IN THE CASE OF:  	  

		BOARD DATE:  1 October 2014	  

		DOCKET NUMBER:  AR20140014936 


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 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 recommended by unanimous vote that the applicant’s records be corrected to reflect a Temporary Disability Retired List (TDRL) rating of 50 percent rather than 30 percent without change to the previous permanent separation determination. 

2.  The SRP considered the appropriateness of changes (if any) in the applicant's MH diagnoses and provides a remedial recommendation if it was judged that there was any elimination or unfavorable change in an MH diagnosis during the Disability Evaluation System (DES).  The SRP assessed the fitness determination for MH conditions determined to be not unfitting; 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 made rating recommendations in accordance with VASRD Section 4.130 (and VASRD Section 4.129 as appropriate). 

3.  The SRP considered under the Terms of Reference (TOR) of the MH Review Project the elimination or change in diagnosis of Post-Traumatic Stress Disorder (PTSD) under the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, Text Revision (DSM IV-TR) criteria previously elaborated.  Since a diagnosis of PTSD was documented in the records forwarded for DES proceedings, and the diagnosis was changed for PEB rating, the applicant’s case did meet the inclusion criteria in the TOR of the MH Review Project.

4.  The SRP's first charge, under MH Review Project guidelines, was to judge whether a diagnosis of PTSD was unfairly or inaccurately changed during DES proceedings (based on a preponderance of the evidence).  It was noted that although a working diagnosis of PTSD was referenced in the service treatment records (STR), there was no available formal diagnosis of such by an MH provider, nor was there STR documentation of the presence of the requisite DSM IV-TR criteria.  The pre-TDRL psychiatric examiner specifically detailed his rationale for a diagnosis of anxiety disorder and elaborated the absence of the full criteria for a diagnosis of PTSD.  There was no temporally probative psychiatric opinion to the contrary.  The SRP agreed therefore that there was not a preponderance of evidence to support an SRP recommendation for changing the MH diagnosis (anxiety disorder not otherwise specified (NOS)) as adjudicated by the Service.

5.  The SRP also addressed the application of VASRD Section 4.129 in its recommendations, noting that independently of the accepted TDRL diagnosis of anxiety disorder VASRD Section 4.129 did not specify a diagnosis of PTSD; rather it stated "mental disorder due to a highly stressful event."  The record well establishes the absence of preceding psychiatric pathology and the emergence of the MH condition in the aftermath of a combat deployment.  The pre-TDRL psychiatric examiner, in fact, caveated his diagnosis as a manifestation of "confrontation with serious injury and risk of death." 

6.  The SRP agreed that the provisions of VASRD Section 4.129 were satisfactorily supported in this case, and the minimum 50 percent rating directed by VASRD Section 4.129 was indicated for the period of TDRL.  Having concluded that the 30 percent TDRL rating was superseded by the minimum 50 percent rating under VASRD Section 4.129, the SRP next considered whether a higher rating (70 percent 100 percent) could be recommended for the period of TDRL.  Upon considering a 70 percent recommendation under the VASRD Section 4.130 criteria of "occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood"; the SRP agreed that the requirements for a 70 percent rating were not met since at the time of temporary retirement the applicant remained occupationally functional and there was no serious impairment in most areas as specified above. Therefore, the SRP recommended a TDRL rating of 50 percent in accordance with VASRD Section 4.129. 

7.  The SRP next considered whether the VA psychiatric opinion expressed in the Compensation and Pension (C&P) evaluation was sufficient to recommend a change in the final diagnosis of PTSD. Given the lack of corroboration of the reported DSM IV-TR criteria for PTSD elsewhere in the record, and the credible opinion from the TDRL psychiatrist that these criteria were not present at the time of permanent separation, the SRP agreed that there was not a preponderance of evidence in support of an SRP recommendation for a change in the final diagnosis from anxiety disorder.

8.  The SRP finally considered the fairness of the permanent rating of 10 percent for anxiety disorder.  The criteria for a 70 percent rating, as related above, were clearly refuted by the evidence from the VA outpatient TDRL entry and TDRL evaluation, and the SRP considered whether a VASRD Section 4.130 based rating of 50 percent could be supported.  The 50 percent rating specified "occupational and social impairment with reduced reliability and productivity"; elaborating reference symptoms of flat affect, stereotyped speech, frequent       (> weekly) panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships.
The applicant's ability to successfully engage a challenging educational curriculum and his normal relationship and social functioning did not suggest "reduced reliability and productivity," and none of the exampled psychiatric features were manifest. 

9.  The SRP agreed that a 50 percent recommendation was not justified, and deliberations turned to 30 percent vs. 10 percent recommendation.  The 30 percent rating description under VASRD Section 4.130 was "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily)"; elaborating reference symptoms of depression, anxiety, suspiciousness, panic attacks (weekly), sleep disturbance and mild memory loss.  The SRP noted that 10 percent was for "occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or symptoms controlled by continuous medication." 

10.  The SRP determined that the applicant was able to perform satisfactorily in his occupational and academic pursuits, the VA and service psychiatrists documented continuing symptoms (including sleep disturbance) which would logically impede work efficiency, and the VA outpatient provider documented that he was having difficulty concentrating with his course work.   

11.  After due deliberation in consideration of the preponderance of the evidence, the SRP agreed, conceding VASRD Section 4.3 (reasonable doubt), that a fair permanent rating recommendation for anxiety disorder was 10 percent in the applicant’s case.

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 to reflect a TDRL rating of 50 percent rather than 30 percent without change to the previous permanent separation determination.




      _______ _  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)                                  AR20140014936



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