IN THE CASE OF: BOARD DATE: 15 October 2014 DOCKET NUMBER: AR20140015997 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a review of the military disability evaluation pertaining to a mental health (MH) condition. 2. The applicant states, in effect, the case file should be reviewed in accordance with the Secretary of Defense directive for a comprehensive review of members who were referred for a disability evaluation between 11 September 2001 and 30 April 2012 and whose mental health diagnosis was changed during that process. 3. The applicant submitted an application through the DOD Physical Disability Board of Review (PDBR) Mental Health Special Review Panel (SRP). CONSIDERATION OF EVIDENCE: 1. The PDBR SRP conducted a comprehensive review of the applicant’s submissions and records for evidence of inappropriate changes in the diagnosis of a mental health condition during processing through the military disability system. 2. The Department of Defense memorandum, dated 27 February 2013, directed the Service Secretaries to conduct a review of mental health diagnoses for service members completing a disability evaluation process between 11 September 2001 and 30 April 2012 in order to determine if service members were disadvantaged by a changed diagnosis over the course of their physical disability process. 3. In the processing of this case, an advisory opinion was obtained from the PDBR SRP and the applicant was provided a copy. 4. The applicant did not respond to the advisory opinion. DISCUSSION AND CONCLUSIONS: 1. After a comprehensive review of the applicant’s case, the SRP recommended by majority vote that there be no change in the applicant’s unfitting condition diagnosis, and that his prior separation be modified to reflect that he was placed on the Temporary Disability Retired List (TDRL) at 50 percent for a period of 6 months (minimum 50 percent in accordance with (IAW) the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129) and then permanently separated with severance pay by reason of physical disability with a final 10 percent rating. 2. The SRP considers the appropriateness of changes (if any) in MH diagnoses, the appropriateness of physical evaluation board (PEB) fitness determination for any MH condition and, if unfitting, whether the provisions of VASRD Section 4.129 were applicable. The SRP further considered the fairness of disability ratings for MH conditions and makes recommendations for said ratings in accordance with VASRD Section 4.130 (and VASRD Section 4.129 as appropriate). Under the Terms of Reference of the MH Review Project, the SRP considered the elimination or change in the diagnosis of Post-Traumatic Stress Disorder (PTSD), applying criteria of the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), previously elaborated. 3. The SRP directed attention to its recommendations based on the above evidence. The SRP reviewed the records for evidence of inappropriate changes or elimination of diagnoses of a MH condition during processing through the Disability Evaluation System (DES) and found the DD Form 2808 noted diagnoses of depression and PTSD; the psychiatrist narrative summary (NARSUM) diagnosed anxiety disorder, not otherwise specified (NOS); the medical evaluation board (MEB) forwarded anxiety disorder, NOS, and the PEB adjudicated anxiety disorder. Therefore, the applicant’s case did appear to meet the inclusion criteria in the Terms of Reference (TOR) of the Mental Health Diagnosis Review Project. The SRP next considered if the anxiety disorder, NOS was a diminution of a PTSD diagnosis and whether a preponderance of the evidence in record supported a recommendation for a change in the diagnosis of the MH condition. 4. The SRP noted that the applicant was diagnosed in service with acute stress disorder; adjustment problems; psychological factors affecting physical condition and anxiety disorder, NOS; and occupational problems by the MEB psychiatrist. The VA MH providers also diagnosed the applicant with multiple diagnoses including PTSD; anxiety disorder, NOS; and depression, NOS. The VA psychiatrist noted “symptoms indicative of PTSD” but did not specify that the applicant fully met the DSM IV criteria for PTSD and continued to consider other MH diagnoses at later visits, including adjustment disorder. 5. The SRP considered that continued changes in diagnoses suggested the applicant did not consistently meet the DSM-IV diagnostic criteria for any Axis I diagnosis. Although the contract VA MH examiner for the Compensation and Pension (C&P) examination stated the applicant fully met the DSM-IV criteria for PTSD, he indicated the applicant had a persistent restricted range of affect of emotional blunting, but on mental status examination (MSE) noted a “highly emotionally labile” mood to the contrary. Although the applicant at times endorsed avoidance symptoms of feeling detached from others and feeling that his future was “bleak,” at other times he expressed concern for his wife in his desire to be separated from the military, was planning for his future career, and was actively caring for his baby while his wife was working. 6. The SRP considered that the applicant’s anxiety symptoms included a broad spectrum of stressors in the applicant’s life to include combat stresses, his perceived treatment as a consequence of his physical symptoms while deployed, as well as “almost everything in his life” at times. The SRP noted that the applicant self-reported his anxiety symptoms existed prior to enlistment and that symptoms were decreased as his separation from the military approached. The SRP therefore agreed that there was insufficient support to recommend a change of the applicant’s MH diagnosis from the service conferred diagnosis of anxiety disorder, NOS. 7. The SRP evaluated the PEB’s adjudication that the anxiety disorder existed prior to service (EPTS) and that it was not service aggravated, and was therefore not ratable. However, a presumption of service aggravation may only be overcome by clear and unmistakable evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service. The guidance for conceding service aggravation, applicable to the PEB's determination and to the SRP recommendation regarding its fairness, was taken from Department of Defense Instruction (DoDI) 1332.38. 8. The SRP noted the applicant self-reported a history of significant anxiety prior to enlistment. Nonetheless, the PEB adjudicated the anxiety disorder as unfitting and did not establish that it was a virtual certainty that there was not service aggravation of the applicant’s condition due to deployment and combat-related events based upon medical evidence or judgment based upon well established medical principles. The SRP concluded that there was not clear and compelling medical evidence to overcome the presumption of Service aggravation and, therefore, the anxiety disorder was eligible for service disability rating. The SRP, having agreed that the MH condition was service ratable, next considered whether application of VASRD Section 4.129 was appropriate in this case. Regardless of final PEB diagnosis, VASRD Section 4.129 did not specify a diagnosis of PTSD, rather it stated “mental disorder due to a highly stressful event,” and its application was not restricted to PTSD. 9. The SRP considered that the applicant’s MH symptoms existed prior to enlistment but the applicant was in “good health” prior to deployment and his anxiety symptoms recurred early during deployment, immediately following stressful combat exposure. The SRP majority concluded that sufficient evidence supported that a causative highly-stressful event severe enough to bring about the Veteran’s release from active military service did occur and that the application of VASRD Section 4.129 was appropriate in this case. A dissenting voter (who did not favor application of VASRD Section 4.129 in this case) expressed objections which are elaborated in the appended minority opinion. 10. The SRP majority thereby recommended a 6-month period of constructive TDRL with a minimal rating of 50 percent for the MH condition (with consideration of a higher rating if so justified by the evidence) in lieu of a permanent separation; followed by a permanent separation rating for the MH condition 6 months later based on the SRP’s assessment of evidence probative to that date. With regard to the constructive TDRL rating, the SRP agreed that there was no supporting evidence for a rating higher than the mandated 50 percent specified as “occupational and social impairment with reduced reliability and productivity;” elaborating reference symptoms of flat affect, stereotyped speech, frequent (> weekly) panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, or difficulty with establishing relationships. Therefore, the minimum 50 percent TDRL rating IAW VASRD Section 4.129 was applicable. After due deliberation in consideration of the evidence and mindful of VASRD Section 4.3 (reasonable doubt) the majority recommended a period of 6 months on the TDRL with the minimum required 50% disability rating at TDRL entry. 11. The SRP majority next considered the permanent rating based on the above evidence. The SRP majority agreed that there was no support for the 50 percent rating at permanent separation, and deliberations settled upon the 30 percent rating specified as “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily)” versus 10 percent specified as “occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or; symptoms controlled by continuous medication.” 12. The SRP majority considered the VA MH treatment visits in the service treatment records (STR) prior to separation supported that the applicant’s MH symptoms were significantly improved, but that he required psychotropic medications for control. The VA C&P examination a month prior to separation noted persistent MH symptoms, but the Global Assessment of Functioning (GAF) of 75 suggested that the symptoms were minimal to mild. The remote VA C&P review examination was too far removed from the benchmark 6-month timeframe considered by the SRP in its permanent rating recommendation to have significant probative value. Nonetheless, it provided support that the applicant continued to function well post-separation; he continued to report MH symptoms without panic attacks or suicidal ideations, but he was not in MH treatment at the time; he was fully employed, remained married, and was expecting a second child. Therefore, the SRP majority agreed the 10 percent rating was applicable. 13. The appended minority opinion, prepared by the single dissenter, recommended that the applicant prior determination be changed to show a combined disability rating of 30 percent for anxiety disorder and his discharge be re-characterized to reflect a permanent disability rating effective the date of his medical separation. 14. After due deliberation in consideration of the preponderance of the evidence, and mindful of VASRD Section 4.3 (reasonable doubt), the SRP majority recommended a permanent disability rating of 10 percent for the MH condition. 15. The available evidence shows the SRP’s assessment should be accepted. BOARD VOTE: ____X____ ___X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by modifying the applicant’s prior separation to reflect that he was placed on the TDRL at 50 percent for a period of 6 months (minimum 50 percent IAW VASRD Section 4.129) and then permanently separated with severance pay by reason of physical disability with a final 10 percent rating. ____________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20040003532 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140015997 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1