IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20150003882 


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 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 comprehensive review of the applicant’s case, the SRP recommended by unanimous vote application of Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), Section 4.129, with 6 month constructive Temporary Disability Retired List (TDRL) period at a disability rating of 50 percent.  The SRP recommended no change to the physical evaluation board (PEB) adjudication of the permanent retirement rating of 30 percent for the unfitting mental health condition.

2.  The SRP reviewed the records for evidence of inappropriate changes in
diagnosis of the applicant's MH condition during processing through the military Integrated Disability Evaluation System (IDES).  Diagnoses of Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD) (the VA medical evaluation board (MEB)), generalized anxiety disorder (GAD), and cognitive dysfunction secondary to Traumatic Brain Injury (TBI) were rendered during the IDES process.  GAD was not forwarded to the PEB however; this was not to the applicant’s disadvantage because MH diagnoses were equal in severity and functional impact.  Forwarding two anxiety disorders, PTSD and GAD, would represent pyramiding.  The SRP agreed there was no inappropriate changes in diagnosis and determined that the MH diagnoses were not changed to the applicant’s possible disadvantage in the disability evaluation.  Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

3.  The SRP agreed that the PEB adjudication of unfitting MDD was supported by the evidence.  The SRP noted that the PEB assigned a disability rating of 30 percent without application of VASRD Section 4.129 (Mental disorders due to traumatic stress).  The SRP noted the provision was applicable in this case and, therefore, a disability rating of not less than 50 percent for an initial period of 6 months following separation (constructive TDRL).  The SRP considered if there was evidence for a VASRD Section 4.130 rating higher than 50 percent at time of placement on the TDRL.  A disability of 70 percent required occupational and social impairment, with deficiencies in most areas.  There was no record in the evidence of recurrent suicidal or homicidal behaviors, no violent behaviors, no MH hospitalization, and no legal problems.


4.  The commander’s statement dated 11 September 2009 noted the applicant “did not perform duties in his military occupation specialty (MOS) because of limitations in his profile (P3/L3/E2/S3),” with reference to a negative impact of mental health conditions as having trust issues with people he did not know well and shutting himself off to the people when placed in a stressful situation. There was insufficient reasonable doubt (in accordance with (IAW) VASRD Section 4.3) for recommending a 70 percent disability rating.  The SRP considered the record in evidence best supported the 50 percent rating for TDRL entry.

5.  The SRP noted the most proximate source of comprehensive evidence on which to base the permanent rating recommendation 6 months after placement on TDRL in this case was the VA Compensation and Pension (C&P) examination performed on 3 July 2010, a month after separation.  The SRP considered if there was evidence for a VASRD Section 4.130 rating higher than 30 percent at time of placement on the TDRL exit.  Although the applicant worked in an administrative position for the past year prior to separation, at the time of this examination he reported that he spent his time at his medical appointments related to his non-psychiatric disabilities and at home.  The applicant reported an inability to control himself and at times felt assaultive and homicidal; however, there was no history of violence or legal issues.

6.  The SRP also noted the applicant reported that he was able to train new boxers, participate in activities with his children (taking them to the aquarium, museums, and the zoo), had a great relationship with his wife, was seeking custody of his older daughter, and continued to enjoy friendships with his Afghanistan buddies.  The SRP further noted that the applicant was on two psychotropic medications.  The SRP concluded that there was insufficient reasonable doubt (IAW VASRD Section 4.3) for recommending a 50 percent TDRL exit rating and that the record in evidence best supported the 30 percent criteria at TDRL exit. 

7.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that there was insufficient cause to recommend a change in the PEB adjudication of the applicant’s MH condition at the time of permanent retirement.

8.  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 an application of VASRD Section 4.129 with 6 months constructive TDRL period at a disability rating of 50 percent without change to the PEB adjudication of the permanent retirement rating of 30 percent.


UNFITTING CONDITION
VASRD CODE
RATING


TDRL
PERMANENTT
Major Depression
9434
50%
30%
Migraine
8100
30%
30%
Arthritis
5010
10%
10%

COMBINED
70%
60%



      _______ _  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)                                  AR20150003882



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