BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20140008198 


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 did not respond to the advisory opinion.  

DISCUSSION AND CONCLUSIONS:

1.  The SRP considered the appropriateness of changes (if any) in the MH diagnoses and the appropriateness of the physical evaluation board (PEB) fitness determination for any MH condition.  If the SRP, based on a preponderance of performance-based evidence, judges that an MH condition was unfairly characterized as not unfitting by the service it further considers whether the provisions of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129 were applicable.  It then makes recommendations for said ratings in accordance with VASRD Section 4.130 (and Section 4.129 as appropriate).  Under the Terms of Reference of the MH Review Project, the SRP considered the elimination or change in the diagnosis of PTSD under the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, Text Revision (DSM IV-TR) criteria previously elaborated.

2.  The SRP directed attention to its recommendations based on the above evidence.  Its first assessment with regard to the MH condition, under SRP guidelines, was to judge (based on a preponderance of evidence) whether an MH diagnosis was changed or unfairly eliminated during the Disability Evaluation System (DES) proceedings.  The pre-TDRL PEB adjudication subsumed the MH condition under the code 8045 (brain disease due to trauma), although the PEB rated it under code 9304 (dementia due to head trauma) via Department of Defense Instruction (DoDI) 1332.39 (rescinded) criteria for psychiatric impairment.  This was favorable to the alternative VASRD criteria for code 8045 in effect at the time, which would have provided for a maximum rating of 10 percent.  The psychiatric diagnosis which was subsumed under the PEB's coding/rating approach was mood disorder; however, a competing psychiatric diagnosis from the service treatment records (as elaborated above) was PTSD.  Therefore, the applicant’s case did meet the inclusion criteria in the Terms of Reference of the MH Review Project.

3.  The SRP before assessing the appropriateness of the MH diagnosis considered whether any acceptable coding and rating approach could be recommended which would separately recognize and capture the impairment due to the MH condition (whatever the diagnosis) in addition to the traumatic brain injury (TB1) non-cognitive impairment.  Of special note in this regard were the VA advisories and changes in VASRD rating criteria for TB1 proximate to the case adjudication dates (21 September 2006 and10 October 2010). 
4.  VA Training Letter 06-03, Rating TB1 Cases (effective 13 February 2006), endorsed consideration of coding beyond the prior 8045-9304 restrictive codes. 
VA Training Letter 07-05, Evaluating Residuals of TB1 (effective 31 August 2007), permitted separate coding of each component of TB1 symptoms (removing the prior 10 percent maximum for subjective symptoms under 8045-9304 coding); and, further stipulates, "Symptoms of cognitive impairment and mental disorders such as depression and PTSD often overlap (with TB1).  In such cases, a single evaluation taking into account both conditions could be the most appropriate way to evaluate them."  VA FAST letter 08-36 (effective 23 October 2008) implemented the current multi-facet criteria for TB1 and was not effective until 2 weeks after the applicant’s permanent retirement date.  The cognitive impairment from TB1 in this case was inextricable from the 34.130 rating for the coexisting and unfitting PTSD "in a setting of mood disorder due to head trauma"; thus, the cognitive impairment from the head neurologic injury was, and would be, subsumed in the service disability rating of the psychiatric impairment associated with the latter. 

5.  The SRP agreed that in accordance with (IAW) VASRD Section 4.14 (avoidance of pyramiding) no additional separate diagnosis and rating was recommended for the cognitive component of the disability associated with TBI in this case.  The commander's statement, corroborated by the clinical evaluations prior to TDRL, suggest that it was dominantly the psychiatric impairment (notably the anxiety and panic attacks) that impeded adequate functioning, and the neuropsychologist opined that it was the MH issues which contributed significantly to the cognitive impairment and which caused the dominant incapacitation.  The SRP did not deliberate if any constellation of non-MH related TB1 symptoms would be separately unfitting or ratable by the Service.  

6.  The SRP noted in the applicant’s case it was undeniable that the mental disorder resulted from a highly-stressful event and, the minimum 50 percent rating directed by VASRD Section 4.129 is indicated for the period of TDRL.
Having concluded that the service 30 percent TDRL rating was superseded by the minimum 50 percent rating lAW VASRD Section 4.129, the SRP considered whether a higher rating (70 percent or 100 percent) could be recommended for the period of TDRL.

7.  The SRP agreed that the VASRD 4.130 description for a 100 percent rating, "total occupational and social impairment," was not satisfied since the applicant was able to sustain civilian employment (albeit accommodated) and manifested intact social functioning at the time of TDRL placement.  

8.  The SRP finally turned to its assessment of the permanent rating at retirement.  It was noted that the TDRL examiner opined that PTSD and TBI cognitive impairment were separately unfitting, and that the VA provided separate PTSD and TBI ratings during that time frame.  The SRP noted that even if the TBI evolved to an unfitting threshold over the course of TDRL it was not clearly delineated as unfitting at the time of temporary retirement and not eligible for rating at permanent retirement regardless of fitness consequences.  Furthermore, the conclusion that there was a separately unfitting TBI at permanent retirement was challenged by the observations that cognitive impairment remained mild and was still, to a significant extent, a manifestation of the unfitting MH condition. 

9.  The SRP agreed that there was not total occupational and social impairment as required for a 100 percent rating, since the applicant had not manifested any psychotic features or required hospitalization prior to retirement.  The final TDRL evaluation (the most temporally probative evidence) did not reflect any severe abnormalities on a mental status exam (MSE); it assigned a Global Assessment of Functioning (GAF) reflecting moderate impairment; and the examiner quoted VASRD Section 4.130 language for a 30 percent rating.  The SRP later deliberated a 70 percent rating. 

10.  The SRP noted that at the time of permanent retirement, occupational prospects were bleak and the applicant had related fairly severe social impairment to the VA Compensation and Pension (C&P) examiner 5 months earlier.  The TDRL examiner specifically opined that he was not employable and the subsequent evidence provides confirmation that this was the case.  Deficits in mood, work and school were documented.  It was acknowledged that there are probative value detractors in this case; specifically the atypically severe endorsement of symptoms, cognitive functioning at the VA C&P evaluation proximate to permanent retirement, and the strong opinion by the VA neuropsychological examiner contemporaneous with retirement.  This issue notwithstanding, however, it remained that the applicant suffered severe and presumably permanent social and occupational consequences from his service-incurred MH condition.  

11.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that conceding reasonable doubt (VASRD Section 4.3) a fair permanent rating recommendation for the MH diagnosis in this case was 70 percent.

12.  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 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 temporary and permanent determinations as indicated below:.

UNFITTING CONDITION		
VASRD
CODE                
TDRL       RATING             
PERMANENT
RATING
Mood Disorder Due to Head Injury with Associated Cognitive Disorder and Post-Concussion Syndrome
8045-9304
50%
---
Post-Traumatic Stress Disorder in a Setting of a
Mood Disorder Due to a Head Injury
9411
---
70%

COMBINED
50%
70%


      __________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)                                  AR20140008198



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