IN THE CASE OF:	  

		BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20140009052 


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 MH 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 unfitting MH diagnosis be changed from anxiety to Post-Traumatic Stress Disorder (PTSD) at the time of placement on the Temporary Disability Retired List (TDRL) with no change of his physical evaluation board’s (PEB’s) assignment disability rating of 30 percent. 

2.  The SRP considered the appropriateness of changes in the MH diagnoses;
PEB fitness determination; and if unfitting, whether the provisions of the Department of Veterans Affairs Schedule for Rating Disabilities (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 that the diagnosis of PTSD had appeared on the commander’s statement and the S3 profile issued in June 2011 that indicated “needs medical evaluation board [MEB].”  PTSD was diagnosed prior to entry into the Disability Evaluation System (DES), although the examiner who prepared the narrative summary (NARSUM) did not believe the applicant met the criteria for that diagnosis.  However, the applicant’s treating psychiatrist did feel that he fulfilled all the required criteria; and, following the applicant’s appeal to the MEB and the subsequent memo from the Deputy Commander for Clinical Services, the anxiety disorder not otherwise specified (NOS) diagnosis, although it was unclear if PTSD did not meet medical standards, was forwarded to the PEB.  The SRP concluded the applicant’s case did fulfill the inclusion criteria of the Terms of Reference of the MH Review Panel at TDRL entry.  The SRP next considered the appropriateness of the diagnosis. 

4.  The SRP noted the opinion expressed in the NARSUM dated 24 January 2011 in which the examining psychiatrist did not feel that the condition met full criteria for PTSD.  After review of the entirety of the record to include the findings of the applicant’s treating psychiatrist, other providers involved in his psychotherapy and the findings of the later Compensation and Pension (C&P) exam, the SRP felt that the preponderance of the evidence supported the diagnosis of PTSD at the applicant's TDRL entry and additionally noted that PTSD was the TDRL exit diagnosis. 


5.  The SRP determined that regardless of the applicant's diagnosis at TDRL entry, given that the unfitting MH condition was felt to have been the result of a stressful event (i.e., the helicopter crash), application of VASRD Section 4.129 was required.  Since the PEB did place the applicant on the TDRL at a temporary disability rating of 50 percent for the MH condition with re-evaluation planned 6 months later, the SRP concluded that VASRD Section 4.129 was appropriately applied in this case.

6.  The SRP considered the NARSUM statement that “there is Mental Disorder signs and symptoms that are transient or mild, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress,” was consistent with a VASRD Section 4.130 disability rating of 10 percent. 

7.  The SRP also noted the treating psychiatrist’s description of the applicant’s functioning in which she stated that “military impairment is severe” and “his symptoms impact his ability to interact in work and social domains.”  The SRP concluded that the level of disability described in these reports did not exceed the 50 percent rating required by application of VASRD Section 4.129. 

8.  The SRP noted that there did not appear to be sufficient evidence elsewhere in the available record to support a higher (70 percent) MH rating at the time of the applicant's placement on the TDRL.  Regarding exit from the TDRL, the final PEB changed the unfitting MH diagnosis to PTSD and described the 30 percent level of impairment in their disability description.  The MH exam from 23 October 2012 (about 11 months prior to TDRL exit) provided the evidence of functioning for rating closest to the end of the TDRL period.  The SRP agreed that the VASRD Section 4.130 criteria for a 70 percent rating were not met and deliberations ensued regarding a 50 percent vs. 30 percent permanent rating recommendation. 

9.  The SRP focused on the 50 percent rating (occupational and social impairment with reduced reliability and productivity) versus the 30 percent (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) key criteria.  The MH symptoms appeared slightly worse at the end of TDRL and the applicant was unemployed but was going to school for a Registered Nurse (RN) degree (progress not cited).  The contract MH exam provided a global assessment in the moderate symptom range and the examiner’s overall assessment of impairment was crafted in the language of the 30 percent rating criteria for occasional decrease in functioning. 




10.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that the evidence was better aligned with the VASRD Section 4.130 criteria for a 30 percent rating; i.e., “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” and there was not sufficient reasonable doubt for a higher rating.

11.  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 changing the applicant’s unfitting MH diagnosis of anxiety disorder to PTSD at the time of placement on the TDRL.



      ___________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)                                  AR20140009052



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