IN THE CASE OF: 

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20140006268 


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 the applicant's unfitting condition diagnosis should be changed to post-traumatic stress disorder (PTSD) and that his prior separation should be modified to show he was placed on the Temporary Disability Retired List (TDRL) with a combined rating of 80 percent for a period of 6 months and a permanent combined disability retirement rating of 70 percent (PTSD at 30 percent in accordance with the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD), section 4.130).

2.  The SRP considered the appropriateness of changes in the MH diagnoses; the appropriateness of the physical evaluation board (PEB) fitness determination for any MH condition; and, if unfitting, whether the provisions of the VASRD, section 4.129, were applicable.  The SRP further considered the fairness of disability ratings for MH conditions and made recommendations for said ratings in accordance with the VASRD, section 4.130.

3.  The SRP considered the criteria for a diagnosis of PTSD as specified in the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), including:  the evidence for the stressor (criterion A); re-experiencing of the event (criterion B); persistent avoidance of stimuli associated with the trauma (criterion C); hyperarousal (criterion D); duration and onset (criterion E); and presence of clinically-significant distress or impairment in social, occupational or other important area of functioning (criterion F).  The SRP agreed the applicant's case appeared to meet the inclusion criteria of the MH SRP terms of reference since the diagnosis of PTSD was changed during the course of the PEB proceedings.

4.  The SRP also considered whether the change in diagnosis from PTSD to anxiety disorder was supported.  The treating psychiatrist and all engaged MH providers during the post-deployment course of treatment up until the eve of PEB proceedings concurred with an Axis I diagnosis of PTSD, a diagnosis that was accepted by the narrative summary provider.  A VA psychiatrist made a diagnosis of PTSD contemporaneously with the period of military retirement.  The psychiatrist providing the medical evaluation board addendum and diagnostic opinion did not have the benefit of the clinical familiarity advantaging the treating psychiatrists who diagnosed PTSD.  The SRP agreed that there was ample evidence supporting the presence of all six DSM-IV criteria for PTSD as related above and they were all, in fact, corroborated in the psychiatric addendum which made the conflicting diagnosis of anxiety disorder.  The SRP could find no evidence challenging or refuting the presence of any criterion, and thus concluded that a preponderance of evidence supported an SRP recommendation that this applicant's MH diagnosis should be changed to PTSD.

5.  The SRP next addressed the application of VASRD, section 4.129, in its recommendations, noting that independently of service implementation of the above recommendation regarding a diagnosis change, VASRD, section 4.129, did not specify a diagnosis of PTSD; rather, it stated "mental disorder due to a highly stressful event."  It was readily apparent from the evidence in this case that the MH condition, irrespective of diagnostic nomenclature, satisfied the provisions of VASRD, section 4.129.  The directive stipulated a minimum rating of 50 percent for a 6-month period and a final permanent rating "based on the applicable evidence."  The SRP thereby recommended a 6-month period of constructive TDRL with a minimum rating of 50 percent for the MH condition in lieu of a permanent retirement on 8 June 2008 followed by a permanent retirement on 8 December 2008 with a rating for the MH condition based on the SRP's assessment of evidence probative to that date.

6.  The SRP also noted that should the Service reject the recommendation for a change in final service diagnosis to PTSD, but agree with the application of a VASRD, section 4.129, constructive TDRL as above, the diagnosis of PTSD was firmly established by the VA for the diagnosis of record for the permanent rating.

7.  The SRP determined that with regard to the constructive TDRL rating, there was no supporting evidence for a rating higher than the mandated 50 percent.  The MH condition was stabilized and improving and the commander's statement and clinical notes verified the applicant was occupationally functional to a relatively high degree.  With regards to the permanent rating, it was agreed that the VASRD, section 4.130, criteria for a 50-percent rating (citing "occupational and social impairment with reduced reliability and productivity," and referencing typical symptoms not present in this case) were not met.

8.  The SRP deliberated recommendations for a 10-percent rating (citing "occupational and social impairment due to mild or transient symptoms which decrease work efficiency... only during periods of significant stress") versus a 30-percent rating (citing "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks").

9.  The SRP noted that although it was established that the applicant was a successful student preceding his September 2008 retirement, and that he enjoyed continued success with educational and career pursuits through to the constructive TDRL benchmark (March 2009), the subsequent VA evidence (6 months after the constructional benchmark) suggested that suppressed psychiatric symptoms were in the process of emerging.  It was also relevant that the VA Compensation and Pension (C&P) evidence provided some support for a 30-percent rating even at that early juncture, as suggested by the subsequent Decision Review Officer finding.

10.  The SRP determined that despite his satisfactory objective occupational performance, the VA C&P documented some significant impairment in the social arena.  It was also clear that the applicant continued to suffer sleep disturbance, hypervigilance, intrusive thoughts, impaired concentration, and other occupational detractors that were arguably preventing him from higher achievement.  The VA evidence proximate to the March 2009 adjudication period consists of cursory encounters and statements from the applicant that he was doing well in an overall sense.  The SRP concluded the first comprehensive encounter that followed after that, within the constructional 12-month window, revealed that significant psychiatric impairment was still in play and it carried increased probative value.

11.  After due deliberation in consideration of the preponderance of the evidence, the SRP agreed with deference to the VASRD, section 4.3 (reasonable doubt), that a fair permanent rating recommendation for PTSD (accepting diagnosis as previously addressed) was 30 percent in the applicant's case.

12.  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 full relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the applicant's unfitting condition diagnosis to PTSD and modifying his prior separation to show he was placed on the TDRL with a combined rating of 80 percent for a period of 6 months and then a permanent combined disability retirement rating of 70 percent (PTSD at 30 percent in accordance with the VASRD, section 4.130).




      ___________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)                                  AR20140006268



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