IN THE CASE OF:	

		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20140009054 


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 no change to the applicant’s unfitting diagnosis which was rated at 50 percent upon Temporary Disability Retired List (TDRL) entry with a combined disability rating of 50 percent; and upon final disposition, a permanent disability rating of 100 percent for Post-Traumatic Stress Disorder (PTSD), with a combined rating of 100 percent.

2.  The SRP considered the appropriateness of changes in the applicant's MH diagnoses, 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 reviewed the records for evidence of inappropriate changes in diagnosis of the applicant's MH condition during processing through the Disability Evaluation System (DES).  The SRP determined that the MH diagnosis was not changed to the applicant’s possible disadvantage in the disability evaluation.  Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project. 

4.  The SRP noted the provisions of VASRD Section 4.129 (mental disorders due to traumatic stress) were applied by the physical evaluation board (PEB) as directed by Department of Defense (DoD) policy (placement on TDRL with a minimum rating of 50 percent for a period of 6 months before reevaluation and re-adjudication).  The SRP considered if there was evidence for a VASRD Section 4.130 rating higher than 50 percent at time of placement on the TDRL. 

5.  The SRP directed attention to its rating recommendation based on the above evidence.  Relevant to both the TDRL and permanent rating recommendations, the SRP was challenged by inconsistencies in reporting of symptoms, formal psychological testing results and clinical conclusions.  In such cases, the SRP leaned more heavily on the well-grounded evidence such as actual performance and functioning, objective elements of the mental status examination (MSE) and symptoms which were consistently reported and compatible with clinical expectations.  In so doing, however, the SRP remained cognizant of VASRD Section 4.3 (reasonable doubt) and favorably conceded matters which it could not opine to a “more likely than not” standard.  At the time of the applicant's TDRL entry the PEB assigned a 50 percent rating for PTSD and determined that any symptoms of possible Traumatic Brian Injury (TBI) were not unfitting.
6.  The SRP noted the VA initially rated PTSD at 50 percent, but in a follow-up decision in May 2009 increased the rating to 70 percent (effective to the date of TDRL entry) based on VA treatment notes.  The VA also assigned a separate 0 percent rating for TBI.  The SRP deliberated if there was evidence for a VASRD Section 4.130 rating higher than 50 percent at the time of the applicant's placement on TDRL. 

7.  The SRP noted the next higher 70 percent rating was described by “occupational and social impairment, with deficiencies in most areas.”  In considering the reported threshold symptoms that could support a higher rating, the SRP noted that hallucinations were described in extremely vague terms and were clarified by a later examiner as not occurring while awake; and suicidal ideation reported at the VA exam but denied at the psychiatric addendum exam was also later stated to have never occurred.

8.  The SRP noted the VA examiner’s conclusion that “extreme difficulty interacting with others” was present, and that he was incapable of holding a job, but considered that prior to placement on TDRL he was working, he could remember work procedures and instructions, and could communicate effectively and relate civilly to coworkers.  The SRP concluded that the evidence just described was not consistent with the “deficiencies in most areas” stipulation of the 70 percent rating.  Therefore, a rating higher than 50 percent at the time of placement on the TDRL was not supported.

9.  The SRP later turned its attention to a rating recommendation at the time of the applicant's removal from TDRL.  The PEB quoted the VASRD Section 4.130 criteria in assignment of a 70 percent rating.  The next higher 100 percent rating required “total occupational and social impairment.”  The SRP noted the VA neurologist’s statement and neuropsychology testing results regarding possible embellishment or malingering; and the service neurologist’s inability to draw conclusions due to an unsatisfactory examination. 

10.  The SRP considered that the TDRL reevaluation psychiatrist described impairment as “total” and that possibly 4-5 threshold symptoms for the 100 percent rating were present.  The applicant required hospitalization while on the TDRL and another TDRL examiner maintained that a full-time caretaker was required and that employment was not possible.  The SRP agreed that the evidence was best described by “total occupational and social impairment” and therefore concluded that a 100% rating was supported. 



11.  After due deliberation in consideration of the preponderance of the evidence, and mindful of VASRD Section 4.3 (reasonable doubt), the SRP recommended no change in the TDRL-entry rating of 50 percent, and a rating of 100 percent for the PTSD condition at the time of permanent separation.

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
Post-Traumatic Stress Disorder 
9411
50%
100%

COMBINED
50%
100%


      _______ _   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)                                  AR20140009054



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