IN THE CASE OF:	

		BOARD DATE:	  19 February 2014

		DOCKET NUMBER:  AR20140000257 


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 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 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 a vote of 2 to 1 that the applicant's unfitting condition diagnosis should be changed to post-traumatic stress disorder (PTSD) and that his permanent retirement should be modified to reflect a permanent 30-percent rating for his PTSD with a combined rating of 80 percent.

2.  The SRP considered the appropriateness of changes in the MH diagnoses; physical evaluation board (PEB) fitness determination; and if unfitting, whether the provisions of Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), section 4.129, were applicable; and a disability rating recommendation in accordance with VASRD, section 4.130.

3.  The SRP noted that while the diagnosis of PTSD had been clearly documented by the VA certainly as early as July 2009, the diagnosis did not appear in the service member's treatment record before entry into the Disability Evaluation System (DES), while the diagnosis of anxiety disorder (not otherwise specified (NOS)) remained unchanged throughout that process.  The SRP also noted the applicant had submitted a request for addition of PTSD for consideration by the PEB, but no medical evaluation board (MEB) or PEB diagnosis was changed.  The DD Form 2808 (Report of Medical Examination), dated 29 July 2009, noted medical conditions of PTSD and depression and this was considered part of the DES process by a majority of the members who thus concluded that this case did meet the inclusion criteria for the Terms of Reference for the MH Review Project.  One SRP member dissented from this perspective.

4.  The SRP then discussed the issue of the appropriateness of the diagnosis.  The SRP noted there were basically two sets of evaluations with diagnostic variance manifested between them.  The psychiatrist who saw the applicant at the beginning and end of the Temporary Disability Retired List (TDRL) period felt the MH condition did not fulfill criteria for PTSD, although it is not clear from his note precisely which criterion he felt had not been met.  The neuropsychologist who had been seeing the applicant over a period of almost 2 years was clear in her letter, dated August 2011, that PTSD was the correct diagnosis and presented more comprehensive data to support her opinion.

5.  The SRP considered that the VA psychologist had a greater degree of familiarity with the applicant and had more comprehensively assessed and described his clinical condition, and that her evaluation of the applicant was of higher probative value.  The majority of the SRP concluded the preponderance of the evidence supported a change of diagnosis to PTSD.

6.  The SRP discussed at length that neither the commander's statement nor the noncommissioned officer evaluation report provided any indication of concern or performance degradation due to an MH condition.  Regardless of the final PEB diagnosis, 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.  The SRP noted the PEB had appropriately applied section 4.129 in this case.

7.  The SRP also discussed the overlap in symptoms of PTSD (or anxiety disorder) and post-concussive syndrome (traumatic brain injury (TBI)) and noted that as providers had stated, symptoms such as memory problems and problems with concentration were likely related to or exacerbated by PTSD (or the applicant's unfitting MH disorder, regardless of specific diagnosis).

8.  The SRP noted with regard to the rating at the beginning of the TDRL period in January 2010, the psychiatrist suggested transient or mild decreases in work efficiency and ability to perform occupational tasks only during periods of significant stress.  In September 2010, a VA examiner suggested total occupational and social impairment, but this seemed inconsistent with the rest of the report which indicated the applicant was working part-time in security.

9.  The SRP reviewed a subsequent VA Rating Decision rendered in December 2010 citing depression, panic attacks, impaired judgment, impaired decision making, and difficulty in establishing and maintaining social relationships, awarded a 50-percent disability rating.  The SRP concluded that there was insufficient evidence to support a rating higher than 50 percent at the beginning of the TDRL period.

10.  The SRP noted in August 2011 at the end of the TDRL period, a month prior to the final PEB, the applicant's psychologist at the VA assigned a Global Assessment of Functioning (GAF) score of 50-55 (in the range of moderate to serious symptoms) and stated there had been no change in overall functioning for which the VA had previously assigned a disability rating of 50 percent.  The examiner also felt there had not been any change and reiterated his impression that the applicant has manifestations of symptoms that are transient or mild, and decrease work efficiency and ability to perform occupational tasks during periods of significant stress.  The examiner added he felt the disabilities were primarily a result of the applicant's physical condition.

11.  The SRP reviewed the TDRL entry PEB and noted that cognitive symptoms from the unfitting post-concussive syndrome (8045-TBI) were considered under the anxiety disorder condition (50-percent rating).  At removal from the TDRL, the PEB listed subjective problems with short-term memory and concentration under the unfitting 8045-TBI, although these symptoms overlap with rating MH conditions (PTSD or anxiety disorder) and were not required to support the PEB's 10-percent rating under the 8045 coding.

12.  The SRP discussed at length the rating at the end of the TDRL period.  The SRP unanimously determined the entirety of the record proximate to TDRL exit best aligned with occasional occupational and social impairment (30 percent in accordance with VASRD, section 4.130, rating criteria) rather than mild or transient symptoms (10 percent).

13.  After due deliberation in consideration of the preponderance of the evidence, the SRP majority concluded that in accordance with section 4.3 (reasonable doubt) and section 4.7 (higher of two evaluations), a permanent disability rating of 30 percent should be awarded at the end of the TDRL period.  The single SRP board member who recommended no change to the PEB's prior determination did not elect to submit a minority opinion.

14.  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 changing his unfitting condition diagnosis to PTSD, and his prior permanent retirement be modified to reflect a permanent 30-percent rating for PTSD with a combined rating of 80 percent as indicated in the following table:





UNFITTING CONDITION
VASRD CODE
TDRL
RATING
PERMANENT RATING
PTSD
9411
50 percent
30 percent
asthma
6602
30 percent
30 percent
neck pain
5243
20 percent
20 percent
radiculopathy
8799-8713
20 percent
20 percent
low back pain
5237
10 percent
10 percent
post-concussive syndrome
8045
10 percent
10 percent

COMBINED
80 percent
80 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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ABCMR Record of Proceedings (cont)                                  AR20140000257



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