IN THE CASE OF:	  

		BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20140007642 


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 mental health diagnosis was changed during that process.

3.  The applicant submitted an application through the 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 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 responded to the advisory opinion and provided 7 exhibits with her rebuttal as follows:

* Letter, dated 16 May 2014, from the Department of Veterans Affairs (VA) New York Harbor Health Care System, for psychiatric treatment and medication management of Post-Traumatic Stress Disorder (PTSD) related exposure
   
* Progress notes indicating treatment prior to, during, and after placement on the Temporary Disability Retired List (TDRL)
   
* Letter, dated 28 May 2014, from the NY Harbor Health Care System, psychotherapy sessions of PTSD related to her combat service and military sexual trauma (MST) exposure
   
* Progress notes indicating treatment prior to, during, and after TDRL 
   
* Progress notes for sleep medicine indicating treatment of sleep problems secondary to PTSD
   
* Progress notes from Neurology, indicating treatment of chronic headaches and PTSD
   
* Radiology Reports, indicating physical diagnosis, supplement PTSD diagnosis
   
5.  In her rebuttal, the applicant states:

	a	 She was deployed to Afghanistan from 26 May 2003 to 4 January 2004 and was exposed to daily AK47 harassment fires from the locals.  She described her duties while as a noncommissioned officer in charge and how she was privy to sensitive information.  While deployed she witnessed local Afghanis with missing limbs on a daily basis.  

   b.	During her week of demobilization, she requested a full physical which was approved in January 2004.  Her physical was completed and several of her conditions, injuries, and illnesses were deferred to primary care or other specialists.  Instead of being retained on active duty, she filed a claim with the VA for her feet, ankles, and knees in 2004.  She was advised not to include PTSD. 
   c.	She later took a position with the VA and resigned due to personal conflict  with coworkers and filed a complaint.  After her resignation, she volunteered at the Brooklyn VA Medical Center (VAMC) from 2007 to 2012.

   d.	 Since 2004 she has been in treatment for PTSD due to combat and MST.  There was clear documentation from the VA PTSD physicians indicating she was in treatment prior to, during, and after her TDRL.  She was later tested by a neuropsychological physician who did not consult with her two PTSD physicians concerning her history of MST and combat PTSD.  She states that previous testing was not evaluated nor were any of her previous MH records from the Military or the VA reviewed.

   e.	She later filed a complaint with the Brooklyn VAMC and spoke with the Chief of Neuro-Psychology regarding her testing.  She was advised that this was only physician interpretation.

6.  In summary, she is requesting the SRP consider all the mitigating facts, situations, and records submitted as proof of her PTSD stemming from combat and MST.

DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the case, the SRP recommended by unanimous vote that the applicant’s prior determination be modified to reflect a TDRL rating of 50 percent rather than 30 percent for her PTSD condition, and no change to her prior permanent rating of 30 percent for the PTSD condition.

2.  The SRP considers the appropriateness of changes (if any) in the MH diagnoses, and provides remedial recommendations if it is judged that there were any eliminations or unfavorable changes in the MH diagnoses by the Service.  The SRP further considered whether the provisions of the VA Schedule for Rating Disabilities (VASRD) Section 4.129 were applicable to any unfitting MH condition the physical evaluation board (PEB) adjudicated or the SRP recommended and made rating recommendations in accordance with VASRD Section 4.130 (and VASRD Section 4.129 as appropriate).  Since the service acknowledged and rated the PTSD condition, there was no question regarding an unfavorable elimination or downgrading of an MH diagnosis.  Therefore, the applicant’s case did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

3.  The SRP noted that a period on the TDRL was effected by the service but it did not comply with the VASRD Section 4.129 provision for a minimum 50 percent rating; and, the SRP must comply with that requirement additionally satisfying itself that a VASRD Section 4.130 derived rating in excess of 50 percent was not justified.  The SRP considered a TDRL 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.  At the time of TDRL placement, the applicant remained occupationally functional; there was no serious impairment in most areas as dictated by the 70 percent rating description and the “exam pled” typical features were not present.

4.  The SRP was mindful of VASRD Section 4.3 (reasonable doubt) and recommended a TDRL rating of 50 percent for PTSD in accordance with (IAW) VASRD Section 4.129.  The SRP finally considered if the service permanent rating (30 percent) for PTSD was fairly assigned lAW VASRD Section 4.130.  The SRP first considered a 70 percent rating as elaborated for the TDRL rating decision.  Although the evidence indicated that the applicant was unable to work, it suggested as well that there was a significant contribution from non-MH conditions which this recommendation should not subsume.  The remaining major areas of impairment as stipulated for the 70 percent rating were relatively intact; and there was no evidence of suicidal ideation, acute psychotic features, or requirement for psychiatric hospitalizations.

5.  The SRP agreed that a 70 percent permanent rating recommendation could not be supported.  Deliberations turned to a 50 percent recommendation for occupational and social impairment with reduced reliability and productivity versus the service 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Given the bleak occupational picture at the time of permanent retirement, a 50 percent recommendation was supported if the contribution of non-MH conditions was fully conceded.  A relevant issue in this case, however, was a significant concern regarding the probative value of the acuity of symptoms as subjectively reported to the TDRL examiner after the VA neuropsychological evaluation which raised credible doubts as elaborated above (factitious disorder diagnosis) and after which the applicant was no longer seeking MH treatment (from the VA, at least, as per the evidence). 

6.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded with these factors in mind, and with deference to reasonable doubt, that there was sufficient cause to recommend a change in the PEB’s permanent rating (30 percent) for PTSD.

7.  After careful consideration of the available evidence and the applicant’s response to the advisory opinion, 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 the applicant’s prior determination to reflect a TDRL rating of 50 percent rather than 30 percent for her PTSD and no change to the prior permanent rating of 30 percent for the PTSD condition.



      _______ _   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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                  AR20140007642



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1