IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004947 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004947 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________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. IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004947 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, in effect, correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show a diagnosis of post-traumatic stress disorder (PTSD) versus adjustment disorder with anxiety and depressed mood. 2. The applicant states the PEB determined that his diagnosed adjustment disorder with anxiety and depressed mood was a condition not constituting a physical disability. However, the Department of Veterans Affairs (VA) diagnosed him with PTSD. 3. The applicant provides: * his separation/discharge orders * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * 100 pages of military and VA medical records * VA ratings decisions * VA Form 3288 (Request for and Consent to Release of Information from Claimant's Records) 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. Following previous enlisted service, the applicant reenlisted in the Regular Army on 16 February 2006 and held military occupational specialty (MOS) 11B (Infantryman). 3. His record contains an Enlisted Record Brief and a series of Noncommissioned Officer (NCO) Evaluation Reports (NCOER) showing: a. Upon his reenlistment and entrance onto active duty, he was assigned to Fort Hood, TX, and was promoted to the rank/grade of sergeant (SGT)/E-5 on 21 February 2006. b. He was deployed to Iraq for 15 months from 23 October 2006 to 6 January 2008. During his deployment, he received two NCOERs. (1) His NCOER for the rating period 21 February 2006 through 28 February 2007 shows he was "dependable and reliable in all situations," he received all success block ratings from his rater, was considered fully capable, and was rated as "3-Successful," and "3-Superior" by his senior rater. This NCOER shows his chain of command considered him a solid NCO with potential for positions of greater responsibility. (2) His NCOER for the rating period 1 March 2007 through 29 February 2008 includes the bullet comments "must develop physical and mental toughness…does the bare minimum to complete the mission…requires further training…not ready for further [NCO Education System] at this time." He received success block ratings from his rater, was considered fully capable, and was rated as "3-Successful," and "3-Superior" by his senior rater. This NCOER shows his chain of command felt he needed a lot more training and development as an NCO. c. After his redeployment from Iraq he returned to Fort Hood, TX, and received an additional NCOER for the rating period 1 March 2008 through 24 March 2008. This NCOER was a relief-for-cause NCOER and shows: (1) He received block ratings of "No" in the Army Values of "Duty," "Respect," "Selfless-Service," and "Honor." The accompanying bullet comments from his rater stated the applicant "threatened his supervisor with intent to do bodily harm…disrespected commissioned officers…always placed his needs above his peers." (2) He received a "Needs Improvement (Much)" block rating for "Competence," "Leadership," and "Training." These blocks also contained the bullet comments "unable to perform duties in current positions…unable to accomplish tasks given…always needing constant supervision…never setting the example for Soldiers to emulate…never strived to train or mentor Soldiers." (3) He received a "Needs Improvement (Some)" block rating for "Responsibility and Accountability," along with the bullet comment "never [accepting] the consequences of his actions." (4) His rater gave him an overall rating of "Marginal." His senior rater rated him as "5-Poor" in both rating blocks and included the bullet comments "always needed supervision when given tasks…never keeping military bearing when addressing officers and non-commissioned officers…always places his needs above his Soldiers." d. He was deployed to Iraq for 11 months from 12 January 2009 to 19 December 2009 and was demoted to specialist (SPC)/E-4 on 1 March 2009. e. After his redeployment from Iraq he returned to Fort Hood, TX; he was demoted to private first class (PFC) on 1 May 2010. 4. His record does not include and the applicant did not provide a narrative summary (NARSUM), DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), DA Form 3349 (Physical Profile), or a DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement). 5. His record contains a VA Compensation and Pension (C&P) Exam report, dated 21 December 2010, which shows he received a VA C&P examination on 7 December 2010. a. The medical/hospitalizations/outpatient care history states he had a long history of outpatient psychiatric treatment that initially began in May 2008, when he was referred to the mental health clinic at Darnall Army Medical Center, Fort Hood, TX. (1) The initial medical notes indicate he was experiencing multiple sources of stress. He said he had work problems, legal problems and relationship problems. He reported feeling lonely and depressed. He reported insomnia, loss of interest in activities, and social withdrawal. The treating medical professional diagnosed him with adjustment disorder with depressed mood and prescribed antidepressant medication. He received a referral to an off-post provider/counselor and made sporadic contact with this counselor. (2) He returned to see his primary care provider in June 2008 for an ongoing medication follow-up. He again reported feeling depressed with increased irritability. He reported generally feeling down about himself and noted he was having problems in his relationship. This medical professional diagnosed him with an adjustment disorder and he continued to take antidepressant medication. (3) He deployed to Iraq a second time, from January 2009 to December 2009; during this period, he did not have any appointments with the mental health clinic. (4) In January 2010, he reported to mental health clinic for treatment at Fort Hood, TX. He reported mood irritability and poor sleep. He received another referral to an off-post provider/counselor for counseling but continued to see an on-post psychiatrist for medication management. (5) In April 2010, he met with a psychiatrist. The psychiatrist's notes state that the applicant was still depressed, but that his depressive symptoms seemed to have improved to some degree. (6) In May 2010, he received another diagnosis of adjustment disorder with anxiety and depressed mood. The treating medical professional prescribed Zoloft. He continued outpatient counseling treatment until June 2010, when he stopped seeing his off-post provided/counselor. (7) His last visit to the mental health clinic was in October 2010. He reported insomnia and increased irritability. He also reported that he had lost interest in activities and had decreased motivation. b. The applicant's personal/occupational history states his father was in the Navy and he and his family moved several times. He was the second of five children. He got in trouble a lot as a child, had anger problems, and would frequently break things. He was neither a neglected nor an abused child. His punishment usually consisted of being grounded. He described himself as a lazy student who received Cs and Ds. He never had the grades to participate in extra-curricular activities and did not have a girlfriend in high school. Prior to his military service, he had some misdemeanor offenses. Civil authorities arrested him for destruction of property and breaking and entering. He worked in a grocery store part time prior to initially joining the military but the store fired him for stealing. He was married from 2001 to 2010 and has two children. The children live with their mother. He describes himself as a "lazy dad" and he admitted that he does not do much with his children. He is currently in another relationship and said he and his girlfriend argue a lot. They live together. Early in their relationship, there was an incident of domestic violence and he is currently on probation for that incident. He reports that he does not have any friends and prefers to be by himself. c. His military history shows he served on active duty in the Army from 1997 to 2001, as an infantry Soldier, but he never deployed. In 2002, he enlisted in the Navy and remained on active duty until 2006. He served in a job that required a security clearance but due to financial problems, he lost his clearance and could no longer maintain his job in the Navy. In 2006, he reenlisted in the Army. He is currently serving in MOS 11B. His first deployment was to Iraq from 2006 to 2008 for a total of 15 months. He said that he broke his ankle during his deployment while playing basketball. Medical personnel placed him on a temporary profile after his injury and he began having trouble with his unit. Additionally, several of his friends were killed during this deployment. The occupational stress and the death of his friends led him to consider killing himself. He took his weapon out but was discovered by another Soldier and placed on suicide watch. After a period, he felt that being watched was restrictive and eventually he returned to regular duty and started having disciplinary problems. Since 2008, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). One of the instances was for disrespecting a commissioned officer. He entered active duty in 2006 as a SGT but was reduced in rank several times to PFC as a result of NJP. He also reported that he drinks infrequently, but always to the point of intoxication. d. His diagnoses were: * Axis I: Depression, Not Otherwise Specified (NOS) * Axis II: Antisocial personality features * Axis III: Chronic back pain * Axis IV: Occupational and relationship problems * Axis V: Global Assessment of Functioning (GAF) equals 60 6. He provided a memorandum issued by his treating psychiatrist at Darnall Army Medical Center, Fort Hood, TX, on 14 January 2011. His psychiatrist addressed the letter to the President of the PEB and titled "Current Psychiatric Status of [Applicant]." The applicant's psychiatrist stated: a. The applicant, who denies having had any psychiatric treatment prior to his military service, has been seen episodically since 2008 for adjustment disorder with poor adherence to a medication regimen and difficulty engaging in individual therapy or with a psychiatrist secondary to stigma issues. During his first deployment to Iraq, he attempted suicide after the death of a close friend. He planned to shoot himself in the head but another Soldier interrupted him. Several months later, he began having suicidal ideation and went to combat stress for help. He was on suicide watch, which he found intolerable; thereafter, he denied having any suicidal ideation or psychiatric symptoms. b. In March 2010, he received UCMJ under the provisions of Article 15 of the UCMJ, for sleeping on duty after several nights of talking to the suicide hotline at length about cutting his girlfriend during a "black out" most likely triggered by alcohol consumption. c. The applicant's primary complaint is agitation, and he prefers to isolate himself from others and watch movies at home. "At present he does not endorse sufficient symptoms to meet the criteria of depressive disorder or anxiety disorder." d. The VA diagnosis varies from the diagnosis of the military treating psychiatrist. The VA diagnosis of depression, NOS was not appreciated by the examining military psychiatrist, who noted that several other mental health providers had consistently indicated the diagnosis of an adjustment disorder noting the applicant typically only sought medical treatment when he was in a crisis mode related to a significant life stressor. It should also be noted that although the applicant had psychological difficulties in his first deployment to Iraq he did not demonstrate any difficulties during his second deployment to Iraq. e. The treating/examining psychiatrist stated the applicant's current status was a diagnosis of adjustment disorder with anxiety and depressed mood, which was considered a condition that did not constitute a physical disability. 7. His record contains a seven-page document entitled "Medical Evaluation Board (MEB)," which shows he was examined on 7 February 2011. The main body of this document focuses primarily on his back condition. However, pages 6 and 7 show: a. Under the heading "Medical Diagnoses" the following conditions were listed: (1) "Minimal spondylosis, facet joint arthropathy and ligamentum flavum at L4-5 and L5-S1 resulting in mild to moderate L4-L5 and mild L5-S1 spinal canal stenosis with no significant nerve root impingement – does NOT meet retention criteria [VA DX (diagnosis): same]" (2) "Left trapezius/neck muscle strain – meets retention criteria [VA DX: Left trapezius/neck muscle strain]" (3) "Left ankle sprain – meets retention criteria [VA DX" Left ankle sprain, in Soldier whose x-ray of the left ankle (25 March 2008) showed well corticated calcification inferior to the medical malleolus consistent with an avulsion injury of uncertain chronicity]" (4) "Tic disorder – meets retention criteria [VA DX: Tic disorder per... neurology note, 10 November 2010]" (5) "Insomnia – meets retention criteria [VA DX: Insomnia]" (6) "Diffuse abdominal pain with normal esophagogastroduodenoscopy (EGD) – meets retention criteria [VA DX: Diffuse abdominal pain localized in the epigastric region exasperated with eating, etiology unknown per gastroenterology note, 9 November 2010, in Soldier whose workup is ongoing and is scheduled for an EGD]" (7) "Esophageal reflux – meets retention criteria [DA DX: Esophageal reflux]" (8) "Adjustment disorder with Anxiety and Depressed Mood – meets retention criteria per psychiatry [VA DX: Depression NOS]" b. The "Recommendation/Conclusion" portion of the report stated the applicant failed to meet retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-29h and should be referred to the PEB for further adjudication. 8. He provided his VA Disability Evaluation System Proposed Rating, dated 1 August 2011, which shows that for the purpose of entitlement to VA benefits only. The VA proposed that a service connection for depression NOS and insomnia (claimed as an adjustment disorder with anxiety and depression) be established as directly related to his military service and that he receive a 50 percent (%) disability rating from the VA. 9. His DA Form 199, dated 23 August 2011, shows: a. The PEB recommended he receive a 10% disability rating for his condition of degenerative arthritis of the lumbar spine. The PEB based the decision/recommendation on the applicant's MEB diagnosis, the narrative summary (NARSUM), VA Compensation and Pension (C&P) exam, DA Form 3349 (Physical Profile), DA Form 7652 and his VA Rating Decision, dated 1 August 2011. b. The PEB stated the MEB diagnosis of left trapezious neck muscle strain; left ankle sprain; tic disorder; insomnia; diffuse abdominal pain with normal EGD; esophageal reflux; and dyslipidemia met retention standards per his DA Form 3947 (MEB Proceedings). The PEB found these conditions were not unfitting either independently or in combination with any of the other conditions as a review of the case file supports the fact that these conditions are not a significant limitation on the applicant's ability to perform his primary MOS (PMOS). c. The PEB stated, in accordance with Department of Defense Instructions (DODI) 1332.38 (Physical Disability Evaluation), the MEB diagnosis of adjustment disorder with anxiety and depressed mood is a condition not constituting a disability. d. The PEB found the applicant physically unfit and recommended the applicant receive a combined disability rating of 10% and separation with severance pay. e. The applicant concurred with the PEB's findings, waived his right to a formal hearing of his case, and did not request a reconsideration of his VA ratings. 10. His DD Form 214 shows he was honorably discharged on 28 November 2011 by reason of a disability with entitlement to severance pay. His disability was non-combat related. Among his awards noted on his DD Form 214 was the Combat Infantryman Badge 11. He provided 31 pages of medical records from the VA Medical Center in Hampton, VA, showing the VA diagnosed him with PTSD on 24 January 2012 after a reevaluation by a VA psychiatrist. His current combined VA rating is 70%. 12. During the processing of this case, the ABCMR received an advisory opinion from the U.S. Army Physical Disability Agency (USAPDA), dated 21 August 2015. The legal advisor recommended disapproval of the applicant's request that his MEB diagnosis of adjustment disorder with anxiety and depressed mood be reconsidered and that he be provided disability compensation for that condition (condition initially diagnosed as depression by the VA in 2010 with the diagnosis being changed to PTSD by the VA in 2012). The USAPDA official further stated: a. The applicant entered the military disability system in 2010. His 21 December 2010 C&P VA exam opined that he had a behavioral health diagnosis of depression, NOS, with antisocial personality features. Upon review of the C&P opinion, the MEB psychiatric indicated that the MEB disagreed with the C&P diagnosis of depression and indicated that the official MEB diagnosis would remain as noted above; a condition that did not constitute a disability in accordance with enclosure 5 of DoDI 1332.38 (Physical Disability Evaluation). This was the diagnosis that the military had determined in the past and what they had been treating him for during the previous several years. The MEB indicated that the adjustment disorder met medical retention standards and did not require any profile restrictions; designation of S-1. It appears that the applicant did not concur with the MEB's diagnosis and requested that the diagnosis be changed to the VA diagnosis of depression. The MEB denied that appeal/request. b. On 11 August 2011, an informal PEB found the applicant unfit for his back condition and awarded him 10 percent disabling rating and entitlement to separation with severance pay. This rating was provided by the VA in accordance with the Integrated Disability Evaluation System (IDES) process found at Directive-Type Memorandum (DTM)-11-015. The MEB provided diagnosis of adjustment disorder was not found to be unfitting as DoD did not authorize said diagnosis to be considered for any disability processing at that time. The applicant concurred with the PEB's findings and waived his right to a formal hearing. As part of the IDES rating process, the VA indicated that when the Soldier was separated from the military he would be entitled to a 50 percent rating for his VA diagnosis of depression. c. On 10 April 2013, DoD changed enclosure 5 of the DoDI 1332.38 and directed that from that point forward a diagnosis of chronic adjustment disorder would be considered a disability that would be reviewed for a medical fitness determination. On 17 June 2013, Army Directive 2013-12 (Implementation of DoD Policy Change Concerning Chronic Adjustment Disorder) was published providing for the review and implementation of the new DoD guidance for all cases of Soldiers who were currently in the Army’s Disability Evaluation System. Any cases that had been already adjudicated, but with the Soldier still remaining in the Army, needed to be reviewed and a determination made for any profile limitations. d. The PEB and MEB findings were in accordance with all DoD and Army policy and guidance at the time of the applicant's separation in 2011. There were no legal or regulatory errors noted in the processing of the applicant’s medical separation from active duty. The advisory official opined that no changes to the applicant's military records should be approved. e. The advisory official further stated that if the ABCMR determines that the DoD's policy/guidance change in 2013 should be applied retroactively to the applicant's case, it should be reviewed and determined by The Office of the Surgeon General (OTSG). The OTSG would medically evaluate his condition of adjustment disorder and then determine if it would have met the present medical retention standards found in Chapter 3, Army Regulation 40-501 and whether there would be any profile restrictions required for this condition in 2011. Upon a military medical finding that he would not have met the present medical retention standards, and that profile restrictions should have been imposed in 2011, it could be considered that the applicant was unfit for such a condition in 2011 and rated at the VA provided 50 percent rating for that condition. It is not germane to the review of this case that the VA changed the applicant's diagnosis to PTSD in 2012. 13. The applicant was provided an opportunity to respond to the advisory opinion. He did not submit a response. 14. During the processing of this case, the ABCMR received an advisory opinion from the Office of the Surgeon General, dated 6 July 2016. The advisory official stated: a. During a May 2008 Post Deployment Health Reassessment, the applicant reported anxiety, irritability, depression, and decreased functioning, including interpersonal problems. At this time, he was diagnosed with adjustment disorder and depressed mood, and began treatment. A NARSUM completed on 14 January 2011 concluded that he had a condition not constituting a disability, a decision with which his psychiatrist agreed. b. During a VA C&P examination on 7 December 2010, the applicant was diagnosed with depression NOS. On 14 January 2011, the PEB rejected the VA diagnosis in favor of adjustment disorder, concluding that he met retention standards. On 7 February 2011, an MEB diagnosed him with adjustment disorder with anxiety and depressed mood and he was found to meet retention standards. The PED concurred in their August 2011 proceedings. On 1 August 2011, the VA established a service connection for depression NOC and insomnia (claimed as adjustment disorder with anxiety and depression) with a 50% evaluation. c. The applicant invokes DoDI 1332.38, which directs that, as of 11 April 2013, a diagnosis of chronic adjustment disorder would be considered a disability subject to a fitness determination. However, there is no indication in his record that his condition of adjustment disorder would not have met the present medical retention standards and he had no profile restrictions for this condition in 2011. Therefore, this behavioral health condition does not qualify him for the Permanent Disability Retirement List. 15. The applicant was provided an opportunity to respond to the advisory opinion. He did not submit a response. REFERENCES: 1. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 2. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 3. The DSM-5 was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD includes a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 4. Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board, when they are command-referred for a fitness-for-duty medical examination, and or they are referred by the U.S. Army, Human Resources Command (HRC). c. The PDES assessment process involves two distinct stages: The MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Paragraph 3-3a provides that performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. 6. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 7. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities incurred in or aggravated by active military service. However, an award by the VA does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge that disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. DISCUSSION: 1. While serving on active duty, the Army diagnosed the applicant with an adjustment disorder with anxiety and depressed mood. However, as part of the MEB/PEB process, the VA conducted a C & P exam and diagnosed him with depression NOS. His Army doctors refuted this diagnosis and the end result was that the MEB/PEB determined he had an adjustment disorder with anxiety and depressed mood, which was considered a condition and not a disability. As such, it was not ratable for military purposes in 2011. His PEB listed his only unfitting condition as degenerative arthritis of the lumbar spine and he concurred with the PEB's findings. 2. He was honorably discharged on 28 November 2011, by reason of a disability, with severance pay, and his disability was not combat related. 3. On 24 January 2012, he was diagnosed with PTSD after being evaluated at a VA hospital. However, this diagnosis of PTSD does not mean he would have failed to meet Army medical retention standards in 2011. Further, it should be noted the Army's finding of unfitness was not based upon any psychological disorder or condition. He was being treated for psychiatric conditions but the Army did not consider those conditions to be unfitting as evident by his S-1 profile. 4. In 2013, DoD and subsequently the Army changed policy and determined that chronic adjustment disorder could potentially be a compensable physical disability. This new standard was applied to Soldiers currently in the PDES process and on active duty. As the applicant was discharged in 2011, this policy change is not applicable to him. 5. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error on the part of 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. The VA may only award ratings because of a medical condition related to service (service-connected) affecting an individual's civilian employability and social impairment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004947 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004947 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2