IN THE CASE OF:
BOARD DATE: 17 September 2014
DOCKET NUMBER: AR20140014433
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 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, 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 the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) section 4.129 should be applied using code 9413 with a rating of 50 percent during a constructive Temporary Disability Retired List (TDRL) of 6 months, followed by no change to the 50 percent permanent retirement rating.
2. The SRP considered the appropriateness of changes in the applicant's MH diagnoses; Physical Evaluation Board (PEB) fitness determination; and if unfitting, whether the provisions of VASRD section 4.129 were applicable; and whether a disability rating recommendation in accordance with VASRD section 4.130 was made.
3. The SRP noted while the informal PEB applied the diagnosis of anxiety disorder as the unfitting diagnosis with a Medical Evaluation Board (MEB) diagnosis of depression with insomnia as not unfitting, the VA Compensation and Pension examination determined Axis I to have been depressive disorder not otherwise specified (NOS) and anxiety disorder NOS with the VA rating for anxiety disorder including the claimed depression and insomnia. There was not a change in the applicants diagnosis. Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.
4. The SRP considered the applicant's MH diagnoses at the time of the applicant's retirement. The SRP concluded that there was not a preponderance of evidence to change the MH diagnoses from those adjudicated by the PEB, although the SRP considered all MH symptoms from all diagnoses for rating.
5. The SRP also addressed the application of VASRD section 4.129 in its rating recommendations, noting that independently of the accepted PEB diagnosis of anxiety disorder, VASRD section 4.129 does not specify a diagnosis of PTSD; rather, it states mental disorder due to a highly stressful event."
6. The SRP unanimously determined that the provisions of VASRD section 4.129 were applicable for the unfitting MH conditions. The SRP therefore recommends a 6-month period of constructive TDRL in accordance with (IAW) VASRD section 4.129 with a rating of 50 percent for the applicant's MH conditions. A 50 percent VASRD section 4.130 rating was supported at that time and no rating higher than the minimum 50 percent VASRD section 4.129 rating were supported by the evidence. The permanent rating at the end of the
6-month constructive TDRL period was then deliberated IAW VASRD §4.130. The post-retirement VA exams supported the VAs continued 50 percent rating and no MH rating higher than 50 percent was supported by the evidence.
7. The available evidence shows the SRP's assessment should be accepted.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____X____ ____X____ ___X_____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reflecting a rating of 50 percent rating during a 6-month constructive TDRL.
2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the higher than 50 percent permanent 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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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140014433
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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