IN THE CASE OF:
BOARD DATE: 10 September 2014
DOCKET NUMBER: AR20140013439
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 applicants 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 applicants case, the SRP determined by unanimous vote that there should be no change of the applicants Temporary Disability Retired List (TDRL) and retirement determinations.
2. The SRP reviewed the records for evidence of inappropriate changes in
diagnosis of the MH condition during processing through the military Disability Evaluation System (DES). The evidence of the available records shows the diagnosis of cognitive disorder not otherwise specified (NOS), secondary to Traumatic Brain Injury (TBI), was rendered during processing through the DES; however, this did not constitute an MH diagnosis but rather a neurologic (brain trauma) diagnosis. The evidence of the available records recorded no MH diagnosis was rendered and, therefore, there were no inappropriate changes to an MH diagnosis during the DES process. Therefore, the applicant did not meet the inclusion criteria in the Term s of Reference of the MH Review Project.
3. The SRP agreed that the physical evaluation board (PEB) adjudication of unfitting cognitive disorder NOS secondary to TBI was supported by the evidence, and the provisions of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129 were appropriately not applied at TDRL entry. The PEB applied the VASRD rating criteria in effect at the time of TDRL entry.
4. The VASRD rating of TBI, 8045, at the time of TDRL entry allowed for the rating of subjective TBI complaints under 8045-9304, a maximum rating of 10 percent not to be combined with other TBI ratings. The SRP considered if there was evidence for an unfitting MH diagnosis for a VASRD Section 4.130 rating higher than 10 percent at time of placement on the TDRL. Although the VA upon reevaluation awarded a 70 percent rating for cognitive disorder NOS as an MH diagnosis, throughout the service treatment record the cognitive disorder NOS diagnosis was rendered secondary to TBI. The neuropsychological evaluations were inconclusive as a result of "questionable effort throughout testing" and there was no evidence of an MH diagnosis which independently met Diagnostic Statistical Manual for Mental Disorders criteria or rose to the level of unfitting for a separate VASRD rating under VASRD Section 4.130.
5. After due deliberation in consideration of the preponderance of the evidence, and in the absence of an MH diagnosis not related to TBI, the SRP concluded that there was insufficient cause to recommend a change in the PEB adjudication for the applicant's cognitive disorder NOS at TDRL entry. Regarding the rating at the time of permanent retirement, the cognitive disorder, NOS was subsumed under VASRD code 8045; facets of cognitive impairment and other residuals of TBI not otherwise classified in effect at the time of permanent separation and was therefore, outside of the SRP scope of review.
6. The available evidence shows the SRPs 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) AR20140013439
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