IN THE CASE OF:
BOARD DATE: 30 October 2013
DOCKET NUMBER: AR20130018450
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 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 Department of Defense (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. A copy of the SRP recommendation was forwarded to the applicant.
2. The DOD 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 during the course of their physical disability process.
DISCUSSION AND CONCLUSIONS:
1. After a comprehensive review of the applicant's case, the SRP recommended no change in the applicant's unfitting mental health diagnosis, but recommended modifying his prior separation to reflect his placement on a constructive Temporary Disability Retired List (TDRL) at a 50-percent disability rating for a period of 6 months (post-traumatic stress disorder (PTSD) at minimum of 50 percent in accordance with Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), section 4.129, and the DOD Directive) and then permanent separation by reason of physical disability with a final mental health disability rating of 30 percent.
2. The SRP considered the appropriateness of the physical evaluation board's (PEB) determinations and whether the provisions of the VASRD, section 4.129, were applicable and the disability rating recommendation in accordance with the VASRD, section 4.130. The Office of the Under Secretary of Defense memorandum, dated 17 July 2009, states, "Therefore, as a matter of policy, the PDBR and all three BCMRs [Boards for Correction of Military Records] will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after September 11, 2001, and in such cases, where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence."
3. The SRP noted the applicant was medically separated with a diagnosis of unfitting PTSD rated at 30 percent in accordance with section 4.30. In accordance with DOD policy, the SRP concluded that section 4.129 applies to the rating of the covered individual's PTSD condition and unanimously recommends his placement on a period of constructive TDRL at a minimum rating of 50 percent with subsequent reevaluation as detailed above. The SRP undertook to determine if a rating higher than the mandated 50-percent level was indicated. On review of the record in evidence, to include the psychiatric consult to the narrative summary (NARSUM) on 17 February 2011, the SRP opined that a higher rating of 70 percent was not supported at the time he was placed on the TDRL.
4. The SRP noted the record in evidence contains no further entries after the PEB of 27 October 2011 and that the VA Compensation and Pension examination was performed on 20 November 2008, 3 years prior to the PEB. Thus, the most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the psychiatric consult for the NARSUM.
5. The SRP unanimously agreed this document supported a rating of 30 percent. The SRP further noted the rating for PTSD of 30 percent by the VA on 21 May 2009, 3 years prior to permanent separation, was sustained in the VA rating decision of 17 January 2013, suggesting stability of the mental health condition.
6. As noted above, the case was referred for a review regarding whether there was a change in, or omission of, a mental health diagnosis during the disability evaluation process. The SRP unanimously agreed that this was nonextant, but that section 4.129 was not applied as mandated. Therefore, this case did not appear to meet the criteria for the Terms of Reference.
7. 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 the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by modifying his October 2011 PEB findings to reflect he was placed on the TDRL at 50-percent disabled for a period of 6 months (PTSD at the minimum 50-percent rating in accordance with section 4.129 and the DOD Directive) and then permanently separated by reason of physical disability with a final mental health disability rating of 30 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.
ABCMR Record of Proceedings (cont) AR20040003532
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130018450
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