BOARD DATE: 28 May 2014
DOCKET NUMBER: AR20140006943
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 permanent retirement should be modified to reflect a post-traumatic stress disorder (PTSD) rating of 70 percent rather than 50 percent, with a combined permanent disability rating of 90 percent rather than 70 percent.
2. The SRP considered the appropriateness of changes (if any) 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 Department of Veterans Affairs (VA) Schedule for Rating Disabilities (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 VASRD, section 4.130, and VASRD, section 4.129, as appropriate.
3. The Disability Evaluation System (DES) acknowledged the diagnosis of PTSD, provided a rating for it, and complied with VASRD, section 4.129. Therefore, the applicant did not meet the inclusion criteria in the MH review project terms of reference. The SRP was left only with the charge of assessing the fairness of the Temporary Disability Retired List (TDRL) and permanent ratings.
4. The SRP first assessed if a higher rating was justified at the time of TDRL placement, considering a 70-percent recommendation under the VASRD, section 4.130, criteria of "occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood," referencing typical symptoms of suicidal ideation, obsessional rituals, illogical speech, near continuous panic or depression, spatial disorientation, neglect of hygiene, and inability to establish relationships. The SRP agreed the requirements for a 70-percent rating were not met. At the time of temporary retirement, the applicant remained occupationally functional and there was no serious impairment in "most areas" as dictated by the 70-percent rating description and the typical cited features were not present.
5. The SRP noted a 50-percent rating was also endorsed by the VA pilot rating officer. The SRP agreed, mindful of VASRD, section 4.3 (reasonable doubt), that there was insufficient cause to recommend a change in the PEB's TDRL rating for PTSD. The SRP then turned to assessing the fairness of the service permanent rating for PTSD. It was noteworthy that the VA Compensation and Pension (C&P) evidence portrayed a more severe psychiatric acuity than the Service TDRL evidence which the PEB applied to rating and that the former was significantly closer to permanent retirement and more probative to the SRP's recommendation. In that vein, it was noted that the VA C&P evidence was judged by the VA to warrant a rating increase to 70 percent.
6. The SRP noted that at the time of permanent retirement, there was clearly marked occupational compromise and social turmoil and deficiencies in work, school, family relationships, thinking and mood. The applicant had recently required psychiatric hospitalization and had a proximate history of suicidal thoughts. Although a contribution to occupational impairment from a non-ratable traumatic brain injury may well have been a factor in this case, it was overly speculative to consider a reduced rating on this basis.
7. After due deliberation in consideration of the preponderance of the evidence, the SRP agreed that conceding reasonable doubt, a fair permanent rating recommendation for PTSD was 70 percent in this case.
8. 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 modifying his permanent retirement to reflect a PTSD rating of 70 percent rather
than 50 percent, with a combined permanent disability rating of 90 percent rather than 70 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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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140006943
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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