BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150010213 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 reconsideration of his earlier request for review of the military disability evaluation of his mental health condition for a change in his physical evaluation board (PEB) disability percentage. 2. The applicant states: * the Board did not consider all the evidence that existed in his Department of Veterans Affairs (VA) records from 2003 through 2013 * the Board noted the diagnoses of major depressive disorder, anxiety disorder (not otherwise specified), and parasomnia were forwarded to the PEB, but the diagnoses of organic sleep disorder and circadian sleep disorder by the VA were not considered * the Board stated an advisory opinion was obtained from the Physical Disability Board of Review (PDBR) Special Review Panel (SRP) and that he was provided a copy, but he has no recollection of this opinion * he is unaware of what the psychiatrist's findings at the Temporary Disability Retirement List (TDRL) exit examination were or how they were inconsistent, but he remembers the psychiatrist stating she may have been hasty in deciding to remove him from the TDRL after the first required evaluation, just 17 months after placement on the TDRL * the Board notes he was a college student able to maintain a grade point average of 3.66 at the time of his TDRL exit examination, which is evidence of excelling academically despite inconsistent mental health treatment and use of psychotropic medication * the VA was unable to provide him with consistent mental health treatment during that period due to frequent provider turnover * the Board is suggesting one cannot be depressed and simultaneously excel, whereas he maintains that a 4.0 grade point average would be a true representation of excelling * had he not been lacking physically and mentally at the time, he could have maintained a 4.0 grade point average since college presented little challenge for him and was even somewhat therapeutic since he could set his own schedule with few restrictions * although maintaining a grade point average above 3.6 took little intellectual effort, it took all the intellectual effort he could muster because of his abnormal sleep habits that interfered with his ability to meet the standards * while attending college may be considered one's occupation, it in no way compares to the demands of a military career and when his curriculum became demanding, special accommodations such as giving him extra time to complete assignments were made to help him succeed * to reevaluate his performance or impairment comparing lower university standards to higher military standards is unfair – a better comparison would be how he functioned in the military compared to his failed attempts at various occupations over the years * to suggest that his ability to complete his degree in a timely fashion or gain admittance to graduate school shows he is not impaired is misleading – he took 4 years to complete a degree at a school known as a diploma mill, even after his military service credited him with 1 year of school * the standards for graduate school admission were nonexistent * he did engage in mental health treatment while in college and was instructed to engage in activities that were inherently therapeutic and incompatible with depressive states, such as getting out of the house and exercising, which he did to the best of his ability * to suggest that by engaging in these activities as instructed he was not depressed is reprehensible * he struggles to engage in these therapeutic activities and believes his depression is most likely attributed to sleep apnea and sleep deprivation * his only sources of income at the time were the GI Bill, his VA disability, vocational rehabilitation benefits, and a loan from his parents – he could not maintain a job * the Board determined his 10-percent disability rating was appropriate as there was no evidence of social impairment, but the Board does not take into account the fact that he has less than three people he counts as friends and has little contact with immediate family members * he attempted suicide in 2006 and this was not considered by the Board * he visited the Fort Sill emergency room in 2006, yet there is no record of it * he left the emergency room without receiving help because he had no desire to waste his time any further in the waiting room – he could easily have told the attending social worker he was a threat to himself in order to have a hospitalization on record * he later attempted suicide * the Board states there were no legal issues, but he had several legal issues, to include being behind in his child support payments by $50,000.00 which caused him to file for bankruptcy and triggered his entire separation pay to be directed to the child support enforcement agency * he would like it noted that he remained on the TDRL for no more than 19 months, which falls very short of 5 years * two sleep studies were conducted in 2007 showing he has obstructive sleep apnea, warranting a 50-percent disability rating from the VA * had a sleep study been conducted prior to his discharge, he would have been diagnosed with obstructive sleep apnea instead of having his sleeping difficulties attributed to depression * he was cast into poverty while attempting to serve his country honorably * he received the PEB rating of 30 percent after months of counseling by a psychiatrist and psychologist who determined his condition was disabling * the physician conducting the TDRL examination took no more than 10 minutes to decide he should be removed from the TDRL * though the outward claim was that the mission was to care and provide for Soldiers, he regularly experienced resistance from many of the social workers questioning his motives * he believes the attending physician used his claim that he was not taking medication as an excuse to remove him from the TDRL, yet he was under no obligation to take medication and not under a treatment plan from a doctor * he was on his own without medical supervision while on the TDRL * he experienced unwanted side effects while taking Prozac without benefits, so he discontinued its use * there was not a psychiatrist or primary care physician to prescribe him an alternative – he saw a psychiatrist on the Air Force Base in New Mexico who couldn't do anything at the time due to his non-active duty status * once placed on the TDRL, he was unaware of his TRICARE benefits or how to use them and had not yet accessed the VA system * he believes he was prematurely removed from the TDRL as his mental health diagnosis was changed and he should have additionally been diagnosed with sleep apnea * he maintains his sinus cavities are constantly congested and chronically sensitive to and irritated by most airborne particles, warranting a 30-percent disability rating for sinusitis * while he has been successful at finding employment, he has been unsuccessful at maintaining employment as a direct result of his depression and sleep apnea 3. The applicant provides: * ABCMR Record of Proceedings, dated 11 June 2014 * letter from the Department of Defense (DOD) PDBR, dated 30 December 2013 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140007640 on 11 June 2014. 2. After prior periods of active and inactive service, the applicant enlisted in the Regular Army on 27 March 2000 as a saxophonist in the Army Band. 3. He developed mental health symptoms diagnosed as depression in August 2001. The depression could not be adequately rehabilitated to meet the requirements of his military occupational specialty, thus he was issued a permanent physical profile rating of 3 and referred for a medical evaluation board (MEB). The MEB Narrative Summary listed major depressive disorder, anxiety disorder (not otherwise specified), and parasomnia as medically unacceptable conditions. 4. The MEB forwarded these conditions to the PEB as medically unacceptable. The initial PEB convened on 28 August 2002, evaluated the major depressive disorder with associated anxiety as unfitting, assessing a rating of 30 percent, applying the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9434 (Major Depressive Disorder). The parasomnia from the MEB was not evaluated as unfitting. The applicant concurred with the PEB proceedings. 5. Subsequent to the PEB findings and rating, he was placed on the TDRL under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), effective 6 November 2002. 6. A VA Rating Decision, dated 18 February 2003, assigned him a rating of 30 percent under VASRD code 9433 (Dysthymic Disorder), a mild but chronic form of depression. Neither the MEB nor the PEB diagnosed him with dysthymic disorder, but rather major depressive disorder. 7. In April 2004, he underwent a TDRL reexamination in which his major depressive disorder was found to be without psychotic features. A final PEB convened on 4 May 2004 based on the above-mentioned TDRL reexamination. His major depressive disorder was found to be unfitting and he was assigned a 10-percent disability rating, applying VASRD code 9434. The PEB stated his impairment for social and industrial adaptability was more accurately described as mild, not definite. His condition was adjudicated in accordance with DOD Instruction 1332.39, paragraph 6.1.3, which provides for a reduced rating when there is evidence of failure to comply with prescribed treatment. The applicant non-concurred with the reduced rating, submitting a rebuttal to the PEB. Both the PEB and the U.S. Army Physical Disability Agency upheld the final decision. The applicant was released from the TDRL in May 2004, retaining VASRD code 9434. 8. On 15 May 2013, he applied to the PDBR SRP for a review of the military disability evaluation of his mental health condition. On 6 May 2014, the PDBR SRP concluded the following: a. Based on the considered appropriateness of changes in the mental health diagnoses, the PEB fitness determinations, and the applicability of the provisions of the VASRD, section 4.129 (Mental Disorders Due to Traumatic Stress), and section 4.130 (Schedule of Ratings – Mental Disorders), no change to the applicant's disability and separation was recommended. b. While the diagnoses changed during the Disability Evaluation System process, the changes were not to the applicant's disadvantage. c. Major depressive disorder represents a definitive diagnosis and the diagnosis of anxiety disorder (not otherwise specified), falls within the spectrum of mood disorders; therefore, a separate diagnosis of anxiety is not warranted. d. No mental health diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process; therefore, he did not meet the inclusion criteria in the Terms of Reference of the Mental Health Review Project. e. There was not sufficient evidence to support a conclusion that a highly-stressful event severe enough to bring about the veteran's release from active military service occurred; thus the application of VASRD, section 4.129, is not appropriate in this case. f. As the applicant was rated 30-percent disabled by both the PEB and the VA at the time of his TDRL entry, the entry rating was reexamined considering the provisions of VASRD, section 4.130, for a 50-percent disability rating. The PDBR SRP determined that no change in the PEB rating was warranted at the TDRL entry because the evidence of record did not support a 50-percent disability rating. g. The disability rating at TDRL exit was then reexamined using the provisions of VASRD, section 4.130, for a 70-percent, 50-percent, 30-percent, and 10-percent rating, disregarding the DOD Instruction 1332.39 referenced in the PEB to reduce the rating to 10 percent, as that instruction had since been rescinded. h. The 70-percent disability rating requires occupational and social impairment with deficiencies in most areas which was not supported by the evidence. i. The 50-percent disability rating requires occupational and social impairment with reduced reliability and productivity which was also not supported by the evidence. At the time of the TDRL exit examination, the applicant was a full-time college student, excelling academically in the absence of consistent mental health treatment and the use of psychotropic medication. He successfully completed college and his performance was sufficient to obtain admission to graduate school. There was no evidence of emergency room visits, psychiatric hospitalizations, known legal issues, reports of domestic violence, and no evidence of social impairment. The evidence did not support this rating. j. The descriptions for both the 30-percent disability rating and 10-percent disability rating were then considered. The 30-percent disability rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. The panel determined the evidence did not support this rating. k. The 10-percent disability rating calls for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The panel determined the performance evidenced was best described by this 10-percent disability rating. After due deliberation, considering all the evidence available and mindful of VASRD, section 4.3 (Reasonable Doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the mental health condition at either the TDRL entry or exit. 9. A letter from the PDBR, dated 6 May 2014, addressed to the applicant provided him with a copy of the PDBR SRP advisory opinion regarding his request for review of his previously-assigned mental health diagnosis made by the Disability Evaluation System. 10. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. The TDRL is used in the nature of a "pending list." It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. b. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed. In addition, the condition must be determined to be temporary or unstable. c. A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. d. Medical examiners and adjudicative bodies will carefully evaluate each case. They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits. Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, U.S. Code, section 1210. 11. The VASRD is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis on the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. a. VASRD, section 4.129, states that when a mental disorder that develops in service as a result of a highly-stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6 month period following the veteran's discharge to determine whether a change in evaluation is warranted. b. VASRD, section 4.130, states the nomenclature employed in this portion of the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). Rating agencies must use this manual to apply the general rating formula for mental disorders in section 4.130. The schedule for rating for mental disorders lists code 9434 as major depressive disorder, consistent with the DSM-IV. 12. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reconsideration of his earlier request for review of the military disability evaluation of his mental health condition for a change in his PEB disability percentage was carefully considered. 2. Records indicate he was properly discharged from the Army under the provisions of Army Regulation 635-40, chapter 4, after referral to an MEB and subsequent PEB which found he did not meet medical retention standards for the unfitting condition of major depressive disorder. Parasomnia was not considered unfitting. 3. He was properly placed on the TDRL with a disability rating of 30 percent and reevaluated within 18 months of placement on the TDRL in accordance with regulatory guidance. Upon reexamination, his condition was determined to be more accurately described as mild, not definite. He remained unfit to reasonably perform the duties required by his previous grade and military specialty, but his condition was considered sufficiently stable for final adjudication and he was removed from the TDRL with a disability rating adjustment to his major depressive disorder of 10 percent. 4. The applicant appealed his removal from the TDRL and disability rating adjustment to 10 percent. The PEB decision was subsequently reviewed and upheld by both the PEB and the U.S. Army Physical Disability Agency upon appeal. 5. There is no indication that the medical records and evidence supplied by the applicant were not fully and properly considered by the PEB upon exit from the TDRL, the U.S. Army Physical Disability Agency upon appeal, and the PDBR SRP in their review to assess his diagnosis and rating. The disability percentage awarded by the PEB reexamination prior to his TDRL exit is consistent with the rating guidelines within the VASRD for his diagnosed condition. 6. The fact that the VA granted him a service-connected disability rating of 30 percent for dysthymic disorder (depression and sleep paralysis) after his discharge from active duty and removal from the TDRL – which were either not diagnosed, found unfitting, or given the same disability rating by the PEB – does not prove an error on the part of the Army. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140007640, dated 11 June 2014. ____________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) AR20150010213 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150010213 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1