BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20140009095 


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 there should be no change to the applicant’s unfitting MH diagnoses and that his prior determination be modified to reflect that he was placed on the Temporary Disability Retired List (TDRL) at a combined rating for this TDRL period (MH rating at the required minimum 50 percent in accordance (IAW) the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129) with no change in his final combined disability retirement rating of 80 percent (70 percent for Post-Traumatic Stress Disorder (PTSD)). 

2.  The SRP reviewed the records for evidence of inappropriate changes in
diagnosis of the MH condition during processing through the Disability Evaluation System (DES).  The evidence of the available records shows a diagnosis of anxiety disorder, not otherwise specified (NOS) was rendered prior to TDRL entry with no evidence of PTSD diagnosed during that timeframe.  The diagnosis of PTSD at the end of the TDRL period was considered a more serious diagnosis.  Therefore, the applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The SRP agreed that the physical evaluation board (PEB) adjudication of unfitting anxiety disorder, NOS was supported by the evidence; there was not a preponderance of the evidence to support a diagnosis of PTSD at the time of TDRL entry. 

3.  The SRP later considered the appropriate TDRL entry rating for the unfitting anxiety disorder, NOS condition, and considered whether the provisions of VASRD Section 4.129 were applicable for the unfitting MH condition.  The PEB did not apply VASRD Section 4.129 in their rating.  Regardless of the 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.  The TDRL-entry narrative summary (NARSUM) indicated that the applicant’s anxiety disorder was manifested by traumatic combat experiences with nightmares about those experiences.  The SRP concluded that sufficient evidence supported that a highly-stressful event severe enough to bring about the Veteran’s release from active military service did occur and that the application of VASRD Section 4.129 was appropriate in this case and a disability rating of not less than 50 percent must be assigned for the TDRL period. 

4.  The SRP considered if there was evidence for a VASRD Section 4.130 rating higher than the 50 percent required by VASRD Section 4.129.  There was no evidence in the record of recurrent suicidal behaviors, no recorded visits to the emergency room for MH treatment, no recurrent psychiatric hospitalizations and no impairment in thinking or judgment at the time of separation.  The majority of the mental status exams (MSEs) were essentially normal.  

5.  The SRP agreed that the record in evidence did not support a higher than 50 percent rating at TDRL entry.  The SRP acceded at the time of permanent retirement that the record demonstrated that the applicant met diagnostic criteria for PTSD.  This was considered a progression of diagnosis and did not indicate that the TDRL-entry MH diagnosis of anxiety disorder was incorrect. 

6.  The SRP noted the applicant had continued in outpatient treatment and responded positively with treatment; however, he demonstrated no significant overall improvement.  The applicant reported inability to work, poor school performance and partner relational issues due to his chronic symptoms.  The applicant however was able to care for his children, there was no report of domestic violence or child abuse, and he was never hospitalized psychiatrically.  There were no reports of suicidal or homicidal thoughts, no legal issues and no suicide attempts.  Although he reported frequent panic attacks, there was no evidence of visits to the emergency room for MH concerns.  His symptoms did not reflect a disability rating beyond the 70 percent granted.

7.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that the application of VASRD Section 4.129 was applicable in this case with a 50 percent disability rating.  The SRP further concluded that there was insufficient cause to recommend a change in the PEB adjudication of the applicant’s permanent retirement rating of 70 percent for the mental health condition of PTSD.

8.  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
Anxiety Disorder NOS 

9413
50%
---
Post-Traumatic Stress Disorder
9413-9411
---
70%

COMBINED
50%
70%



      __________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)                                  AR20140009095



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