IN THE CASE OF:	  

		BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140018937 


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.  Title 10, U.S. Code, section 1209 states that any member of the armed forces who has at least 20 years of service (for a reserve retirement) and who would be qualified for disability retirement but for the fact that his disability is less than      30 percent may elect, instead of being separated, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive (reserve) retired pay upon becoming 60 years of age.

4.  Title 10, U.S. Code, section 1212(c) states the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

5.  The Defense Finance and Accounting Service (DFAS) validated that the applicant is currently receiving retirement pay.

6.  In the processing of this case, an advisory opinion was obtained from the PDBR SRP and the applicant was provided a copy.

7.  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 applicant’s prior determination be modified to reflect the unfitting major depressive disorder (MDD) condition was not determined to have existed prior to service and should be rated at 10 percent.

2.  The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military Disability Evaluation System (DES) pilot program.  The evidence of the available records recorded no inappropriate changes in diagnoses to the applicant’s possible disadvantaged during the DES process.  Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

3.  The SRP noted that the Physical Evaluation Board (PEB) adjudicated the condition as existing prior to service, not permanently aggravated by service and therefore, did not rate the condition.  The SRP undertook a careful review of the record in evidence, and noted every entry recorded the applicant’s symptoms began after notification of upcoming deployment.  One entry indicated he had a 


prior history of anxiety and depression.  Although the applicant did not have a documented history of a psychiatric diagnosis or treatment, it is not unreasonable to presume the apparent sudden development of severe symptoms, were the product of an evolving condition, precipitated by the stressor of an anticipated deployment.  However, such a conclusion invokes Department of Veterans Affairs Schedule for Rating Disabilities VASRD section 4.3. 

4.  The SRP agreed the applicant’s symptoms began within 180 days of an identified condition; however, the record did not clearly demonstrate the symptoms reported were related to a “chronic disease.”   There was only evidence to support the current diagnosis of MDD.  The Medical Evaluation Board (MEB) psychiatrist indicated the condition did not exist prior to service.  The diagnostic criteria for MDD require that symptoms be present for a consecutive 2 weeks.  There was no evidence of a documented MDD prior to mobilization.  Therefore, the SRP concluded there was insufficient evidence to support the condition existed prior to service.

5.   The SRP agreed that the evidence supported PEB adjudication of unfitting MDD.  The SRP next considered evidence supporting the application of VASRD section 4.129, and determined it was not applicable in this case.  The SRP considered evidence for a VASRD section 4.130 rating.  The SRP concluded his level of impairment best reflected the 10 percent disability rating.  

6.  After due deliberation, considering all of the evidence and mindful of VASRD section 4.3, the SRP concluded that there was sufficient cause to recommend a change in the PEB adjudication for the MH condition.  The SRP recommended finding that unfitting MDD condition was not determined to have existed prior to service and should be rated at 10 percent.

7.  However, the applicant is currently over age 60 and is drawing Reserve retired pay.  If his records are corrected to show he was discharged with severance pay he would lose his retired pay and, since he is almost certainly also drawing VA disability, would then lose his severance pay.

8.  Therefore, the available evidence shows the SRP's assessment should not be accepted because if the applicant records are changed to show he was discharged with severance pay at 10% then he would not be entitled to the retired pay which he is currently receiving.



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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                  AR20140018937



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1