IN THE CASE OF:	  

		BOARD DATE:	  6 August 2014

		DOCKET NUMBER:  AR20140011587 


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 (IAW) 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 Department of Defense (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 an MH condition during processing through the military disability system.  

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

2.  The SRP reviewed the records for evidence of inappropriate changes in the diagnosis of the MH condition during processing through the military Integrated Disability Evaluation System (IDES).  The available evidence shows no inappropriate changes in the diagnoses to the applicant’s possible disadvantage during the Disability Evaluation System (DES) process.  Therefore, the applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

3.  The SRP agreed that the physical evaluation board (PEB) adjudication of unfitting major depressive disorder (MDD) was supported by the evidence and application of the provisions of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) Section 4.129 were correctly not applied at Temporary Disability Retired List (TDRL) entry.  The SRP considered if there was evidence for a VASRD Section 4.130 rating higher than 10 percent at time of placement on the TDRL.  The higher 30 percent rating required evidence of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events).”

4.  The SRP noted the available treatment records at the time leading up to the TDRL entry recorded no history of suicidal ideation; there were no psychiatric hospitalizations, no aggressive behaviors, no visits to the emergency room for MH issues, no evidence of mood instability, and no recorded panic attacks.  The commander’s statement noted his medications prevented performance of Military Occupational Specialty (MOS) duties, affected his ability to drive a privately own vehicle (POV) or consistently to work an 8-hour shift; however, this did not specify an MH condition.  The commander noted the applicant had no difficulty maintaining a level of attention and focus to carry out and complete tasks in a timely fashion, he was able to relate civilly to supervisors and other workers, had the ability to make basic work related decisions and to communicate effectively with others.  Available treatment records noted the applicant’s unfit determination occurred only in the context of psychotropic medication policy for aviators. 

5.  The SRP noted the VA Compensation and Pension (C&P) examination, a month prior to TDRL placement, recorded the applicant’s report that he had intermittent suicidal thoughts and he reported the thoughts to his therapist; however, he was never seen in the emergency room or hospitalized.  His mental status examination (MSE) was completely normal.  The only other documented MH evaluation prior to the C&P examination occurred in the context of consultation for the pain clinic.  At that evaluation, the psychologist recorded an MSE that was essentially normal.  There was no indication from the record that the MH condition was ever profiled and no MH condition was implicated in the commander’s statement.  Medication profile recorded prescriptions for one antidepressant agent during the period April-October 2007 (a month trial of Sertraline and four prescriptions of Effexor).  In addition to the antidepressant, the applicant received prescriptions for two sedative medications.  

6.  The SRP considered the record in evidence best supported the 10 percent rating and that there was insufficient reasonable doubt (IAW) VASRD Section 4.3) for recommending a higher rating at the time of TDRL entry.  The SRP next considered the rating for TDRL removal.  At the TDRL removal evaluation on
22 September 2010, approximately 23 months after TDRL placement, the applicant reported worsening symptoms of depression since TDRL placement.  He reported feeling depressed all the time and stated depression was worsened by pain and effects of pain pills.  He reported anxiety and sometimes he had panic attacks described as pain and tightness in chest, hot flashes and sweating.  Panic attacks typically occurred either when driving or after a disagreement with his wife.  The frequency of attacks was not recorded. He reported crying frequently, poor sleep and nightmares, about distressing situations that have never happened.  The applicant also reported intermittent suicidal ideation/ passive attempts; but no recorded attempts were made and no visits to the emergency room for MH issues.  

7.  The SRP noted the applicant continued his treatment at the VA where he saw his therapist every 2-3 weeks and he was taking psychotropic medications.  The applicant was unemployed, stated he had one interview but after the prospective employer found out he had a bad back, “It was over.”  He said he tried an online educational program but the program was disorganized and he was not able to get all of the required books.  He spent his time volunteering at his son’s school and providing child care since his wife worked fulltime.  He reported he lost his Mail Box, etc., business after being involved with lawsuits brought on by his sister’s embezzlement.  The MSE noted the applicant was cooperative but manipulative in communications with his wife and seemed to use his symptoms as a way of seeking attention (he had asked if his wife could participate in his evaluation).  His mood was reported as depressed and in affect he was tearful at times, which was opined to seem exaggerated with selfpity.  Judgment and insight were limited and the psychiatrist noted reliability of history was questionable.  

8.  The VA examiner diagnosed MDD and personality disorder not otherwise specified and opined he has transient symptoms of impairment due to depression and his symptoms worsen with periods of significant stress.  A Global Assessment of Functioning (GAF) of 45 was assessed; the psychiatrist opined “70 percent of the applicant’s symptoms were related to depression and 30 percent to personality disorder.”  On the following day of the evaluation, the applicant was seen by a medical evaluation board (MEB) physician who voiced concern after the applicant reported suicidal ideations.  He was sent for a behavioral health re-evaluation that reportedly stated the applicant was manipulative, overly dramatic and not acutely suicidal.  As stated above, the PEB continued the diagnosis of MDD with a permanent disability rating of 30 percent.

9.  The SRP considered the descriptions for the higher rating of 50 percent “Occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  The TDRL psychiatrist noted since the applicant was not working it was difficult to assess occupational impairment and noted he had inadequate social support.  His MSE was negative for mood symptoms, with no evidence of suicidal or homicidal ideation or psychosis.  His judgment was noted as limited but not impaired.

10.  The SRP noted the psychiatrist indicated he was an unreliable historian, and demonstrated manipulative behaviors during the evaluation.  Although the applicant reported panic attacks, there was no recorded frequency and no evidence of problem with cognition.  The applicant was able to care for his children as a child care provider and there was no report of domestic violence or indication of impairment related to caring for his children.  The applicant has been married for 21 years and all of his children were doing well.  Although, he has not worked or returned to school, by the applicant’s report, he has no difficulty with focus, concentration or mobility.  Additionally, he was able to volunteer at his son’s school for drama department projects.  There was no evidence of impaired judgment or thinking.  Although the applicant reported intermittent suicidal ideation, the SRP members noted no attempts were recorded, there were no visits to emergency room for suicidal thoughts or panic attacks, and no history of psychiatric hospitalizations.  The SRP determined that the evidence did not support a rating higher than the 30 percent. 

11.  After due deliberation considering all of the preponderance of the evidence and mindful of VASRD Section 4.3 (reasonable doubt), the SRP concluded that there was insufficient cause to recommend a change in the PEB adjudication for the MH condition at either TDRL entry or exit.

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)                                  AR20140011587



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