IN THE CASE OF:	  

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20140008918 


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.  After a comprehensive review of the applicant’s case, the SRP recommended by majority vote that no change should be made in the applicant’s unfitting condition diagnosis but that her prior determination should be modified to reflect placement on the Temporary Disability Retired List (TDRL) at a combined rating of 60 percent, and then no change in her prior permanent combined disability rating.

2.  The SRP reviewed the records for evidence of inappropriate changes in
diagnosis of the MH condition through the Disability Evaluation System (DES) processing.  The MH diagnosis listed on the profile at entry into the DES was Post-Traumatic Stress Disorder (PTSD) and the commander's statement implicated "anxiety" as causing duty impairment.  The initial narrative summary (NARSUM) and the medical evaluation Board (MEB) listed the MH diagnosis as dysthymia which was the MH condition adjudicated by the physical evaluation board (PEB).  

3.  The SRP agreed that while the preponderance of evidence supported dysthymia as the correct diagnosis the applicant appeared to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The PEB determined the dysthymic disorder was unfit and placed the applicant on the TDRL with a 30 percent (definite social and industrial impairment) rating in accordance with (lAW) Army Regulation 635-40.  At the time of permanent disability disposition and removal from the TDRL, the PEB rated the dysthymic disorder 10 percent (mild impairment) again lAW Army Regulation 635-40. 

4.  The SRP considered the Department of Veterans Affairs’ (VA's) diagnosis of PTSD and the 10 percent disability rating it granted 8 months after TDRL exit effective on 26 July 2002.  The SRP deliberations began with the consideration of application of VASRD Section 4.129.  The VA evidence was clear that the applicant had a "highly stressful event" that precipitated her MH condition and that the applicant was involved in a VA PTSD study group in the 1990s. 

5.  The NARSUM at TDRL entry made reference to intense anxiety while performing her duty that was triggered by memories of stressful events that occurred while deployed.  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 and, therefore, the SRP consensus was that reasonable doubt supported the application of VASRD Section 4.129 to the unfitting dysthymic disorder in this case. 

6.  The SRP noted the applicant was placed on the TDRL and considered whether the evidence supported a rating for the unfitting MH condition at TDRL entry and TDRL exit that were higher than those adjudicated by the PEB.  The PEB did not apply VASRD Section 4.129 and placed the applicant on the TDRL with a 30 percent rating for her MH condition.  The SRP looked for evidence that a rating higher than the 50 percent required by VASRD Section 4.129 should be recommended at TDRL entry.  At TDRL entry, the applicant did not manifest the occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood required for the next higher 70 percent rating as she had a "supportive" marriage of 16 years, normal speech, mood, and affect.  There were no thought or cognitive abnormalities and no suicidal ideation.

7.  After due deliberation, considering all of the evidence and mindful of VASRD Section 4.3 (reasonable doubt), the SRP majority recommended a VASRD Section 4.129 compliant rating of 50 percent for the dysthymia condition at TDRL entry.  The SRP believed the applicant's mental functioning was more closely or approximately to the 30 percent disability level at the time she was placed on the TDRL, irrespective of VASRD Section 4.129. 

8.  The SRP later deliberated on the PEB’s TDRL exit rating recommendation.  The TDRL evaluation documented that the applicant was still receiving care with MH providers and taking anti-depressant medication.  She had been employed full-time since a month after TDRL entry in a job she enjoyed (school bus driver). She was still married and her mental status exam (MSE) was essentially normal. 
The SRP noted eight months after TDRL exit, she underwent a Compensation and Pension (C&P) PTSD examination.  The exam documented that she was still employed full-time as a school bus driver, her marital and family relationships were at a "high level," and she had a circle of friends and was active within her church.  Based on that exam, the VA granted service-connection for PTSD and rated it 10 percent disabling.  The PEB adjudicated her dysthymia condition as 10 percent disabling at TDRL exit. 

9.  After due deliberation in consideration of preponderance of all evidence and mindful of VASRD Section 4.3 (reasonable doubt), the SRP concluded that there was insufficient cause to recommend a change in the PEB adjudication for the dysthymia condition at TDRL exit.

10.  The available evidence shows the SRP’s assessment should be accepted.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by modifying her prior determination to reflect placement on the TDRL with a combined rating of 50 percent.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing her unfitting condition diagnosis or changing her prior permanent combined disability rating.  



      ____________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)                                  AR20140008918



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