BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20140009060 


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 unanimous vote that the applicant’s prior determination be modified to reflect a rating of 50 percent rather than 30 percent during her period on the Temporary Disability Retired List (TDRL), and no change to her prior permanent rating.

2.  The SRP considered the appropriateness of changes in the 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 mental health condition during processing through the Disability Evaluation System (DES).  The evidence of the available records shows only the diagnosis of schizophrenia was rendered during processing through the DES system.  The SRP determined that no mental health diagnoses were 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 final physical evaluation board (PEB) diagnosis.  However, 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.  In this case, however, the SRP concluded that there was not sufficient evidence to support a conclusion that a highly-stressful event severe enough to bring about the Veteran’s release from active military service occurred and that the application of VASRD Section 4.129 was not appropriate.

5.  The SRP considered whether a rating higher than the 30 percent assigned by the PEB was warranted at the time of entry onto the TDRL. The next higher 50 percent rating, which was assigned by the VA, required the presence of “occupational and social impairment with reduced reliability and productivity”; and the 70 percent rating stipulates “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.”


6.  The SRP agreed that the condition’s severity exceeded the 30 percent criteria because the evidence establishes that decrease in work efficiency was not “occasional” and inability to perform occupational tasks was not “intermittent.” Although she was working part time in a grocery store after entry on the TDRL, her treating physician reportedly advised against full-time work; and the VA examiner agreed that she was incapable of coping with a full-time job. 

7.  The SRP noted that the debate therefore focused on a 50 percent versus 70 percent rating.  The “deficiencies” referenced in the 70 percent rating were not defined as to severity but typical markers for the 70 percent rating were  persistent suicidal ideation, sporadically incapacitating symptoms, serious cognitive impediments and neglect of personal appearance and hygiene.  The SRP concluded that the significant threshold indicators for the 70 percent rating were not evidenced in this case.  Support for the 70 percent criteria was overly speculative and reasonable doubt more securely supported the 50 percent criteria.

8.  The SRP later turned its attention to a rating recommendation at the time of removal from the TDRL.  The PEB quoted the VASRD Section 4.130 criteria in assignment of a 30 percent rating, but the SRP considered if a higher rating was justified.  It was noted that the narrative summary (NARSUM) examiner used 70 percent rating language (i.e., “deficiencies in most areas”) in describing the condition’s severity “during exacerbations,” but the SRP considered that such episodes occurred when the applicant was non-compliant with psychotropic medication.  The VA examiner confirmed that a year after removal from the TDRL the applicant’s symptoms were quite stable with ongoing medication compliance since discharge from her last 2009 hospitalization. 

9.  The SRP noted the NARSUM examiner opined that impairment for industrial adaptability was “severe,” any possible occupational capability or plans were not addressed.  However, it appeared that she successfully managed a busy household that included caring for three small children, cooking for six people, and performing household chores.  It was noted that one possible 50 percent threshold symptom and two possible 30 percent threshold symptoms were present. 

10.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that the evidence just described was most accurately depicted by the 30 percent 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 modifying the applicant’s prior determination to reflect a rating of 50 percent rather than 30 percent during her period 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)                                  AR20140009060



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