ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170009119 APPLICANT REQUESTS: in effect, partial reconsideration of Army Docket Number AR20160001265 pertaining to correcting his medical and physical evaluation board records to show he was evaluated and rated for post-traumatic stress disorder (PTSD) based on the Department of Veterans Affairs findings of PTSD rated at 50 percent within 8 months of his separation date. (The applicant went through the Integrated Disability Evaluation System IDES).) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Personal Chronological History * Medical Records dated 27 December 2012, 28 February 2013, 21 March 2013, 5 December 2013, 3 February 2014, and 19 March 2014 * U.S. Army Medical Activity (USAMEDAC), Fort Leonard Wood, Missouri, Impartial Medical Review, dated 18 November 2013 * Montana Army National Guard email, subject: Professional Opinion; dated 16 December 2013 * Email to Applicant’s Medical Provider from his Licensed Clinical Social Worker, dated 10 January 2014 * Memorandum, USAMEDAC, subject: Flight Surgeon Review and “AAMA” Consultation Regarding Medical Evaluation Board (MEB) for Applicant, dated 14 January 2014 * Memorandum, USAMEDAC, subject: Flight Surgeon Review of Medications for Applicant; dated 12 September 2014 * Department of Veterans Affairs (VA) Initial PTSD – DSM V [Diagnostic and Statistical Manual of Mental Disorders], Disability Benefits Questionnaire dated 16 October 2015 * VA Benefits Decision, dated 25 November 2015 * Letter from Dr. , Diplomat American Board of Psychiatry and Neurology, dated 25 January 2016 * Army Review Boards Agency (ARBA), Medical Advisory Opinion for Applicant, dated 7 April 2014 * Army Review Boards Agency, Case Management Division Ex Parte Request Letter to Applicant, dated 11 April 2016 * Five character reference letters FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160001265 on 26 May 2016. The applicant provides new evidence that warrants reconsideration by the Board. 2. The applicant was an aviator serving on active duty in a mobilized status. He is a Veteran of both Operation Iraqi Freedom and Operation Enduring Freedom. He states, in effect, the U.S. Army separated him with a zero percent rating for anxiety disorder, not otherwise specified (based on the conclusion of the MEB). Shortly after his discharge he filed a claim with the VA Pension and Compensation. In 2015, the VA found he had PTSD from his two combat tours and rated him at 70 percent for PTSD, anxiety disorder, depression, and sleep and adjustment disorders. The U.S. Army and the VA reviewed the same medical records. He believes the U.S. Army did not fully assess and accurately rate his disabilities. Within his service treatment records there are numerous entries showing he received treatment for his mental health conditions while on active duty. He believes the U.S. Army was remiss in not properly rating him. 3. He then provides a detailed chronological history of his medical treatment, transition to the Warrior Transition Unit (WTU), processing through the IDES, separation and evaluations by the VA. He also inserts regulatory citations to support his contention of how the U.S. Army erred in rendering its medical decisions. His chronology statement is available for the Board’s review. 4. With prior active federal service and as a member of the Army National Guard of the United States (ARNGUS), the applicant was mobilized on 13 September 2012. He was attached to Fort Leonard Wood, Missouri WTU. His previous service included Operation Iraqi Freedom (Iraq from 15 August 2008 to 18 May 2009 as per his 5 June 2009 DD Form 214 (Certificate of Release or Discharge from Active Duty)) and Operation Enduring Freedom (Afghanistan from 25 September 2010 to 10 August 2011 as per his 25 October 2011 DD Form 214). He received the Bronze Star Medal and the Air Medal. 5. On 27 December 2012, the U.S. Army Human Resources Command (AHRC) published Orders A-12-222418 retaining the applicant on active duty under the provisions of Title 10, U.S. Code (USC), section 12301 (h). The purpose of these orders was to participate in the Reserve Component Warriors in Transition medical retention processing program for completion of medical evaluations. He was extended on active duty by AHRC Orders A-01-301136, dated 18 January 2013, for an additional 179 days. As required, additional orders were published extending him on active duty with Orders A-02-302569A05 extending him out to 29 January 2015. 6. The applicant’s MEB and its narrative summary are not filed in his official military personnel record. In addition, his initial physical evaluation board (PEB), the informal PEB, is also not filed; therefore, they are not available for review by the Board. 7. On 28 July 2014, the applicant and his counsel authored a letter to the President of the PEB wherein they state they are appealing the decision of the informal PEB’s determination that his left knee instability, ulnar neuropathy and anxiety disorder, not otherwise specified, preclude satisfactory performance of his assigned duties or prevents them altogether and should, therefore, be fount unfit. Concerning the anxiety disorder and insomnia, the flight surgeon’s review noted anxiety disorders can produce physiologic symptoms that are distracting in flight with the potential to lead to panic attacks. A panic attack could produce sudden incapacitation particularly under the high stress of piloting an aircraft. Per the Aeromedical Policy Letters and Army Regulation 40-8 (Temporary Flying Restrictions Due to Exogenous Factors Affecting Aircrew Efficiency), the taking of medication for anxiety and/or insomnia is not compatible with flying. Additionally, Army Regulation 40-501 (Standards of Medical Fitness), paragraph 4-23 states a history of anxiety disorder or insomnia, severe or prolonged, fails fitness standards for flight duty. The applicant was assessed with PTSD at the beginning of the MEB process and has continued to receive medical treatment for it for nearly 2 years. This diagnosis is a change from the generalized anxiety disorder cited by the MEB. He specifically wanted the PEB to know and understand the difference in the diagnoses. The memorandum concludes by stating the applicant’s believes there is ample evidence in the record for the PEB to conclude the conditions, PTSD and knee, is severe enough to prevent him from performing his assigned duties. 8. The applicant’s DA Form 199-1 (Formal PEB Proceedings) is filed within his electronic official military personnel record. The date the board convened was 5 September 2014 and it was done at Joint Base Lewis McChord, Washington. The formal PEB found the applicant physically unfit and recommended a rating of 50 percent and that the applicant’s disposition be permanent disability retirement. The following disabilities are recorded on the DA Form 199-1: a. VA Schedule for Rating Disabilities (VASRD) Codes 5242-5243 – intervertebral disc syndrome and degenerative arthritis changes (thoracolumbar spine) shown as MEB diagnosis 1 – his symptoms failed to improve while in the WTU and he requires physical fitness limitations for his back. His rating was 20 percent. b. VASRD Code 5261 – chondromalacia patella, medial meniscus degenerative disease lateral meniscus tear, right knee shown as MEB diagnoses 1, 2 and 3 wherein he twisted his right knee in hand to hand combat training in October 2012 while on Active Guard Reserve (AGR) orders. He received conservative treatment and arthroscopic surgery, but his symptoms failed to improve sufficiently for him to return to his duties of a helicopter pilot. Therefore, he is unfit in accordance with the Department of Defense Instruction (DoDI) 1332.18 (Disability Evaluation System (DES)) because it prevents him from performing one or more of the Common Soldier Tasks such as prolonged wear of body armor and load bearing equipment. His rating was 20 percent. Within the notes, it shows the formal PEB considered the narrative summary, the initial VA Compensation and Pension Examination (under IDES), the initial VA Rating Decision and other pertinent documents. c. VASRD 5260 – left knee strain post traumatic arthritis with limitation of flexion of the leg shown as MEB diagnoses 4, 5, 6, 7 and 8. Again, he was found unfit in accordance with DoDI 1332.18 because it prevents him from functioning in his military occupational specialty as a pilot. His rating was 10 percent. d. VASRD 5257 – chondromalacia patella, lateral meniscal tear and medial meniscal degenerative disease of right knee – instability shown as MEB diagnoses 1, 2, and 3. He had twisted his right knee while doing combative training in October 2012. Again, he was not able to perform the duties of a helicopter pilot and in accordance with DoDI 1332.18 he was found unfit because this condition prevented him from performing one or more of the Common Soldier Tasks and prevents him from functioning as a helicopter pilot. His rating was 10 percent. e. There were nine diagnoses that were determined by his medical treatment facility providers as meeting retention standards in accordance with Army Regulation 40-501 The diagnosis of anxiety disorder, not otherwise specified is shown to be a fitting condition by the MEB and PEB. f. The applicant had appealed the informal findings of the PEB and during the formal hearing where he was present, he asked the formal PEB to consider his anxiety disorder, not otherwise specified to be an unfitting condition – VASRD 9413. (This is shown as MEB diagnosis number 18.) The applicant’s contention is the psychotropic medications he takes for his anxiety disorder would remove him from flight status. Taken directly from his DA Form 199-1, "He agrees that the symptoms of his behavioral health condition do not fail retention standards." It was noted that the applicant began taking medication for his anxiety during the MEB/PEB process which could be a likely reason his condition required medication. During the MEB/PEB process, an Army Nurse Corps captain reviewed the record as part of an aeromedical review. g. The formal PEB concluded the VARSD Code of 9413 (anxiety disorder, not otherwise specified) was not unfitting and sustained the findings of the informal PEB. The evidence the formal PEB considered included the narrative summary, the initial VA Compensation and Pension examination, additional medical evidence, the applicant’s testimony and the flight surgeon’s review. The applicant was represented by regularly appointed counsel. (The formal hearing was recorded and a copy of the oral proceedings is available upon request.) h. The formal PEB membership included a voting member of the Reserve Component officer corps. i. Section VII (Instructions and Advisory Statements) states, "The specific VASRD codes to describe the Soldier’s condition and the disability percentage was determined by the Department of Veterans Affairs (DVA) and is documented in DVA memorandum dated 6 June 2014." Further it states the PEB dispositions and its recommendation were based on applicable statues and regulations for the DES. j. Finally, this case was adjudicated under the IDES – DoDI 1332.18, dated 5 August 2014. 9. On 19 September 2014, the applicant did not concur with the formal PEB and submitted a written appeal. He further requested the VA reconsider his disability ratings. 10. The applicant’s appeal evidence includes a letter from a lieutenant colonel who was the command surgeon at Rock Island Arsenal. The officer opined that the three medications the applicant was taking for his diagnosis of PTSD were mandatory disqualifiers (from flight status) based on the medication itself and/or its intended use – treatment of PTSD and a sleep disorder. 11. An Army Nurse Corps officer, presumably aeromedical qualified, rendered a letter during the PEB appeal process. Within his letter, dated 12 September 2014, he stated that anxiety and PTSD are interrelated diagnoses in accordance with the Aeromedical Policy Letters established by the U.S Army Aeromedical Medical Association. Anxiety disorders produce physiologic symptoms that can be distracting in flight as well as mental deficiencies. Anxiety has the potential to lead to panic attacks and produce sudden incapacitation particularly under the high stress of piloting aircraft in adverse weather conditions and in combat. 12. The applicant’s counsel also presented a letter of appeal to the U.S. Army Physical Disability Agency (USAPDA), dated 19 September 2014, wherein he requests favorable relief because the formal PEB failed to apply the special standards of fitness required for pilots. He also submitted the letters from the command surgeon of Rock Island Arsenal and the Army Nurse Corps officer attesting to his inability to fly based on his prescribed medications. Within his letter he states the applicant suffers from anxiety, depression, insomnia and hypervigilance from the various stressors of his previous deployments, from the deaths of friends in a Chinook crash in 2008 and the death of his godson who he raised as a son for many years. His godson, Christopher, was killed in Afghanistan. He also sought the support from a senior aviator who attests to the fact the medications the applicant takes prevent him from flying. Further in his letter, he rebuts a statement shown within his DA Form 199-1 wherein he agreed that his PTSD conditions met retention standards. He is adamant that taking the prescribed medications for his PTSD condition is what disqualifies him from flight status and performing the duties of a helicopter pilot. He then cites regulatory guidance from Army Regulation 40-501, specifically chapter 4 which states, in effect, a mental disorder including anxiety and sleep disorders are causes of mental unfitness for flying duty. 13. On 24 November 2014, the USAPDA responded to the applicant’s counsel appeal letter of 19 September 2014 which appealed the PEB decision of 3 September 2014. The subject of the appeal was the PEB failed to apply the special standards of fitness required for pilots. The PEB did not rate his anxiety disorder because the preponderance of the evidence indicated it was not an unfitting condition based on the fact he had no permanent profile restrictions associated with the condition. His anxiety disorder (claimed as PTSD) met retention standards by the MEB and was also reaffirmed on appeal to the MEB. The USAPDA stated his anxiety disorder was temporary and that he would be able to fly with a waiver once his anxiety disorder was successfully treated and although he is temporarily restricted from flight status, there is no evidence that the condition failed treatment. The USAPDA, on behalf of the Secretary of the Army, agreed with the formal PEB findings. It found the proceedings were in compliance with the rules that govern the Physical Disability Evaluation System (DoDI 1332.18). 14. Orders 316-1304 show he was released effective 29 January 2014 from assignment and duty due to physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. The orders directed that he be placed on the retirement list effective 30 January 2015 in the rank/pay grade of chief warrant four/W4 with a 50 percent disability rating. 15. A DD Form 214, for the period ending 29 January 2015, shows the applicant retired under the provisions of Army Regulation 635-40, (Personnel Separations: Physical Evaluation for Retention, Retirement, or Separation), paragraph 4 (Disability, Permanent, Enhanced). 16. The applicant appealed to the ABCMR. On 26 May 2016, the Board denied his request to show he received a rating of unfitness for PTSD thus he was denied corrections to his IDES documents. 17. As evidence to support his application, he provided the following: a. He provides copies of excerpts of his military service treatment records showing on – * 27 December 2012, follow up visit for Case Management, where it was explained he should have been released from active duty following his injury, however, exceptions were made; no depression was noted; a personal traumatic event was noted, but he denied any issues * 28 February 2013, follow up visit with social worker who noted the applicant endorsed the four PTSD symptoms on the intake psychological form; she wrote, "I will not give him that diagnosis until he had had an evaluation at BHD [Behavioral Health Division] and it is determined if he has PTSD or not." * 21 March 2013, he was seen at the hospital behavioral health clinic by a licensed social worker whose assessment was he met the threshold for PTSD, severe depression, and severe anxiety; recommendation was to continue exploring for possible PTSD diagnosis though he would not seek a medical consult * 5 December 2013, he was seen by a psychiatrist who diagnosed him with anxiety disorder, not otherwise specified and was prescribed medications; a note by the psychiatrist states, “Presently, diagnosis remains anxiety [not otherwise specified], taking into account the perceived recent ‘increase’ in symptoms may also be accounted for by historical minimization of symptoms (i.e. he may have been experiencing this degree of symptoms chronically, though not fully reporting).” His plan was to adjust the applicant’s medication. * 3 February 2014, he was seen by a psychiatrist who stated the applicant appears to meet the full criteria for PTSD based on exposure to traumatic events while in the military; he was diagnosed with PTSD and bereavement and reports benefits from his medication; the psychiatrist directed he follow-up with his therapist * 19 March 2013, he was seen by a clinical psychologist for PTSD testing and assessment who suggested multiple diagnostic findings including PTSD and major depressive disorder based on the clinician administered PTSD scale assessment which is consistent with a previous diagnosis; he stated the applicant could not perform his military occupational duties, could not carry a firearm, nor was he able to deploy b. A character reference letter from Captain (CPT) Rosxxx Scoxxx, dated 13 February 2017, who states he has known the applicant since March 2013 as they are both in the WTU. He verifies the applicant was diagnosed with PTSD and that he attended PTSD group therapy sessions. He reports the applicant stayed to himself, appeared to have difficulty connecting with others and that he did not share a lot about himself. He was quiet and withdrawn. c. Terxxx Staxxx writes she has known the applicant for more than 22 years. She was a widow with two small boys at the time she met the applicant. Her boys saw the applicant as a father figure in their lives. He was very involved in their lives to the point both boys joined the military. One son, Christopher, was an explosive ordnance demolition expert who was killed in action in Afghanistan by an improvised explosive device. The loss of her son was detrimental to their lives. While in Afghanistan the applicant kept in constant contact with Christopher and was allowed to return to the United States to attend the Soldier’s funeral. After the funeral he had to return to Afghanistan to complete his tour of duty which allowed very little time for his to grieve the loss of her son. She noticed a significant change in the applicant after his two combat tours and the death of Christopher. He no longer maintains contact with her and appears to have isolated himself from others too. He was outgoing and enjoyed social activities but he no longer shows any interest in things he previously enjoyed. She maintains the applicant has survivors’ guilt. d. An Army nurse in the rank of colonel submitted a letter, dated 1 February 2015, wherein she states she had known the applicant since April 2013. When the applicant was in the WTU, she mentored him and participated in the PTSD group therapy sessions where she heard from him his combat experiences and the devastating loss of Christopher whom he had raised for nearly 18 years. He also lost Soldiers in aircraft crashes. In group he would often cry when sharing his experiences. He suffered from nightmares, flashbacks, a pounding or racing heart beat and sweats as if he were reliving his experiences. He also was exposed to rocket propelled grenades and gunfire attacks both on his compound and while out on flight missions. He appeared to be a loner and did not socialize with others. He never participated in the social activities provided by the Army to help with the reintegration process back into society. He often suffered from panic attacks and failed to show for routine formations. He had a flat affect and would not make eye contact with people. While in the WTU he was diagnosed with PTSD. e. Rebxxx Holxxx, a close female friend of many years, states he has changed from being an outgoing and socially active person to one who seeks isolation from others. Upon his return from his second combat tour in Afghanistan she noticed significant differences in his attitude. He appears to have adjustment issues from the loss of friends in an aircraft accident and the loss of his “adopted” son, Christopher. They spend their weekends together with limited contact from family and friends. She has concerns for his mental and physical health. He rarely sleeps through the night, often waking from nightmares or disturbing dreams concerning his combat experiences. He has a keen awareness of noises, is easily startled, and appears to always be on guard. He prefers to not talk about his past experiences and occasionally suffers from memory loss, sometimes exhibits a lack of focus and lacks concentration for long periods of time. He now has a negative attitude and appears despondent. He also has relationship issues and hides his emotions most of the time. f. Trexxx Staxxx, is the brother of Christopher who was killed in Afghanistan. He and his brother were raised by the applicant for many years when the applicant dated his mother. The applicant is a father figure to them. He knows and respects the applicant as a person, authority figure, and a positive role model. After the death of Christopher, he noticed a change in the applicant through how their communication changed. The applicant would not respond to his telephone calls and his mother states she rarely receives email communications from him. He admits Christopher’s death has taken a toll on all of them – it is a wound that they all share. g. A VA decision, dated 25 November 2015, states the VA adjusted the applicant's disability rating to 70 percent based on his PTSD effective 21 September 2015, the date his claim was received by the VA. The VA further adjusted his combined rating to 80 percent effective 30 January 2015 and to 90 percent, effective 21 September 2015. 18. On 11 July 2017, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant did not meet medical retention standards for some of his medical conditions and there was indication for a review by the USAPDA. The psychologist reviewed the applicant’s military electronic medical records which shows he received behavioral health treatment for adjustment disorder, PTSD, anxiety and depression. The trauma component of the PTSD diagnosis stems from his two deployments to Iraq and Afghanistan where he experienced combat exposure, injuries and difficulty coping with the death of his godson. The applicant entered the WTU on or about 21 November 2012 after he injured his knees while participating in combative training. He was first diagnosed with PTSD while in the WTU on 10 July 2013. By 21 March 2014, medical notes show he had several duty limitations to include he could not carry a weapon, deploy, or perform his duties as a pilot. An 8 September 2014 medical note indicated the applicant was taking three medications for his mental health disorders. A VA Compensation and Pension examination dated 16 October 2015 (post retirement) indicated he met the criteria for PTSD and major depressive disorder based on his military service and his combat exposure. 19. The ARBA psychologist was asked to determine if a diagnosis of PTSD existed at the time of his military service and if the condition warranted disposition through medical channels. The opinion is based on the applicant’s electronic personnel and medical records and VA records. The applicant was found to meet retention standards for PTSD during the DES process. However, based on her thorough review she opines the applicant met the full criteria for a diagnosis of PTSD and it is uncertain if it was appropriately considered during separation processing. The applicant exhibited social and occupational impairment and functional limitation that deemed him grounded from flight status and unable to deploy, carry a weapon, reclassify, or perform his military occupational duties. She concludes by saying it is more likely than not that at the time of his medical retirement, the applicant had the diagnosis of PTSD that failed medical retention standards in accordance with Army Regulation 40-501. A copy of the complete medical advisory was provided to the Board for their review and consideration. 20. On 11 July 2017, the applicant was provided a copy of the medical advisory opinion for his review and rebuttal. 21. On 1 August 2017, he responded via email stating the advisory official has incorrect dates of his service in Iraq and Afghanistan. He provided copies of his DD Forms 214s showing he served in Iraq from 15 August 2008 to 18 May 2009 and in Afghanistan from 25 September 2010 to 10 August 2011. [These dates are the dates recorded on his DD Form 214s.] BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board discussed the applicant’s statement, the disability evaluation system proceedings, the confirmation of the USAPDA regarding his claim and the conclusions of the advising official. The Board determined, based on the evidence presented and the advisory opinion, that he applicant’s medical records should be re-evaluated to determine if PTSD should have been included as an unfitting condition during his disability processing. 2. After reviewing the application and all supporting documents, the Board found the relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his medical retirement. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired with additional disability, these proceedings serve as the authority to issue him revised orders, with entitlement to any additional retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is 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 any relief without benefit of the review described above. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Public Law 110–181 defines the term, physical DES, in part, as a system or process of the DOD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is comprised of MEBs, PEBs, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. 2. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) states the objectives of the DES 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 a disability incurred in the line of duty; and provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected. a. The DES consists of the systems listed below. (1) Legacy Disability Evaluation System. Under the legacy system, for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the VASRD. The legacy process also includes the Reserve Component non-duty related referral process. No disability ratings are assigned for non-duty related cases (2) Integrated Disability Evaluation System. The IDES features a single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. A single set of disability ratings provided by VA for use by both departments. The DES applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. For Soldiers referred to the DES under the IDES process and determined unfit, the DES concludes on the date of the Soldier’s notification of the VA’s benefits decision. However, the Soldier’s military status as a member of the Active Army or Reserve Component, as applicable, ends on the date of the Soldier’s disability separation or retirement. b. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40–501. The MEB will recommend that the case file be forwarded to a PEB for a fitness determination when the MEB finds that one or more of a Soldier’s medical conditions individually or collectively do not meet medical retention standards. c. PEBs determine fitness for purposes of Soldiers retention, separation or retirement for disability under Title 10, U.S. Code (USC), chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, USC chapter 61. The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law. d. Paragraph 4-20 pertains to the appointment of PEBs. The Commanding General of the USAPDA, appoints informal and formal PEB members. (1) Permanent members will be appointed from personnel assigned to full-time duty at USAPDA or the PEBs. Permanent members may be designated as alternates for any other board position for which they are qualified. If a USAPDA member is used, they are excused from any review. If the USAPDA legal advisor recommends case- specific findings to the PEB, the legal advisor will refrain from rendering a legal opinion on the same matter, or from acting as an appellate reviewer, at the USAPDA level. (2) Alternate members may be appointed with the concurrence of the alternate member’s commander. Alternate members supplement, or temporarily replace, permanent members to accomplish prompt disability adjudication. (3) The Commanding General, USAPDA will name, train, and certify an officer of either the Active Army or Reserve Component in the grade of colonel to be president at each PEB. The officer must be assigned to full-time duty at USAPDA and may be of any branch except the Medical Corps. The PEB president serves as the PEB administrator, responsible for the leadership and management of day-to-day PEB affairs. The PEB president will ensure that all permanent, alternate, and other voting participants are trained before they adjudicate a case. The PEB president may, but is not required to, serve as the presiding officer, or to otherwise participate as an adjudicative member of every case. (4) Permanent and alternate members may not act on cases before being formally trained and certified on military physical disability adjudication. Normally, formal training consists of successful completion of training conducted by USAPDA. Under limited circumstances, the Commanding General USAPDA may designate an alternate training plan, successful completion of which will certify PEB members. (5) In accordance with the provisions of Title 10 USC 12643, when the case under adjudication concerns a member of the U. S. Army Reserve or ARNG, at least one member of the PEB must be a Reserve Component member. The Reserve Component representative need not be of the same component or senior to the Reserve Component Soldier under adjudication. (6) The formal PEB comprises at least three members in the positions of presiding officer, medical member, and personnel management officer, respectively. The presiding officer will be either an officer in the grade of O–5 or above, of any component, in any authorized duty or training status, of any Army branch other than Medical Corps; or a DA Civilian adjudication officer in grade of GS–13, or above, assigned to full-time duty on a PEB. Presiding officers must be approved, in writing, by the PEB president before they serve as such. The medical officer will be a Medical Corps officer of any service, component, in any authorized duty or training status, or a DA Civilian physician. The personnel management officer will be either a field grade officer of any component, in any authorized duty or training status, and of any Army branch other than Medical Corps, a DA Civilian adjudication officer in grade of GS–12, or above, or for formal PEBs on enlisted Soldiers may be a noncommissioned officer serving in the grade of E–9. The personnel management officer must be familiar with duty assignments. A majority of the formal PEB members could not have participated in the adjudication process of the same case at the informal PEB e. The Commanding General, USAPDA, is the approval authority for any modification of PEB findings, unless the decision is reserved for higher authority. f. Unless reserved for higher authority, USAPDA approves disability cases for the Secretary of the Army (SECARMY) and issues the disposition instructions to the Transition Center for Soldiers separated or retired for physical disability from an active duty status. g. A Soldier will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating (hereafter call duties) to include duties during a remaining period of Reserve obligation. For purposes of unfit determinations, the duties of office, grade, rank, or rating will normally be the following duties: * the duties of an officer’s branch or specialty code at the officer’s current rank * he duties of an enlisted Soldier’s primary occupational specialty at the Soldier’s current rank and skill level * the duties of a terminal assignment preceding eligibility for regular or non-regular retirement and the Soldier has no remaining active duty or Reserve obligation. h. For Soldiers whose medical condition causes loss of qualification for specialized duties, the PEB will consider whether the specialized duties comprise the Soldier's current duty assignment, the Soldier has an alternate branch or specialty, or reclassification or reassignment is feasible. i. Findings will be made (and cited in the record of proceedings) on the basis of objective evidence in the record as distinguished from personal opinion, speculation, or conjecture. When the evidence is not clear concerning a Soldier's fitness, an attempt will be made to resolve doubt by further investigation. Benefit of the doubt will be resolved in favor of fitness under the presumption that the Soldier desires to be found fit for duty. j. With the exception of presumption of fitness cases, fitness or unfitness will be determined on the basis of the preponderance of the objective evidence in the record. k. With the exception of mental disorder due to traumatic stress, unfitting conditions will be presumed stable in the absence of medical evidence that they are not stable. l. The SECARMY will abide by 10 USC 1216a and Title 38 Code of Federal Regulations (38 CFR) for disposition of Soldiers found unfit because of a mental disorder due to traumatic stress. m. Disabilities determined to be unfitting and compensable will be rated in accordance with the VASRD. This rating will generally be determined by the D–RAS. For those cases that are evaluated as an exception to IDES, the military department determines the rating. 3. Army Regulation 40-501(Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. a. Paragraph 3-31 (Disorders with psychotic features) the causes for referral to an MEB include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. 4. The VASRD is a Department of Veterans Affairs rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. Section 4.130 pertains to mental disorders with both PTSD (VASRD Code 9411) and anxiety disorders, not otherwise specified (VASRD Code 9413) falling under mental disorders – anxiety disorders. These are interrelated disorders. ABCMR Record of Proceedings (cont) AR20170009119 4 1