IN THE CASE OF:	  

		BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20140002624 


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.  

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 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 majority recommended that the applicant’s prior separation be modified to reflect 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) Section 4.129) and then permanently separated with severance pay by reason of physical disability with a final 10 percent rating.  The SRP minority voted for no change to the applicant’s record and elected not to submit a minority opinion. 

2.  The SRP considered the appropriateness of changes in the mental health diagnoses, 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 VASRD Section 4.130.    The diagnosis of anxiety disorder not otherwise specified was on the profile, mental status exam and physical evaluation board (PEB) cover sheets and the diagnosis from the narrative summaries (NARSUMs).  The commander's statement indicated a diagnosis of Post-Traumatic Stress Disorder (PTSD) and the physician that signed the DD Form 2808 listed PTSD, anxiety, and personality disorder. 

3.  The SRP determined the final physical evaluation board (PEB) did not include the diagnosis of PTSD and the SRP majority adjudged that the applicant did meet the inclusion criteria in the Terms of Reference of the Mental Health Review Project.

4.  The SRP noted the record of evidence indicated the applicant had some symptoms of PTSD, but there was no comprehensive note or mental health provider diagnosis of PTSD proximate to the applicant's retirement. 

5.  The SRP noted the Department of Veterans Affairs (VA) exams proximate to the separation specifically addressed all of the PTSD criteria and stated the applicant did not meet full criteria for PTSD.  Treatment note entries assessing the diagnosis as PTSD and the later VA Compensation and Pension (C&P) diagnosis of PTSD over 4 years remote from separation were considered.  The SRP concluded that there was not a preponderance of evidence to support changing the applicant's mental health from those recorded by the PEB (anxiety disorder and personality disorder).
6.  The SRP also noted the initial VA examiner stated that PTSD criterion A was met (a highly stressful event, combat) and the VA rated the applicant's mental health condition IAW VASRD Section 4.129.  The evidence shows a note dated 
25 November 2008 with the applicant's last name and a signature stamp from the US Army Physical Disability Agency’s senior medical advisor stated Section 4.129 as “NO."  

7.  The SRP noted that there was evidence of existing prior to service (EPTS) personality disorder, but the SRP majority perceived scant evidence for any EPTS anxiety disorder diagnosis.  There was no EPTS deduction by the PEB for the unfitting anxiety disorder and the SRP found no compelling evidence for any EPTS deduction. 

8.  The SRP discussed the significant overlap and symptom exacerbation of the applicant's anxiety disorder with his personality disorder condition and diagnoses of alcohol abuse and cannabis abuse by the April 2009 exam.

9.  The SRP considered the psychiatric hospitalization, NARSUM exam of Global Assessment of Functioning of 65 with mild social and industrial impairment, and the initial C&P evaluation of mild to no impairment for initial rating determination.  The SRP majority adjudged there was insufficient evidence for a VASRD Section 4.130 rating higher than 50 percent at time of the applicant's placement on constructive TDRL, and a 50 percent constructive TDRL rating was recommended.  The most proximate source of comprehensive evidence on which to base the permanent Section 4.130 rating at the end of the recommended 6-month period of constructive TDRL in this case is the VA C&P examination dated 9 April 2009, 7 months after separation and thus within a month of the TDRL reevaluation rating timeframe.

10.  The SRP took the position that there was a fairly heavy burden to deduct impairment from alcohol and/or substance abuse in mental health cases from the disability rating, because alcohol/substance abuse was frequently associated with self-treatment of symptoms.  The issue of the underlying non-compensable personality disorder and its contribution or exclusion from consideration of overall assessment of occupational and social impairment lAW VASRD Section 4.130 was discussed in detail.  The PEB noted "Condition of Personality Disorder contributed to Soldier's maladaptive choices which impact performance and was considered in context."  The military psychiatrist stated "this personality disorder very likely contributed to his emotions and behaviors that affect his anxiety and depression," indicating the anxiety disorder disability was superimposed on the personality disorder.  However, the VA mental health examiner for the 7 month post-separation VA exam opined that the anxiety disorder was mild, improved from his prior evaluation of the applicant (initial VA exam 2 weeks after separation) and that the most prominent symptoms were due to an ongoing personality disorder. 

11.  The SRP considered the provisions of VASRD Section 4.126 (evaluation of
disability from mental disorders), and Section 4.127 (Mental retardation and personality disorders).  The SRP specifically addressed VASRD Section 4.127's sentence that "... However, disability resulting from a mental disorder that was superimposed upon mental retardation or a personality disorder may be service-connected.”

12.  The SRP noted and considered the VA's rating of 50 percent for anxiety and depression for their exams as well as their latest diagnostic change to PTSD in the VA exam and rating in April 2013. 

13.  The SRP considered the entirety of the record and noted consistency in the applicant's history.  The SRP majority concluded that sufficient evidence supported that a highly stressful event severe enough to bring about the veteran's release from active military service did occur.  Therefore, the SRP majority determined that application of VASRD Section 4.129 was appropriate in this case and a 6-month constructive period of TDRL was warranted.  

14.  After due deliberation in consideration of the preponderance of the evidence, the SRP adjudged that the occupational and social impairment due to anxiety disorder at the end of the constructive TDRL period was best approximated by the VASRD Section 4.129 criteria for the 10 percent rating.

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 his prior separation to show he was placed on the TDRL at 50 percent for a period of 6 months (minimum 50 percent lAW 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



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ABCMR Record of Proceedings (cont)                                  AR20140002624



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