BOARD DATE: 8 October 2014
DOCKET NUMBER: AR20140015402
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 there should be no change to the applicant's temporary retirement determination.
2. The SRP noted that Post-Traumatic Stress Disorder (PTSD) was considered as one of the applicant's MH diagnosis throughout the Pilot Disability Evaluation System (PDES)/Integrated DES, and the final Physical Evaluation Board (PEB) included substantively the same MH diagnoses as the Department of Veterans Affairs (vA); therefore, the applicant does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.
3. The SRP determined that since the applicants final service adjudication has not yet been effected, their sole responsibility in this case is assessing the fairness of the service Temporary Disability Retired List (TDRL) MH rating. The SRP determined the proposed VA PDES rating that indicated a 50 percent DES PTSD rating was warranted, while for VA rating purposes combining PTSD and Traumatic Brain Injury (TBI) for a 70 percent rating. The PEB adopted the VAs 70 percent combined MH/TBI rating coded 9411-8045 (PTSD/TBI) which included the MH-type symptoms from the TBI condition. The PEB stated the disability description was PTSD with comorbid major depressive disorder and chronic pain disorder and the PEB separately adjudicated that TBI was not unfitting. The non-MH TBI symptoms (post-concussive headaches, etc.) were separately rated by the VA, were not unfitting by the PEB, and were not within scope of the SRP. Since all of the MH-type symptoms potentially attributable to TBI were considered in the PEBs and VAs 70 percent rating, any categorization of TBI as unfitting or not unfitting was considered moot for MH rating determination.
4. The SRP considered the extent that cognitive or other MH-type impairment from TBI overlapped with the VA Schedule for Rating Disabilities (VASRD) section 4.130 criteria for MH rating and given that such impairment could not be extricated without undue speculation. The disability attendant to TBI (excluding non-MH symptoms) will be subsumed in the SRPs MH rating recommendation (as they were in the VA and PEB coding and rating determinations). The source VA exam indicated an inability to clearly apportion the MH symptoms of PTSD from the MH-type TBI symptoms. Adopting the combined PTSD/TBI 70 percent VA rating was adjudged as well supported and in the applicants favor.
5. The SRP also considered whether the VASRD section 4.130 criteria for a higher 100 percent rating may have been reasonably satisfied by the evidence at TDRL placement. The VASRD section 4.130 description for a 100 percent rating is total occupational and social impairment, elaborating reference symptoms of gross perceptual disturbance, persistent delusions or hallucinations, grossly inappropriate behavior, persistent suicidal or homicidal threat, deficiencies with activities of daily living and hygiene, disorientation, and memory loss of intimate details.
6. The SRP noted that the preponderance of the applicant's record did not show evidence or symptoms to support the disability picture envisioned by the higher 100 percent rating criteria, even with consideration of all MH-related symptoms that overlapped with the TBI condition. The SRP agreed that a recommendation for a 100 percent MH TDRL rating had an insufficient basis for support.
7. After due deliberation in consideration of the preponderance of the evidence, the SRP agreed there was insufficient cause to recommend a change in the PEBs 70 percent TDRL-entry rating for the applicants MH conditions. Additionally, the SRP determined that the applicant should remain on the TDRL awaiting final Service determination.
8. 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 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) AR20140015402
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