BOARD DATE:	  15 October 2014

		DOCKET NUMBER:  AR20140015794 


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 applicant’s 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 comprehension review of the applicant’s case, the SRP recommended by unanimous vote no change in the applicant’s unfitting condition diagnosis, and that her prior separation be modified to reflect she was placed on the Temporary Disability Retired List (TDRL) at 50 percent for a period of 6 months (at minimum 50 percent in accordance with (IAW) the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129 and Department of Defense (DoD) Directive) and then permanently retired with a final 30 percent rating.

2.  The SRP reviewed the records for evidence of inappropriate changes in or
elimination of diagnoses of the MH condition to the possible disadvantage of the applicant during processing through the military Integrated Disability Evaluation System (IDES).  The evidence of the available records showed diagnoses of anxiety disorder not otherwise specified (NOS), depressive disorder NOS, major depressive disorder (MDD), and Post-Traumatic Stress Disorder (PTSD) were rendered.  The SRP determined that the MH diagnoses were eliminated to the applicant’s possible disadvantage in the disability evaluation processing.  Therefore, the applicant did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  

3.  The SRP noted the PTSD diagnosis was listed on the physical examination for the medical evaluation board (MEB) (DD Form 2808) without recorded PTSD symptoms.  Careful review of the treatment records noted the social worker assessed a diagnosis of PTSD; however, there was insufficient clinical evidence to support a PTSD diagnosis because there was no evidence the applicant fully met the PTSD diagnostic criteria.  Both the MEB and the VA examiners specifically noted that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, (DSM-IV-TR) diagnostic criteria for PTSD were not met.   The SRP acknowledged the Compensation and Pension (C&P) examiner’s assessment of MDD; however, there was insufficient clinical evidence to support that the DSM-IV diagnostic criteria were met for the MDD.  The SRP agreed the diagnoses of anxiety disorder NOS and depressive disorder NOS were the appropriate diagnoses and that the physical evaluation board (PEB) adjudication of unfitting anxiety disorder NOS and depressive disorder NOS was supported by the evidence. 

4.  The SRP next considered if the evidence supported the application of VASRD Section 4.129.  The SRP acknowledged the VA’s decision that the application of VASRD Section 4.129 was omitted in error when the VA made its original proposed rating to the PEB for the applicant’s unfitting MH condition.   The SRP observed the correction was made after the PEB adjudication; therefore, the PEB was not given the opportunity to address the application of VASRD Section 4.129.  The SRP concluded, IAW Integrated Disability Evaluation System (IDES) protocol, the rendering of a VASRD Section 4.129 application was germane and must be considered in the applicant’s case. 

5.  The SRP in compliance with the provisions of VASRD Section 4.129 must apply a constructive TDRL period of 6 months following separation and assign a disability rating of not less than 50 percent with subsequent fitness and ratings based on the applicable evidence.  The SRP considered if there was evidence for a VASRD Section 4.130 rating higher than 50 percent.  There was no evidence in the record of recurrent suicidal behaviors, no frequent visits to the emergency room for MH treatment, no recurrent psychiatric hospitalizations and no impairment in thinking or areas of occupational functioning outside of the military environment at the time of medical retirement.  All mental status examinations (MSEs) were essentially normal. 

6.  The SRP agreed the record in evidence did not support a higher than 50 percent rating at TDRL entry (presumed) and there was insufficient reasonable doubt (IAW VASRD Section 4.3) for recommending a 70 percent TDRL entry rating.  The SRP agreed that at the end of the constructive TDRL period the record adequately demonstrated that the applicant continued to meet the diagnostic criteria for anxiety disorder NOS and depressive disorder NOS.  She remained symptomatic.  The VA clinic entry dated 26 February 2013 indicated the applicant had not received treatment in 11 months (since 2 months post-initial C&P examination) and requested to have her medication reinstituted.  She noted she had divorced and had been in an abusive relationship with her boyfriend, the father of her 4-month-old child.  She was not employed.  She continued to report nightmares, anger, irritability and panic attacks. 

7.  The SRP noted she had not received treatment for nearly a year, there were no visits to the emergency room (ER), she had not engaged in suicidal behaviors, and was not hospitalized psychiatrically.  There was no report of legal problems.  Although the applicant reported an incident involving her pointing a gun at her brother in December 2011, there were no other reports of domestic violence or violence in the community.  Her MSE recorded no impairment in judgment, noted no evidence of psychosis, affect was not flat, no reported issues with memory or thinking, and no issues in orientation or hygiene.  Her symptoms reflected the criteria for the 30 percent disability rating. 
8.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that the application of VASRD Section 4.129 was applicable in this case.  The SRP further concluded that there was insufficient cause to recommend a change in the PEB adjudication of the applicant’s permanent retirement rating of 30 percent for her MH conditions.

9.  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 the applicant’s prior separation to reflect that she was placed on the TDRL at 50 percent for a period of 6 months (at a minimum 50 percent IAW VASRD 4.129 and DOD Directive) and then permanently retired with a final 30 percent.




      _________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)                                  AR20140015794



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