BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20140010918 


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 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 determined by unanimous vote that there should be no change of the applicant’s disability and medical retirement determination.

2.  The SRP considered the appropriateness of changes (if any) in the applicant's MH diagnoses, and provides remedial recommendations if it was judged that there were any elimination or unfavorable changes in MH diagnoses by the Service. The SRP further considered whether the provisions of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129 were applicable to any unfitting MH condition (physical evaluation board (PEB) adjudicated or SRP recommended) and whether rating recommendations in accordance with (IAW) VASRD Section 4.130 and VASRD Section 4.129 as appropriate were made.

3.  The SRP noted that in this case a diagnosis of Post-Traumatic Stress Disorder (PTSD) was acknowledged in the Disability Evaluation System (DES) proceedings, although not conceded as a separately ratable condition by the PEB.  There was no issue of any MH diagnosis being unfavorably changed to a non-ratable condition.  Therefore, the applicant’s case did meet the inclusion criteria in the Terms of Reference of MH Review Project.

4.  The SRP deliberated whether by a preponderance of evidence a service diagnosis of PTSD could be recommended in this case for a primary MH rating.  Although the medical evaluation board (MEB) psychiatrist conceded the Gulf War stressors in defense of a co-morbid Axis I diagnosis of PTSD, the vegetative symptoms of depression with some mild psychotic features constituted the dominant acuity in the examiner’s narrative history.  The PEB’s conclusion that the major depressive disorder (MDD) was the dominant diagnosis was easily reconciled with that evidence and it could be safely assumed that any ratable disability from the collateral PTSD and conversion symptoms were subsumed in the PEB’s overall VASRD Section 4.130 rating; but, it was debated whether the PEB’s exclusion of PTSD as a distinctly ratable condition was justified.



5.  The SRP agreed that the conflicting evidence with regard to Criterion A stressors and for the other requisite PTSD criteria did not leave a preponderance of evidence in favor of recommending the diagnosis of PTSD.  It was further agreed that such a conclusion was countered by the years of satisfactory service after the Gulf deployment, without clinically documented MH symptoms, need for a psychiatric profile, any indication of performance limitations on the basis of MH impairment and the lack of the VA confirmation of a PTSD diagnosis until after the 2003 mobilization.  The latter was clearly not associated with Criterion A stressors, nor would it have logically exposed any new PTSD triggers not already surmounted during the interim military service. 

6.  The SRP also addressed the application of VASRD Section 4.129 to its recommendations, noting that although the Temporary Disability Retired List (TDRL) requirement of VASRD Section 4.129 was satisfied by the Service the PEB did not invoke the VASRD Section 4.129 stipulation for a minimum 50 percent rating.  The SRP concluded that PTSD with the attendant Gulf War stressors was not Service ratable and that no “highly stressful event” was apparent from the period of interim service or the 2003 mobilization; the SRP agreed that application of VASRD Section 4.129 was appropriately not recommended in this case.  Having arrived at the above conclusion, the SRP turned to deliberations regarding the fairness of the service’s 30 percent TDRL rating for the MDD condition. 

7.  The SRP agreed that a 100 percent recommendation for total occupational and social impairment at the time of TDRL placement was not indicated.  The VA’s support for its unemployability determination was not on the basis
of MH impairment (notwithstanding the conflict with the conversion vs. seizure diagnosis as elaborated).  A 70 percent recommendation (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) was likewise not supported given that the evidenced deficiencies were confined chiefly to occupational limitations and not across the spectrum required by the rating description. 

8.  The SRP deliberated a 50 percent recommendation (occupational and social impairment with reduced reliability and productivity) versus the PEB’s 30 percent determination (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”).  Although there were deficiencies in occupational and social functioning at the time of TDRL placement, the applicant was able to fill a leadership position in his medical holding company; his relationship with his wife was healthy; and, he was active in his church and community.  

9.  The SRP noted the dominant occupational impairments as corroborated by the VA and a significant contribution to the weak Global Assessment Functioning (GAF) assignment as acknowledged by the MEB psychiatrist were related to factors not intrinsic to the ratable psychiatric impairment, and it was noted that the VA’s purely VASRD Section 4.130 based rating was 30 percent.  Additionally the 50 percent rating description elaborated reference symptoms of flat affect, stereotyped speech, frequent panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships, few of which were in evidence.   The SRP agreed, mindful of VASRD Section 4.3 (reasonable doubt), that there was insufficient cause to recommend a change in the PEB’s TDRL rating for MDD.

10.  The SRP finally considered if the service permanent rating of 70 percent was fairly assigned IAW VASRD Section 4.130; e.g., if a 100 percent rating recommendation was justified.  Although the Service psychiatrist opined that there was total occupational and social impairment at the time of permanent retirement the examination itself described improving symptoms, no acute findings on the mental status examination (MSE), and only moderate impairment on the GAF scale.  As previously elaborated, there were significant non-MH factors contributing to the civilian unemployability, and it is noteworthy that it was confined to the occupation of truck driver.  The applicant retained social skills and there was no evidence that he would have encountered lost work days due to MH impairment in alternative (albeit modest) occupational endeavors.  Furthermore, the 100 percent rating description examples were in no way consistent with the clinical details related in the final TDRL evaluation. 

11.  After due deliberation in consideration of the preponderance of the evidence,  with deference to reasonable doubt, the SRP concluded that there was insufficient cause to recommend a change in the PEB’s permanent rating for the MH condition.

12.  The available evidence shows the SRP’s assessment should be accepted.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  _X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.  




      __________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)                                  AR20140010918



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