IN THE CASE OF:  	  

		BOARD DATE:  10 September 2014	  

		DOCKET NUMBER:  AR20140013449 


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 MH 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 recommend by unanimous vote that the applicant's prior MH rating determinations be modified to reflect a Temporary Disability Retired List (TDRL) entry at 50 percent for his MH condition, for a combined TDRL entry rating of 60 percent and a permanent MH disability rating of 70 percent, for a combined 80 percent permanent disability retirement rating.

2.  The SRP considered the appropriateness of changes in the applicant's MH diagnoses; the physical evaluation board (PEB) fitness determination; and if unfitting, 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 also considered the applicant was diagnosed with and was being treated for anxiety disorder beginning at the time of entry into the Disability Evaluation System (DES) and that diagnosis was eventually changed to Post-Traumatic Stress Disorder (PTSD) and recurrent major depressive disorder (MDD) with psychotic features due to post-separation worsening.  Therefore, the applicant’s case did not meet the inclusion criteria of the Terms of Reference of the MH Review Project.

4.  The SRP noted the disability associated with any psychiatric condition, regardless of the diagnosis, was subsumed under a single rating using the same criteria in accordance with (IAW) VASRD Section 4.130.  The formal PEB (FPEB) TDRL entry adjudication occurred before the promulgation of the National Defense Authorization Act 2008 mandate for Department of Defense (DOD) adherence to VASRD Section 4.129 and the service did not apply VASRD Section 4.129.  

5.  The SRP, IAW Department of Defense Instruction (DoDI) 6040.44 and current DoD guidance (which directed application of VASRD 4.129 to all Board cases when appropriate), agreed that the provisions of VASRD Section 4.129 were applicable in this case, noting the specific association of the applicant’s MH diagnoses with his combat experience, and therefore recommended a minimum 50 percent rating.  
6.  The SRP next considered if there was evidence for a VASRD Section 4.130 rating higher than the VASRD Section 4.129 mandated 50 percent rating at TDRL entry.  The SRP deliberated on assigning relevant probative value to examinations near the time of TDRL placement.  The medical evaluation board (MEB) narrative summary (NARSUM) was 8 months prior to TDRL entry and the VA Compensation and Pension (C&P) was much further remote after TDRL entry.  The SRP agreed that the NARSUM examination, having temporal continuity nearest TDRL entry, therefore had a higher probative value for rating impairment at the time of TDRL entry.

7.  The SRP noted the higher 70 percent rating prescribed “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms.”  Near the time of TDRL entry, there was no evidence the applicant had suicidal ideation, obsessional rituals, illogic speech, near continuous panic attacks, abnormal impulse control, poor/neglect of personal hygiene, or depression to a degree of non-independent function.  

8.  The SRP agreed that the examiner’s description of “mild” in regard to occupational and social impairment is not nearly equivalent to the 70 percent criteria of “difficulty in adapting to stressful circumstances at work and or the inability to establish and maintain effective relationships.”  The SRP also agreed the intensity or degree of the applicant’s symptomatic characteristics near the time of TDRL entry did not rise to the 70 percent level. 

9.  The SRP agreed the evidence did not support a TDRL entry rating higher than the recommended retroactive VASRD Section 4.129 mandate of 50 percent.  The SRP also considered if there was evidence for a VASRD Section 4.130 rating higher than 50 percent at time of permanent disability retirement based upon the final TDRL examination dated 16 December 2011 (10 months pre-TDRL exit) and the VA C&P exams done on 1 December 2011 and 18 June 2012.  

10.  The SRP extensively deliberated between 50 percent (the PEB’s final rating) or 70 percent.  The SRP agreed that the final examination findings of significant PTSD symptoms coupled with psychotic symptoms of delusional thoughts and panic disorder with agoraphobia did not correlate with the TDRL examiner’s conclusion of the applicant’s functional impacts as “reduction of reliability and
productivity associated with continuous difficulty in establishing and sustaining effective work and social relationships,” which was cited verbatim from the 50 percent rating criteria. 


11.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded the applicant’s impairments at TDRL removal did rise to the level of the 70 percent rating criteria based on post-separation worsening while on the TDRL.

12.  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 his prior determination to reflect TDRL entry at 50 percent for his MH condition, for a combined TDRL entry rating of 60 percent and a permanent MH disability rating of 70 percent, for a combined 80 percent permanent disability retirement rating.





      __________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)                                  AR20140013449



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