IN THE CASE OF: BOARD DATE: 6 March 2015 DOCKET NUMBER: AR20140011666 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 a review of the military disability evaluation pertaining to a mental health condition. 2. The applicant states he is now submitting new evidence and is asking for reconsideration of his case. He can also provide Department of Veterans Affairs (VA) records if needed. 3. The applicant provides a psychotherapist evaluation. 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 AR20140001269 on 5 March 2014. 2. The applicant submitted a psychotherapist evaluation, dated 7 June 2014, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board. A licensed psychotherapist states: a. The applicant sought counseling with her and has been seen for mental health therapy since October 2012 on a bi-weekly basis. He presented concerns that the symptoms of post-traumatic stress disorder (PTSD), depression, and anxiety are getting worse. He verbalized concerns regarding decreased functioning. b. He reported self-medicating with alcohol and cigarettes in the past 12 months. His symptoms include flashbacks, lethargy secondary to insomnia, feelings of irritability, anger/rage, difficulty concentrating, and short-term memory difficulties. He also reported isolation due to emotional discomfort. c. In the month prior to his appointment, he had been charged with operating a vehicle while intoxicated, resisting an officer, and disorderly conduct. The additional personal, social, legal, and financial stressors as a result of these events appear to have further exacerbated his emotional and psychological symptoms. He is undergoing therapy and he remains engaged in the process. 3. The applicant's records show he enlisted in the Regular Army on 27 January 2004 and he held military occupational specialty 13B (Cannon Crewmember). He reenlisted in December 2005 and March 2007. He served in Iraq from 22 December 2006 to 28 December 2007 and from 15 September 2005 to 27 January 2006. 4. On 9 October 2009, an informal physical evaluation board (PEB) convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit. The PEB rated his disabilities under the VA Schedule for Rating Disabilities (VASRD) as follows: * VASRD Code 9411, PTSD, 50 percent * VASRD Code 5327, chronic thoracolumbar spinal pain (motor vehicle accident), 20 percent. 5. The PEB determined his impairments were rated at over 30 percent but were such that a permanent evaluation was not possible. Therefore, the PEB recommended that he be placed on the temporary disability retired list (TDRL) with a combined rating of 60 percent with reexamination during July 2010. He was counseled and on 13 October 2009, he concurred with the PEB’s finding and recommendation and waived his right to a formal hearing. 6. He was honorably retired on 3 January 2010 and placed on the TDRL by reason of temporary disability on 4 January 2010, in accordance with paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 5 years, 11 months, and 7 days of active service. 7. On 1 August 2012, a TDRL PEB convened and found him still unfit for duty but the current degree of the severity of his condition had sufficiently stabilized for final adjudication. The PEB rated his disabilities under the VASRD as follows: * VASRD Code 9411, PTSD, 30 percent * VASRD Code 5327, thoracolumbar strain, 10 percent 8. The TDRL PEB recommended permanent retirement with a combined rating of 40 percent. He was counseled and on 15 August 2012, he concurred with the PEB’s finding and recommendation and waived his right to a formal hearing. 9. On 24 August 2012, the U.S. Army Physical Disability Agency published Orders D237-03 removing him from the TDRL on 24 August 2012 and permanently retiring him with a 40 percent rating the next day. 10. On 13 January 2014, he petitioned this Board for a review of his mental health diagnosis. He submitted an application for review and his case was forwarded to the Special Review Panel (SRP) of the Department of Defense (DOD) Physical Disability Board of Review (PDBR) Mental Health SRP with his consent. 11. On 22 January 2014, the PDBR SRP conducted a comprehensive review of his submission and his medical records for evidence of inappropriate changes to the diagnosis of a mental health condition. The SRP determined by majority vote that there should be no change to the applicant's disability and retirement evaluation. 12. The applicant was informed of the PDBR SRP's findings and he was provided a copy of the findings and recommendations to allow him an opportunity to submit comments. He did not respond. 13. On 5 March 2014, the Board accepted the SRP findings and recommendations and denied his request for a change to his mental health evaluation rating. 14. A DOD memorandum, dated 27 February 2013, directed the Service Secretaries to conduct a review of mental health diagnosis for service members completing a disability evaluation process between 11 September 2001 and 30 April 2012 in order to determine if they were disadvantaged by a changed diagnosis over the course of their physical disability process. DISCUSSION AND CONCLUSIONS: 1. The SRP considered if there had been any changes in the applicant’s mental health diagnosis and determined that the PTSD had been consistently documented throughout the applicant’s processing. He was not disadvantaged. 2. The SRP considered the rating of 50 percent assigned for the applicant’s unfitting PTSD at the time of his placement on the TDRL and by a majority vote, determined there was insufficient evidence to support a higher rating. The SRP also considered the rating of 30 percent assigned at the time of his removal from the TDRL and permanent retirement, and again determined there was insufficient evidence to support a higher rating. 3. The applicant now provides a medical document that essentially confirms he exhibits the symptoms of PTSD and is being treated for PTSD. This document confirms what has already been diagnosed, found unfitting, rated, and adjudicated. 4. It is possible the applicant’s symptoms may have worsened after his retirement. It is equally possible his symptoms may have improved with therapy after retirement. Either way, the Amy’s rating is dependent on the existence and severity of the condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 5. An award of a different rating by another agency does not establish error in the rating assigned by the Army's disability system. The VA does not determine medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation. 6. The applicant's physical disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his case. He has not submitted any evidence or argument that would show an error or injustice occurred in his disability processing. Therefore, he is not entitled to the requested relief. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140001269 on 5 March 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) AR20140011666 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140011666 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1