BOARD DATE:	  11 June 2014

		DOCKET NUMBER:  AR20140007635 


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 recommended by unanimous vote that the applicant's prior temporary retirement recommendation be modified to 50 percent and his permanent retirement determination remain unchanged.

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 Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD), section 4.129, were applicable.  The SRP further considered the fairness of the service disability ratings for MH conditions, and made recommendations for said ratings in accordance with VASRD, section 4.130 and section 4.129, as appropriate.

3.  The SRP considered the criteria for a diagnosis of post-traumatic stress disorder (PTSD) as specified in the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, Text Revision, 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 concluded that an active PTSD condition was well established during medical evaluation board (MEB) proceedings and was a candidate for separate PEB referral.  There was an argument that PTSD was eliminated as a diagnosis during Disability Evaluation System processing.  Therefore, the applicant's case would meet the inclusion criteria in the MH review project terms of reference.

4.  The SRP later considered whether the PTSD condition, although conceded as a candidate for service rating, could be reasonably justified as separately unfitting and thus eligible for rating.  In this case, that determination was compounded by the fact that the unfitting psychiatric impairment was subsumed in the PEB's rating approach to post-concussion syndrome (PCS).  Although the PEB's coding nomenclature was confined to the PCS, the rating and disability description was based on psychiatric impairment.  The SRP carefully deliberated various approaches and recommendations which would separately recognize and capture the PTSD associated MH impairment in addition to the traumatic brain injury (TBI) cognitive impairment.  It was noted that the SRP's recommendation for TBI in this case, via established precedent and legal opinion, was subject to guidance from the VA "FAST" Training Letter, TL07-05, dated 31 August 2007.  This supported a separate rating for each ratable component of TBI, e.g., headache, cognitive, and psychiatric in this case and that latitude was considered in deliberations.

5.  The SRP agreed after considerable discussion that separating cognitive and psychiatric disability for rating purposes would not be compatible with VASRD, section 4.14 (avoidance of pyramiding), and that the headache component was neither justified by fitness considerations nor was a compensable rating supported by the evidence.  It was concluded, however, that cognitive (TBI) and psychiatric (including cognitive) impairment were jointly unfitting.  One can argue that the cognitive impairment, established as mild by neuropsychological testing, would not itself be independently unfitting and the MH impairment played a considerable, if not dominant, role in rendering the applicant unfit for his military occupational specialty.  Given the PEB's rating approach, however, the MH impairment was subsumed and de facto treated as unfitting.

6.  The SRP ultimately concluded that the PEB's coding/rating strategy was fair but did not take into consideration the applicability of VASRD, section 4.129.  If a VASRD, section 4.130, based rating was applicable, irrespective of the diagnostic nomenclature, then VASRD, section 4.129, should attach if its provisions were met.  In this case it was undeniable that the MH disorder resulted from "a highly-stressful event" in service and the minimum 50-percent rating directed by VASRD, section 4.129, was indicated for the period of TDRL.  The SRP agreed with application of VASRD, section 4.129, and that no rating higher than 50 percent could be supported by the evidence – and that 30 percent, in fact, was fair under strictly section 4.130 criteria.

7.  The SRP agreed that the PEB's coding approach (with the recommended application of VASRD, section 4.129, was appropriate to the applicant's TDRL entry and found no rationale for recommending separately ratable conditions at the time of permanent retirement.  The applicant was functioning well in occupational and social arenas and a VASRD, section 4.130, based rating would not be favorable to the applicant versus the PEB's 40 percent rating under revised code 8045 criteria which included the psychiatric elements in support of the 40-percent rating.  As discussed for the TDRL approach, separate TBI/cognitive plus PTSD/psychiatric rating recommendations at the conclusion of the TDRL period would not provide a combined rating higher than the 40 percent awarded by the PEB, absent pyramiding of symptoms.

8.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded in consideration of the totality of the evidence, with deference to reasonable doubt, that there was insufficient cause to recommend a change in the PEB's permanent rating determination.

9.  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 the applicant's prior temporary retirement rating recommendation to 50 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)                                  AR20140007635



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