IN THE CASE OF: 

		BOARD DATE:	    11 June 2014 	

		DOCKET NUMBER:  AR20140007675 


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 unfitting condition diagnosis should be changed to post-traumatic stress disorder (PTSD) and that his prior separation should be modified to reflect the applicant was placed on the Temporary Disability Retired List (TDRL) with a disability rating of 50 percent in accordance with Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD), section 4.129, and permanent disability retirement for PTSD rated at 70 percent upon final disposition.

2.  The SRP considered the appropriateness of changes in the MH diagnoses; the physical evaluation board (PEB) fitness determination; if unfitting, whether the provisions of VASRD, section 4.129, were applicable; and a disability rating recommendation in accordance with VASRD, section 4.130.

3.  The SRP noted the applicant was diagnosed with panic disorder (not otherwise specified) at the time of the initiation of the Disability Evaluation System (DES) evaluation and this remained the primary diagnosis during his processing through the DES.  Panic disorder was documented by a physician in the DD Form 2808 (Report of Medical Examination), although the issue of a possible PTSD diagnosis was addressed in the narrative summary (NARSUM) where it was documented that the applicant did not meet the full criteria for that disorder.  The SRP agreed that the applicant’s case did not meet the inclusion criteria of the terms of reference of the MH review project.

4.  The SRP later considered the appropriateness of the diagnosis and noted that while PTSD was considered and rejected as a diagnosis by his Service providers and in the initial NARSUM, the applicant had been diagnosed with PTSD at the time of his hospitalization 2 months previously in November 2006.  Additionally, the first VA Compensation and Pension (C&P) examination performed by a psychiatrist 2 months after the applicant's placement on the TDRL determined the primary diagnosis responsible for his disability was PTSD while the panic disorder had actually improved significantly.  While the NARSUM stated the applicant did not fulfill the criteria for the PTSD diagnosis, it was not specific in documenting which criterion was not met, whereas the VA C&P examination was somewhat more specific in describing symptoms that were present which did fulfill those criteria.

5.  The SRP noted the VA C&P examination therefore appeared to be of higher probative value.  That impression was bolstered by the second VA C&P examination which found that the applicant was totally impaired as a result of PTSD and by the TDRL NARSUM acknowledgement that the applicant's clinical picture was very close to meriting the diagnosis of PTSD.  The final TDRL examination continued the PEB diagnosis of panic disorder; however, there was scant discussion of other diagnostic possibilities and no detailed evaluation of PTSD criteria.  The SRP concluded that the preponderance of the evidence supported a diagnosis of PTSD at the time of placement on the TDRL.

6.  The SRP determined that regardless of final PEB diagnosis, VASRD, section 4.129, did not specify a diagnosis of PTSD; rather, it stated "mental disorder due to a highly-stressful event" and its application was not restricted to PTSD.  There was sufficient evidence of a highly-stressful event to concede that VASRD, section 4.129, should be applied regardless of the diagnosis.  The SRP noted that while the PEB had placed the applicant on the TDRL, application of VASRD, section 4.129, required a minimum disability rating of 50 percent with re-evaluation.  Additionally, for a rating at entry in the TDRL period, there was evidence sufficient to support a VASRD, section 4.130, 50-percent rating level of occupational and social impairment rather than the 30-percent occasional impairment.  There was insufficient evidence to support a VASRD, section 4.130, disability rating higher than the required minimum 50 percent at the time of placement on the TDRL.  The SRP unanimously recommended a 50-percent TDRL entry rating coded 9411 (PTSD).

7.  The SRP noted that during the TDRL interval, the Service examination in November 2008 summarized the applicant's functioning by stating his life was constricted with significant deficiencies in work and social functioning.  Additionally, the VA, based on its second C&P examination which described the applicant as totally impaired and unemployable as a result of his PTSD, had raised the applicant's disability rating to 70 percent in February 2009 and reconfirmed it in the VASRD of June 2010.  The most proximate evidence for rating at the time of TDRL exit was the TDRL examination on 23 December 2011.

8.  The SRP agreed that VASRD, section 4.130, criteria for a 100-percent rating were not met and deliberations ensued regarding a 70-percent versus 50-percent permanent rating recommendation.  The 70-percent criteria key element was "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood," while the 50-percent criteria were "occupational and social impairment with reduced reliability and productivity."  The TDRL examination documented deficiencies in work (unemployed due to MH symptoms), family relations (marital), and mood.  Thinking was addressed by normal thought processes; however, obsessive-compulsive behavior was noted to interfere with routine activities.  School was not addressed and there was no deficient judgment in evidence.  The disparity between the specific content of the examination and symptom description (closest to 70 percent) and summary remarks (closer to 50 percent) were discussed in depth.

9.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that the evidence, with consideration of VASRD, section 4.3 (reasonable doubt), was better aligned with the VASRD, section 4.130, criteria for a 70-percent rating at the time of permanent retirement.  The SRP unanimously recommended a 70-percent permanent retirement rating coded 9411 (PTSD).

10.  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 changing the applicant’s unfitting condition diagnosis to PTSD and modifying his prior separation to show he was placed on the TDRL with a disability rating of 
50 percent in accordance with VASRD, section 4.129, and permanent disability retirement for PTSD rated at 70 percent upon final disposition.



      _______ _  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)                                  AR20140007675



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