctor's assessment was: * he presented with a diagnosis of PTSD, previously corroborated based on traumatic events experienced during combat deployments to Iraq * he has continued to re-experience the deployments in terms of intrusive thoughts, flashbacks, and nightmares but the retired service member did not identify the frequency * he avoids situations that are reminders of his PTSD experiences * he has had difficulty with feelings of numbness and detachment, hyperarousal, insomnia, anxiety, and irritability * the symptoms interfere with his daily functioning * he showed difficulty articulating the specific benefits from treatment and seemed to lack insight as to understanding symptoms and treatment recommendations e. The diagnosis, based on the examination, was PTSD, and problems with his extended psychosocial support system and occupational problems were indicated. Additionally, he had a Global Assessment of Functioning (GAF) score of 51. This score was based on moderate symptoms as well as moderate impairment in occupational functioning, with a prolonged inability to be employed. f. Prognosis was fair. g. The doctor stated he "appears mentally competent to manage his finances and understand and participate in the disability review process." h. The retired service member also indicated he had participated in vocational rehabilitation. As part of that, it was discovered he could do woodworking. He was given a $5,000 check to purchase equipment and intended to set up a woodworking shop in his garage. He felt positive about this opportunity because he could work at his own pace and not interact with others. i. The effects of PTSD on occupational and social functioning were stated as: * deficiencies in a number of areas, particularly employment * ongoing and persistent difficulty with re-experiencing memories of the deployments; numbness, detachment, and hyperarousal * shows some ability to function in predictable and stable social situations where he has direct support * his symptoms require continuous and multiple psychotropic medications 8. The retired service member's records contain Orders Number 290-0901, dated 17 October 2011, issued by Headquarters U.S. Army Signal Center of Excellence, which increased his disability rating from 30 percent to 50 percent, citing a USAPDA memorandum. 9. On 1 November 2011, the USAPDA informed him that his retirement orders had been amended based upon a settlement agreement reached in a class action lawsuit (Sabo v. U.S.). As a result, his PTSD disability rating was increased to 50 percent for the period he was on the TDRL. 10. On 26 September 2012 and, based in part on the TDRL re-examination conducted on 17 October 2011, a PEB determined the retired service member should be placed on the permanent disability retired list for: * PTSD associated with bipolar disorder, 30 percent * bilateral plantar fasciitis with bilateral foot pain, 0 percent 11. The retired service member concurred with the PEB's recommendations and waived his right to a formal hearing on 12 October 2012. 12. Orders Number D298-11, dated 24 October 2012, issued by the USAPDA shows the following: * Effective 24 October 2012, the retired service member was removed from the TDRL * He was placed on the permanent disability retired list with a disability percentage of 30 percent 13. The applicant provides: a. An Adult Comprehensive Behavioral Health Assessment, dated 14 March 2011, completed by an LCSW from Petersburg Mental Health Services, which essentially states: * seven behavioral health team members conducted the assessment of the retired service member * the retired service member first came to their facility in March 2009; he reported he was experiencing severe symptoms of PTSD * the assessment provided an update and the retired service member was described as being able to engage in activities of daily living (ADL) with the support of his wife and the facility's staff * he required continuous assistance in taking medications, eating, and other self-care activities * he continues to be easily triggered by loud noises and when people startle him; he goes into "fight" mode and requires much attention to calm down * he continues not to be able to work; his ability to complete chores and household responsibilities is limited due to the severity of PTSD symptoms * he has thoughts of self-harm but is able to prevent acting on those thoughts with the help of therapy and the support of his psychotherapy group * he continues to struggle with a "fight/flight" response and had a recent situation occur at the gym, but did not hurt anyone * he continues to "shoot" people in public with his hands and, while waiting for his sessions, he hides in a corner out of sight * Axis I diagnosis: PTSD, chronic; major depressive disorder; alcohol dependence, in early remission b. A Semi-Annual Functional Assessment, dated 23 March 2011, completed by an LCSW from the Petersburg Mental Health Services, which states, in effect: * when the retired service member first came to their facility he reported he was experiencing severe symptoms of PTSD * he was very distressed and somewhat dissociated; he was visibly shaky and hypervigilant, scanning rooftops for snipers * he was experiencing daily flashbacks and severe night terrors; he was unable to work; he is in recovery from alcohol addiction and attends AA * he continues to not remember to take his medications or eat on a regular basis * he has thoughts of self-harm but is able to not act on them with the help of therapy and peer support from his psychotherapy group * he is easily triggered when his guard is down; for example, he had a recent incident with a flashback at the gym * his wife manages all financial responsibilities * he continues to decompensate when traveling due to a lack of structure; it usually takes a few weeks to stabilize after travel * he is unable to work due to his PTSD and depression; he has a hard time remembering things, following through on tasks, and working with others * he is so disabled that he is not capable of engaging in independent functioning 14. In an advisory opinion dated 22 December 2015, the USAPDA official recommended no change and essentially stated: * the informal PEB conducted on 26 September 2012 found the retired service member to be unfit and recommended being permanently retired with a disability rating of 30 percent for his PTSD * this rating was based on the descriptive language in the TDRL re-examination, the PEB found his impairment most closely related to occupational and social impairment with occasional decreases in work efficiency and with intermittent periods of an inability to perform occupational tasks * on 12 October 2012, he concurred with the PEB's findings and waived his right to a formal hearing * he appears to contest the military's rating, applied when he was removed from the TDRL, based on the contention the VA published a 100 percent disability rating for his PTSD near the time he was given his TDRL re-examination * the VA ratings, however, were based on an examination accomplished 2 years earlier in 2009 [sic, VA cited the use of VA treatment records covering the period 15 October 2009 to 3 February 2011 as evidence in their 12 April 2011 Rating Decision] * the TDRL re-examination was based on the state of his conditions in October 2011; the PEB's determinations reflected the most up-to-date medical conditions of the retired service member 15. The applicant was provided a copy of the advisory opinion, but offered no response. REFERENCES: 1. Department of Defense Instruction (DoDI) Number 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities (VASRD)), in effect at the time, implemented Department of Defense policy requiring the Secretaries of the Military Departments to apply the VASRD in the evaluation of disabilities within the physical disability evaluation system. It stated, in pertinent part, once a Service member was determined to be physically unfit for further military service, the VASRD percentages were to be applied to the unfitting conditions. 2. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. The TDRL is used in the nature of a "pending list." Soldiers are placed on the TDRL for a period of no more than 5 years when: * they are unfit for continued military service * they are eligible for permanent disability retirement as a result of a disability rating of 30 percent or more, or have 20 years of active military service * their conditions are considered to either be temporary or unstable in nature c. Periodic examinations are conducted to determine if the conditions have stabilized. When considered stable for rating purposes, the PEB determines whether the earlier finding of unfitness is still valid. If valid, the Soldier is placed on the permanent disability retired list. d. The VASRD will be used to determine the disability rating percentage assigned to a condition. 3. The Code of Federal Regulations (CFR), Title 38 (Pensions, Bonuses, and Veterans' Relief), contains the VASRD. a. Section 4.130 (Schedule of ratings - mental disorders) contains the ratings to be applied for mental disorders; PTSD has a code of 9411. Symptoms are shown in relation to occupational and social impairment and are rated according to severity: * 0 percent - a mental condition has been formally diagnosed but the symptoms are not severe enough to interfere with occupational and social functioning * 10 percent - there is an impairment of occupational and social functioning due to mild or transient symptoms which only decrease work efficiency and ability to perform during periods of significant stress * 30 percent - occupational and social impairment causes an occasional decrease in work efficiency and there are periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss * 50 percent - there is reduced reliability and productivity resulting from occupational and social impairment due to such symptoms as flattened affect, stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impaired short-term and long-term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships * 70 percent - occupational and social impairment is caused by deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood; symptoms include suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, near-continuous panic or depression affecting the ability to function independently, 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 * 100 percent - there is total occupational and social impairment, with symptoms such 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, disorientation to time or place; memory loss of names of close relatives, own occupation or own name 4. The case of Sabo v. U.S. was a class action lawsuit brought on behalf of seven Veterans from the U.S. Army, U.S. Navy, U.S. Marine Corps, and the U.S. Air Force. a. The seven Veterans were discharged from military service as a result of a finding by a PEB that they were unfit for continued service due, in part, to PTSD. They were assigned a disability rating of less than 50 percent. b. The lawsuit alleged the military services violated the law by failing to assign a 50 percent disability rating for those discharged for PTSD between 17 December 2002 and 14 October 2008. Specifically, section 4.129 of CFR, Title 38, requires a rating agency to assign an evaluation of not less than 50 percent and schedule an examination within 6 months following a Veteran's discharge to determine whether a change in evaluation is warranted. c. The settlement agreement was approved on 22 December 2011 and gave retroactive as well as future disability benefits to more than 2,200 affected Veterans. DISCUSSION: 1. The applicant requests, in effect, the retired service member's disability rating for PTSD, as reflected on his DA Form 199, dated 29 September 2012, be increased from 30 percent to 100 percent. a. In support of this request, she contends: * he is not mentally competent to handle his finances, as determined by the VA; additionally, the VA awarded him a disability rating of 100 percent for PTSD * the doctor who performed the TDRL re-examination erred by stating he "appeared" competent to manage his finances and able to participate in the disability review process * based upon this error, the PEB recommended an inappropriate final disability rating for PTSD of 30 percent b. An assessment by behavioral health specialists with the Petersburg Mental Health Services dated 14 March 2011 further supported the extent of the retired service member's PTSD. 2. The TDRL re-examination, conducted on 17 October 2011, does say the retired service member "appears" to be mentally competent, but it is not likely to have been the sole basis, or even a strong point of consideration, for the PEB's final rating determination. Rather, the PEB would have considered all available evidence, to include the assessments done by the specialists with the Petersburg Mental Health Services. a. The TDRL re-examination shows the following: * he appeared to interact appropriately with his wife; his judgment was good and he denied suicidal or homicidal thoughts * his patterns of speech were fluent, had good spontaneity, and a regular rate and rhythm * he continued to have flashbacks, intrusive thoughts, and nightmares, but the frequency was not specified * he had difficulty with feelings of numbness and detachment, hyperarousal, insomnia, anxiety, and irritability * he showed difficulty articulating the specific benefits from treatment and seemed to lack insight as to understanding symptoms and treatment recommendations * his symptoms interfered with his daily functioning and he was unable to work * he showed some ability to function in predictable and stable social situations where he had direct support * he had a GAF score of 51, which was based on moderate symptoms as well as moderate impairment in occupational functioning with prolonged inability to be employed b. In reviewing the information from Petersburg Mental Health Services, the PEB would have considered the following: * although the symptoms, as described in the Petersburg Mental Health Services assessment, were initially severe, they appeared to be improving * his flashbacks and "fight or flight" episodes were still easily triggered but apparently were occurring on a less frequent basis and only when his guard was down; beyond this the frequency was not clearly identified * he had thoughts of self-harm, but was able to manage them with the help of his family and support group; * he was able to perform ADL but required the support of his wife and the support staff at the Petersburg Mental Health Service; he was not able to function independently * he was unable to work as a result of his PTSD symptoms; his wife took care of all the financial matters 3. The evidence suggests the final PEB, dated 26 September 2012, erred in applying the VASRD for the retired service member's case. a. While the retired service member did show signs of improvement while on the TDRL, both the assessments by the staff of the Petersburg Mental Health Services and the TDRL examiner found: * he continued to have flashbacks, intrusive thoughts, and nightmares * he had difficulty with feelings of numbness and detachment, hyperarousal, insomnia, anxiety, and irritability * he was able to perform ADL but required the support of his wife and the support staff at the Petersburg Mental Health Service; he was not able to function independently * his symptoms interfered with his daily functioning and he was unable to work b. Additionally, the TDRL examiner stated he had a GAF score of 51, which was based on moderate symptoms as well as moderate impairment in occupational functioning. c. The PEB applied the criteria for a 30 percent rating, which describes cases where symptoms and impairments to social and occupational functioning are occasional or periodic: * occasional decrease in work efficiency * periods of inability to perform occupational tasks (although generally functioning satisfactorily), with routine behavior, self-care, and conversation normal d. Particularly given the assessment by the TDRL examiner which stated he showed moderate symptoms as well as moderate impairment in occupational functioning with prolonged inability to be employed, it appears a 50 percent rating more closely fits the retired service member's symptoms. Key points found in the language for a 50 percent rating include: * reduced reliability and productivity resulting from occupational and social impairment * difficulty in establishing and maintaining effective work and social relationships e. The evidence does not sufficiently support a rating of 70 percent (or higher) in that the description of his symptoms does not include: * obsessional rituals which interfere with routine activities * speech intermittently illogical * near-continuous panic or depression * neglect of personal appearance and hygiene 4. Based upon the foregoing, the preponderance of evidence appears to support increasing the retired service member's disability rating for the condition of PTSD from 30 percent to 50 percent. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20140018382 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20140018382 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2