IN THE CASE OF: 

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20140000240 


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).  Through counsel, he contends that the SRP failed to discuss key information which indicated he suffers from severe Post-Traumatic Stress Disorder (PTSD) that made him unfit for military service.  He states the SRP did not mention the severe PTSD diagnosis and the 100 percent disability rating for service-connected PTSD which was effective the date of his discharge.  The SRP does not mention his Social Security disability determination either and believes the SRP failed to correctly follow the DOD Terms of Reference (DOD TOR) when it obtained a psychiatric consultation and incorporated the results of that consultation in the advisory opinion.  

4.  The applicant’s counsel provided a rebuttal to the Advisory Opinion from the SRP, a Social Security Administration Decision, and an example of an Army Board for Correction of Military Records (ABCMR) court remanded case.



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 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 in order to determine if service members were disadvantaged by a changed diagnosis over the course of their physical disability process.

3.  The applicant provides a memorandum Opinion and Order issued by the U.S. Court of Federal Claims remanding the case of an enlisted Soldier to the ABCMR.  In the remand:

	a.  The enlisted Soldier's medical evaluation board (MEB) listed the physical condition of left shoulder and left wrist, and pes planus and plantar fasciitis that failed retention standards.  The MEB referred him to a physical evaluation board (PEB).  The PEB determined his left shoulder and left wrist rendered him unfit and rated him at 20 percent.  The PEB also determined his bilateral pes planus, bilateral plantar fasciitis, left Achilles tendon, and hypertension did not warrant a disability rating.  The PEB recommended separation with entitlement to severance pay.  The Soldier concurred. 

	b.  After the PEB made this determination, the Soldier was seen by a civilian doctor and issued an addendum regarding his bilateral pes planus and plantar fasciitis that failed retention standards.  As such, the PEB presented him with options. He concurred and waived his right to a formal hearing.  The Soldier was discharged in July 2010. 

	c.  In February 2011, the Soldier filed a complaint with the Court.  The Court remanded his case to the ABCMR.  The Board considered his case and obtained an advisory opinion from the U.S. Army Physical Disability Agency (PDA).  The PDA recommended no change to his physical condition.  The ABCMR denied the petition.  In May 2012, the Soldier filed a supplemental brief.  As a result, the Court remanded the case back to the ABCMR to address the pes planus and plantar fasciitis, and the condition of sleep apnea. 

	d.  Contrary to the above court remand case, the applicant's case (Mr. B) contained much more detailed records that included his electronic service records, VA records, hard copy narrative summary (NARSUM), MEB, and PEB.  Additionally, the applicant’s record included a comprehensive psychiatric examination with a diagnosis of "Adjustment Disorder" which was determined by a psychiatrist.  This diagnosis was based on a thorough interview and analysis of his condition.  The adjustment disorder with anxiety and depression was the only diagnosis rendered.  There was no other MH diagnosis determined.  Adjustment disorder is not a physical disability and therefore it is not ratable.  Therefore, the applicant’s case is disparate to the court remand case.

4.  In the processing of this case, an advisory opinion was obtained from the PDBR SRP and the applicant was provided a copy.

5.  The applicant, through his counsel, responded to the advisory opinion and pointed out several issues that he believed the SRP failed to properly address in the advisory opinion.  Counsel states the SRP falsely stated the applicant suffers from adjustment disorder and that it is not unfitting.  

6.  The applicant’s counsel states the SRP failed to discuss key information that clearly indicate the applicant suffers from severe PTSD which made him unfit for military service.  He states the SRP did not mention the applicant's Department of Veterans Affairs (VA) PTSD diagnosis and rating, nor does it mention his Social Security disability determination.  He also believes the SRP failed to correctly follow the DOD TOR when it obtained a psychiatric consultation and incorporated the results of that consultation in the advisory opinion.  

7.  The applicant’s counsel further states that the SRP failed in its analysis by stating the applicant's disability rating was determined by using DOD Instruction (DODI) 1332.39 as a reference, when in fact this regulation was rescinded years before the Army adjudicated this disability case.  He believes DOD needs to modify the TOR for the DOD MH Review Project to ensure ratings are done in strict compliance with the VA Schedule for Rating Disabilities (VASRD) unless modified to the service member's favor in accordance with Title 10, U.S. Code, section 1216a(a)(2).

8.  Further, counsel states the applicant in fact meets the DOD TOR criteria for the DOD MH Review Project for several reasons which are outlined in his rebuttal.  He asserts the SRP falsely claims there was insufficient evidence to conclude the applicant's MH condition rose to the level of being unfit at the time of separation for several reasons outlined in his rebuttal.  Finally, counsel makes several other key points wherein he believes the SRP failed in its advisory opinion analysis of the applicant's disability rating. 



DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the applicant's case, the SRP determined by unanimous vote there should be no change to the applicant’s disability and separation determination.

2.  The applicant states the DOD TOR has a critical error and needs to be rectified as it can affect the proper adjudication of an MH review.  However, the proposed changes to the DOD TOR are not within the purview of the ABCMR; therefore, it will not be addressed by the Board.

3.  The DOD TOR stipulates that SRP reviews will be exclusively documentary in nature and will not allow a personal appearance by the member or veteran.  Additionally, the SRP will be limited to a single review and advisory submission.  Inasmuch as the contention that the SRP inappropriately sought psychiatric consultation, the SRP consists of several members and it includes a psychiatrist.  The staff psychiatrist assists in the preparation of the record of proceedings (ROP) and the context of the “consult” is contained within the language of the ROP.  The staff psychiatrist advises panel members during deliberations and answers questions related to difficult MH issues.  Moreover, the SRP advisory opinion that was issued is based on all available medical records contained in the applicant’s file.

4.  The applicant provided an ABCMR case for reference; however, each ABCMR case is unique and the Board makes its decisions based upon each individual set of the circumstances, available evidence, and arguments presented.  ABCMR cases do not set precedent and each case is considered based on its own merits. 

5.  The applicant provides a memorandum Opinion and Order issued by the U.S. Court of Federal Claims remanding the case of an enlisted Soldier to the ABCMR.  Contrary to the court remand case, the applicant's case contained much more detailed records that included his electronic service records, VA records, hard copy narrative summary (NARSUM), MEB, and PEB.  Additionally, the applicant’s record included a comprehensive psychiatric examination with a diagnosis of "Adjustment Disorder" which was determined by a psychiatrist.  This diagnosis was based on a thorough interview and analysis of his condition.  The adjustment disorder with anxiety and depression was the only diagnosis rendered.  There was no other MH diagnosis determined.  Adjustment disorder is not a physical disability and therefore it is not ratable.  Therefore, the applicant’s case is disparate to the court remand case.

6.  The SRP noted the applicant was referred to an MEB and PEB, and after the NARSUM the profile was appropriately downgraded.  The applicant’s diagnosis of adjustment disorder with features of depression and anxiety was determined not compensable and the applicant met retention standards.  The commander’s statement did not implicate an MH issue and the MH condition was never profiled.

7.  The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES).  The available records show the applicant’s diagnosis of adjustment disorder with features of anxiety and depression was the only diagnosis rendered during processing through the DES.  The MH diagnosis was not changed to the applicant’s possible disadvantage.  Therefore, the applicant did not meet the inclusion criteria in the DOD TOR of the MH Review Project.

8.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which 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.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

9.  The fact that the VA awarded the applicant service-connected disability compensation for this or any other condition is not evidence of any error in the military disability system in 2011.  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 award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

10.  Although the SRP stated the applicant’s disability processing was determined by DODI 1332.39 as a reference, when in fact, this regulation had been rescinded the fact remains that there is no error in the applicant's case.  He was not diagnosed with an MH condition.  He was diagnosed with an Adjustment Disorder with features of anxiety and depression.  This diagnosis is not compensable.  
11.  Counsel also contends the SRP did not mention the applicant's PTSD diagnosis and rating from the VA, nor does it mention his Social Security disability determination.  However, the medical file that went before the SRP contains a VA decision dated 4 October 2012, which shows the applicant was granted a 100 percent disability rating for PTSD also diagnosed as depression and anxiety.  Therefore it was part of the review process by the SRP. 

12.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation and therefore none were subject to disability rating.

13.  The available evidence shows the SRP's assessment should be accepted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

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.
ABCMR Record of Proceedings (cont)                                         AR20040003532



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ABCMR Record of Proceedings (cont)                                  AR20140000240



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