IN THE CASE OF:	  

		BOARD DATE:	  4 June 2014

		DOCKET NUMBER:  AR20140007373 


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 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 Department of Defense 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 determined by unanimous vote that there should be no change of the applicant’s disability and retirement determination.

2.  The SRP considered the appropriateness of changes in the MH diagnoses and a disability rating recommendation in accordance with the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.130.  

3.  The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system.  The SRP determined that the MH diagnosis was not changed to the applicant's possible disadvantage in the disability evaluation system.  Therefore, the applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project. 

4.  The SRP considered that the narrative summary (NARSUM) psychiatrist clinically evaluated the applicant on at least two separate occasions during the medical evaluation board (MEB) process and subsequently reconsidered diagnostic criteria in order to address the issue of diagnostic variance for the physical evaluation board (PEB).  The SRP members agreed that the lack of evidence for criterion S, multiple evaluations by the psychiatrist, and proximity of the NARSUM's later evaluations to the time of entry on Temporary Disability Retired List (TDRL) provided a preponderance of evidence which favored the anxiety disorder as correct at that time.

5.  The SRP determined that the disability associated with all psychiatric conditions, regardless of the diagnosis or multiple diagnoses, was subsumed under a single rating using the same criteria in accordance with VASRD Section 4.130.  Therefore, the applicant's disability rating assigned by the PEB, and the recommendation from the SRP, would be unaffected by the specific psychiatric diagnosis determined to be unfitting by the service.  

6.  The SRP deliberated whether there was evidence for a VASRD Section 4.130 rating higher than 50 percent at the time of placement on the TDRL.  The next higher 70 percent rating was described by "occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood."  It was noted that during the time leading up to the TDRL entry there were no visits to the emergency room for MH treatment, no psychiatric hospitalization, no legal issues or incidents of domestic violence and no impairment in thinking.  The absence of threshold symptoms of the next higher 70 percent rating, for example, illogical or obscure speech, spatial disorientation, and neglect of personal appearance and hygiene was considered.

7.  The pre-TDRL VA examiner's observation that the applicant was near his pre-morbid level of function and the NARSUM's characterization of occupational impairment were also noted.  The SRP agreed that the 70 percent rating criteria were not reflected in the evidence, and thus concluded that a rating higher than 50 percent at the time of placement on the TDRL was not supported.

8.  The SRP later turned its attention to a rating recommendation at the time of the applicant's removal from the TDRL.  The PEB acknowledged that the characterization of the condition's severity by the TDRL re-evaluation NARSUM examiner reflected the VASRD 10 percent rating criteria.  The PEB concluded, however, that the condition more closely approximated the 30 percent criteria "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks."

9.  The SRP considered whether a rating higher than 30 percent was justified.  There was agreement that the TDRL re-evaluation NARSUM exam was not supportive of a rating higher than 30 percent, given the successful work and school performance and the absence of 50 percent threshold symptoms.  The VA exam, however, suggested a worsened condition in the 3-month interim since the NARSUM exam.  Some threshold symptoms were reported at that time which supported a 50 percent rating.  It was noted that the VA examiner asserted the presence of some important elements, such as memory loss, impaired attention and suspiciousness, but did not provide evidence they were actually observed or tested. 

10.  The SRP debated inconsistencies in the VA examination report, such as a reference to a sense of foreshortened future in the context of a just-acquired Bachelor's degree and plans for a Master's program and pursuing business opportunities; the presence of more than weekly panic attacks that were not reported by the TDRL re-evaluation NARSUM examiner; "major social function changes" and social isolation despite ongoing active involvement in Alcohol Anonymous meetings and weekly Warrior Group; and lack of enjoyment in activities "for many years" despite Service Treatment Records evidence to the contrary.  

11.  The SRP also acknowledged the fact that non-compliance with medication was operant at the time of both examinations.  Although it should be conceded that this issue was at least partially attributable to the psychiatric condition itself, the permanent rating recommendation was intended to reflect the severity of the condition in a more stable and treated state. 

12.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that the evidence just elaborated was most accurately represented by the 30 percent 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 that 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)                                  AR20140007373



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