IN THE CASE OF:
BOARD DATE: 8 January 2014
DOCKET NUMBER: AR20130021006
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 MH diagnosis was changed during that process.
3. The applicant submitted an application through the Department of Defense (DOD) Physical Disability Board of Review (PDBR) MH 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 an MH condition during processing through the military disability system.
2. The DOD memorandum, dated 27 February 2013, directed the Service Secretaries to conduct a review of MH diagnoses for service members completing a disability evaluation process between 11 September 2001 and 30 April 2012 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 determined by unanimous vote that there be no change in the applicant's unfitting diagnoses or Temporary Disability Retired List (TDRL) entry ratings. However, the SRP consensus recommendation was to increase the post-traumatic stress disorder (PTSD) permanent disability rating to 30 percent for a permanent combined rating of 70 percent.
2. The SRP considered the appropriateness of the changes in the MH diagnoses and physical evaluation board (PEB) fitness determination, and, if unfitting, whether the provisions of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), section 4.129, were applicable, and a disability rating recommendation in accordance with the VASRD, section 4.130.
3. The SRP considered whether there had been any change in diagnoses to the disadvantage of the applicant during the course of his progress through the Disability Evaluation System (DES). PTSD was an initial and final DES diagnosis and it was therefore determined that this case did not meet the inclusion criteria of the Terms of Reference of the MH Review Project.
4. The SRP further considered the appropriateness of the diagnosis and concluded that, according to his providers, the applicant's MH condition met all of the criteria for a diagnosis of PTSD, including criterion A stressors. Given an unfitting PTSD diagnosis, application of section 4.129 requires placement on the TDRL and an initial minimum disability rating of 50 percent. Members agreed that section 4.129 was appropriately applied by the PEB in this case. Furthermore, members could find no evidence in the available records to support a higher disability rating at the beginning of the TDRL period.
5. The SRP discussed the issue of overlap of symptoms of a traumatic brain injury (TBI) and PTSD and the complexity of the proper apportionment of disability related to each at the end of the TDRL period. The TBI 40-percent rating was driven by a level-2 for the memory facet, and apportioning the neurobehavioral effect facets findings and symptoms (level-1 for occasional interference) from the TBI condition to the VASRD, section 4.130, PTSD symptoms/rating would not decrease the TBI rating. However, any re-rating of the TBI condition for non-MH symptoms was outside the scope of the SRP.
6. The PEB awarded a 40-percent disability rating for residuals of TBI and a
10-percent disability rating for PTSD. The applicant's record of evidence reflects a psychiatrist's note of February 2011 which opines that the applicant's "PTSD symptoms are entirely responsible for his dysfunction." Therefore, the SRP considered a PTSD rating closer to a 30-percent level than the 10-percent rating assigned by the PEB.
7. After due deliberation, the majority of the SRP members agreed that at the end of the TDRL period, a PTSD rating of 30 percent more accurately reflected the available data. The minority member (who recommended no change in the PTSD disability rating) did not elect to submit a minority opinion.
8. The available evidence shows the SRP's assessment should be accepted.
BOARD VOTE:
________ ________ ________ 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 increasing the PTSD code 9411 disability rating to 30 percent for a permanent combined disability rating of 70 percent.
2. The Board further determined the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends
denial of so much of the application that pertains to any change in the applicant's unfitting diagnoses or TDRL entry ratings.
___________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) AR20130021006
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