IN THE CASE OF:	  

		BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20140009051 


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 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 a MH 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 unanimous vote that the applicant’s initial Temporary Disability Retired List (TDRL) placement be modified to reflect that he was placed on the TDRL at 50 percent in accordance with (IAW) the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129 and Department of Defense (DoD) Directive; and recommended that the applicant be permanently retired with a rating of 30 percent for his Post-Traumatic Stress Disorder (PTSD) IAW VASRD Section 4.130.

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

3.  The SRP noted the applicant was diagnosed initially with PTSD secondary to combat stress, a diagnosis which was re-affirmed, even after entry into the Disability Evaluation System (DES), and that the medical evaluation board (MEB) had forwarded to the PEB the diagnosis of PTSD.  The SRP concluded that, although the additional diagnosis of depression, not otherwise specified (NOS) was added, the diagnosis of PTSD had not been changed during the DES process.  The SRP concluded that the applicant’s case did not meet the inclusion criteria of the Terms of Reference of the MH Review Project.  

4.  The SRP noted that, although the applicant was placed on TDRL, the unfitting PTSD was rated 30 percent indicating that the PEB did not apply the provisions of VASRD Section 4.129.  The SRP concluded that the provisions of VASRD Section 4.129 applied to the rating of the applicant’s PTSD condition.  Having agreed upon the applicability of VASRD Section 4.129, the SRP agreed that the Service 30 percent TDRL rating determination was invalidated and that a minimum rating of 50 percent was mandated. 

5.  The SRP next considered whether the evidence of record supported a VASRD Section 4.130 rating higher than 50 percent (IAW VASRD Section 4.129) at the time of placement on the TDRL.  The SRP noted the PEB rated the condition 30 percent, citing the occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and also noted the presence of “anxiety, depression, poor impulse control and suicidal ideation.” 

6.  The SRP noted that the MEB narrative summary (NARSUM) had documented suicidal thoughts, impulsivity, domestic violence and the inability to maintain relationships.  The commander’s memo to the PEB had documented consistently “very low” performance due to inability to “stay on task,” that he “avoids customers,” that the applicant could only work 20 hours per week and that he was unable to perform duties properly.  This reduced reliability and reduced productivity was more consistent with a VASRD Section 4.130 rating of 50 percent.  

7.  The SRP noted the VA Compensation and Pension (C&P) examination approximate to placement on the TDRL recorded similar findings, with the examiner indicating “reduced reliability and productivity affecting his occupational and social functioning,” describing a 50 percent disability rating in accordance with VASRD Section 4.130. 

8.  The SRP further noted that the examinations did not show evidence symptoms such as impaired judgment, thinking, obsessional rituals, illogical speech, near continuous panic, periods of violence, spatial disorientation, or neglect of personal hygiene, that were indicated as supportive of the 70 percent rating.  The SRP concluded a 50 percent rating at TDRL entry was appropriate. 

9.  The SRP then considered whether the evidence supported a permanent rating higher than the 30 percent adjudicated by the PEB at the time of the applicant's removal from the TDRL.  The most proximate sources of comprehensive evidence on which to base the permanent rating recommendation in this case were the TDRL psychological examination performed on 26 November 2012, 4 years and 9 months after separation and the VA PTSD C&P examination dated 13 April 2013. 

10.  The SRP determined that the evidence presented in these documents presented a diverse assessment of the applicant’s social and occupational performance five years after separation.  The TDRL psychology examination from November 2013 concluded there was occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks consistent with the PEB’s 30 percent rating, while the VA PTSD C&P examination in April 2013 concluded there was occupational and social impairment with deficiencies in most areas consistent with the subsequent VA rating of 70 percent.

11.  The SRP discussed a 30 percent versus 50 percent versus 70 percent rating.  At the time of the TDRL examination, the applicant indicated he had not sought work due to lack of interest and becoming easily angered.  The TDRL examiner noted that the applicant was generally functioning satisfactorily, and did not conclude that the applicant could not work.  Psychological symptoms at the time of that examination were indicated to be mild based on self-report questionnaires.  

12.  The SRP noted that at the time of the VA C&P examination in April 2013 the applicant reported more severe symptoms reflecting difficulty establishing and maintaining effective relationships, and irritability with difficulty controlling his anger.  The SRP further noted that the applicant had not worked since separation and that he functioned only as a part-time caregiver for his grandson.  The VA C&P examiner concluded the applicant was not employable at that time due to irritability, anger and inability to maintain social or occupational relationships. However, the VA examiner recorded that the applicant had not been in treatment for nearly 2 years and opined he would improve with treatment. 

13.  The SRP determined that the mental status examination (MSE) did not show evidence symptoms such as impaired judgment or thinking, difficulty understanding complex commands, impaired memory, near continuous panic, current suicidal ideation, periods of violence or persistent danger of hurting self or others that are indicated as supportive of the 70 percent rating.  While the April 2013 C&P examination when considered in isolation supported consideration of a 70 percent rating, the SRP agreed that when considered in context of other examinations, the criteria for a 70 percent  rating (occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) were not met. 

14.  The SRP later deliberated recommendations for a 50 percent rating (occupational and social impairment with reduced reliability and productivity) versus a 30 percent rating (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks).  The SRP considered the improved symptoms at the TDRL examination and the mild scores on the symptom inventory questionnaires completed by the applicant at the time of that examination.  

15.  The SRP considered the VA C&P examination following removal from the TDRL where the applicant reported more severe symptoms and the fact that the applicant had not sought any treatment for 2 years.  The SRP majority held the VA C&P examination after removal from TDRL as less probative and concluded that the TDRL MH examination was more reflective of the overall disability picture and the 30 percent rating adjudicated by the PEB for PTSD. 
16.  After due deliberation in consideration of the preponderance of the evidence, the SRP unanimously recommended a 50 percent rating (IAW VASRD Section 4.129 and VASRD Section 4.130) for PTSD at the time of placement on the TDRL and, by a vote of 2 to 1, recommended a permanent 30 percent IAW VASRD Section 4.130 rating for PTSD at the time of removal from the TDRL.

17.  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
Post-Traumatic Stress Disorder
9411
50%
30%
Back Pain Status Post Spinal Fusion Surgery
5241
40%
40%

COMBINED
70%
60%


      ___________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)                                  AR20140009051



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1