IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150019110 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 Department of Defense (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 DoD 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 MH 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 be no change of the applicant’s disability and separation determination. 2. The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military pilot disability evaluation system. Diagnosis of cognitive disorder not otherwise specified (NOS) was rendered during the disability evaluation system (DES) process. The SRP agreed that there were no inappropriate changes in diagnosis to the applicant’s possible disadvantage while processing through the DES. Therefore, the applicant did not meet the inclusion criteria in the Terms of Reference (TOR) of the MH Diagnosis Review Project. 3. The SRP directed attention to its rating recommendation based on the above evidence, which must accommodate the DoD Instruction (DoDI) 6040.44 requirement that its recommendations be premised on the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time of separation. The only available code for rating traumatic brain injury (TBI) in 2005 was code 8045 (brain disease due to trauma). Since its interpretation was a fundamental consideration in this case, it is excerpted below: Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerveparalysis, etc., following trauma to the brain, would be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045–8207)…purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, would be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 4. The evidence clearly shows that the applicant’s ratable disability, including the mild psychiatric symptoms, was a direct consequence of TBI. The SRP agreed that the psychiatric disability could not be separately rated, or invoked to achieve a higher rating under code 8045, and remain in conformance with the VASRD in effect. The SRP noted during the interim period between placement on temporary disability retired list (TDRL) and removal from the TDRL, examiners diagnosed headaches and post-traumatic stress disorder (PTSD). There was moderate impairment in visual tracking and processing speed. The physical evaluation board (PEB) directed a VASRD code change from 8045-9304 (brain disease due to trauma rated as dementia) to 8045 (residuals of TBI). The PTSD condition was noted to be comorbid with the cognitive disorder. The PEB noted the PTSD condition was not noted at the time of placement on the TDRL but "these conditions (PTSD and TBI) were so entwined as to defy separate ratings." The PEB rated the facets of TBI in accordance with "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" and the ratings for each. Rating occured by assigning a 100 percent evaluation if "total" was the level of evaluation for one or more facets. If no facet was evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The PEB rated the facet for neurobehavioral effected as a "3," consistent with a 70 percent rating 5. The SRP considered if there was evidence for a VASRD, section 4.130 rating higher than 70 percent at the time of TDRL removal. Since no facet was rated as "total," there was no facet that met criteria for a 100 percent rating. The applicant reported he had been unemployed since separation. There was a reported history of homicidal thoughts and plan directed towards his ex-wife. There was no report of legal problems. There was no report of domestic violence or violence outside of the home. His mental status exam (MSE) recorded no persisting danger of hurting himself or others, noted no evidence of hallucinations or delusion, and no issues in communication or hygiene that would meet the criteria for a 100 percent disability rating. The symptoms had stabilized with no hospitalizations and no recorded visits to the emergency room for MH issues. 6. After due deliberation in consideration of VASRD, section 4.3, the SRP concluded there was insufficient cause to recommend a change in the PEB adjudication of the applicant’s permanent retirement rating of 70 percent for the MH condition. 7. 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 that 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) AR20150019110 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1